1
EXHIBIT 2.14
Dated as of December 16, 1999
Between
ROYAL CARIBBEAN CRUISES LTD.,
as the Borrower
and
KREDITANSTALT FUR WIEDERAUFBAU
As the Lender
CREDIT AGREEMENT
US $300,000,000
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Defined Terms 1
SECTION 1.2 Use of Defined Terms 10
SECTION 1.3 Cross-References 10
SECTION 1.4 Accounting and Financial Determinations 10
ARTICLE II
COMMITMENT, BORROWING PROCEDURE AND THE NOTE
SECTION 2.1 Commitment 11
SECTION 2.2 Borrowing Procedure 11
SECTION 2.3 Election of Interest Periods 11
SECTION 2.4 Note 11
ARTICLE III
REPAYMENTS, PREPAYMENTS AND INTEREST
SECTION 3.1 Repayments and Prepayments 12
SECTION 3.2 Interest Provisions 12
SECTION 3.2.1 Rates 12
SECTION 3.2.2 Post-Maturity Rates 12
SECTION 3.2.3 Payment Dates 13
ARTICLE IV
INCREASED LOAN COSTS AND OTHER PROVISIONS
SECTION 4.1 LIBO Rate Lending Unlawful 13
SECTION 4.2 Deposits Unavailable 14
SECTION 4.3 Increased Loan Costs, etc. 14
SECTION 4.4 Funding Losses 16
SECTION 4.5 Increased Capital Costs 16
SECTION 4.6 Taxes 17
SECTION 4.7 Payments, Computations, etc. 19
SECTION 4.8 Setoff 20
SECTION 4.9 Use of Proceeds 20
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1 Drawdown 20
SECTION 5.1.1 Resolutions, etc. 20
SECTION 5.1.2 Delivery of the Note 21
SECTION 5.1.3 Ownership, etc. of Vessels 21
SECTION 5.1.4 Opinions of Counsel 21
SECTION 5.1.5 Closing Fees, Expenses, etc. 21
SECTION 5.1.6 Loan Request 21
SECTION 5.1.7 Certificate of Compliance 21
SECTION 5.1.8 Compliance with Warranties, No Default, etc. 22
3
TABLE OF CONTENTS
(Continued)
PAGE
----
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 Organization, etc. 22
SECTION 6.2 Due Authorization, Non-Contravention, etc. 22
SECTION 6.3 Government Approval, Regulation, etc. 23
SECTION 6.4 Compliance with Environmental Laws 23
SECTION 6.5 Validity, etc. 23
SECTION 6.6 Financial Information 23
SECTION 6.7 No Defaults under Material Agreements 24
SECTION 6.8 No Default, Event of Default or Prepayment Event 24
SECTION 6.9 Litigation 24
SECTION 6.10 Vessels 24
SECTION 6.11 Subsidiaries 24
SECTION 6.12 Obligations rank pari passu 25
SECTION 6.13 Withholding, etc. 25
SECTION 6.14 No Filing, etc. Required 25
SECTION 6.15 No Immunity 25
SECTION 6.16 Pension Plans 25
ARTICLE VII
COVENANTS
SECTION 7.1 Affirmative Covenants 26
SECTION 7.1.1 Financial Information, Reports, Notices, etc. 26
SECTION 7.1.2 Approvals and Other Consents 27
SECTION 7.1.3 Compliance with Laws, etc. 27
SECTION 7.1.4 Vessels 28
SECTION 7.1.5 Insurance 28
SECTION 7.1.6 Books and Records 29
SECTION 7.2 Negative Covenants 29
SECTION 7.2.1 Business Activities 29
SECTION 7.2.2 Indebtedness 29
SECTION 7.2.3 Liens 29
SECTION 7.2.4 Financial Condition 31
SECTION 7.2.5 Investments 32
SECTION 7.2.6 Consolidation, Merger, etc. 32
SECTION 7.2.7 Asset Dispositions, etc. 32
SECTION 7.2.8 Transactions with Affiliates 33
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Listing of Events of Default 34
SECTION 8.1.1 Non-Payment of Obligations 34
SECTION 8.1.2 Breach of Warranty 34
SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations 34
SECTION 8.1.4 Default on Other Indebtedness 35
SECTION 8.1.5 Pension Plans 35
ii
4
TABLE OF CONTENTS
(Continued)
PAGE
----
SECTION 8.1.6 Bankruptcy, Insolvency, etc 36
SECTION 8.1.7 Ownership of Principal Subsidiaries 36
SECTION 8.2 Action if Bankruptcy 37
SECTION 8.3 Action if Other Event of Default 37
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1 Listing of Prepayment Events 37
SECTION 9.1.1 Change in Ownership 37
SECTION 9.1.2 Change in Board 38
SECTION 9.1.3 Unenforceability 38
SECTION 9.1.4 Approvals 38
SECTION 9.1.5 Non-Performance of Certain Covenants and Obligations 38
SECTION 9.1.6 Judgments 38
SECTION 9.1.7 Condemnation, etc. 39
SECTION 9.1.8 Arrest 39
SECTION 9.2 Mandatory Prepayment 39
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Waivers, Amendments, etc. 39
SECTION 10.2 Notices 40
SECTION 10.3 Payment of Costs and Expenses 40
SECTION 10.4 Indemnification 40
SECTION 10.5 Survival 41
SECTION 10.6 Severability 41
SECTION 10.7 Headings 42
SECTION 10.8 Execution in Counterparts, Efctiveness, etc. 42
SECTION 10.9 Governing Law; Entire Agreeme 42
SECTION 10.10 Successors and Assigns 42
SECTION 10.11 Sale and Transfer of the Loan and Note; Participations in the Loan and Note 42
SECTION 10.11.1 Assignments 43
SECTION 10.11.2 Participations 44
SECTION 10.12 Other Transactions 45
SECTION 10.13 Forum Selection and Consent to Jurisdiction 45
SECTION 10.14 Process Agent 46
SECTION 10.15 Waiver of Jury Trial 46
iii
5
TABLE OF CONTENTS
(Continued)
SCHEDULE I - Disclosure Schedule
EXHIBIT A - Form of Note
EXHIBIT B - Form of Loan Request
EXHIBIT C - Form of Interest Period Notice
EXHIBIT D-1 - Form of Opinion of Counsel to the Borrower
EXHIBIT D-2 - Form of Opinion of Liberian Counsel to the Borrower
EXHIBIT E - Form of Opinion of Counsel to the Lender
EXHIBIT F - Form of Lender Assignment Agreement
EXHIBIT G - Repayment Schedule
iv
6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 16, 1999, is between ROYAL
CARIBBEAN CRUISES LTD., a Liberian corporation (the "BORROWER")and KREDITANSTALT
FUR WIEDERAUFBAU,a public law corporation incorporated in the Federal Republic
of Germany (the "LENDER").
W I T N E S S E T H:
WHEREAS, the Lender has agreed to make available to the Borrower a loan
facility in the principal amount of US$300,000,000, on the terms and subject to
the conditions hereinafter set forth (including ARTICLE V);and
WHEREAS, the proceeds of such Loan will be used to finance capital
expenditures associated with the Borrower's shipbuilding program (inter alia)
for the construction of Hull No's S-655 and S-656 by Xxx. X. Xxxxx GmbH & Co.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall, when
capitalized, except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.
"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
1
7
"APPLICABLE JURISDICTION" means the jurisdiction or jurisdictions under
which the Borrower is organized, domiciled or resident or from which any of its
business activities are conducted or in which any of its properties are located
and which has jurisdiction over the subject matter being addressed.
"APPLICABLE MARGIN" means, as of any date, 0.80% per annum.
"APPROVED APPRAISER" means any of the following: Xxxxx Xxxxxxxx Salles,
Paris, H Clarkson & Co. Ltd., London, X.X. Xxxxxx Shipbrokers, Norway, or
Fearnley AS, Norway.
"ASSIGNEE LENDER" is defined in Section 10.11.1
"AUTHORIZED OFFICER" means those officers of the Borrower authorized to
act with respect to the Loan Documents and whose signatures and incumbency shall
have been certified to the Lender by the Secretary or an Assistant Secretary of
the Borrower.
"BORROWER" is defined in the PREAMBLE.
"BUSINESS DAY" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in Miami,
New York City, London or Frankfurt.
"CAPITALIZATION" means, as at any date, the sum of (a) Total Debt on
such date, PLUS (b) Stockholders' Equity on such date.
"CAPITALIZED LEASE LIABILITIES" means the principal portion of all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"CASH EQUIVALENTS" means the "cash equivalents" shown on the Borrower's
balance sheet prepared in accordance with GAAP.
"CLOSING DATE" means the date on which the Loan is advanced
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, the Lender's obligation to make the Loan pursuant
to SECTION 2.1.
2
8
"COMMITMENT TERMINATION DATE" means June 30, 2000.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 10.8.
"ENVIRONMENTAL LAWS" means all applicable federal, state, local or
foreign statutes, laws, ordinances, codes, rules and regulations (including
consent decrees and administrative orders) relating to the protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXISTING DEBT" means the obligations of the Borrower and its
Subsidiaries, as amended from time to time, under (i) the Loan Facility
Agreement with respect to the vessel Zenith dated June 21, 1990 between the
Lender and Zenith Shipping Corporation, (ii) the Lease Agreement, with respect
to the vessel Legend of the Seas, dated March 3, 1993 between G.I.E. Cruise
Vision One and the Borrower, (iii) the Lease Agreement, with respect to the
vessel Splendour of the Seas, dated March 3, 1993 between G.I.E. Cruise Vision
Two and the Borrower, (iv) the Loan Facility Agreement with respect to the
vessel Century, dated November 29, 1993 between the Lender and Blue Sapphire
Marine Inc., (v) the Loan Facility Agreement with respect to the vessel Galaxy,
dated November 29, 1993 between the Lender and Xxxxx Marine Shipping Inc. and
(vi) the New Credit Agreement with respect to the vessel Mercury, dated December
12, 1997 between the Lender and Seabrook Maritime Inc.
3
9
"EXISTING GROUP" means the following Persons: (a) X. Xxxxxxxxxx AS., a
Norwegian corporation ("WILHELMSEN"); (b) Cruise Associates, a Bahamian general
partnership ("CRUISE"); and (c) any Affiliate of either or both of Wilhelmsen
and Cruise.
"EXISTING PRINCIPAL SUBSIDIARIES" means each Subsidiary of the Borrower
that is a Principal Subsidiary on the date hereof.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any annual fiscal reporting period of the Borrower.
"FIXED CHARGE COVERAGE RATIO" means, as of the end of any Fiscal
Quarter, the ratio computed for the period of four consecutive Fiscal Quarters
ending on the close of such Fiscal Quarter of:
(a) net cash from operating activities (determined in
accordance with GAAP) for such period, as shown in the Borrower's
consolidated statement of cash flow for such period, TO
(b) the sum of:
(i) dividends actually paid by the Borrower during
such period (including, without limitation, dividends in
respect of preferred stock of the Borrower); PLUS
(ii) scheduled payments of principal of all debt
(determined in accordance with GAAP, but in any event
including Capitalized Lease Liabilities) of the Borrower and
its Subsidiaries for such period.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"FREE CASH" means, at any time, the sum of (without duplication):
(a) all cash on hand of the Borrower and its Subsidiaries; PLUS
(b) all Cash Equivalents; PLUS
4
10
(c) any committed lines of credit of the Borrower and its Subsidiaries
to the extent then undrawn.
"GAAP" is defined in SECTION 1.4.
"GOVERNMENT-RELATED OBLIGATIONS" means obligations of the Borrower or
any Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower
or any Subsidiary of the Borrower to satisfy obligations under, any governmental
requirement imposed by any Applicable Jurisdiction that must be complied with to
enable the Borrower and its Subsidiaries to continue their business in such
Applicable Jurisdiction, EXCLUDING, in any event, any taxes imposed on the
Borrower or any Subsidiary of the Borrower.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"INDEBTEDNESS" of any Person means, without duplication:
(a) indebtedness of such Person (whether present or future,
actual or contingent, long-term or short-term, secured or unsecured) in
respect of moneys borrowed or raised, the advance or extension of
credit (including interest and commitment or guarantee commission but
not including arrangement or other fees and other charges on or in
respect of any of the foregoing);
(b) the amount of any liability of such Person in respect of
leases entered into for the purpose of raising or obtaining finance or
in respect of the purchase price for assets or services payment of
which is deferred for a period in excess of 180 days; and
(c) indebtedness of such Person (whether present or future,
actual or contingent, long-term or short-term, secured or unsecured) in
respect of guarantees or letters of credit.
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INTEREST PAYMENT DATE" means any date on which interest is payable
with respect to the Loan pursuant to CLAUSE (c) of SECTION 3.2.3.
5
11
"INTEREST PERIOD" means, relative to the Loan, the period beginning on
(and including) the date on which the Loan is made or continued pursuant to
SECTION 2.2 or 2.3 and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three,six or twelve months thereafter or
longer (PROVIDED that any Interest Period longer than twelve months duration
shall be subject to availability and the agreement of the Lender) or, if such
month has no numerically corresponding day, on the last Business Day of such
month, in either case as the Borrower may select in its relevant notice pursuant
to SECTION 2.2 or 2.3; PROVIDED that:
(a) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding the first Business
Day of such calendar month);
(b) no Interest Period may end later than the last Repayment
Date specified in Exhibit G; and
(c) the Borrower shall not be permitted to have outstanding
more than six one-month Interest Periods in any 12-month period (unless
otherwise agreed to by the Lender).
"INTEREST PERIOD NOTICE" means a certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of EXHIBIT C
hereto.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel, expense and similar advances to
officers and employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in
any other Person.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT F.
"LENDER" is defined in the PREAMBLE.
6
12
"LIBO RATE" means, relative to any Interest Period, the rate per annum
of the offered quotation for deposits in Dollars for delivery on the first day
of such Interest Period and for the duration thereof which appears on Telerate
Page 3750 at or about 11:00 a.m. (London time) two Business Days before the
commencement of such Interest Period; PROVIDED that:
(a) if no such offered quotation appears on Telerate Page 3750
at the relevant time, the LIBO Rate shall be the rate per annum
certified by the Lender to be the rate quoted by the Lender as the rate
at which the Lender was (or would have been) offered deposits of
Dollars by prime banks in the London interbank eurocurrency market in
an amount approximately equal to the amount of the Loan for a period
approximately equal to such Interest Period; and
(b) for the purposes of determining the post-maturity rate of
interest under SECTION 3.2.2, the LIBO Rate shall be determined by
reference to deposits on an overnight or call basis or for such other
period or periods as the Lender may determine.
"LIBOR OFFICE" means, relative to the Lender, the office of the Lender
designated as such below its signature hereto or designated in a Lender
Assignment Agreement or such other office of the Lender as designated from time
to time by notice from the Lender to the Borrower, whether or not outside the
United States, which shall be making or maintaining the Loan of the Lender
hereunder.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"LOAN" means the principal sum of US$300,000,000 available to be
advanced by the Lender to the Borrower upon the terms and conditions of this
Agreement or the amount thereof for the time being advanced and outstanding
under this Agreement (as the context may require).
"LOAN DOCUMENT" means this Agreement and the Note.
"LOAN REQUEST" means a loan request and certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of Exhibit B
hereto.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition of the Borrower or (b) the Borrower's ability to pay when
due principal of or interest on the Loan or other amounts payable by the
Borrower hereunder.
7
13
"MATERIAL LITIGATION" is defined in SECTION 6.9.
"NOTE" means the promissory note of the Borrower payable to the Lender,
in the form of EXHIBIT A hereto (as such promissory note may be amended or
otherwise modified from time to time), evidencing the aggregate Indebtedness of
the Borrower to the Lender resulting from the Loan, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the
Borrower arising under or in connection with this Agreement and the Note.
"ORGANIC DOCUMENT" means, relative to the Borrower, its articles of
incorporation and its by-laws.
"PARTICIPANT" is defined in SECTION 10.11.2.
"PENSION PLAN" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any liability by
reason of being deemed to be a contributing sponsor under section 4069 of ERISA.
"PERCENTAGE" means, in relation to the Lender, the Percentage as set
forth in the applicable Lender Assignment Agreement, as such Percentage may be
adjusted from time to time pursuant to Lender Assignment Agreement(s) executed
by the Lender and its Assignee Lender(s) and delivered pursuant to Section
10.11.1
"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.
"PREPAYMENT EVENT" is defined in SECTION 9.1.
"PRINCIPAL SUBSIDIARY" means any Subsidiary of the Borrower that owns a
Vessel.
"REPAYMENT DATE" means each of the dates for payment of the repayment
installments of the Loan specified in Exhibit G.
8
14
"STOCKHOLDERS' EQUITY" means, as at any date, the Borrower's
stockholders' equity on such date, determined in accordance with GAAP, PROVIDED
that any non-cash charge to Stockholders' Equity resulting (directly or
indirectly) from a change after the Effective Date in GAAP or in the
interpretation thereof shall be disregarded in the computation of Stockholders'
Equity such that the amount of any reduction thereof resulting from such change
shall be added back to Stockholders' Equity.
"SUBSIDIARY" means, with respect to any Person, 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 or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"TAXES" is defined in SECTION 4.6.
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in Dollars).
"TOTAL DEBT" means, at any time, the aggregate outstanding principal
amount of all debt (including, without limitation, the principal portion of all
capitalized leases) of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP).
"TOTAL DEBT TO CAPITALIZATION RATIO" means, as at any date, the ratio
of (a) Total Debt on such date TO (b) Capitalization on such date.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"VESSEL" means a passenger cruise vessel owned by the Borrower or one
of its Subsidiaries.
"VOTING STOCK" means shares of capital stock of the Borrower of any
class or classes (however designated) that have by the terms thereof normal
voting power to elect the members of the Board of Directors of the Borrower
(other than voting power upon the occurrence of a stated contingency, such as
the failure to pay dividends).
9
15
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall, when capitalized, have such meanings when used in the Disclosure Schedule
and in the Note, Loan Request, Interest Period Notice and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified, references in this
Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise specified,
all accounting terms used herein or in any other Loan Document shall be
interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared,
in accordance with United States generally accepted accounting principles
("GAAP") consistently applied (or, if not consistently applied, accompanied by
details of the inconsistencies); PROVIDED that if, as a result of any change in
GAAP or in the interpretation thereof after the date of the financial statements
referred to in SECTION 6.6, there is a change in the manner of determining any
of the items referred to herein that are to be determined by reference to GAAP,
and the effect of such change would (in the reasonable opinion of the Lender) be
such as to affect the basis or efficacy of the covenants contained in SECTION
7.2.4 in ascertaining the financial condition of the Borrower or the
consolidated financial condition of the Borrower and its Subsidiaries, then such
item shall for the purposes of such Sections of this Agreement continue to be
determined in accordance with GAAP relating thereto as GAAP were applied
immediately prior to such change in GAAP or in the interpretation thereof.
10
16
ARTICLE II
COMMITMENT, BORROWING PROCEDURE AND THE NOTE
SECTION 2.1 COMMITMENT. On the terms and subject to the conditions of this
Agreement (including ARTICLE V), the Lender agrees to make the Loan pursuant to
the Commitment described in this SECTION 2.1. On such Business Day occurring on
or prior to the Commitment Termination Date as the Borrower shall request, the
Lender will make the Loan to the Borrower. The commitment of the Lender
described in this SECTION 2.1. is herein referred to as its "COMMITMENT".
SECTION 2.2. BORROWING PROCEDURE. By delivering a Loan Request to the Lender on
or before 11:00 a.m., London time, on a Business Day on or after April 1, 2000,
the Borrower may irrevocably request, on not less than two Business Days'
notice, advance of the Loan by a single advance. On the terms and subject to the
conditions of this Agreement, the Loan shall be made on the Business Day
specified in such Loan Request. The Lendershall, without any set-off or
counterclaim, make such funds available to the Borrower on the Business Day
specified in the Loan Request by wire transfer of same day funds to the
account(s) the Borrower shall have specified in its Loan Request. No amount of
the Loan paid or prepaid may be reborrowed under this Agreement.
SECTION 2.3 ELECTION OF INTEREST PERIODS. By delivering an Interest Period
Notice to the Lender on or before 11:00 a.m., London time, on a Business Day,
the Borrower may from time to time irrevocably elect, on not less than two
Business Days' notice that the Loan be continued as a Loan with an Interest
Period of one, two, three, six or twelve months duration (or a longer duration,
subject to availability and the agreement of the Lender). In the absence of
delivery of an Interest Period Notice with respect to the Loan at least two
Business Days before the last day of the then current Interest Period with
respect thereto, the Loan shall, on such last day, automatically be continued as
a Loan with an Interest Period of three-months duration.
SECTION 2.4 NOTE. The Lender's Loan under its Commitment shall be evidenced by a
Note payable to the order of the Lender in a maximum principal amount equal to
the Loan.
11
17
ARTICLE III
REPAYMENTS, PREPAYMENTS AND INTEREST
SECTION 3.1 REPAYMENTS AND PREPAYMENTS. The Borrower shall repay the Loan in the
installments and on the dates set out in Exhibit G. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary prepayment, in
whole or in part, of the Loan; PROVIDED that:
(i) all such voluntary prepayments shall require at least three Business
Days'(or, if such prepayment is to be made on the last day of an Interest Period
for such Loan, two Business Days') prior written notice to the Lender; and
(ii) any such voluntary partial prepayments shall be in an aggregate
minimum amount of $10,000,000 and a multiple of $1,000,000 (or the remaining
amount of the Loan being prepaid) and shall be applied in satisfaction of the
repayment installments of the Loan set out in Exhibit G in inverse chronological
order of maturity;
(b) shall, immediately upon any acceleration of the Repayment Dates of the Loan
pursuant to SECTION 8.2 or 8.3 or the mandatory repayment of the Loan pursuant
to SECTION 9.2, repay the Loan.
Each prepayment of the Loan made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4.
SECTION 3.2 INTEREST PROVISIONS. Interest on the Loan shall accrue and be
payable in accordance with this SECTION 3.2.
SECTION 3.2.1 RATES. The Loan shall accrue interest at a rate per annum during
each Interest Period applicable thereto, equal to the sum of the LIBO Rate for
such Interest Period plus the Applicable Margin. The Loan shall bear interest
from and including the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to the Loan.
SECTION 3.2.2 POST-MATURITY RATES. After the date any principal amount of the
Loan is due and payable (whether on any Repayment Date, upon acceleration or
otherwise), or after any other monetary Obligation of the Borrower shall have
become due and payable, the Borrower shall pay, but only to the extent permitted
by law, interest (after as well as before judgment) on such amounts for each day
during the period of such default at a rate per annum certified by the Lender to
the Borrower (which certification shall be conclusive in the absence of manifest
error) to be equal to the sum of (a) the Applicable Margin PLUS (b) the LIBO
Rate PLUS (c) 2% per annum.
12
18
SECTION 3.2.3 PAYMENT DATES. Interest accrued on the Loan shall be payable,
without duplication:
(a) on each Repayment Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on the Loan (but only on the principal so paid or
prepaid);
(c) on the last day of each applicable Interest Period (and if such
Interest Period shall exceed six months, on each date occurring at six-month
intervals after the commencement of such Interest Period); and
(d) on any portion of the Loan the repayment of which is accelerated
pursuant to SECTION 8.2 or SECTION 8.3, immediately upon such acceleration.
Interest accrued on the Loan or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on any Repayment Date, upon acceleration or otherwise) shall be
payable upon demand.
ARTICLE IV
INCREASED LOAN COSTS AND OTHER PROVISIONS
SECTION 4.1 LIBO RATE LENDING UNLAWFUL. If the introduction of or any change in
or in the interpretation of any law makes it unlawful, or any central bank or
other governmental authority having jurisdiction over the Lender asserts that it
is unlawful, for the Lender to make, continue or maintain the Loan bearing
interest at a rate based on the LIBO Rate, the obligation of the Lender to make,
continue or maintain the Loan bearing interest at a rate based on the LIBO Rate
shall, upon notice thereof to the Borrower, forthwith be suspended until the
circumstances causing such suspension no longer exist, PROVIDED that the
Lender's obligation to make, continue and maintain the Loan hereunder shall be
automatically converted into an obligation to make, continue and maintain the
Loan bearing interest at a rate to be negotiated between the Lender and the
Borrower that is the equivalent of the sum of the LIBO Rate for the relevant
Interest Period PLUS the Applicable Margin.
13
19
SECTION 4.2 DEPOSITS UNAVAILABLE. If the Lender shall have determined that:
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Lender in its
relevant market; or
(b) by reason of circumstances affecting the Lender's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate loans,
then the Lender shall give notice of such determination (hereinafter called a
"DETERMINATION NOTICE") to the Borrower. The Borrower and the Lender shall then
negotiate in good faith in order to agree upon a mutually satisfactory interest
rate and interest period (or interest periods) to be substituted for those which
would otherwise have applied under this Agreement. If the Borrower and the
Lender are unable to agree upon an interest rate (or rates) and interest period
(or interest periods) prior to the date occurring thirty days after the giving
of such Determination Notice, the Lender shall set an interest rate and an
interest period (or interest periods), in each case to take effect at the end of
the Interest Period current at the date of the Determination Notice, which rate
(or rates) shall be equal to the sum of the Applicable Margin and the cost to
the Lender of funding its Commitment. In the event that the circumstances
described in this SECTION 4.2 shall extend beyond the end of an interest period
agreed or set pursuant hereto, the foregoing procedure shall be repeated as
often as may be necessary.
SECTION 4.3 INCREASED LOAN COSTS, ETC. If a change in any applicable treaty,
law, regulation or regulatory requirement or in the interpretation thereof or in
its application to the Borrower, or if compliance by the Lender with any
applicable direction, request, requirement or guideline (whether or not having
the force of law) of any governmental or other authority insofar as it may be
changed or imposed after the date hereof, shall:
(a) subject the Lender to any taxes, levies, duties, charges,
fees, deductions or withholdings of any nature with respect to the Loan
or any part thereof imposed, levied, collected, withheld or assessed by
any jurisdiction or any political subdivision or taxing authority
thereof (other than taxation on overall net income and, to the extent
such taxes are described in SECTION 4.6, withholding taxes); or
14
20
(b) change the basis of taxation to the Lender (other than a
change in taxation on the overall net income of the Lender) of payments
of principal or interest or any other payment due or to become due
pursuant to this Agreement; or
(c) impose, modify or deem applicable any reserve or capital
adequacy requirements or other banking or monetary controls or
requirements which affect the manner in which the Lender shall allocate
its capital resources to its obligations hereunder or require the
making of any special deposits against or in respect of any assets or
liabilities of, deposits with or for the account of, or loans by, the
Lender (PROVIDED that the Lender shall, unless prohibited by law,
allocate its capital resources to its obligations hereunder in a manner
which is consistent with its present treatment of the allocation of its
capital resources); or
(d) impose on the Lender any other condition affecting the
Loan or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to the
Lender of making available the Loan or maintaining the Loan or any part thereof,
(ii) to reduce the amount of any payment received by the Lender or its effective
return hereunder or on its capital or (iii) to cause the Lender to make any
payment or to forego any return based on any amount received or receivable by
the Lender hereunder, then and in any such case if such increase or reduction in
the opinion of the Lender materially affects the interests of the Lender, (A)
the Lender shall notify the Borrower of the occurrence of such event and use
reasonable efforts to avoid the effects of such law, regulation or regulatory
requirement or any change therein or in the interpretation thereof and, in
particular, shall consider, subject to obtaining any necessary consents,
fulfilling its obligations through another office or transferring the Loan to
one or more of its Affiliates or other financial institutions not affected by
such law, regulation or regulatory requirement and (B) the Borrower shall
forthwith upon demand pay to the Lender such amount as is necessary to
compensate the Lender for such additional cost or such reduction and ancillary
expenses, including taxes, incurred as a result of such adjustment. Such notice
shall (i) describe in reasonable detail the event leading to such additional
cost, together with the approximate date of the effectiveness thereof, (ii) set
forth the amount of such additional cost, (iii) describe the manner in which
such amount has been calculated, (iv) certify that the method used to calculate
such amount is the Lender's standard method of calculating such amount, (v)
certify that such request is consistent with its treatment of other borrowers
that are subject to similar provisions, and (vi) certify that, to the best of
its knowledge, such change in circumstance is of general application to the
commercial banking industry in the Lender's jurisdiction of organization or in
the relevant jurisdiction in which the Lender does business. Notwithstanding the
foregoing, the Borrower shall not be obligated to reimburse the Lender for any
additional cost under this SECTION 4.3 arising prior to 60 days preceding the
date of request unless the applicable law or regulation is expressly imposed
retroactively, in which case such notice shall be provided to the Borrower not
later than 90 days after the date that the Lender reasonably should have learned
of such law or regulation (and in such case the Borrower's obligation to pay
additional amounts to the Lender under this Section for periods prior to such
60-day period is conditioned on the giving of such timely notice).
15
21
SECTION 4.4 FUNDING LOSSES. In the event the Lender shall incur any loss or
expense by reason of the liquidation or reemployment of deposits or other funds
acquired by the Lender to make, continue or maintain any portion of the
principal amount of the Loan as a LIBO Rate Loan as a result of:
(a) any repayment or prepayment of the principal amount of the Loan on
a date other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to SECTION 3.1 or otherwise; or
(b) the Loan not being made in accordance with the Loan Request
therefor due to the fault of the Borrower or as a result of any of the
conditions precedent set forth in ARTICLE V not being satisfied,
then, upon the written notice of the Lender to the Borrower, the Borrower shall,
within five Business Days of its receipt thereof, pay directly to the Lender
such amount as will reimburse the Lender for such loss or expense. The written
notice shall include calculations in reasonable detail setting forth the loss or
expense to the Lender.
SECTION 4.5 INCREASED CAPITAL COSTS. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of, any
law or regulation, directive, guideline, decision or request (whether or not
having the force of law) of any court, central bank, regulator or other
governmental authority increases the amount of capital required to be maintained
by the Lender or any Person controlling the Lender, and the rate of return on
its or such controlling Person's capital as a consequence of its Commitment or
the Loan made by the Lender is reduced to a level below that which the Lender or
such controlling Person would have achieved but for the occurrence of any such
change in circumstance, then, in any such case upon notice from time
16
22
to time by the Lender to the Borrower, the Borrower shall immediately pay
directly to the Lender additional amounts sufficient to compensate the Lender or
such controlling Person for such reduction in rate of return. Any such notice
shall (i) describe in reasonable detail the capital adequacy requirements which
have been imposed, together with the approximate date of the effectiveness
thereof, (ii) set forth the amount of such lowered return, (iii) describe the
manner in which such amount has been calculated, (iv) certify that the method
used to calculate such amount is the Lender's standard method of calculating
such amount, (v) certify that such request for such additional amounts is
consistent with its treatment of other borrowers that are subject to similar
provisions and (vi) certify that, to the best of its knowledge, such change in
circumstances is of general application to the commercial banking industry in
the jurisdictions in which such Lender does business. In determining such
amount, the Lender may use any method of averaging and attribution that it
shall, subject to the foregoing sentence, deem applicable. The Lender will take
all reasonable actions that are available to it to avoid such reduction in such
rate of return (including by designating a different LIBOR Office), PROVIDED
that the Lender shall not be obligated to designate a LIBOR Office located in
the United States. Notwithstanding the foregoing, the Borrower shall not be
obligated to reimburse the Lender for any lowered return under this SECTION 4.5
arising prior to 60 days preceding the date of request unless the applicable law
or regulation is expressly imposed retroactively, in which case such notice
shall be provided to the Borrower not later than 90 days after the date that the
Lender reasonably should have learned of such law or regulation (and in such
case the Borrower's obligation to pay additional amounts to the Lender for such
reduction for any period prior to such 60-day period is conditioned on the
giving of such timely notice).
SECTION 4.6 TAXES. All payments by the Borrower of principal of, and interest
on, the Loan and all other amounts payable hereunder shall be made free and
clear of and without deduction for any present or future income, excise, stamp
or franchise taxes and other taxes, fees, duties, withholdings or other charges
of any nature whatsoever imposed by any taxing authority, but excluding (i)
franchise taxes and taxes imposed on or measured by the Lender's net income or
receipts and (ii) any tax imposed by reason of (A) the failure of the
certification made by the Lender on any form provided pursuant to the last
paragraph of this SECTION 4.6 to be true and correct when made in all material
respects or (B) the failure of the Lender to comply with the last paragraph of
17
23
this SECTION 4.6 or (C) the failure by the Lender to file any other
certification, notification, statement, return or other document that it is
entitled to file (such non-excluded items being called "TAXES"). In the event
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will:
(a) pay directly to the relevant authority the full amount required to be
so withheld or deducted;
(b) promptly forward to the Lender an official receipt or other
documentation satisfactory to the Lender evidencing such payment to such
authority; and
(c) pay to the Lender such additional amount or amounts as is necessary to
ensure that the net amount actually received by the Lender will equal the full
amount the Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Lender with respect to
any payment received by the Lender hereunder, the Lender may pay such Taxes and
the Borrower will promptly pay such additional amounts (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
such person after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such person would have received had no
such Taxes been asserted.
The Lender shall take all reasonable actions that are available to it
to avoid the imposition of any Taxes on payments by the Borrower hereunder.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Lender, the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lender for any
incremental Taxes, interest or penalties that may become payable by the Lender
as a result of any such failure (so long as such amount did not become payable
as a result of the failure of the Lender to provide timely notice to the
Borrower of the assertion of a liability related to the payment of Taxes). For
purposes of this SECTION 4.6, a distribution hereunder by the Lender shall be
deemed a payment by the Borrower.
18
24
If the Lender is entitled to any refund, credit, deduction or other
reduction in tax by reason of any payment made by the Borrower in respect of any
tax under this SECTION 4.6 or by reason of any payment made by the Borrower
pursuant to SECTION 4.3, the Lender shall use reasonable efforts to obtain such
refund, credit, deduction or other reduction and, promptly after receipt
thereof, will pay to the Borrower such amount (plus any interest received by the
Lender in connection with such refund, credit, deduction or reduction) as is
equal to the net after-tax value to the Lender of such part of such refund,
credit, deduction or reduction as the Lender reasonably determines is allocable
to such tax or such payment, PROVIDED that the Lender shall not be obligated to
disclose to the Borrower any information regarding its tax affairs or tax
computations.
The Lender (and each Participant) that is organized under the laws of a
jurisdiction other than the United States agrees with the Borrower that it will
(a) provide to the Borrower an appropriately executed copy of Internal Revenue
Service Form 4224 certifying that any payments made to or for the benefit of the
Lender or such Participant are effectively connected with a trade or business in
the United States (or, alternatively, Internal Revenue Service Form 1001, but
only if the applicable treaty described in such form provides for a complete
exemption from U.S. federal income tax withholding), or any successor form, on
or prior to the date hereof (or, in the case of any Assignee Lender or
Participant, on or prior to the date of the relevant assignment or
participation), and (b) notify the Borrower if the certifications made on any
form provided pursuant to this paragraph are no longer accurate and true in all
material respects.
SECTION 4.7 PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly provided,
all payments by the Borrower pursuant to this Agreement shall be made by the
Borrower to the Lender without setoff, deduction or counterclaim not later than
11:00 a.m., New York time, on the date due, in same day or immediately available
funds through the New York Clearing House Interbank Payments System (or such
other funds as may be customary for the settlement of international banking
transactions in Dollars), to such account as the Lender shall specify from time
to time by notice to the Borrower. Funds received after that time shall be
deemed to have been received by the Lender on the next succeeding Business Day.
All interest and fees shall be computed on the basis of the actual number of
days (including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360
days. Whenever any payment to be made shall otherwise be due on a day which is
not a Business Day, such payment shall (except as otherwise required by CLAUSE
(a) of the definition of the term "INTEREST PERIOD") be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
19
25
SECTION 4.8 SETOFF. The Lender shall have the right to appropriate and apply to
the payment of the Obligations owing to it any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
the Lender. The Lender agrees promptly to notify the Borrower after any such
setoff and application made by the Lender; PROVIDED that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of the Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which the Lender may have.
SECTION 4.9 USE OF PROCEEDS. The Borrower shall apply the proceeds of the Loan
in accordance with the second recital.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1 DRAWDOWN. The obligation of the Lender to fund the Loan shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this SECTION 5.1.
SECTION 5.1.1 RESOLUTIONS, ETC. The Lender shall have received from the
Borrower:
(a) a certificate of its Secretary or Assistant Secretary as to the
incumbency and signatures of those of its officers authorized to act with
respect to this Agreement and each other Loan Document and as to the truth and
completeness of the attached:
(x) an extract of the resolutions of its Board of Directors
then in full force and effect authorizing the execution,
delivery and performance of this Agreement and each other Loan
Document, and
(y) Organic Documents of the Borrower,
and upon which certificate the Lender may conclusively rely until it shall have
received a further certificate of the Secretary of the Borrower canceling or
amending such prior certificate;
(b) a Certificate of Goodstanding issued by the relevant Liberian
authorities in respect of the Borrower; and
20
26
(c) a certificate of the Borrower's Secretary or Assistant Secretary
listing the principal office address (and if not the same, the address where its
company statutory books and records are located) of the Borrower.
SECTION 5.1.2 DELIVERY OF THE NOTE. The Lender shall have received the Note duly
executed and delivered by the Borrower.
SECTION 5.1.3 OWNERSHIP, ETC. OF VESSELS. The Lender shall have received the
following with respect to each Vessel:
(a) evidence as to the ownership of such Vessel by the Borrower or a
Principal Subsidiary;
(b) disclosure of all recorded Liens on such Vessel;
(c) evidence of the class of such Vessel; and
(d) evidence as to all required insurance being in effect with respect to
such Vessel.
SECTION 5.1.4 OPINIONS OF COUNSEL. The Lender shall have received opinions
addressed to the Lender, from:
(a) the general counsel to the Borrower, substantially in the form of
EXHIBIT D-1 hereto;
(b) Xxxxxx, Xxxxxx & Xxxxxxxx, counsel to the Borrower, as to Liberian Law,
substantially in the form of EXHIBIT D-2 hereto; and
(c) Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx,counsel to the Lender in the form of
EXHIBIT E hereto.
SECTION 5.1.5 CLOSING FEES, EXPENSES, ETC. The Lender shall have received all
fees and commitment commission that the Borrower shall have agreed in writing to
pay to the Lender on or prior to the Closing Date in accordance with a letter of
even date with this Agreement addressed by the Lender to the Borrower (and
countersigned by the Borrower).
SECTION 5.1.6 LOAN REQUEST. The Lender shall have received the Loan Request duly
executed by the Borrower.
SECTION 5.1.7 CERTIFICATE OF COMPLIANCE. The Lender shall have received a
certificate, executed by the chief financial officer, the treasurer or the
corporate controller of the Borrower, showing as of the last day of the relevant
Fiscal Quarter or Fiscal Year compliance with the covenants set forth in SECTION
7.2.4 (in reasonable detail and with appropriate calculations and computations
in all respects reasonably satisfactory to the Lender).
21
27
SECTION 5.1.8 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before and after
giving effect to the Loan, the following statements shall be true and correct:
(a) the representations and warranties set forth in ARTICLE VI shall be
true and correct with the same effect as if then made; and
(b) no Default and no Prepayment Event and no event which (with notice or
lapse of time or both) would become a Prepayment Event shall have then occurred
and be continuing.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the Loan
hereunder, the Borrower represents and warrants to the Lender as set forth in
this ARTICLE VI as of the Closing Date.
SECTION 6.1 ORGANIZATION, ETC. The Borrower and each of the Principal
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of its jurisdiction of incorporation; the Borrower is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its business requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect; and the Borrower has full power and authority, has
taken all corporate action and holds all governmental and creditors' licenses,
permits, consents and other approvals necessary to enter into each Loan Document
and to perform the Obligations.
SECTION 6.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution, delivery
and performance by the Borrower of this Agreement and each other Loan Document,
are within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not:
(a) contravene the Borrower's Organic Documents;
(b) contravene any law or governmental regulation of any Applicable
Jurisdiction;
22
28
(c) contravene any court decree or order binding on the Borrower or any of
its property;
(d) contravene any contractual restriction binding on the Borrower or any
of its property; or
(e) result in, or require the creation or imposition of, any Lien on any of
the Borrower's properties.
SECTION 6.3 GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Borrower of this Agreement or any other Loan Document
(except for authorizations or approvals not required to be obtained on or prior
to the Closing Date that have been obtained or actions not required to be taken
on or prior to the Closing Date that have been taken). Each of the Borrower and
each Principal Subsidiary holds all governmental licenses, permits and other
approvals required to conduct its business as conducted by it on the Closing
Date, except to the extent the failure to hold any such licenses, permits or
other approvals would not have a Material Adverse Effect.
SECTION 6.4 COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower and each Principal
Subsidiary are in compliance with all applicable Environmental Laws, except to
the extent that the failure to so comply would not have a Material Adverse
Effect.
SECTION 6.5 VALIDITY, ETC. This Agreement constitutes, and the Note will, on the
due execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles.
23
29
SECTION 6.6 FINANCIAL INFORMATION. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 1998, and the related
consolidated statements of operations and cash flows of the Borrower and its
Subsidiaries, copies of which have been furnished to the Lender, have been
prepared in accordance with GAAP, and present fairly the consolidated financial
condition of the Borrower and its Subsidiaries as at December 31, 1998 and the
results of their operations for the Fiscal Year then ended, and no change has
occurred in the Borrower's financial condition since December 31, 1998 that
might reasonably be expected to materially adversely affect its ability to
perform the Obligations.
SECTION 6.7 NO DEFAULTS UNDER MATERIAL AGREEMENTS. Neither the Borrower nor any
Principal Subsidiary is in default (a) under any material agreement by which it
is bound or (b) in respect of any financial commitment or actual or contingent
obligation (including obligations under guarantees), except, in each case, to
the extent that such default would not have a Material Adverse Effect.
SECTION 6.8 NO DEFAULT, EVENT OF DEFAULT OR PREPAYMENT EVENT. No Default, Event
of Default or Prepayment Event has occurred and is continuing.
SECTION 6.9 LITIGATION. There is no pending or, to the knowledge of the
Borrower, threatened litigation, action or proceeding against the Borrower or
any Principal Subsidiary, or any of the properties, businesses, assets or
revenues of the Borrower or any Principal Subsidiary, which (in the reasonable
opinion of the Borrower) might reasonably be expected to materially adversely
affect the financial condition of the Borrower and the Principal Subsidiaries,
taken as a whole, except as otherwise disclosed(collectively, "MATERIAL
LITIGATION").
SECTION 6.10 VESSELS. Each Vessel is
(a) legally and beneficially owned by the Borrower or a Principal
Subsidiary,
(b) registered in the name of the Borrower or such Principal Subsidiary
under the flag identified in ITEM 6.10(b) of the Disclosure Schedule,
(c) classed as required by SECTION 7.1.4(b),
(d) free of all recorded Liens, other than Liens permitted by SECTION
7.2.3,
(e) insured against loss or damage in compliance with SECTION 7.1.5, and
(f) chartered exclusively to the Borrower or one of the Borrower's
wholly-owned subsidaries.
SECTION 6.11 SUBSIDIARIES. All Existing Principal Subsidiaries are designated
with an asterisk in ITEM 6.11 of the Disclosure Schedule. All Existing Principal
Subsidiaries are direct or indirect wholly-owned Subsidiaries of the Borrower,
except to the extent any such Existing Principal Subsidiary or an interest
therein has been sold in accordance with CLAUSE (b) of SECTION 7.2.7 or such
Existing Principal Subsidiary no longer owns a Xxxxxx.
00
00
SECTION 6.12 OBLIGATIONS RANK PARI PASSU. The Obligations rank at least PARI
PASSU in right of payment and in all other respects with all other unsecured
unsubordinated Indebtedness of the Borrower.
SECTION 6.13 WITHHOLDING, ETC. As of the Closing Date, no payment to be made by
the Borrower under any Loan Document is subject to any withholding or like tax
imposed by any Applicable Jurisdiction.
SECTION 6.14 NO FILING, ETC. REQUIRED. No filing, recording or registration and
no payment of any stamp, registration or similar tax is necessary under the laws
of any Applicable Jurisdiction to ensure the legality, validity, enforceability,
priority or admissibility in evidence of this Agreement or the other Loan
Document (except for filings, recordings, registrations or payments not required
to be made on or prior to the Closing Date that have been made), except that for
the enforcement of any document in the Republic of Liberia a stamp, at present
of nominal value, must be affixed thereto prior to presentation to the court.
SECTION 6.15 NO IMMUNITY. The Borrower is subject to civil and commercial law
with respect to the Obligations. Neither the Borrower nor any of its properties
or revenues is entitled to any right of immunity in any Applicable Jurisdiction
from suit, court jurisdiction, judgment, attachment (whether before or after
judgment), set-off or execution of a judgment or from any other legal process or
remedy relating to the Obligations (to the extent such suit, court jurisdiction,
judgment, attachment, set-off, execution, legal process or remedy would
otherwise be permitted or exist).
SECTION 6.16 PENSION PLANS. To the extent that, at any time after the Effective
Date, there are any Pension Plans, no steps will have been taken to terminate
any Pension Plan, and no contribution failure will have occurred with respect to
any Pension Plan, in each case which could (a) give rise to a Lien under section
302(f) of ERISA and (b) result in the incurrence by the Borrower or any member
of the Controlled Group of any material liability, fine or penalty.
25
31
ARTICLE VII
COVENANTS
SECTION 7.1 AFFIRMATIVE COVENANTS. The Borrower agrees with the Lender that,
beginning on the Closing Date and until all Obligations have been paid in full,
the Borrower will perform the obligations set forth in this SECTION 7.1.
SECTION 7.1.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The Borrower will
make available, or will cause to be made available to the Lender the following
financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, a
copy of the Borrower's report on Form 6-K (or any successor form) as filed by
the Borrower with the Securities and Exchange Commission for such Fiscal
Quarter, containing unaudited consolidated financial statements of the Borrower
for such Fiscal Quarter (including a balance sheet and profit and loss
statement) prepared in accordance with GAAP, subject to normal year-end audit
adjustments;
(b) as soon as available and in any event within 120 days after the end of
each Fiscal Year of the Borrower, a copy of the Borrower's annual report on Form
20-F (or any successor form) as filed by the Borrower with the Securities and
Exchange Commission for such Fiscal Year, containing audited consolidated
financial statements of the Borrower for such Fiscal Year prepared in accordance
with GAAP (including a balance sheet and profit and loss statement) and audited
by PricewaterhouseCoopers LLP or another firm of independent public accountants
of similar standing;
(c) together with each of the statements delivered pursuant to the
foregoing clause (a) or (b), a certificate, executed by the chief financial
officer, the treasurer or the corporate controller of the Borrower, showing, as
of the last day of the relevant Fiscal Quarter or Fiscal Year (a) compliance
with the covenants set forth in SECTION 7.2.4 (in reasonable detail and with
appropriate calculations and computations in all respects reasonably
satisfactory to the Lender and (b) any material changes to ITEM 6.11 of the
Disclosure Schedule since the Closing Date or the last such certificate
delivered pursuant to this clause (as the case may be);
26
32
(d) as soon as possible after the occurrence of a Default or Prepayment
Event, a statement of the chief financial officer of the Borrower setting forth
details of such Default or Prepayment Event (as the case may be) and the action
which the Borrower has taken and proposes to take with respect thereto;
(e) as soon as the Borrower becomes aware thereof, notice of any Material
Litigation;
(f) as soon as the Borrower becomes aware thereof, notice of any event
which, in its reasonable opinion, might have a material adverse effect on the
Borrower's ability to (i) pay when due principal of or interest on the Loan or
other amounts payable by the Borrower hereunder or (ii) perform its other
obligations hereunder and under the other Loan Documents;
(g) promptly after the sending or filing thereof, copies of all reports
which the Borrower sends to all holders of each security issued by the Borrower,
and all registration statements which the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission or any national securities
exchange; and
(h) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as the Lender
may from time to time reasonably request.
SECTION 7.1.2 APPROVALS AND OTHER CONSENTS. The Borrower will obtain (or cause
to be obtained) all such governmental licenses, authorizations, consents,
permits and approvals as may be required for (a) the Borrower to perform its
obligations under this Agreement and the other Loan Document and (b) the
operation of each Vessel in compliance with all applicable laws.
SECTION 7.1.3 COMPLIANCE WITH LAWS, ETC. The Borrower will, and will cause each
of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, regulations and orders, except to the extent that the failure to so
comply would not have a Material Adverse Effect, which compliance shall in any
case include (but not be limited to):
(a) in the case of each of the Borrower and the Principal Subsidiaries, the
maintenance and preservation of its corporate existence (subject to the
provisions of SECTION 7.2.6);
(b) in the case of the Borrower, maintenance of its qualification as a
foreign corporation in the State of Florida, except to the extent that the
failure to so qualify would not have a Material Adverse Effect;
27
33
(c) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property if the
failure to pay the same would have a Material Adverse Effect, except to the
extent being diligently contested in good faith by appropriate proceedings; and
(d) compliance with all applicable Environmental Laws, except to the extent
that the failure to so comply would not have a Material Adverse Effect.
SECTION 7.1.4 VESSELS. The Borrower will (or will cause the applicable Principal
Subsidiary to):
(a) cause each Vessel to be chartered exclusively to the Borrower, or one
of the Borrower's wholly-owned subsidiaries, PROVIDED that the Borrower or such
subsidiary may charter out any Vessel on a time charter with a stated duration
not in excess of one year; and
(b) cause each Vessel to be kept in such condition as will entitle her to
classification by a classification society of recognized standing.
SECTION 7.1.5 INSURANCE. The Borrower will, or will cause one or more of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to all of the material properties and
operations of the Borrower and each Principal Subsidiary against usual marine
risks, war risks and usual protection and indemnity risks (including oil
pollution risks and passenger liabilities such as are covered by the basic entry
of the Vessels in one of the international group of P & I Clubs) and in such
amounts as is customary for other businesses of similar size in the passenger
cruise line industry (PROVIDED that in no event will the Borrower or any
Subsidiary be required to obtain any business interruption, loss of hire or
delay in delivery insurance) and will, upon request, furnish to the Lender at
reasonable intervals a certificate of a senior officer of the Borrower setting
forth the nature and extent of all insurance maintained by the Borrower and its
Subsidiaries and certifying as to compliance with this Section.
28
34
SECTION 7.1.6 BOOKS AND RECORDS. The Borrower will, and will cause each of its
Principal Subsidiaries to, keep books and records that accurately reflect all of
its business affairs and transactions and permit the Lender or any of its
respective representatives, at reasonable times and intervals, to visit each of
its offices, to discuss its financial matters with its officers and to examine
any of its books or other corporate records.
SECTION 7.2 NEGATIVE COVENANTS. The Borrower agrees with the Lender that, until
all Obligations have been paid and performed in full, the Borrower will perform
the obligations set forth in this SECTION 7.2.
SECTION 7.2.1 BUSINESS ACTIVITIES. The Borrower will not, and will not permit
any of its Subsidiaries to, engage in any business activity other than those
engaged in by the Borrower and its Subsidiaries on the date hereof and other
business activities reasonably related thereto.
SECTION 7.2.2 INDEBTEDNESS. The Borrower will not permit any of the Existing
Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
(a) Indebtedness secured by Liens of the type described in CLAUSES (a),
(b), (c), (d), (e) and (f) of SECTION 7.2.3; and
(b) Indebtedness owing to the Borrower.
SECTION 7.2.3 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens on the vessels SPLENDOUR OF THE SEAS, LEGEND OF THE SEAS,
CENTURY, GALAXY AND ZENITH existing as of the Effective Date and securing the
Existing Debt (and any Lien on SPLENDOUR OF THE SEAS, LEGEND OF THE SEAS,
CENTURY, GALAXY, OR ZENITH, securing any refinancing of the Existing Debt, so
long as the relevant Vessel was subject to a Lien securing the Indebtedness
being refinanced immediately prior to such refinancing);
(b) Liens on assets (including, without limitation, shares of capital stock
of corporations and assets owned by any corporation that becomes a Subsidiary of
the Borrower after the Effective Date) acquired after the Effective Date
(whether by purchase, construction or otherwise) by the Borrower or any of its
Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other
Principal Subsidiary which, at any time, owns a Vessel free of any mortgage
Lien), which Liens were created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
the cost of construction) of such assets, so long as (i) the acquisition of such
assets is not otherwise prohibited by the terms of this Agreement and (ii) each
such Lien is created within three months after the acquisition of the relevant
assets;
29
35
(c) in addition to other Liens permitted under this SECTION 7.2.3, Liens
securing Indebtedness in an aggregate principal amount not exceeding
$150,000,000 at any one time outstanding, PROVIDED that, with respect to each
such item of Indebtedness, the fair market value of the assets subject to Liens
securing such Indebtedness (determined at the time of the creation of such Lien)
shall not exceed two TIMES the aggregate principal amount of such Indebtedness
(and for purposes of this CLAUSE (c), the fair market value of any assets shall
be determined by (i) in the case of any Vessel, by an Approved Appraiser
selected by the Borrower and (ii) in the case of any other assets, by an officer
of the Borrower or by the board of directors of the Borrower);
(d) Liens on assets acquired after the Effective Date by the Borrower or
any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing
Principal Subsidiary or (y)on any other Principal Subsidiary which, at any time,
owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such
assets is not otherwise prohibited by the terms of this Agreement and (ii) each
of such Liens existed on such assets before the time of its acquisition and was
not created by the Borrower or any of its Subsidiaries in anticipation thereof;
(e) Liens on any asset of any corporation that becomes a Subsidiary of the
Borrower (other than a corporation that also becomes a Subsidiary of an Existing
Principal Subsidiary) after the Effective Date so long as (i) the acquisition or
creation of such corporation by the Borrower is not otherwise prohibited by the
terms of this Agreement and (ii) such Liens are in existence at the time such
corporation becomes a Subsidiary of the Borrower and were not created by the
Borrower or any of its Subsidiaries in anticipation thereof;
(f) Liens securing Government-related Obligations;
(g) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or being
diligently contested in good faith by appropriate proceedings;
30
36
(h) Liens of carriers, warehousemen, mechanics, materialmen and landlords
incurred in the ordinary course of business for sums not overdue or being
diligently contested in good faith by appropriate proceedings;
(i) Liens incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance or other forms of governmental
insurance or benefits;
(j) Liens for current crew's wages and salvage;
(k) Liens arising by operation of law as the result of the furnishing of
necessaries for any Vessel so long as the same are discharged in the ordinary
course of business or are being diligently contested in good faith by
appropriate proceedings; and
(l) Liens on Vessels that:
(i) secure obligations covered (or reasonably expected to be
covered) by insurance;
(ii) were incurred in the course of or incidental to trading
such Vessel in connection with repairs or other work to such Vessel; or
(iii) were incurred in connection with work to such Vessel
that is required to be performed pursuant to applicable law, rule,
regulation or order;
PROVIDED that, in each case described in this CLAUSE (l), such Liens
are either (x) discharged in the ordinary course of business or (y)
being diligently contested in good faith by appropriate proceedings.
SECTION 7.2.4 FINANCIAL CONDITION. The Borrower will not permit:
(a) Free Cash to be less than $50,000,000 at any time.
(b) Total Debt to Capitalization Ratio, as at the end of any Fiscal
Quarter, to be greater than 0.625 to 1.
(c) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last
day of any Fiscal Quarter.
31
37
(d) Stockholders' Equity to be less than, as at the last day of any Fiscal
Quarter, the sum of (i) $750,000,000 PLUS (ii) 50% of the consolidated net
income of the Borrower and its Subsidiaries for the period commencing on April
1, 2000 and ending on the last day of the Fiscal Quarter most recently ended
(treated for these purposes as a single accounting period, but in any event
excluding any Fiscal Quarters for which the Borrower and its Subsidiaries have a
consolidated net loss).
SECTION 7.2.5 INVESTMENTS. The Borrower will not permit any of the Principal
Subsidiaries to make, incur, assume or suffer to exist any Investment in any
other Person.
SECTION 7.2.6 CONSOLIDATION, MERGER, ETC. The Borrower will not, and will not
permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or
merge into or with, any other corporation, or purchase or otherwise acquire all
or substantially all of the assets of any Person except:
(a) any such Subsidiary may liquidate or dissolve voluntarily into, and may
merge with and into, the Borrower or any other Subsidiary, and the assets or
stock of any Subsidiary may be purchased or otherwise acquired by the Borrower
or any other Subsidiary; and
(b) so long as no Default has occurred and is continuing or would occur
after giving effect thereto, the Borrower or any of its Subsidiaries may merge
into any other Person, or any other Person may merge into the Borrower or any
such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or
otherwise acquire all or substantially all of the assets of any Person, in each
case so long as:
(i) after giving effect thereto, the Stockholders' Equity of
the Borrower and its Subsidiaries is at least equal to 90% of such
Stockholders' Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the
Borrower is not the surviving corporation, the surviving corporation
shall have assumed in a writing, delivered to the Lender, all of the
Borrower's obligations hereunder and under the other Loan Documents.
SECTION 7.2.7 ASSET DISPOSITIONS, ETC. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, transfer, contribute or otherwise
convey, or grant options, warrants or other rights with respect to, any material
asset (including accounts receivable and capital stock of Principal
Subsidiaries) to any Person, except:
32
38
(a) sales of assets (including, without limitation, Vessels) so long as:
(i) the aggregate net book value of all such assets sold
during each 12-month period commencing on the Closing Date, and each
anniversary of the Closing Date, does not exceed an amount equal to
$175,000,000; and
(ii) the Borrower or Subsidiary selling such asset receives
consideration therefor at least equal to the fair market value thereof
(as determined in good faith by (x) in the case of any Vessel, the
board of directors of the Borrower and (y) in the case of any other
asset, an officer of the Borrower or its board of directors);
(b) sales of capital stock of any Principal Subsidiary of the Borrower so
long as a sale of all of the assets of such Subsidiary would be permitted under
the foregoing CLAUSE (a);
(c) sales of capital stock of any Subsidiary other than a Principal
Subsidiary; and
(d) sales of other assets in the ordinary course of business.
SECTION 7.2.8 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any of the Principal Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its Affiliates (other
than arrangements or contracts among the Borrower and its wholly-owned
Subsidiaries) unless such arrangement or contract is on an arms'-length basis,
PROVIDED that, to the extent that the aggregate fair value of the goods
furnished or to be furnished or the services performed or to be performed under
all such contracts or arrangements in any one Fiscal Year does not exceed
$5,000,000, such contracts or arrangements shall not be subject to this SECTION
7.2.8.
33
39
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following events or
occurrences described in this SECTION 8.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 8.1.1 NON-PAYMENT OF OBLIGATIONS. The Borrower shall default in the
payment or prepayment when due of any principal of or interest on the Loan,
PROVIDED that, in the case of any default in the payment of the interest on the
Loan, such default shall continue unremedied for a period of at least two
Business Days after notice thereof shall have been given to the Borrower by the
Lender.
SECTION 8.1.2 BREACH OF WARRANTY. Any representation or warranty of the Borrower
made or deemed to be made hereunder (including any certificates delivered
pursuant to ARTICLE V) is or shall be incorrect when made in any material
respect and such incorrectness shall continue unremedied for at least five
Business Days after notice thereof shall have been given to the Borrower by the
Lender (or, if (a) such incorrectness is capable of being remedied within 15
days (commencing on the first day of such five-Business-Day period) and (b) the
Borrower is actively seeking to remedy the same during such period, such
incorrectness shall continue unremedied for at least 15 days).
SECTION 8.1.3 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. The Borrower
shall default in the due performance and observance of any other covenant
contained herein or in any other Loan Document (other than the covenants set
forth in SECTION 7.2.4) and such default shall continue unremedied for a period
of five days after notice thereof shall have been given to the Borrower by the
Lender (or, if (a) such default is capable of being remedied within 30 days
(commencing on the first day following such five-day period) and (b) the
Borrower is actively seeking to remedy the same during such period, such default
shall continue unremedied for at least 35 days after such notice to the
Borrower).
34
40
SECTION 8.1.4 DEFAULT ON OTHER INDEBTEDNESS. Any of the following shall occur:
(a) any Indebtedness of the Borrower or any Principal Subsidiary
aggregating $25,000,000 or more (or the equivalent in other currencies) shall
have become due, or be required to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise) prior to its stated maturity, and is
then due and payable; or
(b) the Borrower or any Principal Subsidiary shall default in the payment
when due (after giving effect to any applicable grace period) of any principal
of or interest on any Indebtedness aggregating $25,000,000 or more (or the
equivalent in other currencies); or
(c) any holder or holders of any Indebtedness of the Borrower or any
Principal Subsidiary aggregating $25,000,000 or more (or the equivalent in other
currencies), or any agent acting on their behalf, shall take any action to
realize on any collateral security for such Indebtedness as a result of any
event of default under such Indebtedness;
and, in each such case, such event shall continue unremedied for a period of
five Business Days (or, if (a) such default is capable of being remedied within
15 days (commencing on the first day of such five-Business-Day period) and (b)
the Borrower is actively seeking to remedy the same during such period, such
default shall continue unremedied for at least 15 days).
SECTION 8.1.5 PENSION PLANS. Any of the following events shall occur with
respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a result
of such termination, the Borrower or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $25,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA
and, in each case, such event shall continue unremedied for a period of five
Business Days after notice thereof shall have been given to the Borrower by the
Lender (or, if (a) such default is capable of being remedied within 15 days
(commencing on the first day of such five-Business-Day period) and (b) the
Borrower is actively seeking to remedy the same during such period, such default
shall continue unremedied for at least 15 days).
35
41
SECTION 8.1.6 BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of the Principal
Subsidiaries (or any of its other Subsidiaries to the extent that the relevant
event described below would have a Material Adverse Effect) shall:
(a) become insolvent or generally fail to pay, or admit in writing its
inability to pay, its debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for it or any of its property, or make
a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence, permit or
suffer to exist the appointment of a trustee, receiver, sequestrator or other
custodian for it or for a substantial part of its property, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within 30
days, provided that the Borrower hereby expressly authorizes the Lender to
appear in any court conducting any relevant proceeding during such 30-day period
to preserve, protect and defend its rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any of such Subsidiaries, and, if any
such case or proceeding is not commenced by the Borrower or such Subsidiary,
such case or proceeding shall be consented to or acquiesced in by the Borrower
or such Subsidiary or shall result in the entry of an order for relief or shall
remain for 30 days undismissed, provided that the Borrower hereby expressly
authorizes the Lender to appear in any court conducting any such case or
proceeding during such 30-day period to preserve, protect and defend its rights
under the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of, any of the
foregoing.
SECTION 8.1.7 OWNERSHIP OF PRINCIPAL SUBSIDIARIES. Except as a result of a
disposition permitted pursuant to CLAUSE (b) of SECTION 7.2.7, the Borrower
shall cease to own beneficially and of record all of the capital stock of each
Existing Principal Subsidiary.
36
42
SECTION 8.2 ACTION IF BANKRUPTCY. If any Event of Default described in CLAUSES
(a) through (d) of SECTION 8.1.6 shall occur with respect to the Borrower, the
Commitment (if not theretofore terminated) shall automatically terminate and the
outstanding principal amount of the Loan and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3 ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default (other
than any Event of Default described in CLAUSES (a) through (d) of SECTION 8.1.6
with respect to the Borrower) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Lender, may by notice to the Borrower
declare all of the outstanding principal amount of the Loan and other
Obligations to be due and payable whereupon the full unpaid amount of the Loan
and other Obligations shall be and become immediately due and payable, without
further notice, demand or presentment.
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1 LISTING OF PREPAYMENT EVENTS. Each of the following events or
occurrences described in this SECTION 9.1 shall constitute a "PREPAYMENT EVENT".
SECTION 9.1.1 CHANGE IN OWNERSHIP. Any Person other than a member of the
Existing Group (a "NEW SHAREHOLDER") shall acquire (whether through legal or
beneficial ownership of capital stock, by contract or otherwise), directly or
indirectly, effective control over more than 30% of the Voting Stock and:
(a) the members of the Existing Group have (whether through
legal or beneficial ownership of capital stock, by contract or
otherwise) in the aggregate, directly or indirectly, effective control
over fewer shares of Voting Stock than does such New Shareholder; and
(b) the members of the Existing Group do not collectively have
(whether through legal or beneficial ownership of capital stock, by
contract or otherwise) the right to elect, or to designate for
election, at least a majority of the Board of Directors of the
Borrower.
37
43
SECTION 9.1.2 CHANGE IN BOARD. During any period of 24 consecutive months, a
majority of the Board of Directors of the Borrower shall no longer be composed
of individuals:
(a) who were members of said Board on the first day of such
period; or
(b) whose election or nomination to said Board was approved by
a vote of at least two-thirds of the members of said Board who were
members of said Board on the first day of such period; or
(c) whose election or nomination to said Board was approved by
a vote of at least two-thirds of the members of said Board referred to
in the foregoing CLAUSES (a) and (b).
SECTION 9.1.3 UNENFORCEABILITY. Any Loan Document shall cease to be the legally
valid, binding and enforceable obligation of the Borrower (in each case, other
than with respect to provisions of any Loan Document (i) identified as
unenforceable in the form of the opinion of the Borrower's counsel set forth as
EXHIBIT D-1 or (ii) that a court of competent jurisdiction has determined are
not material) and such event shall continue unremedied for 15 days after notice
thereof has been given to the Borrower by the Lender.
SECTION 9.1.4 APPROVALS. Any material license, consent, authorization,
registration or approval at any time necessary to enable the Borrower or any
Principal Subsidiary to conduct its business shall be revoked, withdrawn or
otherwise cease to be in full force and effect, unless the same would not have a
Material Adverse Effect.
SECTION 9.1.5 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. The Borrower
shall default in the due performance and observance of any of the covenants set
forth in SECTION 7.2.4 and such default shall continue unremedied for a period
of 30 days after notice thereof shall have been given to the Borrower by the
Lender and the Lender fails to agree with the Borrower within that 30-day period
on a proposal (to be made by the Borrower) for the remedy of such default within
a period and on such terms as are acceptable to the Lender.
SECTION 9.1.6 JUDGMENTS. Any judgment or order for the payment of money in
excess of $25,000,000 shall be rendered against the Borrower or any of the
Principal Subsidiaries by a court of competent jurisdiction and the Borrower or
such Principal Subsidiary shall have failed to satisfy such judgment and either:
38
44
(a) enforcement proceedings in respect of any material assets of the
Borrower or such Principal Subsidiary shall have been commenced by any creditor
upon such judgment or order and shall not have been stayed or enjoined within
five Business Days after the commencement of such enforcement proceedings; or
(b) there shall be any period of 10 consecutive Business Days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect.
SECTION 9.1.7 CONDEMNATION, ETC. Any Vessel or Vessels shall be condemned or
otherwise taken under color of law and the same shall continue unremedied for at
least 20 days, unless such condemnation or other taking would not have a
Material Adverse Effect.
SECTION 9.1.8 ARREST. Any Vessel or Vessels shall be arrested and the same shall
continue unremedied for at least 20 days, unless such arrest would not have a
Material Adverse Effect.
SECTION 9.2 MANDATORY PREPAYMENT. If any Prepayment Event shall occur and be
continuing, the Lender shall by notice to the Borrower require the Borrower to
prepay in full on the date of such notice all principal of and interest on the
Loan and all other Obligations (and, in such event, the Borrower shall so pay
the full unpaid amount of the Loan and all accrued and unpaid interest thereon
and all other Obligations).
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement and of
each other Loan Document may from time to time be amended, modified or waived,
if such amendment, modification or waiver is in writing and consented to by the
Borrower and the Lender.
No failure or delay on the part of the Lender in exercising any power or right
under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by the Lender under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
39
45
SECTION 10.2 NOTICES. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed, delivered or transmitted to such party at
its address, telex or facsimile number set forth below its signature hereto or
set forth in the Lender Assignment Agreement or at such other address, telex or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answer back confirmed in the case of telexes).
SECTION 10.3 PAYMENT OF COSTS AND EXPENSES. The Lender and the Borrower shall
pay all the fees and out of pocket expenses of the counsel respectively
appointed by each of them in respect of the preparation and negotiation of this
Agreement and the Note (including, without limitation, in the case of the
Borrower the counsel referred to in SECTIONS 5.1.4.a and b) and, in the case of
the Lender the counsel referred to in SECTION 5.1.4.c))The Borrower agrees to
pay on demand all reasonable expenses of the Lender(including the reasonable
fees and out-of-pocket expenses of counsel to the Lender and of local counsel,
if any, who may be retained by counsel to the Lender) in connection with any
amendments, waivers, consents, supplements or other modifications to this
Agreement or any other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are consummated.
The Borrower further agrees to pay, and to save the Lender harmless from all
liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of this Agreement, the borrowing hereunder, or the
issuance of the Note or any other Loan Documents. The Borrower also agrees to
reimburse the Lender upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses) incurred by the Lender
in connection with (x) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 10.4 INDEMNIFICATION. In consideration of the execution and delivery of
this Agreement by the Lender, the Borrower hereby indemnifies and holds the
Lender and its respective Affiliates, officers, directors and employees
(collectively, the "INDEMNIFIED PARTIES") free and harmless from and against any
and all causes of action, suits or other claims that may be asserted against any
Indemnified Party (and all losses, costs, liabilities, damages and expenses
arising or incurred in connection therewith (irrespective of whether any such
40
46
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys' fees and disbursements
(collectively, the "INDEMNIFIED LIABILITIES")), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to any of
the Loan Documents or the Loan provided for herein or any use of the proceeds of
the Loan, except for any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct. Each Indemnified Party shall (a) furnish
the Borrower with prompt notice of any action, suit or other claim covered by
this SECTION 10.4, (b) at the Borrower's request, give the Borrower the right to
control (at the Borrower's expense) the defense of any such action, suit or
other claim (PROVIDED that (x) the Borrower shall not settle or compromise any
such action, suit or other claim if such Indemnified Party shall demonstrate to
the reasonable satisfaction of the Borrower that such settlement or compromise
would materially adversely affect such Indemnified Party and (y) the Borrower's
selection of counsel in any such action, suit or claim being controlled by the
Borrower shall be subject to such Indemnified Party's consent, which consent
shall not be unreasonably withheld), (c) not agree to any settlement or
compromise of any such action, suit or claim without the Borrower's prior
consent and (d) shall cooperate fully in the Borrower's defense of any such
action, suit or other claim (PROVIDED, that the Borrower shall reimburse such
Indemnified Party for its reasonable out-of-pocket expenses incurred pursuant
hereto). If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 10.5 SURVIVAL. The obligations of the Borrower under SECTIONS 4.1, 4.2,
4.3, 10.3 and 10.4, shall in each case survive any termination of this Agreement
and the payment in full of all Obligations. The representations and warranties
made by the Borrower in this Agreement and in the other Loan Document shall
survive the execution and delivery of this Agreement and such other Loan
Document.
SECTION 10.6 SEVERABILITY. Any provision of this Agreement or of the other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
41
47
SECTION 10.7 HEADINGS. The various headings of this Agreement and of the other
Loan Document are inserted for convenience only and shall not affect the meaning
or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may
be executed by the parties hereto in several counterparts, each of which shall
be deemed to be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective on the first
Business Day which occurs in January 2000 provided that prior to that date
counterparts hereof executed on behalf of the Borrower and the Lender and the
originals thereof shall have been received by the Lender and the Borrower.
SECTION 10.9 GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, UNITED STATES OF AMERICA, INCLUDING ALL MATTERS OF CONSTRUCTION
VALIDITY AND PERFORMANCE, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS OF LAW). This
Agreement and the Note and the instruments herein and therein referenced
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and thereof and supersede any prior agreements, written or
oral, with respect thereto.
SECTION 10.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; PROVIDED that:
(a) except to the extent permitted under SECTION 7.2.6, the Borrower may
not assign or transfer its rights or obligations hereunder without the prior
written consent of the Lender; and
(b) the rights of sale, assignment and transfer of the Lender are subject
to SECTION 10.11.
SECTION 10.11 SALE AND TRANSFER OF THE LOAN AND NOTE; PARTICIPATIONS IN THE LOAN
AND NOTE. The Lender may assign, or sell participations in the Loan to one or
more other Persons in accordance with this SECTION 10.11.
42
48
SECTION 10.11.1 ASSIGNMENTS. The Lender,
(i) with the written consent of the Borrower (which consent
shall not be unreasonably delayed or withheld and which consent, shall
be deemed to have been given in the absence of a written notice
delivered by the Borrower to the Lender, on or before the fifth
Business Day after receipt by the Borrower of the Lender's request for
consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) may at any time assign and delegate
to one or more commercial banks or other financial institutions
provided that the Lender gives the Borrower 45 days notice of the
intention to assign and delegate and that the Borrower may solicit
commercial banks or other financial institutions with which it has
relationships for consideration by the Lender (which consideration will
not be unreasonably denied); and
(ii) with notice to the Borrower but without the consent of
the Borrower, may assign and delegate to any of its Affiliates;
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "ASSIGNEE LENDER"), all or any fraction
of the Lender's Loan not to exceed 49.9% in the aggregate (which
assignment and delegation shall be of a constant, and not a varying,
percentage of the Lender's Loan) in a minimum aggregate amount of
$25,000,000; PROVIDED that the Borrower shall be entitled to continue
to deal solely and directly with the Lender in connection with the
interests so assigned and delegated to an Assignee Lender until:
(a) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
by the Lender and such Assignee Lender;and
(b) Such Assignee Lender shall have executed and delivered to
the Borrower a Lender Assignment Agreement.
From and after the date that the Borrower accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be
deemed automatically to have become a party hereto and to the extent
that rights and obligations hereunder have been assigned and delegated
to such Assignee Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of the Lender
hereunder and under the other Loan Document, and (y) the assignor
43
49
Lender, to the extent that rights and obligations hereunder have been
assigned and delegated by it, shall be released from its obligations
hereunder and under the other Loan Documents, other than any
obligations arising prior to the effective date of such assignment. In
no event shall the Borrower be required to pay to any Assignee Lender
at the time of the relevant assignment any amount under SECTIONS 4.3,
4.4, 4.5 and 4.6 that is greater than the amount which it would have
been required to pay had no such assignment been made. Within five
Business Days after the Borrower has received an executed Lender
Assignment Agreement, the Borrower shall execute and deliver to the
Lender (for delivery to the relevant Assignee Lender) a new Note
evidencing such Assignee Lender's assigned Loan and a replacement Note
in the principal amount of the Loan retained by the assignor Lender
hereunder (such Note to be in exchange for, but not in payment of, that
Note then held by such assignor Lender). Each such Note shall be dated
the date of the predecessor Note. The assignor Lender shall xxxx the
predecessor Note "exchanged" and deliver it to the Borrower
concurrently with the delivery by the Borrower of the new Note. In no
event shall the Lender retain less than 50.1% of the Loan for its own
risk and benefit.
SECTION 10.11.2 PARTICIPATIONS. The Lender may at any time sell to one or more
commercial banks or other financial institutions provided that the Lender gives
the Borrower 45 days notice of the intention to sell and that the Borrower may
solicit commercial banks or other financial institutions with which it has
relationships for consideration by the Lender (which consideration will not be
unreasonably denied) (each of such commercial banks and other financial
institutions being herein called a "PARTICIPANT") participating interests in the
Loan not to exceed 49.9% in the aggregate, PROVIDED that:
(a) no participation contemplated in this SECTION 10.11 shall relieve
the Lender from its obligations hereunder;
(b) the Lender shall remain solely responsible for the performance of
its obligations hereunder;
(c) the Borrower shall continue to deal solely and directly with the
Lender in connection with the Lender's rights and obligations under this
Agreement and the other Loan Document;
44
50
(d) no Participant, unless the Participant is an Affiliate of the
Lender, shall be entitled to require the Lender to take or refrain from taking
any action hereunder or under the other Loan Document,
(e) the Borrower shall not be required to pay any amount under SECTIONS
4.3, 4.4, 4.5 and 4.6 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6 and CLAUSE (H) of 7.1.1, shall be considered a
Lender. In no event shall the Lender retain less than 50.1% of the Loan for its
own risk and benefit.
SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein shall preclude the
Lender from engaging in any transaction, in addition to those contemplated by
this Agreement or the other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted hereby from
engaging with any other Person.
SECTION 10.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR THE
OTHER LOAN DOCUMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE SUPREME
COURT OF THE STATE OF NEW YORK FOR THE COUNTY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY OF THE BORROWER MAY BE BROUGHT, AT
THE LENDER'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY
BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR THE COUNTY OF NEW
YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH
SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENT.
45
51
SECTION 10.14 PROCESS AGENT. If at any time the Borrower ceases to have a place
of business in the United States, the Borrower shall appoint an agent for
service of process (reasonably satisfactory to the Lender) located in New York
City and shall furnish to the Lender evidence that such agent shall have
accepted such appointment for a period of time ending no earlier than one year
after the last Repayment Date specified in Exhibit G.
SECTION 10.15 WAIVER OF JURY TRIAL. THE LENDER AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR THE OTHER LOAN DOCUMENT. EACH OF
THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF THE
OTHER LOAN DOCUMENT) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH
OTHER PARTY ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENT.
46
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ROYAL CARIBBEAN CRUISES LTD.
By /s/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President & Treasurer
Address: 0000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Treasurer
With a copy to: General Counsel
KREDITANSTALT FUR WIEDERAUFBAU
By /s/
---------------------------------
Name:
Title:
Address: Xxxxxxxxxxxxxxxxxxx 0-0
X-00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
Facsimile No.: 00 49 69 7431 2944
Telex No.: 415 256 0
Attention: Shipfinancing Department
47
53
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.10 (b): VESSELS
VESSEL OWNER FLAG
Sovereign of the Seas Sovereign of the Seas Norwegian
Shipping Inc.
Nordic Empress Nordic Empress Shipping Inc. Liberian
Viking Serenade Viking Serenade Inc. Liberian
Monarch of the Seas Monarch of the Seas Inc. Liberian
Majesty of the Seas Majesty of the Seas Inc. Norwegian
Grandeur of the Seas Grandeur of the Seas Inc. Norwegian
Rhapsody of the Seas Rhapsody of the Seas Inc. Liberian
Enchantment of the Seas Enchantment of the Seas Inc. Norwegian
Vision of the Seas Vision of the Seas Inc. Liberian
Voyager of the Seas Voyager of the Seas Inc. Liberian
Horizon Fantasia Cruising Inc. Liberian
Zenith Zenith Shipping Corp. Liberian
Century Blue Sapphire Marine Inc. Liberian
Galaxy Xxxxx Marine Shipping Inc. Liberian
Mercury Seabrook Maritime Inc. Panamanian
ITEM 6.11: SUBSIDIARIES
NAME OF THE SUBSIDIARY JURISDICTION OF ORGANIZATION
Song of Norway Inc. Liberia
Nordic PrInce Inc. Liberia
Sun Viking Inc. Liberia
Song of America Inc. Liberia
Sovereign of the Seas Shipping Inc.* Liberia
Viking Serenade Inc.* Liberia
Nordic Empress Shipping Inc.* Liberia
Majesty of the Seas Inc.* Liberia
Monarch of the Seas Inc.* Liberia
Admiral Management Inc. Liberia
GG Operations Inc. Delaware
Island for Science Inc. Indiana
Royal Caribbean Management Inc. Liberia
Labadee Investments Ltd. Cayman Islands
Societe Labadee Nord, S.A. Haiti
Royal Caribbean Cruise Line A/S Norway
Royal Caribbean Merchandise Inc. Florida
i
54
Eastern Steamship Lines Inc. Liberia
Grandeur of the Seas Inc.* Liberia
Enchantment of the Seas Inc.* Liberia
Rhapsody of the Seas Inc.* Liberia
Vision of the Seas Inc. * Liberia
Voyager of the Seas Inc.* Liberia
Celebrity Cruise Lines Inc. Cayman Islands
Celebrity Cruise Holdings Inc. Liberia
Cruise Mar Shipping Holdings Ltd. Liberia
Seabrook Maritime Inc. * Liberia
Xxxxx Marine Shipping Inc. * Liberia
Blue Sapphire Marine Inc. * Liberia
Fantasia Cruising Inc. * Liberia
Cruise Mar Investment Inc. Liberia
Universal Cruise Holdings Ltd. British Virgin
Islands
Celebrity Cruises Inc. Liberia
Fourth Transoceanic Shipping Co. Ltd. Liberia
Zenith Shipping Corp. * Liberia
Mediterranean Blue Sea Holdings Ltd. Liberia
Celebrity Cruises (Management) Inc. Liberia
Cruceros Celebrity S.L. Spain
Celebrity Travel S.L. Spain
Celebrity Cruises (France) SARL France
Celebrity Croisieres S.A. Switzerland
Celebrity Cruises (Hellas) Ltd. Greece
Celebrity Crociere (Italia) SRL Italy
Celebrity Cruises (UK) Ltd. U.K.
Silver Oak Investments Corporation Liberia
General Electric and Machinery Corporation Panama
Odysseus Reisen GMBH Germany
Atlantic Maritime Recruitment Inc. Liberia
Serenity Management Inc. Liberia
Fifth Transoceanic Shipping Company Ltd. Liberia
Phaidon Navegacion S.A. Panama
Ajut Navigation Corporation Liberia
* Shipholding companies
ii
55
EXHIBIT A
NOTE
$300,000,000 _______, 2000
FOR VALUE RECEIVED, the undersigned, ROYAL CARIBBEAN CRUISES LTD., a
Liberian corporation (the "BORROWER"), promises to pay to the order of
KREDITANSTALT FUR WIEDERAUFBAU (the "LENDER") on ____________, 2009 the
principal sum of ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000)and on _____,
2010 the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) made
by the Lender pursuant to the Credit Agreement, dated as of December 16, 1999
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "CREDIT AGREEMENT"), among the Borrower and the
Lender.
The Borrower also promises to pay interest on the unpaid principal
amounts hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement. Payments of
both principal and interest are to be made in the lawful money of the United
States of America in same day or immediately available funds to the account
designated by the Lender pursuant to the Credit Agreement.
This Note is the Note referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness evidenced by
this Note and on which such Indebtedness may be declared to be immediately due
and payable. Unless otherwise defined, terms used herein have the meanings
provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor. THIS NOTE SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, INCLUDING ALL MATTERS OF CONSTRUCTION VALIDITY AND PERFORMANCE,
WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS OF
LAW).
ROYAL CARIBBEAN CRUISES LTD.
By__________________________
Title:
iii
56
EXHIBIT B
LOAN REQUEST
KREDITANSTALT FUR WIEDERAUFBAU
Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Federal Republic of Germany
ROYAL CARIBBEAN CRUISES LTD. - NOTICE OF DRAWDOWN
Dear Sirs:
This Loan Request is delivered to you pursuant to SECTION 2.2 of the
Credit Agreement, dated as of December 16, 1999 (together with all amendments,
if any, from time to time made thereto, the "CREDIT AGREEMENT"), made between
Royal Caribbean Cruises Ltd., a Liberian corporation (the "BORROWER")and
Kreditanstalt Fur Wiederaufbau (the "LENDER"). Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that the Loan be made in the aggregate
principal amount of $300,000,000 on _________, 2000 having an initial Interest
Period of _________months.
Please wire transfer the proceeds of the Loan as follows:
Bank: Chase Manhattan Bank, NY
ABA#: 000-000-000
For the Account of: ROYAL CARIBBEAN CRUISES LTD.
Account #: 000-0-000000
The Borrower certifies that at the date hereof the representations set
out in ARTICLE VI of the Credit Agreement are true and no event has occurred
which is or may become (with the passage of time or the giving of notice or
both) an Event of Default or a Prepayment Event. The Borrower has caused this
Loan Request to be executed and delivered, and the certification and warranties
contained herein to be made by its duly Authorized Officer this __________day
of___________, 2000.
ROYAL CARIBBEAN CRUISES LTD.
BY__________________________
Name:
Title:
iv
57
EXHIBIT C
INTEREST PERIOD NOTICE
KREDITANSTALT FUR WIEDERAUFBAU
Palmengartenstrasse 5-9
D-60325 Frankfurt am Main
Federal Republic of Germany
Attention: [NAME]
[Title]
ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
This Interest Period Notice is delivered to you pursuant to SECTION 2.3 of the
Credit Agreement, dated as of December 16, 1999 (together with all amendments,
if any, from time to time made thereto, the "CREDIT AGREEMENT"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower") and
Kreditanstalt Fur Wiederaufbau (the "Lender"). Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that on_______________, 20__, the Loan be
continued as a Loan having an Interest Period of _____months.
The Borrower has caused this Interest Period Notice to be executed and
delivered by its Authorized Officer this______day of ________, 20____.
ROYAL CARIBBEAN CRUISES LTD.
By:_______________________
Title:
v
58
EXHIBIT D-1
[Form of Opinion of Counsel to the Borrower]
_______,2000
To: KREDITANSTALT FUR WIEDERAUFBAU
Gentlemen:
I am the General Counsel of Royal Caribbean Cruises Ltd. ("RCCL") and
have acted in that capacity in connection with the Credit Agreement dated as of
December 16, 1999 (the "Credit Agreement") between RCCL and Kreditanstalt Fur
Wiederaufbau (the "Lender").
In connection with the opinions expressed herein, I have examined
originals or copies certified or otherwise identified to my satisfaction of such
agreements, documents, certificates, and other statements of such governmental
officials and corporate officers and other representations of the corporations
referred to herein and other papers as I have deemed relevant and necessary as a
basis for such opinions. In making such examinations I have assumed the
genuineness of all signatures and the conformity with the originals of all
documents submitted to me as copies. As to facts material to my opinion, I have
relied on the representations warranties and statements made in or pursuant to
the Credit Agreement and the other documents referred to herein and upon
certificates of public officials and certificates and other written or oral
statements of officers and other representatives of the corporations named
herein.
Unless otherwise defined herein, the capitalized terms used herein
shall have meanings assigned to them in the Credit Agreement.
Based on the foregoing and subject to the qualifications and exceptions
expressed herein, it is my opinion that:
(i) no registration or other official action in the State of Florida is
required in order to render the Credit Agreement or the other Loan
Document enforceable against RCCL; and
(ii) to the extent that their respective incomes are excludable from
the United States Income Taxation pursuant to Section 883 of the
Internal Revenue Code, none of RCCL and its Principal Subsidiaries is,
or under current law will be, taxable on its income under the Revenue
Code of the State of Florida. In addition, RCCL is not required, as a
matter of the law of the State of Florida, to withhold income tax with
respect to any interest or principal payments it is or may be required
to make under the Loan Documents.
vi
59
The opinions expressed above are subject to the following further
qualifications: (i) the effect on the enforceability of the Loan Documents of
insolvency, bankruptcy, moratorium, fraudulent conveyance or reorganization laws
or other similar laws affecting generally the enforcement of the creditors'
rights, (ii) the effect of general principles of public policy and of equity,
(iii) the possibility that certain provisions of the Loan Documents may not be
specifically enforceable due to the effect of certain laws, equitable principles
and judicial decisions, (iv) no opinion is expressed herein as to the choice of
law provisions contained in the Loan Documents, (v) no opinion is expressed
herein as to the necessity of the Lender to be qualified to do business in the
State of Florida or to make any filings in connection therewith and (vi)no
opinion is expressed herein as to laws other than the laws of the State of
Florida.
This opinion is solely for the benefit of the Lender and, except for
Counsel to the Lender in connection with this transaction, is not to be relied
on by any other person. This opinion letter is limited strictly to the matters
stated herein and is not to be read as extending by implication to any matter
not specifically referred to herein. This opinion letter is based on states of
law, documentation and fact as they exist on the date hereof, and we do not
undertake to advise you of any changes that hereafter may be brought to our
attention.
Very truly yours,
vii
60
EXHIBIT D-2
[Form of Opinion of Liberian Counsel to the Borrower]
_______,2000
To: Kreditanstalt Fur Wiederaufbau
Gentlemen:
We have acted as legal counsel on matters of Liberian law to Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), in connection
with (a) a Credit Agreement dated as of December 16, 1999 (the "Credit
Agreement") and made between (1) the Borrower and (2) Kreditanstalt Fur
Wiederaufbau(the "Lender") in respect of a loan facility in the maximum
aggregate amount of $300,000,000, and (b)the Note referred to in the Credit
Agreement (collectively, together with the Credit Agreement, the "Documents").
With reference to the Documents, you have asked for our opinion on the
matters set forth below. In rendering this opinion, we have examined executed
copies of the Documents. We have also examined originals or photostatic copies
or certified copies of all such agreements and other instruments, certificates
by public officials and certificates of officers of the Borrower as are relevant
and necessary and relevant corporate authorities of the Borrower. We have
assumed with your approval, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity with the
original documents of all documents submitted to us as copies, the power,
authority and legal right of the parties to the Documents other than the
Borrower to enter into and perform their respective obligations under each of
the Documents and the due authorization of the execution of the Documents by all
parties thereto other than the Borrower. We have further assumed the due
execution and delivery of each of the Documents, due compliance with all matters
of, and the validity and enforceability of the Documents other than the laws
governing each of the Documents, under the respective laws of the Republic of
Liberia, in respect of which we are opining.
As to questions of fact material to this opinion, we have, when
relevant facts were not independently established, relied upon certificates of
public officials and of officers or representatives of the Borrower.
We are attorneys admitted to practice in the State of New York and do
not purport to be experts in the laws of any other jurisdiction. Insofar as our
opinion relates to the law of the Republic of Liberia, we have relied on
opinions of counsel in Liberia rendered in transactions which we consider to
viii
61
afford a satisfactory basis for such opinion, and upon our independent
examinations of the Liberian Corporation Act of 1948 (Chapter 1 of Title 4 of
the Liberian Code of Laws of 1956, effective March 1, 1958 as amended to July,
1973), the Liberian Business Corporation Act of 1976 (Part 1 of Title V of the
Liberian Code of Laws (Revised) of 1976, effective January 2, 1977) and the
Liberian Maritime Law (Chapter 3 of Title 22 of the Liberian Code of Laws as
amended) as contained in pamphlets delivered to us by Liberian Corporation
Services Inc. (who have today advised us that to the best of their knowledge
such laws remain in effect on the date hereof) and our knowledge and
interpretation of analogous laws in the United States. We express no opinion as
to the laws of any other jurisdiction by which any of the Documents are
expressed to be governed, and we have assumed with your approval that each of
the Documents is valid, legally binding and enforceable under the law by which
it is expressed to be governed. In rendering our opinion as to the valid
existence in good standing of the Borrower , we have relied on the Certificate
of Good Standing issued by order of the Minister of Foreign Affairs of the
Republic of Liberia on _________,2000.
Based upon and subject to the foregoing and having regard to the legal
considerations which we deem relevant, we are of the opinion that, insofar as
Liberian law is concerned:
1. The Borrower is a corporation duly incorporated, validly existing
under the aforementioned Business Corporation Act and in good
standing under the laws of the Republic of Liberia and has full
power to enter into and perform its obligations under the
Documents;
2. The Borrower has full right, power and authority to enter into,
execute and deliver the Documents and to perform each and all of
the matters and things provided for therein;
3. Each of the Documents has been executed and delivered by a duly
authorized signatory of the Borrower and constitutes the legal,
valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with its terms;
4. Neither the execution of, nor the performance of its obligations
under, any of the Documents by the Borrower will contravene any
existing applicable law, regulation or restrictions of the
Republic of Liberia and no consents or approvals of, or
exemptions by any Liberian governmental or public bodies and
authorities are required in connection with the execution and
delivery by the Borrower of the Documents;
ix
62
5. Neither the execution nor delivery of any of the Documents, nor
the transactions contemplated therein, nor compliance with the
terms and conditions thereof, will contravene any provisions of
Liberian law or regulation or violate any provisions of the
Articles of Incorporation or the By-laws of the Borrower;
6. It is not necessary to file, record or register any of the
Documents or any instrument relating thereto or effect any other
official action in any public office or elsewhere in the Republic
of Liberia to render any such document enforceable against
Borrower;
7. Assuming that no more than 25% of the total combined voting power
and no more than 25% of the total value of the outstanding equity
stock of the Borrower is owned, directly or indirectly, by
persons resident in Liberia and that the Borrower does not engage
in Liberia in the pursuit of gain or profit with a degree of
continuity or regularity, the Borrower is not required or
entitled under any existing applicable law or regulation of the
Republic of Liberia to make any withholding or deduction in
respect of any tax or otherwise from any payment which it is or
may be required to make under any of the Documents;
8. Assuming none of the Documents having been executed in Liberia,
no stamp or registration or similar taxes or charges are payable
in the Republic of Liberia in respect of any of the Documents or
the enforcement thereof in the Courts of Liberia other than
(i)customary court fees payable in litigation in the Courts of
Liberia and (ii) nominal documentary stamp taxes if the Documents
are ever submitted to a Liberian court;
9. Assuming that the shares of the Borrower and the Principal
Subsidiaries are not owned, directly or indirectly, by the
Republic of Liberia or any other sovereign under Liberian law,
neither the Borrower nor any of the Principal Subsidiaries nor
the property or assets of any of them (including in the case of
Principal Subsidiaries any of the Vessels and their earnings and
insurances and requisition compensation) is immune from the
institution of legal proceedings or the obtaining or execution of
a judgment in the Republic of Liberia; and
10. Under Liberian law the choice by the Borrower of the law of the
State of New York to govern the Credit Agreement and the Note is
a valid choice of law and the irrevocable submission thereunder
by the Borrower to the jurisdiction of the Supreme Court of the
State of New York for the County of New York and for the United
x
00
Xxxxxx Xxxxxxxx Xxxxx for the Southern District of New York is a
valid submission to such courts. In the event a judgment of such
courts against the Borrower was obtained after service of process
in the manner specified in the Credit Agreement, the same would
be enforced by the courts of the Republic of Liberia without
further review on the merits unless: (i) the judgment was
obtained by fraud; or (ii) the judgment was given in a manner
contrary to natural justice or the judgment was given in a manner
contrary to the public policy of the Republic of Liberia; or
(iii) the judgment was in a case in which the defendant did not
appear or in which an authorized person in such defendant's
behalf; or (iv) the judgment was not for a specific ascertained
sum of money; or(v) the judgment was not final and conclusive in
accordance with the laws of the jurisdiction in which the
judgment was obtained.
We qualify our opinion to the extent that (i) the enforceability of the
rights and remedies provided for in the Documents (a) may be limited by
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and other similar laws affecting generally the enforcement
of creditors' rights and (b) is subject to general principles of public
policy and of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), including application
by a court of competent jurisdiction of principles of good faith, fair
dealing, commercial reasonableness, materiality, unconscionability and
conflict with public policy or similar principles, and (ii) while there
is nothing in the laws of the Republic of Liberia that prohibits a
Liberian corporation from submitting to the jurisdiction of a forum
other than Liberia, the enforceability of such submission to
jurisdiction provisions is not dependent upon Liberian law and such
provisions may not be enforceable under the laws of a particular
jurisdiction.
This opinion is issued solely for the benefit of the Lender and may be
relied upon solely by the Lender in connection with the transaction described
herein and, except for Counsel to the Lender in connection with this
transaction, is not to be made available to, or relied upon by, any other
person, firm or entity. This opinion letter is limited strictly to the matters
stated herein and is not to be read as extending by implication to any matter
not specifically referred to herein. This opinion letter is based on states of
law, documentation and fact as they exist on the date hereof, and we do not
undertake to advise you of any changes that hereafter may be brought to our
attention.
Very truly yours,
xi
64
EXHIBIT E
December __, 1999
To the Lender to the Credit Agreement referred to below.
Re: ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
This letter is furnished to you in connection with the Credit
Agreement, dated as of December 16, 1999 (the "CREDIT AGREEMENT"),
among Royal Caribbean Cruises Ltd., a Liberian corporation (the
"Borrower") and Kreditanstalt Fur Wiederaufbau (the "LENDER"). Unless
otherwise defined, terms used herein have the meanings provided in the
Credit Agreement.
We have acted as counsel to the Lender in connection with the
preparation, execution and delivery of the Credit Agreement and the
Note, and we have participated in the closing held in connection with
the making of the Loan on the date hereof.
In that regard, we have examined executed counterparts of the
Credit Agreement, dated December 16, 1999 and the Note, dated _______,
2000 (collectively, the "SUBJECT DOCUMENTS"). We have also examined the
legal opinions contained in the opinion letters listed on ATTACHMENT 1
hereto, each dated as of the date hereof, which were delivered to you
on the date hereof.
In our examination of the Subject Documents and the opinion
letters listed on ATTACHMENT 1, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals or copies of originals, the
conformity with the originals of all such documents submitted to us as
copies and the due execution and delivery thereof by each party thereto
pursuant to due authorization(corporate and otherwise) and with all
requisite corporate powers.
As to the questions of fact relevant to this opinion, we have,
with your approval and without independent investigation, assumed the
accuracy of the representations and warranties contained in the Loan
Documents and contained in the certificates of officers and
representatives of the Borrower and of public officials, copies of
which are being delivered to you on the date hereof. To the extent that
our opinions expressed below involve conclusions as to the matters set
forth in the opinion letters listed on ATTACHMENT 1, we have, with your
approval and without independent investigation, assumed the correctness
of the matters and opinions set forth in such opinion letters, our
opinions being subject to the assumptions, qualifications and
limitations set forth in such opinion letters.
Based upon the foregoing examination of documents and
assumptions and upon such other investigations as we have deemed
necessary, we are of the opinion that each of the Subject Documents
executed and delivered by the Borrower constitutes a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
xii
65
Our opinion set forth above is subject to the following
qualifications:
(a) Our opinion is limited to the law of the State of New
York, and we do not express any opinion herein
concerning any other law.
(b) Our opinion is limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent
conveyance, and other similar laws affecting creditors'
rights generally, and (ii) the effect of general
principles of public policy and of equity (regardless of
whether considered in a proceeding in equity and or at
law).
(c) Our opinion above is also subject to the effect of
certain laws, equitable principles and judicial
decisions that may limit the enforceability of certain
provisions of the Loan Documents, although such
limitations do not make the remedies provided for
therein (taken as a whole) inadequate for the practical
realization of the benefits afforded thereby.
(d) We express no opinion as to the effect of the law of any
jurisdiction (other than the State of New York) wherein
the Lender may be located or where in enforcement of the
Credit Agreement or the Note may be sought which limits
the rates of interest legally chargeable or collectible.
This opinion letter is being furnished to you solely for your
use in connection with the transactions contemplated by the Credit
Agreement. No other use or distribution of this opinion letter may be
made without our prior written consent. This opinion letter is limited
strictly to matters stated herein and is not to be read as extending by
implication to any matter not specifically referred to herein. This
opinion letter is based on states of law, documentation and fact as
they exist on the date hereof, and we do not undertake to advise you of
any changes that hereafter may be brought to our attention.
Very truly yours,
xiii
66
ATTACHMENT 1
1. Opinion of Xxxxxx, Xxxxxx & Xxxxxxxx of even date herewith.
2. Opinion of Xxxxxxx X. Xxxxx, Esq. of even date herewith.
xiv
67
EXHIBIT F
LENDER ASSIGNMENT AGREEMENT
To: Royal Caribbean Cruises Ltd.
ROYAL CARIBBEAN CRUISES LTD.
Gentleman and Ladies:
We refer to CLAUSE (b) of SECTION 10.11.1 of the Credit
Agreement, dated as of December 16, 1999 (together with all amendments
and other modifications, if any, from time to time therafter made
thereto, the "CREDIT AGREEMENT"), among Royal Caribbean Cruises Ltd., a
Liberian corporation (the "BORROWER") and Kreditanstalt fur
Wiederaufbau (the "Lender"). Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
This agreement is delivered to you pursuant to CLAUSE (b) of
SECTION 10.11.1 of the Credit Agreement and also constitutes notice to
you, pursuant to CLAUSE (a) of SECTION 10.11.1 of the Credit Agreement,
of the assignment and delegation to________________ (the "ASSIGNEE") of
___% of the Loan of______________(the "ASSIGNOR") outstanding under the
Credit Agreement on the date hereof. After giving effect to the
foregoing assignment and delegation, the Assignor's and the Assignee's
Percentages for the purposes of the Credit Agreement are set forth
opposite such Person's name on the signature pages hereof.
[Add paragraph dealing with accrued interest and fees with
respect to Loan assigned.]
The Assignee hereby acknowledges and confirms that it has
received a copy of the Credit Agreement and the exhibits related
thereto, together with copies of the documents which were required to
be delivered under the Credit Agreement as a condition to the making of
the Loan thereunder.
Except as otherwise provided in the Credit Agreement,
effective as of the date of acceptance hereof by the Borrower:
xv
68
(a) the Assignee
(i) shall be deemed automatically to have
become a party to the Credit Agreement, have
all the rights and obligations of a "Lender"
under the Credit Agreement and the other
Loan Documents as if it were an original
signatory thereto to the extent specified in
the second paragraph hereof;
(ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement
and the other Loan Document as if it were an
original signatory thereto; and
(b) the Assignor shall be released from its
obligations under the Credit Agreement and the other Loan
Document to the extent specified in the second paragraph
hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loan and requests the Borrower to
acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by the
last paragraph of SECTION 4.6 (if so required) of the Credit Agreement
no later than the date of acceptance hereof by the Borrower.
xvi
69
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
Adjusted Percentage [ASSIGNOR]
Loan: ___%
By:__________________
Title
Percentage [ASSIGNEE]
Loan: ___%
By:__________________
Title
Accepted and Acknowledged
this ___day of _______, 20__
ROYAL CARIBBEAN CRUISES LTD.
BY:_________________________
Title:
xvii
70
EXHIBIT G
REPAYMENT SCHEDULE
REPAYMENT DATES LOAN BALANCE REPAYMENT
Nineth Anniversary $300,000,000 $150,000,000
of Closing Date
Tenth Anniversary $150,000,000 $150,000,000
of Closing Date
xviii
