Exhibit 10.1

 

Execution version

 

[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

Dated 4 April 2024

 

OCEANIA NEXT I, LLC 

as Borrower

 

and

 

ncl corporation ltd. 

as Guarantor

 

and

 

BANCO SANTANDER, S.A. 

BNP PARIBAS 

CAIXABANK S.A. 

CASSA DEPOSITI E PRESTITI S.P.A. 

Crédit Agricole Corporate and Investment Bank 

KFW IPEX-BANK GMBH 

as Joint Mandated Lead Arrangers

 

and

 

The Banks and Financial Institutions listed in Schedule 1 

as Original Lenders

 

and

 

Crédit Agricole Corporate and Investment Bank 

as Facility Agent and ECA Agent

 

and

 

Crédit Agricole Corporate and Investment Bank 

as Security Agent

 

Sace Facility Agreement

 

relating to the part financing of the 1,460 passenger cruise ship
newbuilding presently designated as Hull No. [*] at Fincantieri S.p.A.

 

 

 

 

 

Index

 

ClausePage

 

Section 1 Interpretation       3
1      Definitions and Interpretation      3
Section 2 The Facility       43
2      The Facility      43
3      Purpose      43
4      Conditions of Utilisation      44
Section 3 Utilisation       56
5      Utilisation      56
Section 4 Repayment, Prepayment and Cancellation       59
6      Repayment      59
7      Prepayment and Cancellation      59
Section 5 Costs of Utilisation       65
8      Interest      65
9      Interest Periods      67
10      Changes to the Calculation of Interest      68
11      Fees      75
Section 6 Additional Payment Obligations       79
12      Tax Gross-up and Indemnities      79
13      Increased Costs      83
14      Other Indemnities      86
15      Mitigation by the Lenders      89
16      Costs and Expenses      89
Section 7 Guarantee       91
17      Guarantee and Indemnity      91
Section 8 Representations, Undertakings and Events of Default       95
18      Representations      95
19      Repetition of Representations      103
20      Information Undertakings      103
21      Financial Covenants      107
22      General Undertakings      111
23      Ship Undertakings      121
24      Insurance Undertakings      128
25      Security Value Maintenance      132
26      Events of Default      133
27      ECA Provisions      138
Section 9 Changes to Parties       142
28      Changes to the Lenders      142
29      Changes to the Transaction Obligors      148
Section 10 The Finance Parties       149
30      Role of the Agent and the Joint Mandated Lead Arrangers      149
31      The Security Agent      161
32      Conduct of Business by the Finance Parties      174
33      Sharing among the Finance Parties      174
Section 11 Administration       176
34      Payment Mechanics      176
35      Set-Off      179
36      Notices      179
37      Calculations and Certificates      182

 

 

 

38      Partial Invalidity      182
39      Remedies and Waivers      182
40      Amendments and Waivers      182
41      Confidential Information      186
42      Confidentiality of Funding Rates      192
43      Counterparts      193
44      Bail In      194
Section 12 Governing Law and Enforcement       196
45      Governing Law      196
46      Enforcement      196
47      Waiver of Immunity      196
     
Schedules  
     
Schedule 1 The Original Parties        
       Part A The Obligors  
       Part B The Original Lenders  
Schedule 2 Requests        
       Part A Form of Disbursement Request  
       Part B Form of Reimbursement Request  
       Part C Form of Premium Request  
Schedule 3 Form of Builder Qualifying Certificate        
Schedule 4 Form of Transfer Certificate        
Schedule 5 Form of Assignment Agreement        
Schedule 6 Form of Compliance Certificate        
Schedule 7 Documents to be produced by the Builder to the Agent on Delivery        
Schedule 8 Utilisation Schedule        
Schedule 9 Timetables        
   
Execution  
   
Execution Page       198

 

 

 

THIS AGREEMENT is made on 4 April 2024.

 

(1)OCEANIA NEXT I, LLC, an exempted limited liability company continued under the laws of Bermuda whose registered office is at Park Place, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda, as borrower (the "Borrower")

 

(2)NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda, as guarantor (the "Guarantor")

 

(3)BANCO SANTANDER, S.A., a credit entity organized under the laws of Spain, with registered office at 9-12 Paseo de Pereda, Santander, Cantabria, Spain and with tax identification number A-39000013, BNP PARIBAS, CAIXABANK S.A., of Av. Diagonal 615, pl.5, 08028, Barcelona, Spain, CASSA DEPOSITI E PRESTITI S.P.A. as a società per azioni with a fully paid-up share capital equal to 4,051,143,264 Euros, having its registered office at Via Goito, 4, 00185, Roma Italy, and registered with the Chamber of Commerce of Rome under number 80199230584, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, acting through its office at 12 Place des États-Unis, CS 70052, 92547, Montrouge Cedex, France; and having fiscal code number 07756511007 and KFW IPEX-BANK GMBH of Palmengartenstraße 5-9 60325 Frankfurt Germany as joint mandated lead arrangers (the "Joint Mandated Lead Arrangers")

 

(4)THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Parties), as lenders (the "Original Lenders")

 

(5)CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK acting through its office at 12 Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, as facility agent for the other Finance Parties (the "Facility Agent")

 

(6)CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK acting through its office at 12 Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, as ECA agent for the other Finance Parties (the "ECA Agent" and, together with the Facility Agent, the "Agent")

 

(7)CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK acting through its office at 12 Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France, as security agent for the Secured Parties (the "Security Agent")

 

Background

 

(A)By the Shipbuilding Contract the Builder has agreed to design, construct and deliver, and the Borrower has agreed to purchase, the Ship, which is to be delivered to the Borrower on the Intended Delivery Date, subject to any adjustments of such delivery date in accordance with the Shipbuilding Contract.

 

(B)The total price payable by the Borrower to the Builder under the Shipbuilding Contract is nine hundred and five million Euros (€905,000,000) (the "Initial Contract Price") payable on the following terms:

 

(i)as to [*], being [*], in accordance with a side letter to the Shipbuilding Contract dated 28 August 2023 ("First Shipbuilding Contract Instalment"), such that the First Shipbuilding Contract Instalment will have been fully paid by the date on which the Shipbuilding Contract becomes effective in accordance with its terms (or any other date that is further agreed between the Borrower and the Builder);

 

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(ii)as to [*], being [*], on the date falling (depending on whether the Borrower opts for Scheme A or Scheme B pursuant to Article 10 of the Shipbuilding Contract) 36 or 30 months prior to the Intended Delivery Date;

 

(iii)as to [*], being [*], on the date falling (depending on whether the Borrower opts for Scheme A or Scheme B pursuant to Article 10 of the Shipbuilding Contract) 24 or 21 months prior to the Intended Delivery Date;

 

(iv)as to [*], being [*], on the date falling 12 months prior to the Intended Delivery Date; and

 

(v)as to [*], being [*], on delivery of the Ship on the Delivery Date,

 

as each such event is described in the Shipbuilding Contract.

 

(C)The Initial Contract Price may be decreased at delivery of the Ship under Articles 13, 14, 16, 17, 19 and 20 of the Shipbuilding Contract (in aggregate the "Liquidated Damages") or by mutual agreement between the parties (the Initial Contract Price adjusted as aforesaid being the "Contract Price"). For the avoidance of doubt, under the Shipbuilding Contract the price of the Ship may be increased or decreased pursuant to Article 24 thereof but, for the purposes of this Agreement, the Contract Price will not include any increase in the price in respect of the Initial Contract Price under Article 24 of the Shipbuilding Contract or any other increase agreed under the Shipbuilding Contract and will therefore not exceed at any time the aggregate amount of €905,000,000.

 

(D)The Lenders have agreed to make available to the Borrower a Dollar loan facility for the purpose of assisting the Borrower in financing the Dollar Equivalent of up to eighty per cent. (80%) of the Contract Price and of the ECA Premium, up to the ECA Premium Financed Amount.

 

Operative Provisions

 

2

 

 

Section 1

 

Interpretation

 

1Definitions and Interpretation

 

1.1Definitions

 

In this Agreement:

 

"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

 

"Annex VI" means Annex VI of the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.

 

"Anti-Corruption Laws" means the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997 and any relevant implementing laws and regulations and any similar laws or regulations in any jurisdiction relating to bribery of foreign and domestic public officials, bribery in the private sector, corruption or any similar practices.

 

"Approved Broker" means Clarkson Platou, Barry Rogliano Salles, Fearnleys AS, Rocca & Partners, Brax Shipbrokers AS (or any Affiliate of such person through which valuations are commonly issued) or such other shipbroker or ship valuer experienced in valuing cruise ships nominated by the Borrower and approved by the Agent (acting with the authorisation of the Majority Lenders).

 

"Approved Classification Society" means Bureau Veritas, DNV, Rina or Lloyd's Register or any other classification society approved in writing by the Agent, provided that the Agent shall not unreasonably withhold or delay consent if the classification society is a member of the International Association of Classification Societies.

 

"Approved Flag" means the Bermudian flag, the Marshall Islands flag, the Bahamian flag or such other flag as the Agent may, with the approval of the Italian Authorities and at least four Lenders representing as a minimum the Majority Lenders, approve from time to time.

 

"Approved Manager" means any of the Borrower, NCL Corporation Ltd., NCL (Bahamas) Ltd. or other member of the Group as manager of the Ship, or any company which is not a member of the Group which the Agent may, with the authorisation of the Majority Lenders, approve from time to time as the manager of the Ship.

 

"Approved Manager's Undertaking" means, in the event that the Approved Manager is a company other than the Borrower, a letter of undertaking executed or to be executed by the Approved Manager in favour of the Agent, which will include, without limitation, an agreement by the Approved Manager to subordinate its rights against the Ship and the Borrower to the rights of the Secured Parties under the Finance Documents, in the agreed form.

 

"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

 

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"Availability Period" means the period from (and including) the date of this Agreement to (and including) the earlier of:

 

(a)the Delivery Date;

 

(b)

 

(i)25 March 2028; or

 

(ii)further to a request from the Borrower and subject to the consent of all the Lenders and the Italian Authorities, such later date as may be confirmed in writing by the Agent to the Borrower and subject to any amendment or other documentation or action that the Finance Parties or any of the Italian Authorities may require in that respect; and

 

(c)the date on which the Total Commitments are fully borrowed, cancelled or terminated.

 

"Available Commitment" means a Lender's Commitment minus:

 

(a)the amount of its participation in any outstanding Loans; and

 

(b)in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date.

 

"Available Facility" means the aggregate for the time being of each Lender's Available Commitment.

 

"Bareboat Charter" means the bareboat charter of the Ship by the Borrower as owner to the Charterer as bareboat charterer, which shall be entered into no later than the Delivery Date in the form approved by the Agent before the Delivery Date with such reasonable changes thereto as the Agent (acting with the authorisation of the Majority Lenders) may approve from time to time.

 

"Base Rate" means one Euro for one point thirty-five (1.35) Dollars.

 

"Bermudian Transaction Obligors" means the Borrower, the Shareholder and the Guarantor.

 

"Borrower Account" means any account designated in writing as such by a Borrower Authorised Signatory for and on behalf of the Borrower.

 

"Borrower Authorised Signatory" means any person:

 

(a)authorised to execute any document to be delivered pursuant to or in connection with this Agreement on the Borrower's behalf; and

 

(b)in respect of whom the Agent has received evidence satisfactory to it of such authority and a specimen signature.

 

"Break Costs" means:

 

(a)in respect of a Fixed Rate Loan, the amount (if any) by which:

 

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(i)the interest (excluding the Fixed Rate Margin, but including any Fixed Rate Margin Negative Reference Rate Component) which a Lender should have received (taking into account, the SIMEST Margin Contribution and the Reference Rate Component which that Lender would have received under the IMUA) for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(ii)the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period; and

 

(b)in respect of a Floating Rate Loan:

 

(i)other than in the case that interest in respect of that Floating Rate Loan is determined on the basis of the Daily Simple SOFR, the amount (if any) by which:

 

(A)the interest (excluding the Floating Rate Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(B)the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period; or

 

(ii)in the case that interest in respect of that Floating Rate Loan is determined on the basis of the Daily Simple SOFR, the difference (if positive), calculated by the Lenders and notified by them to the Agent, between the actual cost for the Lenders of the funding for the relevant Loan or Loans and the rate of interest for the monies to be invested by the Lenders, applied to the amounts so prepaid for the period from the said prepayment until the last day of the Interest Period during which the prepayment occurs (if prepayment does not occur on the last day of that Interest Period), details of any such calculation being supplied to the Borrower by the Agent on behalf of the Lenders.

 

"Builder" means Fincantieri S.p.A., a company incorporated in Italy with registered office in Trieste, via Genova, 1, and having fiscal code 00397130584.

 

"Builder Account" means any account designated in writing as such by a Builder Authorised Signatory for and on behalf of the Builder.

 

5

 

 

"Builder Authorised Signatory" means any person:

 

(a)authorised to execute any document to be delivered pursuant to or in connection with this Agreement on the Builder's behalf; and

 

(b)in respect of whom the Agent has received evidence satisfactory to it of such authority and a specimen signature.

 

"Builder Qualifying Certificate" means a certificate substantially in the form set out in Schedule 3 (Form of Builder Qualifying Certificate).

 

"Business Day" means:

 

(a)a day (other than a Saturday or a Sunday) on which banks are open for general business in London, Frankfurt, Paris, New York, Miami, Bermuda, Milan, Brussels, Madrid and Rome; and

 

(b)in relation to:

 

(i)the fixing of an interest rate by reference to the Reference Rate;

 

(ii)any date for payment or purchase of an amount relating to a Loan where interest is being calculated by reference to Daily Simple SOFR; or

 

(iii)the determination of the first day or the last day of an Interest Period for a Loan where interest is being calculated by reference to Daily Simple SOFR or otherwise in relation to the determination of the length of such an Interest Period,

 

a day which is also a US Government Securities Business Day relating to the relevant Loan.

 

"Capital Stock" means:

 

(a)in the case of a corporation or company, corporate stock or shares;

 

(b)in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(c)in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

(d)any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

 

"Cash Payment" means, with reference to any Shipbuilding Contract Instalment(s) or the Contract Price, or the Loan(s) financing such Shipbuilding Contract Instalment(s) or Contract Price or the invoices issued in respect thereof, an amount equal to twenty per cent. (20%) of such Shipbuilding Contract Instalment(s) or Contract Price.

 

"CDP" means Cassa depositi e prestiti S.p.A.

 

"CDP Code of Ethics" means the code of ethics adopted by CDP, available on CDP's website (www.cdp.it).

 

6

 

 

"CDP Event" means:

 

(a)any representation made or deemed to be made by an Obligor in Clause 18.31 (Italian compliance representations) is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; or

 

(b)an Obligor breaches Clause 22.24 (Italian compliance undertakings).

 

"CDP Group Anti-Corruption Policy" means the anti-corruption policy relating to principles and measures adopted by CDP and each of its Subsidiaries that are subject to its direction and coordination pursuant to article 2497 et seq. of the Italian Civil Code, available on CDP's website (www.cdp.it).

 

"CDP Model" means the principles of the compliance system adopted by CDP pursuant to Legislative Decree 231, available on CDP's website (www.cdp.it).

 

"Central Bank Rate" means:

 

(a)the short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or

 

(b)if that target is not a single figure, the arithmetic mean of:

 

(i)the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and

 

(ii)the lower bound of that target range.

 

"Central Bank Rate Adjustment" means in relation to the Central Bank Rate prevailing at close of business on any US Government Securities Business Day, the 20 per cent. trimmed arithmetic mean calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent), of the Central Bank Rate Spreads for the five (5) most immediately preceding US Government Securities Business Days for which SOFR is available.

 

"Central Bank Rate Spread" means in relation to any US Government Securities Business Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) of:

 

(a)SOFR for that US Government Securities Business Day; and

 

(b)the Central Bank Rate prevailing at close of business on that US Government Securities Business Day.

 

"Certified Copy" means in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up-to-date copy of the original by any of the officers (including secretaries) or any attorney-in-fact for the time being of that company, or any official licensed to certify or authenticate documents.

 

"Charged Property" means all of the assets of the Transaction Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.

 

7

 

 

"Charterer" means Oceania Cruises Ltd., an exempted company limited by shares and continued under the laws or Bermuda whose registered office is at Park Place, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda.

 

"CIRR" means the applicable Commercial Interest Reference Rate for a financing denominated in Dollars as set out in the IMUA and established and calculated according to the provisions of the OECD Arrangement on Officially Supported Export Credits, to be notified by SIMEST to the Agent (through the ECA Agent) and being [*] per cent. ([*]%) per annum for the purpose of the Facility.

 

"Code" means the United States Internal Revenue Code of 1986.

 

"Commitment" means:

 

(a)in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part B (The Original Lenders) of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

 

(b)in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by it under this Agreement.

 

"Compliance Certificate" means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).

 

"Confidential Information" means all information relating to the Borrower, any Transaction Obligor, the Group, the Transaction Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

 

(a)any member of the Group or any of its advisers; or

 

(b)another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

(i)information that:

 

(A)is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 41 (Confidential Information); or

 

(B)is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(C)is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

8

 

 

(ii)any Funding Rate.

 

"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA from time to time or in any other form agreed between the Borrower and the Agent.

 

"Consolidated Total Assets" means, as of any date, the total assets of the Guarantor and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Guarantor as of such date.

 

"Constitutional Documents" means, as applicable, the certificate of formation, the memorandum of association and the bye-laws, or the certificate of continuance and the limited liability company agreement.

 

"Contract Price" has the meaning given in Recital (C).

 

"Conversion Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date and notified to the Borrower as being the lower of:

 

(a)the Base Rate; or

 

(b)the FOREX Contracts Weighted Average Rate.

 

"Conversion Rate Fixing Date" means:

 

(a)in respect of each Loan which is to be utilised on the first Utilisation Date in accordance with Clause 5.4 (Initial Utilisation), the date falling fifteen (15) days before the first Utilisation Date;

 

(b)in respect of each other Loan save for the Delivery Loan and a Loan which is utilised on the first Utilisation Date pursuant to paragraph (a) above, the date falling thirty (30) days before the relevant Utilisation Date; and

 

(c)in respect of the Delivery Loan, the date falling sixty (60) days before the Intended Delivery Date.

 

"Daily Rate" means for any US Government Securities Business Day:

 

(a)SOFR for that US Government Securities Business Day; or

 

(b)if SOFR is not available for that US Government Securities Business Day, the percentage rate per annum which is the aggregate of:

 

(i)the Central Bank Rate for that US Government Securities Business Day; and

 

(ii)the applicable Central Bank Rate Adjustment; or

 

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(c)if paragraph (b) above applies but the Central Bank Rate for that US Government Securities Business Day is not available, the percentage rate per annum which is the aggregate of:

 

(i)the most recent Central Bank Rate for a day which is no more than five (5) US Government Securities Business Days before that US Government Securities Business Day; and

 

(ii)the applicable Central Bank Rate Adjustment,

 

rounded, in either case, to five (5) decimal places and if, in either case, that rate is less than zero, the Daily Rate shall be deemed to be zero.

 

"Daily Simple SOFR" means, for any day, a rate per annum equal to the Daily Rate for the day that is:

 

(a)for as long as the IMUA is in full force and effect, ten (10) US Government Securities Business Days; or

 

(b)if the IMUA ceases to be in full force and effect, five (5) US Government Securities Business Days,

 

prior to (i) if such day is a US Government Securities Business Day, that day or (ii) if such day is not a US Government Securities Business Day, the US Government Securities Business Day immediately preceding such day.

 

"Default" means an Event of Default or any event or circumstance specified in Clause 26 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

 

"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

 

"Delivery Date" means the date and time of delivery of the Ship by the Builder to the Borrower as stated in the Protocol of Delivery and Acceptance.

 

"Delivery Loan" means the Loan to be made available for drawing on the Delivery Date.

 

"Disbursement Loan" means a Loan the proceeds of which are to be credited to a Builder Account in respect of amounts due to the Builder from the Borrower under the Shipbuilding Contract for Eligible Goods and Services.

 

"Disbursement Request" means a notice substantially in the form set out in Part A (Form of Disbursement Request) of Schedule 2 (Requests).

 

"Disruption Event" means either or both of:

 

(a)a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

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(b)the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)from performing its payment obligations under the Finance Documents; or

 

(ii)from communicating with other Parties in accordance with the terms of the Finance Documents,

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

"Document of Compliance" has the meaning given to it in the ISM Code.

 

"Dollar Equivalent" means, in relation to an amount in EUR, such amount converted into Dollars as calculated by the Agent on the Conversion Rate Fixing Date at the Conversion Rate.

 

"Downgraded Refund Guarantor" means a Refund Guarantor who has become subject to a RG Downgrade Event.

 

"Earnings" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower, the Agent or the Security Agent (as the case may be) by the Charterer as bareboat charterer (or any replacement charterer and/or bareboat charter, as the case may be) and which arise out of the use or operation of the Ship, including (but not limited to):

 

(a)all freight, hire, fare and passage moneys, compensation payable to the Borrower, the Agent or the Security Agent (as the case may be) in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship;

 

(b)all moneys which are at any time payable under Insurances in respect of loss of earnings;

 

(c)all moneys which are at any time payable to the Borrower in respect of the general average contribution; and

 

(d)if and whenever the Ship is employed on terms whereby any moneys falling within paragraphs (a) or (b) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship.

 

"ECA Cover Document" means the insurance policy governed by Italian law issued or to be issued by SACE (in its own name and also for the account of the Republic of Italy) in favour of the Agent (for the benefit of the Lenders, in form and substance satisfactory to the Lenders and which, in all material aspects, shall not be inconsistent with the commercial terms of this Agreement), whereby the Export Credit Agency, in coinsurance regime, without joint and several liability, agree to insure, on the terms and conditions thereof, one hundred per cent. (100%) (in respect of commercial and political risks) of the principal and interest (other than default interest) in accordance with the terms thereof.

 

11

 

 

"ECA Mandatory Prepayment Event" means each of the following events or circumstances:

 

(a)it is, or becomes unlawful, for the Export Credit Agency to perform any of its obligations under the ECA Cover Document or for a Finance Party to receive the benefit of the ECA Cover Document;

 

(b)any obligation, or obligations, of the Export Credit Agency under the ECA Cover Document is not/are not, or cease(s) to be, legal, valid, binding or enforceable or the ECA Cover Document is not or ceases to be in full force and effect;

 

(c)the Export Credit Agency avoids, rescinds, repudiates, suspends, cancels or terminates all or part of the ECA Cover Document or evidences an intention to or purports to avoid, rescind, repudiate, suspend, cancel or terminate all or part of the ECA Cover Document; or

 

(d)at any time, any obligation of SACE under the ECA Cover Document ceases to be guaranteed or counter-guaranteed by the Republic of Italy in accordance with the provisions of the Italian law applicable to the ECA and/or the ECA Cover Document.

 

"ECA Premium" means the amounts due to the Export Credit Agency as premium pursuant to the ECA Cover Document.

 

"ECA Premium Financed Amount" means the Dollar Equivalent of [*] (which, at the date of this Agreement and having applied the Base Rate, is [*], being [*] of the ECA Premium to be paid where the ECA Premium Pricing Rate is fixed at [*], in accordance with Clause 11.5 (ECA Premium).

 

"ECA Premium Pricing Rate" has the meaning given to such term in sub-paragraph (ii) of paragraph (a) of Clause 11.5 (ECA Premium).

 

"ECA Required Documents" means:

 

(a)a duly completed and executed Builder Qualifying Certificate; and

 

(b)each of the other documents, information and other evidence specified in or required to be enclosed with such Builder Qualifying Certificate.

 

"ECA Transfer" means an assignment of rights, or a transfer of rights and obligations, under a Finance Document, by a Lender to the Export Credit Agency pursuant to Clause 28 (Changes to the Lenders).

 

"Eligible Goods and Services" means Italian Goods and Services and EU and Non-EU Goods and Services which are supplied or rendered or to be supplied or rendered by the Builder to the Borrower pursuant to the Shipbuilding Contract for the design, construction and delivery of the Ship.

 

"Eligible Institution" means any Lender or other bank, financial institution, trust, fund or other entity selected by the Borrower and which, in each case, is not a member of the Group.

 

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"Environmental Approval" means any present or future permit, ruling, variance or other authorisation required under Environmental Laws.

 

"Environmental Claim" means any claim by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.

 

"Environmental Incident" means:

 

(a)any release, emission, spill or discharge of Environmentally Sensitive Material whether within the Ship or from the Ship into any other vessel or into or upon the air, water, land or soils (including the seabed) or surface water; or

 

(b)any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water land or soils (including the seabed) or surface water from a vessel other than the Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Ship and/or any Transaction Obligor and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

 

(c)any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water otherwise than from the Ship and in connection with which the Ship is actually or potentially liable to be arrested and/or where any Transaction Obligor and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.

 

"Environmental Law" means any present or future law relating vessel disposal, energy efficiency, carbon reduction, emissions, emissions trading, pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.

 

"Environmentally Sensitive Material" means and includes all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.

 

"Equator Principles" means the standards entitled "A financial industry benchmark for determining, assessing and managing environmental and social risk in projects" dated June 2013 and adopted by certain financial institutions, as the same may be amended or supplemented from time to time.

 

"EU and Non-EU Goods and Services" means goods produced in the European Union (but not the Republic of Italy) or outside of the European Union (but not in the Borrower's country) and services rendered by persons ordinarily resident in the European Union (but not the Republic of Italy) or outside of the European Union (but not in the Borrower's country) for an amount, in aggregate, not higher than one hundred and thirty seven million, five hundred and forty six thousand, eight hundred and fifty nine euros (€137,546,859.00).

 

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"EU Blocking Regulation" means:

 

(a)Regulation (EU) No. 2271/96 of the European Parliament and of the Council of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based on or resulting therefrom;

 

(b)Regulation (EU) No 2271/96 of the European Parliament and of the Council of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based on or resulting therefrom, as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018; and/or

 

(c)any other applicable anti-boycott or similar blocking statute.

 

"EU Ship Recycling Regulation" means Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC.

 

"Event of Default" means any event or circumstance specified as such in Clause 26 (Events of Default).

 

"Existing Indebtedness" means Financial Indebtedness referred to in the financial statements of the Guarantor delivered to the Agent prior to the date of this Agreement.

 

"Export Credit Agency" means each of:

 

(a)SACE (acting in its own name and/or for the account of the Republic of Italy); and

 

(b)the Republic of Italy (including acting independently and/or through SACE),

 

each in their respective capacities under and pursuant to Italian law and the ECA Cover Document, including their respective successors, permitted transferees or assignees, and the use of the term "Export Credit Agency", in the singular, shall be a reference to them, in their respective capacities, whether acting together or individually.

 

"Facility" means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).

 

"Facility Office" means:

 

(a)in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement; or

 

(b)in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.

 

14

 

 

"Fallback Interest Payment" means the aggregate amount of interest that is, or is scheduled to become, payable under paragraph (d) of Clause 10.1 (Unavailability of Term SOFR) and relates to a Loan.

 

"FATCA" means:

 

(a)sections 1471 to 1474 of the Code and any associated regulations;

 

(b)any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; and

 

(c)any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

 

"FATCA Application Date" means:

 

(a)in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

 

(b)in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

 

"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

 

"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Joint Mandated Lead Arrangers and the Borrower (or the Agent and the Borrower, or the Security Agent and the Borrower) setting out any of the fees referred to in Clause 11 (Fees).

 

"Finance Document" means:

 

(a)this Agreement;

 

(b)any Fee Letter;

 

(c)each Security Document;

 

(d)the Approved Manager's Undertaking;

 

(e)any Compliance Certificate;

 

(f)any Utilisation Request;

 

(g)any Transfer Certificate; and

 

(h)any Assignment Agreement,

 

15

 

 

and any other document designated as such by the Agent and the Borrower.

 

"Finance Party" means the Agent, a Joint Mandated Lead Arranger, the Security Agent or a Lender.

 

"Financial Indebtedness" means, in relation to a person (the "debtor"), an indebtedness of the debtor:

 

(a)for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

 

(b)under any loan stock, bond, note or other security issued by the debtor;

 

(c)under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

(d)the amount of any liability in relation to any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;

 

(e)under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount;

 

(f)under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person; or

 

(g)arising from receivables sold or discounted (other than receivables to the extent they are sold on a non-recourse basis).

 

"First Financial Quarter" means the financial quarter ending immediately prior to or on the date falling forty five (45) days before the first Utilisation Date.

 

"First Instalment" means the first instalment of the ECA Premium as more particularly described in paragraph (a)(i) of Clause 11.5 (ECA Premium).

 

"First Repayment Date" means the date falling six Months after the Starting Point of Credit.

 

"First Shipbuilding Contract Instalment" has the meaning given in Recital (C).

 

"Fixed Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of:

 

(a)the Fixed Rate Margin; and

 

(b)the CIRR.

 

"Fixed Rate Loan" means any Loan or, if applicable, Unpaid Sum, in respect of which the applicable rate of interest is the Fixed Interest Rate.

 

"Fixed Rate Margin" means the difference between the Floating Rate Margin and the applicable SIMEST Margin Contribution, being equal to [*] per cent. ([*]%) per annum provided that, if with respect to any Interest Period, the Reference Rate Component applied by SIMEST under the IMUA is less than zero, then (as no zero-floor provision shall apply under the IMUA) the Fixed Rate Margin for that Interest Period shall be increased by the applicable Fixed Rate Margin Negative Reference Rate Component. The Fixed Rate Margin Negative Reference Rate Component shall be notified to the Borrower by the Agent promptly upon the communication received from SIMEST.

 

16

 

 

"Fixed Rate Margin Negative Reference Rate Component" means, with respect to an Interest Period for which the Reference Rate Component under the IMUA is negative, an amount equal to the positive difference between zero and the Reference Rate Component applied by SIMEST under the IMUA for that Interest Period.

 

"Floating Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of the applicable:

 

(a)Floating Rate Margin; and

 

(b)Reference Rate.

 

"Floating Rate Loan" means any Loan or, if applicable, Unpaid Sum, in respect of which the applicable rate of interest is the Floating Interest Rate.

 

"Floating Rate Margin" means two point ten per cent. (2.10%) per annum.

 

"FOREX Contracts" means each actual purchase contract, spot or forward contract and any other contract, such as an option or collar arrangement, which is entered into in the foreign exchange markets for the acquisition of euro intended to pay a Shipbuilding Contract Instalment under the Shipbuilding Contract, which:

 

(a)matures not later than the Utilisation Date of the Loan requested for the purpose of financing the payment of that Shipbuilding Contract Instalment, provided that for the Delivery Loan, option arrangements may mature up to one month after the relevant Utilisation Date if at the time such contract is entered into there exists a reasonable uncertainty as to the date on which the Ship will be delivered;

 

(b)is entered into by the Borrower or the Guarantor or a combination of the foregoing not later than two (2) days before the relevant Conversion Rate Fixing Date so that the Borrower, directly or through the Guarantor, purchases or may purchase euro with Dollars at a pre-agreed rate; and

 

(c)is notified to the Agent within ten (10) days of its execution but in any event no later than the day preceding the relevant Conversion Rate Fixing Date, with a Certified Copy of each such contract being delivered to the Agent at such time.

 

"FOREX Contracts Weighted Average Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date in accordance with the following principles which (inter alia) are intended to take into account any maturity mismatch between the maturity of the FOREX Contracts and each Utilisation Date as well as FOREX Contracts that are unwound as part of the hedging strategy of the Borrower:

 

(a)FOREX Contracts that are spot or forward foreign exchange contracts, if any, shall be valued at the contract value (taking into account any rescheduling);

 

17

 

 

(b)the difference between the euro amount available under paragraph (a) above and the euro amount balance payable to the Builder on each Utilisation Date is assumed to be purchased at the official daily fixing rate of the European Central Bank for the purchase of euro with Dollars as displayed on World Markets Reuters (or such other pages as may replace that page on that service or a successor service) at or around 1 p.m. (London time) on the Conversion Rate Fixing Date;

 

(c)any FOREX Contract which is an option or collar arrangement and is not unwound at the Conversion Rate Fixing Date will be marked to market and the resulting profit or loss shall reduce or increase the Dollar countervalue of the purchased euro; and

 

(d)any FOREX Contract which is an option or collar arrangement and is sold or purchased back at the time FOREX Contract(s) are entered into for an identical euro amount shall be accounted for the net premium cost or profit, as the case may be.

 

Any marked to market valuation, as required in paragraph (c) above, shall be performed by Crédit Agricole Corporate and Investment Bank's dedicated desk in accordance with market practices. The Borrower shall have the right to request indicative valuations from time to time prior to the Conversion Rate Fixing Date.

 

"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to sub-paragraphs (i)(B) or (ii)(B) of paragraph (a) of Clause 10.3 (Cost of funds).

 

"GAAP" means generally accepted accounting principles in the United States of America consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies) including, without limitation, those set forth in the opinion and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board.

 

"General Assignment" means an assignment of, inter alia, any Management Agreement, the Bareboat Charter, the Earnings, the Insurances and any Requisition Compensation, executed or to be executed by the Borrower, the Charterer and, in the event that the Approved Manager is not a member of the Group and is named as a co-assured in the Insurances, the Approved Manager in favour of the Security Agent in the agreed form.

 

"German Blocking Provisions" means Section 7 of the German Foreign Trade Ordinance (Aussenwirtschaftsverordnung), section 4 para 1 no 3 foreign trade law (AWG) (Außenwirtschaftsgesetz) and any other applicable anti-boycott or similar blocking statute imposed by the Federal Republic of Germany.

 

"Group" means the Guarantor, the Borrower and the Subsidiaries of the Guarantor for the time being.

 

"Historic Term SOFR" means, in relation to a Loan, the most recent applicable Term SOFR for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than five (5) US Government Securities Business Days before the Quotation Day.

 

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

 

"IAPPC" means a valid international air pollution prevention certificate for the Ship issued under Annex VI.

 

18

 

 

"Illicit Origin" means any origin which is illicit or fraudulent, or in breach of Sanctions including without limitation, drug trafficking, corruption, organised criminal activities, terrorism, money laundering or fraud.

 

"IMUA" means the interest make up agreement to be entered into between SIMEST and the ECA Agent (for itself and on behalf of, and in the name of, the Lenders) in form and substance acceptable to the ECA Agent, the Facility Agent and the Lenders.

 

"IMUA Event" means each of the following events:

 

(a)this Agreement has been terminated or a Fixed Rate Loan has become due and payable pursuant to Clause 26.21 (Acceleration) as a consequence of an Event of Default and the ECA Cover Document no longer provides coverage at the Fixed Interest Rate according to the original repayment schedule of that Fixed Rate Loan;

 

(b)the Borrower has voluntarily either cancelled the whole or any part of the Available Commitments or prepaid all or part of a Fixed Rate Loan prior to the Termination Date;

 

(c)the Fixed Interest Rate applicable to a Loan has been converted into the Floating Interest Rate or any other fixed or floating market rate;

 

(d)this Agreement has been performed or amended (other than with the prior consent of SIMEST) in a manner that substantially departs from the provisions of the IMUA and, to that effect, the Facility is no longer eligible (in whole or in part) to benefit from the IMUA;

 

(e)the Shipbuilding Contract has been performed or amended (other than with the prior consent of SIMEST) in a manner that substantially departs from the terms and conditions specified in the application form filed with SIMEST for the entry into the IMUA and, to that effect, the Facility is no longer eligible (in whole or in part) to benefit from the IMUA;

 

(f)the goods supplied by the Builder under and pursuant to the Shipbuilding Contract have been returned (in whole or in part) by or on behalf of the Borrower to the Builder;

 

(g)the Borrower has been made subject to a preventive injunction or has been convicted for any criminal or administrative offence in each case for violation of (i) Legislative Decree 231, or (ii) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997; or

 

(h)any other event or circumstance, that pursuant to the IMUA and/or any applicable law or regulation causes (i) the termination of the IMUA by SIMEST, (ii) the cancellation or termination of, or the withdrawal by SIMEST from, the IMUA, and/or (iii) the IMUA to be no longer in force and effect (in each case whether in whole or in part).

 

"IMUA Event Date" means the date on which the IMUA, or the subsidy thereunder has ceased or has been revoked or terminated and/or the IMUA has been terminated, withdrawn or cancelled (in whole or in part) or has otherwise ceased to be in full force and effect.

 

"Initial Contract Price" has the meaning given in Recital (B).

 

"Insurances" means:

 

19

 

 

(a)all policies and contracts of insurance, including entries of the Ship in any protection and indemnity or war risks association, which are effected in respect of the Ship, its Earnings or otherwise in relation to it; and

 

(b)all rights and other assets relating to, or derived from any of such policies, contracts or entries, including any rights to a return of a premium.

 

"Intended Delivery Date" means 29 July 2027 (the date on which the Ship will be ready for delivery pursuant to the Shipbuilding Contract as at the date of this Agreement) or any other date notified by the Borrower to the Agent in accordance with paragraph (a) of Clause 4.10 (No later than sixty (60) days before the Intended Delivery Date) or paragraph (b) of Clause 4.12 (No later than five (5) Business Days before the Intended Delivery Date) as being the date on which the Builder and the Borrower have agreed that the Ship will be ready for delivery pursuant to the Shipbuilding Contract.

 

"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.5 (Default interest).

 

"Interpolated Historic Term SOFR" means, in relation to any Loan, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:

 

(a)either:

 

(i)the most recent applicable Term SOFR (as of a day which is not more than five (5) US Government Securities Business Days before the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Loan; or

 

(ii)if no such Term SOFR is available for a period which is less than the Interest Period of that Loan, the most recent SOFR for a day which is no more than five (5) US Government Securities Business Days (and no less than two (2) US Government Securities Business Days) before the Quotation Day; and

 

(b)the most recent applicable Term SOFR (as of a day which is not more than five (5) US Government Securities Business Days before the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan.

 

"Interpolated Term SOFR" means, in relation to any Loan, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:

 

(a)either

 

(i)the applicable Term SOFR (as of the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Loan; or

 

(ii)if no such Term SOFR is available for a period which is less than the Interest Period of that Loan, SOFR for the day which is five (5) US Government Securities Business Days before the Quotation Day; and

 

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(b)the applicable Term SOFR (as of the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan.

 

"Inventory of Hazardous Materials" means an inventory certificate or statement of compliance (as applicable) issued by the relevant classification society or shipyard authority which is supplemented by a list of any and all materials known to be potentially hazardous utilised in the construction of, or otherwise installed on, the Ship, pursuant to the requirements of the EU Ship Recycling Regulation.

 

"ISM Code" means the International Safety Management Code for the safe operation of ships and for pollution prevention (including the guidelines on its implementation), adopted by the International Maritime Organisation as the same may be amended or supplemented from time to time.

 

"ISPS Code" means the International Ship and Port Facility Security (ISPS) Code adopted by the International Maritime Organisation (IMO) Diplomatic Conference of December 2002, as the same may be amended or supplemented from time to time.

 

"Italian Authority" means the Export Credit Agency or SIMEST.

 

"Italian Goods and Services" means goods produced in the Republic of Italy and services rendered by persons ordinarily resident in the Republic of Italy for an amount not lower than seven hundred and sixty seven million, four hundred and fifty three thousand, one hundred and forty one euros (€767,453,141.00).

 

"Italian Support Document" means the ECA Cover Document or the IMUA.

 

"Legislative Decree 231" means the Italian legislative decree of 8 June 2001, no. 231 (Disciplina della responsabilità amministrativa delle persone giurdiche, delle società e delle associazioni anche prive di personalità giuridica, a norma dell'articolo 11 della legge 29 settembre 2000, n.300) as amended from time to time, on administrative vicarious liability of corporate entities.

 

"Lender" means:

 

(a)any Original Lender; and

 

(b)any bank, financial institution, trust, fund or other entity which has become a Party as a "Lender" in accordance with Clause 28 (Changes to the Lenders),

 

which, in each case, has not ceased to be a Party in accordance with this Agreement.

 

"Liquidated Damages" has the meaning given in Recital (C).

 

"LLC Interests Deed" means a Bermudian law document executed or to be executed by the Shareholder in favour of the Security Agent and creating Security over the limited liability interests in the Borrower in agreed form.

 

"LMA" means the Loan Market Association.

 

"Loan" means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

 

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"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 66 ⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 ⅔ per cent. of the Total Commitments immediately prior to the reduction).

 

"Management Agreement" means the management agreement (if any) entered or to be entered into between the Borrower or the Charterer (as disponent owner) and an Approved Manager which is not a member of the Group with respect to the Ship on terms reasonably acceptable to the Majority Lenders and the Export Credit Agency.

 

"Maritime Registry" means the maritime registry which the Borrower will specify to the Lenders no later than 90 days before the Intended Delivery Date, being that of an Approved Flag.

 

"Market Disruption Rate" means the percentage rate per annum which is the Reference Rate.

 

"Material Adverse Effect" means the occurrence of any event or circumstance which reasonably would be expected to have a material adverse effect on:

 

(a)the business, operations, property, condition (financial or otherwise) of any Transaction Obligor or the Group as a whole; or

 

(b)the ability of any Transaction Obligor to perform its obligations under any Finance Document and/or any Pre-delivery Contract; or

 

(c)the validity, legality or enforceability of, or the effectiveness, or ranking of any Security granted or intended to be granted pursuant to any, of the Finance Documents or the rights or remedies of any Secured Party under any of the Finance Documents and/or Italian Support Documents.

 

"Material Provisions" means Article 1 (Subject of the Contract), Article 2 (Vessel's Classification – Rules and Regulations – Certificates), Article 8 (Delivery), Article 9 (Price), Article 13 (Speed – Liquidated Damages), Article 14 (Deadweight – Liquidated Damages), Article 17 (Fuel Oil Consumption – Liquidated Damages), Article 19 (Maximum Amount of Liquidated Damages), Article 20 (Termination of the Contract – Liquidated Damages to be paid by the Builder), Article 23 (Insurance), Article 25 (Guarantee – Liability), Article 26 (Permissible Delay), Article 29 (Assignment of the Contract) and Article 30 (Law of the Contract – Disputes) of the Shipbuilding Contract.

 

"Minimum Safeguards" means the OECD Guidelines for Multinational Enterprises, the UN Guiding Principles on Business and Human Rights, including the principles and rights set out in the eight fundamental conventions identified in the Declaration of the International Labour Organisation on Fundamental Principles and Rights at Work and the International Bill of Human Rights.

 

"Minor Modification" means a modification of the plans or the specification or the construction of the Ship under Article 24 of the Shipbuilding Contract, resulting in a Contract Price increase or decrease of less than thirty-five million Euros (€35,000,000).

 

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

22

 

 

(a)(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end, if there is one, or if there is not, on the immediately preceding Business Day;

 

(b)if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(c)if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end,

 

and "Monthly" shall be construed accordingly. The above rules will only apply to the last Month of any period.

 

"Mortgage" means the first priority mortgage on the Ship acceptable for registration on the Approved Flag and, if applicable, deed of covenant, executed or to be executed by the Borrower in favour of the Security Agent in the agreed form.

 

"New Lender" has the meaning given to that term in Clause 28 (Changes to the Lenders).

 

"Obligor" means the Borrower and/or the Guarantor.

 

"Original Jurisdiction" means, in relation to a Transaction Obligor, the jurisdiction under whose laws that Transaction Obligor is incorporated, formed or continued, as the case may be, as at the date of this Agreement.

 

"Overseas Regulations" means the Overseas Companies Regulations 2009 (SI 2009/1801).

 

"Participating Member State" means any member state of the European Union that has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

"Party" means a party to this Agreement from time to time.

 

"Permitted Financial Indebtedness" means any Financial Indebtedness:

 

(a)incurred under the Finance Documents; or

 

(b)permitted pursuant to Clause 22.11 (Financial Indebtedness and subordination of indebtedness).

 

"Permitted Security Interests" means:

 

(a)in the case of the Borrower:

 

(i)any of the Security Interests referred to in sub-paragraph (A) of paragraph (c) of this definition; and

 

(ii)any of the Security referred to in sub-paragraphs (B), (C), (E), (H) and (I) of paragraph (c) of this definition if, by reason of any chartering or management arrangements for the Ship approved by the Agent pursuant to the provisions of this Agreement, such Security are created by the Borrower in the case of sub-paragraphs (C) or (E) of paragraph (c) of this definition or incurred by the Borrower in the case of sub-paragraphs (B), (H) or (I) of paragraph (c) of this definition; and

 

23

 

 

(b)in the case of the Guarantor:

 

(i)any of the Security Interests referred to in sub-paragraphs (A), (D), (F) and (G) of paragraph (c) of this definition; and

 

(ii)any of the Security referred to in sub-paragraphs (C), (E), (H) and (I) of paragraph (c) of this definition if, by reason of any chartering or management arrangements for the Ship approved by the Agent pursuant to the provisions of this Agreement, such Security are created by the Guarantor in the case of sub-paragraphs (C) or (E) of paragraph (c) of this definition or incurred by the Guarantor in the case of sub-paragraphs (H) or (I) of paragraph (c) of this definition;

 

(c)

 

(A)any Security created by or pursuant to the Finance Documents and any deposits or other Security placed or incurred in connection with any bond or other surety from time to time provided to the US Federal Maritime Commission in order to comply with laws, regulations and rules applicable to the operators of passenger vessels operating to or from ports in the United States of America;

 

(B)liens on the Ship up to an aggregate amount at any time not exceeding fifty million Dollars ($50,000,000) for current crew's wages and salvage and liens incurred in the ordinary course of trading the Ship;

 

(C)any deposits or pledges up to an aggregate amount at any time not exceeding the greater of:

 

(1)thirty million Dollars ($30,000,000); and

 

(2)zero point two five per cent. (0.25%) of the Consolidated Total Assets as of the end of each relevant fiscal quarter,

 

to secure the performance of bids, tenders, bonds or contracts required in the ordinary course of business;

 

(D)any other Security including in relation to the Existing Indebtedness over the assets of any Transaction Obligor other than the Borrower notified by the Borrower or any of the Obligors to the Agent and accepted by it prior to the date of this Agreement;

 

(E)(without prejudice to the provisions of Clause 22.11 (Financial Indebtedness and subordination of indebtedness)) liens on assets leased, acquired or upgraded after the date of this Agreement or assets newly constructed or converted after the date of this Agreement provided that (i) such liens secure Financial Indebtedness otherwise permitted under this Agreement, (ii) such liens are incurred at the time of such lease, acquisition, upgrade, construction or conversion and (iii) the Financial Indebtedness secured by such liens does not exceed the cost of such upgrade or the cost of such assets acquired or leased;

 

24

 

 

(F)other liens arising in the ordinary course of business of the Group unrelated to Financial Indebtedness and securing obligations not yet delinquent or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established provided that:

 

(1)the aggregate amount of all cash and the fair market value of all other property subject to such liens as are described in this paragraph (F) does not exceed the greater of (x) thirty million Dollars ($30,000,000) and (y) zero point two five per cent. (0.25%) of the Consolidated Total Assets as of the end of each relevant fiscal quarter; and

 

(2)such cash and/or other property is not an asset of the Borrower;

 

(G)subject to the other provisions of this Agreement, any Security in respect of existing Financial Indebtedness of a person which becomes a Subsidiary of the Guarantor or is merged with or into the Guarantor or any of its Subsidiaries;

 

(H)liens in favour of credit card companies on unearned customer deposits pursuant to agreements therewith; and

 

(I)liens in favour of customers on unearned customer deposits.

 

"Poseidon Principles" means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published in June 2019 as the same may be amended or replaced to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organisation from time to time.

 

"Post-Delivery Assignment" means an assignment of the rights of the Borrower in respect of the post-delivery guarantee liability of the Builder under Article 25 of the Shipbuilding Contract executed or to be executed by the Borrower in favour of the Security Agent in the agreed form.

 

"Pre-delivery Contracts" means the Shipbuilding Contract and the Refund Guarantee.

 

"Pre-delivery Security" means any document creating Security over the Pre-delivery Contracts in agreed form.

 

"Premium Loan" means the initial Loan made for the purpose set out in paragraphs (a) and (b) of Clause 3.1 (Purpose).

 

"Premium Request" means a notice substantially in the form set out in Part C (Form of Premium Request) of Schedule 2 (Requests).

 

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"Prohibited Jurisdiction" means any country or territory which is at any time, or whose government is at any time, the target of country-wide or territory-wide Sanctions.

 

"Prohibited Payment" means:

 

(a)any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would constitute bribery or an improper gift or payment under, or a breach of Sanctions, any laws of the Republic of Italy, England and Wales, Bermuda, the Council of the European Union, Germany, the United States of America or any other applicable jurisdiction; or

 

(b)any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would or might constitute bribery within the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997.

 

"Prohibited Person" means any person that is the subject of any Sanctions, including any person that (i) appears on any Sanctions list of prohibited persons, (ii) is directly or indirectly owned 50 per cent. or more by, or directly or indirectly controlled by, one or more persons covered by sub-section (i) above, or (iii) is located, is resident in or is incorporated or formed, as the case may be, under the laws of a Prohibited Jurisdiction.

 

"Protocol of Delivery and Acceptance" means the protocol of delivery and acceptance of the Ship to be signed by the Borrower and the Builder in accordance with Article 8 of the Shipbuilding Contract.

 

"Quotation Day" means in relation to any period for which an interest rate is to be determined, two (2) US Government Securities Business Days before the first day of that period unless market practice differs in the relevant syndicated loan market in which case the Quotation Day will be determined by the Agent in accordance with that market practice (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).

 

"Quoted Tenor" means, in relation to Term SOFR any period for which that rate is customarily displayed on the relevant page or screen of an information service.

 

"Rating Fixing Date" means:

 

(a)in respect of each Loan save for the Delivery Loan, the date falling thirty (30) days before the relevant Utilisation Date, provided however that this is only relevant if the relevant Loan finances or refinances a portion of the Second Instalment; and

 

(b)in respect of the Delivery Loan, the date falling sixty (60) days before the Intended Delivery Date.

 

"Rating Notice" means a notice provided by the Borrower to the Agent and signed by a Borrower Authorised Signatory, providing the Guarantor's highest unsecured corporate credit rating between Standard & Poor's or equivalent Moody's.

 

"Rating Premium Refund" has the meaning given to such term in Clause 11.6 (ECA Premium Refund).

 

26

 

 

"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

 

"Reference Rate" means, in relation to a Loan:

 

(a)the applicable Term SOFR as of the Quotation Day and for a period equal in length to the Interest Period of that Loan; or

 

(b)as otherwise determined pursuant to paragraphs (a) to (c) (inclusive) of Clause 10.1 (Unavailability of Term SOFR),

 

and if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero (except with respect to the IMUA).

 

"Reference Rate Component" means the reference rate per annum identified in the IMUA as "Tasso di Mercato", or any alternative reference rate agreed in accordance with the IMUA, on the basis of which the contribution under the IMUA is calculated.

 

"Refund Guarantee" means any and each irrevocable and unconditional guarantee issued or to be issued by a Refund Guarantor in favour of the Borrower under the Shipbuilding Contract or in any other form acceptable to all the Lenders and the Export Credit Agency.

 

"Refund Guarantor" means a bank, insurance company or other financial institution acceptable to all the Lenders and the Export Credit Agency which, at the time of issue by it of a Refund Guarantee, has a minimum credit rating of at least BBB- at Standard & Poor's (or, where the relevant Refund Guarantor is not rated by Standard & Poor's, the equivalent rating at Moody's or where the relevant Refund Guarantor is not rated by Standard & Poor's or Moody's, the equivalent rating at Fitch).

 

"Reimbursement Loan" means a Loan, the proceeds of which are to be credited to the Borrower Account in order to reimburse the Borrower for amounts paid by it to the Builder under the Shipbuilding Contract in respect of Eligible Goods and Services.

 

"Reimbursement Request" means a notice substantially in the form set out in Part B (Form of Reimbursement Request) of Schedule 2 (Requests).

 

"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

"Relevant Jurisdiction" means, in relation to a Transaction Obligor:

 

(a)its Original Jurisdiction;

 

(b)any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, by it is situated;

 

(c)any jurisdiction where it conducts its business; and

 

27

 

 

(d)the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.

 

"Relevant Market" means the market for overnight cash borrowing collateralised by US Government Securities.

 

"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

 

"Repayment Date" means:

 

(a)the First Repayment Date;

 

(b)each date falling at six Monthly intervals after the First Repayment Date; and

 

(c)the Termination Date.

 

"Repayment Instalment" means an instalment for repayment of the Loans specified in Clause 6.1 (Repayment of Loans).

 

"Repeating Representations" means each of the representations set out in Clause 18 (Representations) (apart from the representation at Clause 18.9 (No filing or stamp taxes) and Clause 18.10 (Deduction of tax), which shall only be made on the date of this Agreement and shall not be repeated) and any representation of any Transaction Obligor made in any other Finance Document that is expressed to be a "Repeating Representation" or is otherwise expressed to be repeated.

 

"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

"Requisition Compensation" includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of "Total Loss".

 

"Restricted Finance Party" means a Finance Party which serves a notice pursuant to paragraph (a) of Clause 1.10 (Sanctions – Restricted Finance Party).

 

"RG Downgrade Event" means an event which occurs when a Refund Guarantor ceases to maintain a credit rating of at least BBB- at Standard & Poor's (or, where the relevant Refund Guarantor is not rated by Standard & Poor's, the equivalent rating at Moody's or where the relevant Refund Guarantor is not rated by Standard & Poor's or Moody's, the equivalent rating at Fitch).

 

"SACE" means SACE S.p.A., a company with sole shareholder, having legal personality under private law, with its headquarters in Piazza Poli 37/42, 00187 Rome, Italy and registered with the Rome Register of Businesses under registration number 923591.

 

"Safety Management Certificate" has the meaning given to it in the ISM Code.

 

"Sanctions" means any financial, economic or trade sanctions, embargoes or other restrictions relating to trading, doing business, investment, exporting, importing, travelling, financing or making assets available (or other activities similar to or connected with any of the foregoing), enacted, administered, implemented and/or enforced from time to time by any of the following (and including through any relevant sanctions authority):

 

28

 

 

(a)the United Kingdom, the Hong Kong Monetary Authority, the European Union or the Council of the European Union, the United Nations or its Security Council or any member state of the European Union or Switzerland; or

 

(b)the US, including the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC).

 

"Second Instalment" means the second instalment of the ECA Premium as more particularly described in paragraph (a)(ii) of Clause 11.5 (ECA Premium).

 

"Secured Obligations" means all obligations at any time due, owing or incurred by any Transaction Obligor to any Secured Party under the Finance Documents, including the obligations set out in Clause 31.2 (Parallel debt (covenant to pay the Security Agent)) whether present or future, actual or contingent (and whether incurred solely or jointly and whether as principal or surety or in some other capacity).

 

"Secured Parties" means each Finance Party from time to time party to this Agreement, any Receiver or Delegate, SIMEST and the Export Credit Agency.

 

"Security" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.

 

"Security Documents" means each of:

 

(a)the Pre-delivery Security;

 

(b)the General Assignment;

 

(c)the Mortgage;

 

(d)the Post-Delivery Assignment;

 

(e)any Subordinated Debt Security;

 

(f)the LLC Interests Deed;

 

(g)any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing any priority or subordination arrangement in relation to, the Secured Obligations; or

 

(h)any other document designated as such by the Agent and the Borrower.

 

"Security Interest" means:

 

(a)a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien, assignment, hypothecation or any other security interest of any kind or other agreement or arrangement having the effect of conferring security;

 

(b)the security rights of a plaintiff under an action in rem; and

 

29

 

 

(c)any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.

 

"Security Period" means the period commencing on the date of this Agreement and ending on the date on which:

 

(a)all amounts which have become due for payment by the Borrower or any Transaction Obligor under the Finance Documents have been fully and irrevocably paid;

 

(b)no amount is owing or has accrued (without yet having become due for payment) under any Finance Document;

 

(c)neither the Borrower nor any other Transaction Obligor has any future or contingent liability under any other provision of this Agreement or another Finance Document; and

 

(d)the Agent does not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or any other Transaction Obligor or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by Transaction Security.

 

"Security Property" means:

 

(a)the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security;

 

(b)all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in relation to the Secured Obligations to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by a Transaction Obligor or any other person in favour of the Security Agent as trustee for the Secured Parties;

 

(c)the Security Agent's interest in any turnover trust created under the Finance Documents;

 

(d)any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,

 

except:

 

(i)rights intended for the sole benefit of the Security Agent; and

 

(ii)any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.

 

30

 

 

"Security Requirement" means the amount in Dollars (as certified by the Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which is at any relevant time one hundred and twenty-five per cent. (125%) of the aggregate amount of the Loans.

 

"Security Value" means the amount in Dollars (as certified by the Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which, at any relevant time, is the aggregate of (i) the charter free market value of the Ship as most recently determined in accordance with Clause 23.4 (Valuation of the Ship); and (ii) the market value of any additional security for the time being actually provided to the Agent pursuant to Clause 25 (Security Value Maintenance).

 

"Shareholder" means Oceania Cruises Ltd., an exempted company limited by shares and continued under the laws or Bermuda whose registered office is at Park Place, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda.

 

"Ship" means the passenger cruise ship currently designated with Hull No. [*] (as more particularly described in the Shipbuilding Contract) to be constructed under the Shipbuilding Contract and to be delivered to, and purchased by, the Borrower and registered in its name under an Approved Flag.

 

"Shipbuilding Contract" means the shipbuilding contract dated 13 April 2023 (as amended or supplemented from time to time, including pursuant to an amendment agreement dated 28 August 2023) between the Builder and the Borrower, for the design, construction and delivery of the Ship.

 

"Shipbuilding Contract Instalment" means each instalment of the Contract Price payable in accordance with the terms of the Shipbuilding Contract.

 

"SIMEST" means SIMEST S.p.A. – Società Italiana per le Imprese all'Estero, acting as manager of public funds on behalf of the Italian Ministry of Finance in accordance with the Italian Legislative Decree No. 143/98 and its amendments, a società per azioni under the management and coordination of Cassa depositi e prestiti S.p.A. and organised under the laws of the Republic of Italy, whose registered office is at Corso Vittorio Emanuele II, No. 323, 00186 Rome, Italy.

 

"SIMEST Break Costs" has the meaning given to such term in paragraph (b) of Clause 10.9 (SIMEST Break Costs).

 

"SIMEST Margin Contribution" means the margin contribution approved and granted by SIMEST to the Lenders under and pursuant to the terms of the IMUA, being equal to [*] per cent. ([*]%) per annum.

 

"SIMEST Refund Amounts" means any amount that is required to be refunded by the Borrower under the IMUA upon the occurrence of any of the events and circumstances specified in Clause 10.10 (SIMEST Refund Amounts).

 

"SOFR" means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).

 

31

 

 

"Specified Time" means a day or time determined in accordance with Schedule 9 (Timetables).

 

"Starting Point of Credit" means the earlier of:

 

(a)the Delivery Date; and

 

(b)25 March 2028; and

 

(c)the date on which the Total Commitments have been reduced to zero.

 

"Statement of Compliance" means a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.

 

"Subordinated Debt Security" has the meaning given in sub-paragraph (ii) of paragraph (b) of Clause 22.11 (Financial Indebtedness and subordination of indebtedness).

 

"Subsidiary" has the following meaning:

 

a company (S) is a subsidiary of another company (P) if:

 

(a)a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or

 

(b)P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or

 

(c)P has the direct or indirect power to appoint or remove a majority of the directors (or equivalent) of S; or

 

(d)P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P,

 

and any company of which S is a subsidiary is a parent company of S.

 

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

"Term SOFR" means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).

 

"Termination Date" means the Repayment Date falling 138 Months after the First Repayment Date.

 

"Total Commitments" means the aggregate of:

 

(a)the Dollar Equivalent of seven hundred and twenty-four million Euros (€724,000,000) (which, at the date of this Agreement and having applied the Base Rate, is nine hundred and seventy seven million and four hundred thousand Dollars ($977,400,000)); and

 

32

 

 

(b)the ECA Premium Financed Amount,

 

which, at the date of this Agreement and having applied the Base Rate, is [*].

 

"Total Loss" means:

 

(a)actual, constructive, compromised, agreed or arranged total loss of the Ship;

 

(b)any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority, (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 1 month redelivered to the Borrower's full control;

 

(c)any arrest, capture, seizure or detention of the Ship (including any hijacking or theft) unless it is within 1 month redelivered to the Borrower's full control.

 

"Total Loss Date" means:

 

(a)in the case of an actual loss of the Ship, the date on which it occurred or, if that is unknown, the date when the Ship was last heard of;

 

(b)in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest of:

 

(i)the date on which a notice of abandonment is given to the insurers (or deemed or agreed to be given); and

 

(ii)the date of any compromise, arrangement or agreement made by or on behalf of the Borrower with the Ship's insurers in which the insurers agree to treat the Ship as a total loss; and

 

(c)in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent acting reasonably and in consultation with the Borrower that the event constituting the total loss occurred.

 

"Transaction Documents" means the Finance Documents and the Underlying Documents.

 

"Transaction Obligors" means the Borrower, the Guarantor, the Shareholder, the Charterer and (in the event that the Approved Manager is a member of the Group) the Approved Manager.

 

"Transaction Security" means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.

 

"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.

 

33

 

 

"Transfer Date" means, in relation to an assignment or a transfer, the later of:

 

(a)the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

"UCP" means Uniform Customs and Practices for Documentary Credits of the International Chamber of Commerce, latest version in force (currently "UCP 600").

 

"Underlying Documents" means the Shipbuilding Contract, the Refund Guarantee, any Management Agreement, the Bareboat Charter and any charter and associated guarantee in respect of which a notice of assignment is required to be served under the terms of the General Assignment.

 

"Unpaid Sum" means any sum due and payable but unpaid by a Transaction Obligor under the Finance Documents.

 

"US" means the United States of America.

 

"US Government Securities Business Day" means any day other than:

 

(a)a Saturday or a Sunday; and

 

(b)a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.

 

"US Tax Obligor" means:

 

(a)a person which is resident for tax purposes in the US; or

 

(b)a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

"Utilisation" means a utilisation of the Facility.

 

"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

 

"Utilisation Request" means a Disbursement Request, a Premium Request or a Reimbursement Request.

 

"VAT" means:

 

(a)any value added tax imposed by the Value Added Tax Act 1994;

 

(b)any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

34

 

 

(c)any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.

 

1.2Construction

 

(a)Unless a contrary indication appears, any reference in this Agreement to:

 

(i)the "Agent", the "Facility Agent", the "ECA Agent", the "Security Agent", any "Joint Mandated Lead Arranger", any "Finance Party", any "Secured Party", any "Lender", any "Obligor", any "Transaction Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

 

(ii)"SACE" the "Republic of Italy", "Export Credit Agency", "SIMEST" or any "Italian Authority", shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and/or the relevant Italian Support Document;

 

(iii)an "agency" shall be construed so as to include any governmental, intergovernmental or supranational agency, authority, body, central bank, commission, department, ministry, organisation, statutory corporation or tribunal (including any political sub-division, national, regional or municipal government and any administrative, fiscal, judicial, regulatory or self-regulatory body or person);

 

(iv)a document in "agreed form" is a document which is previously agreed in writing by or on behalf of the Borrower and the Agent or, if not so agreed, is in the form specified by the Agent;

 

(v)"assets" includes present and future properties, revenues and rights of every description;

 

(vi)the "ECA Cover Document", the "IMUA" an "Italian Support Document", a "Finance Document", a "Transaction Document" or any other agreement, document or instrument is a reference to that Finance Document, Transaction Document, the ECA Cover Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(vii)any "demand" under this Agreement shall be given in writing and unless the demand is designated as emanating from a Party, shall be given by the Agent;

 

(viii)a "group of Lenders" includes all the Lenders;

 

(ix)"guarantee" means (other than in Clause ‎17 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

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(x)"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(xi)a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

(xii)"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;

 

(xiii)a "regulation" includes any regulation, rule, official directive, request, recommendation or guideline (whether or not having the force of law) of any agency;

 

(xiv)a Lender's "cost of funds" in relation to its participation in the Loan or any parts of the Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in the Loan or that part of the Loan for a period equal in length to the Interest Period of the Loan or that part of the Loan;

 

(xv)a provision of law is a reference to that provision as amended or re-enacted from time to time; and

 

(xvi)a time of day is a reference to Paris time.

 

(b)The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(c)Section, Clause and Schedule headings are for ease of reference only.

 

(d)Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

(e)A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.

 

1.3Currency symbols and definitions

 

(a)"", "EUR" and "euro" and "Euro" denote the single currency of the Participating Member States.

 

(b)"$", "USD" and "dollar" denote the lawful currency of the United States of America.

 

1.4Construction of insurance terms

 

In this Agreement:

 

(a)"approved" means, for the purposes of Clause 24 (Insurance Undertakings), approved in writing by the Facility Agent.

 

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(b)"excess risks" means the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of the Ship in consequence of its insured value being less than the value at which the Ship is assessed for the purpose of such claims.

 

(c)"obligatory insurances" means all insurances effected, or which the Borrower is obliged to effect, under Clause 24 (Insurance Undertakings) or any other provision of this Agreement or of another Finance Document.

 

(d)"policy" includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.

 

(e)"protection and indemnity risks" means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision.

 

(f)"war risks" includes the risk of mines and all risks excluded by clauses 29, 30 or 31 of the International Hull Clauses (1/11/02), clauses 29 or 30 of the International Hull Clauses (1/11/03), clauses 24, 25 or 26 of the Institute Time Clauses (Hulls) (1/11/95) or clauses 23, 24 or 25 of the Institute Time Clauses (Hulls)(1/10/83) or any equivalent provisions.

 

1.5Third party rights

 

(a)Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.

 

(b)The Export Credit Agency is a third party in accordance with the Third Parties Act and may rely on the following clauses of this Agreement (except for the obligations and restrictions imposed on any Finance Party under such Clauses, which obligations and restrictions shall not apply to the Export Credit Agency):

 

(i)Clause 8.5 (Default interest);

 

(ii)Clause 11.5 (ECA Premium);

 

(iii)Clause 12.2 (Tax gross-up);

 

(iv)Clause 12.3 (Tax indemnity);

 

(v)Clause 12.5 (Stamp taxes);

 

(vi)Clause 12.6 (VAT);

 

(vii)Clause 13 (Increased Costs);

 

(viii)Clause 14.1 (Currency Indemnity);

 

(ix)Clause 14.2 (Other Indemnities);

 

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(x)Clause 14.5 (Indemnity to the Italian Authorities);

 

(xi)Clause 16.1 (Transaction expenses);

 

(xii)Clause 16.2 (Amendment costs);

 

(xiii)Clause 16.4 (Enforcement costs);

 

(xiv)Clause 17 (Guarantee and Indemnity);

 

(xv)Clause 20.7 ("Know your customer" checks);

 

(xvi)Clause 27.3 (Obligations Absolute);

 

(xvii)Clause 28.1 (Assignments and transfers by the Lenders);

 

(xviii)Clause 28.2 (Conditions of assignment or transfer);

 

(xix)Clause 28.8 (Assignments and transfers to the Export Credit Agency and by the Export Credit Agency);

 

(xx)Clause 34.7 (No set-off by Obligors);

 

(xxi)Clause 40 (Amendments and Waivers);

 

(xxii)Clause 41.3 (Disclosure by the Italian Authorities);

 

(xxiii)Clause 41.4 (ECA Confidential Information);

 

(xxiv)Clause 45 (Governing law);

 

(xxv)Clause 46 (Enforcement);

 

(xxvi)Clause 47 (Waiver of Immunity); and

 

(xxvii)any other provision of this Agreement which expressly confers rights on the Export Credit Agency.

 

(c)SIMEST is a third party in accordance with the Third Parties Act and may rely on the following clauses of this Agreement (except for the obligations and restrictions imposed on any Finance Party under such Clauses, which obligations and restrictions shall not apply to SIMEST):

 

(i)Clause 8.5 (Default interest);

 

(ii)Clause 10.9 (SIMEST Break Costs)

 

(iii)Clause 10.10 (SIMEST Refund Amounts)

 

(iv)Clause 12.2 (Tax gross-up);

 

(v)Clause 12.3 (Tax indemnity);

 

(vi)Clause 12.5 (Stamp taxes);

 

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(vii)Clause 12.6 (VAT);

 

(viii)Clause 13 (Increased Costs);

 

(ix)Clause 14.1 (Currency Indemnity);

 

(x)Clause 14.2 (Other Indemnities);

 

(xi)Clause 14.5 (Indemnity to the Italian Authorities);

 

(xii)Clause 16.1 (Transaction expenses);

 

(xiii)Clause 16.2 (Amendment costs);

 

(xiv)Clause 16.4 (Enforcement costs);

 

(xv)Clause 17 (Guarantee and Indemnity);

 

(xvi)Clause 20.7 ("Know your customer" checks);

 

(xvii)Clause 28.1 (Assignments and transfers by the Lenders);

 

(xviii)Clause 28.2 (Conditions of assignment or transfer);

 

(xix)Clause 34.7 (No set-off by Obligors);

 

(xx)Clause 40 (Amendments and Waivers);

 

(xxi)Clause 41.3 (Disclosure by the Italian Authorities);

 

(xxii)Clause 45 (Governing law);

 

(xxiii)Clause 46 (Enforcement);

 

(xxiv)Clause 47 (Waiver of Immunity); and

 

(xxv)any other provision of this Agreement and any other Finance Document which expressly confers rights on SIMEST.

 

(d)Any amendment or waiver which relates to the rights of an Italian Authority under this Agreement, including those referred to in paragraphs (b) and (c) above, may not be effected without the consent of that Italian Authority.

 

(e)Subject to paragraph (d) above and Clause 40 (Amendments and Waivers), the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

(f)Any Receiver, Delegate, Affiliate or any other person described in paragraph (d) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 30.10 (Exclusion of liability) or paragraph (b) of Clause 31.12 (Exclusion of liability) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.

 

1.6Independence of the Finance Documents

 

Each Obligor acknowledges that its obligations under the Finance Documents:

 

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(a)are independent and separate from the Shipbuilding Contract and any other document or agreement (other than any Finance Document);

 

(b)are not subject to, or dependent upon, the execution or performance by the Builder or any other person of its obligations under the Shipbuilding Contract or any other document, contract or arrangement related to it; and

 

(c)will not be affected or discharged by:

 

(i)any matter affecting the Builder, the Borrower or any other person or the Shipbuilding Contract or any other document, contract or arrangement related to them;

 

(ii)non-performance, breach, frustration or invalidity of, or the destruction, non-completion or non-functioning of any of the goods and services to be supplied, or rendered, under, the Shipbuilding Contract or any other document, contract or arrangement related to it;

 

(iii)any dispute under the Shipbuilding Contract or any other document, contract or arrangement related to it, or any claim which the Borrower, the Builder or any other person may have against, or consider that it has against, the Builder or any other person under or in relation to the Shipbuilding Contract or any other document, contract or arrangement related to it;

 

(iv)any administration, bankruptcy, insolvency, liquidation or similar proceedings commenced against the Builder or any other person party to the Shipbuilding Contract, or being applicable to any transactions contemplated thereunder, or the Builder or any other person party to the Shipbuilding Contract or any transactions contemplated thereunder being insolvent; or

 

(v)any unenforceability, illegality or invalidity of any obligation of the Builder, the Borrower or any other person under the Shipbuilding Contract or any other document, contract or arrangement related thereto.

 

1.7Italian Authorities override

 

(a)Notwithstanding anything to the contrary in any Finance Document, nothing in any Finance Document shall oblige any Finance Party to act (or omit to act) in a manner that is inconsistent with any requirement of any Italian Authority under or in connection with any Italian Support Document and, in particular, each Finance Party shall:

 

(i)be authorised to take all such actions as it may consider necessary to ensure that all requirements of the Italian Authorities under or in connection with the respective Italian Support Documents are complied with; and

 

(ii)not be obliged to do anything if, in its opinion, to do so could (A) result in a breach of any requirement of the Italian Authorities under or in connection with the respective Italian Support Document, (B) affect the validity of any Italian Support Document or (C) otherwise result in an IMUA Event or an ECA Mandatory Prepayment Event.

 

(b)Nothing in this Clause 1.7 (Italian Authorities override) shall affect the obligations of the Transaction Obligors under the Finance Documents.

 

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1.8Instructions from SACE and SIMEST

 

(a)The Parties acknowledge and agree that, in accordance with the terms of the ECA Cover Document and the IMUA, SACE and SIMEST may, at any time, instruct a Finance Party (whether directly or by notice to the Agent) to suspend or to cease to perform any or all of its obligations under this Agreement or any other Finance Document. That Finance Party will be required to comply with any such instruction. Each Party agrees that it will not hold any Finance Party responsible for complying with any such instruction.

 

(b)Each Obligor acknowledges and agrees that:

 

(i)a Finance Party may be required to exercise, or to refrain from exercising, its rights, powers, authorities and discretions under, and performing its obligations under, or in connection with, this Agreement or any other Finance Document, in accordance with any instructions given to it by SACE and SIMEST in accordance with the provisions of the ECA Cover Document and the IMUA; and

 

(ii)a Finance Party will not be acting or making any determination unreasonably if such action or such determination is made in accordance with the ECA Cover Document and the IMUA or any instructions given to it by SACE and SIMEST in accordance with the provisions of the ECA Cover Document and the IMUA.

 

1.9Role of SACE

 

(a)The Parties acknowledge and confirm that, pursuant to and by effect of the provisions of Law Decree No. 23 of 8 April 2020, converted with amendments by Law no. 40 of 5 June 2020, which amended Article 6 of Law Decree 269/2003:

 

(i)any reference to SACE in this Agreement shall be construed as a reference to both SACE (acting in its own name and/or for the account of the Republic of Italy) and the Republic of Italy (including acting independently and/or through SACE), and their successors in title, permitted assigns and permitted transferees under the Finance Documents and/or the ECA Cover Document;

 

(ii)any communication or notice to any Export Credit Agency relating to the Finance Documents or the ECA Cover Document, in connection with SACE's own guarantee portion and/or the guarantee portion of the Republic of Italy, under the ECA Cover Document, must be given through the Agent and addressed solely to SACE, pursuant to the provisions of Article 6, paragraph 9-ter, of Law Decree No. 269 of 2003; and

 

(iii)the exercise of the rights, discretions, claims and actions under the Finance Documents or the obligations, rights, discretions, claims and actions under the ECA Cover Document, including, without limitation, the collection of any amount as well as the management of the phases following the payment of the indemnification, including the exercise of rights against the Borrower and the credit recovery activity following subrogation, are carried out by SACE, also for the account of the Republic of Italy and SACE may exercise, including in judicial or arbitral proceedings, rights and actions connected with claims relating to the ECA Cover Document, including, without limitation, rights and actions to which the Republic of Italy is entitled pursuant to the ECA Cover Document. It is also understood that the payment of the indemnification is made by SACE on its own account and for the account of the Republic of Italy, without joint liability, with reference to the respective quotas.

 

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(b)The Parties acknowledge that the guarantee obligations of SACE and the Republic of Italy under the ECA Cover Document are on a several (senza vincolo di solidarietà) basis and that SACE acts, for the purpose of their respective rights, discretions, claims and actions under Finance Documents and their respective obligations, rights, discretions, claims and actions under the ECA Cover Document, in compliance with the provisions of Article 6, paragraphs 9-bis and 9-ter of Italian Law Decree No. 269 of 2003.

 

(c)The parties acknowledge that any communication or notice of any Export Credit Agency to the Agent, relating to the Finance Documents or the ECA Cover Document, shall be given by SACE.

 

1.10Sanctions – Restricted Finance Party

 

(a)A Finance Party that is incorporated in the Federal Republic of Germany or is otherwise subject to the EU Blocking Regulation may notify the Agent in writing that it elects that any provisions with respect to Sanctions, including, without limitation, the undertakings and covenants given under Clause 22.1 (Sanctions and Illicit Payments), Clause 22.2 (Prohibited Payments), Clause 22.21 (Compliance with laws etc.) or provisions contained in Clause 14.2 (Other indemnities) or Clause 7.1 (Illegality and Sanctions) and the representations and warranties given under Clause 18.18 (No breach of laws), Clause 18.23 (No funds of Illicit Origin), Clause 18.24 (No Prohibited Payments), and Clause 18.27 (AML and Sanctions) respectively (the "Sanctions Provisions") shall only ensure to the benefit of, and be applicable to, that Finance Party to the extent that such provisions would not result in: (i) any violation of, conflict with or liability under the EU Blocking Regulation; or (ii) in the case of a Finance Party that is incorporated in the Federal Republic of Germany only, a violation or conflict with the German Blocking Provisions.

 

(b)The Parties hereby agree that KfW IPEX-Bank GmbH is deemed to have given notice to the Agent in accordance with paragraph (a) above.

 

(c)If a Finance Party elects to be a Restricted Finance Party, in respect of any proposed requirement to comply, enforcement, waiver, non-waiver, consent, variation or amendment of or in relation to a Finance Document relating to any Sanctions Provision (a "Relevant Action"), the Restricted Finance Party shall notify the Agent in writing whether or not it shall be deemed to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve the Relevant Action and upon receipt by the Agent of such notice such Restricted Finance Party shall be so deemed for such purposes.

 

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Section 2

 

The Facility

 

2The Facility

 

2.1The Facility

 

Subject to the terms of this Agreement, the Lenders agree to make available to the Borrower a Dollar term loan facility not exceeding an aggregate amount equal to the Total Commitments.

 

2.2Finance Parties' rights and obligations

 

(a)The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(b)The rights of each Finance Party and Italian Authority under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party and/or Italian Authority from a Transaction Obligor is a separate and independent debt in respect of which a Finance Party and/or Italian Authority (as the case may be) shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party and Italian Authority include any debt owing to that Finance Party or Italian Authority (as the case may be) under the Finance Documents and, for the avoidance of doubt, any Loan or any other amount owed by a Transaction Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) or SACE's portion or the Republic of Italy's portion of insurance cover under the ECA Cover Document (including any such amount payable to SACE for the account of the Republic of Italy) or any amount due to SIMEST under the IMUA is a debt owing to that Finance Party or Italian Authority (as the case may be) by that Transaction Obligor.

 

(c)A Finance Party or Italian Authority may, except, as far as the Finance Parties are concerned, as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

3Purpose

 

3.1Purpose

 

The Borrower shall apply all amounts borrowed by it under the Facility exclusively towards:

 

(a)the payment to the Export Credit Agency (through the Agent) of the ECA Premium, up to the ECA Premium Financed Amount; and/or

 

(b)the reimbursement to the Borrower of the First Instalment of the ECA Premium paid by the Borrower, if applicable; and/or

 

(c)the financing or reimbursement of the Dollar Equivalent of amounts payable or paid by the Borrower to the Builder under the Shipbuilding Contract in respect of Eligible Goods and Services, up to an aggregate maximum amount equal to the Dollar Equivalent of 80 per cent. of the Contract Price, and in any case not exceeding, in aggregate, the Dollar Equivalent of EUR €724,000,000.00,

 

provided that no amounts borrowed may be applied towards financing or reimbursing any amount of the Cash Payment.

 

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3.2Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4Conditions of Utilisation

 

4.1General

 

The Borrower may only draw a Loan when the following conditions have been fulfilled to the satisfaction of the Agent and provided no Event of Default or ECA Mandatory Prepayment Event or, in respect of a Fixed Rate Loan only, an IMUA Event shall have occurred and remains unremedied or is likely to occur as a consequence of the drawing of that Loan:

 

4.2No later than the date of this Agreement

 

The Agent shall have received no later than the date of this Agreement:

 

(a)an opinion from legal counsel acceptable to the Secured Parties as to the laws of Bermuda in form and substance satisfactory to the Agent and the Secured Parties, together with the company documentation of the Bermudian Transaction Obligors supporting the opinion, including but without limitation the Constitutional Documents and a certificate of a competent officer or manager of each of the Bermudian Transaction Obligors containing specimen signatures of the persons authorised to sign the documents on behalf of each of the Bermudian Transaction Obligors, including, without limitation:

 

(i)the Bermudian Transaction Obligors have been duly formed and are validly existing as companies under the laws of Bermuda;

 

(ii)the Finance Documents to which each Bermudian Transaction Obligor is a party to fall within the scope of the Bermudian Transaction Obligors' purpose as defined by their Constitutional Documents;

 

(iii)each Bermudian Transaction Obligor's representatives were on the date of this Agreement fully empowered and authorised to sign, deliver and perform the Finance Documents to which it is a party;

 

(iv)either all administrative requirements applicable to the Bermudian Transaction Obligors (whether in Bermuda or elsewhere), concerning the transfer of funds abroad and acquisitions of Dollars to meet their obligations hereunder have been complied with, or that there are no such requirements;

 

(v)no withholding tax or stamp duty implications arise by virtue of the Bermudian Transaction Obligors entering into the Finance Documents to which they are a party respectively;

 

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(vi)a judgment of an English court in relation to this Agreement and any relevant Finance Documents to which each Bermudian Transaction Obligor is a party will be recognised by and acknowledged by the courts in Bermuda; and

 

(vii)the Finance Documents to which each Bermudian Transaction Obligor is a party constitute the legal, valid and binding obligations of that Bermudian Transaction Obligor enforceable in accordance with its terms,

 

and containing such qualifications and assumptions as are standard for opinions of this type;

 

(b)an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of this Agreement;

 

(c)an opinion from legal counsel to the Secured Parties as to Bermudian law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the LLC Interests Deed;

 

(d)a Certified Copy of the executed Shipbuilding Contract;

 

(e)such documentary evidence as the Agent and its legal advisers may require in relation to the due authorisation and execution by the Borrower and the Builder of the Shipbuilding Contract and of all documents to be executed by the Borrower and the Builder;

 

(f)a confirmation from Hannaford Turner LLP, currently of 107 Cheapside, London, EC2V 6DN, (or any replacement process agent satisfactory to the Agent acting reasonably) that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of this Agreement and any other Finance Document;

 

(g)duly executed originals of the LLC Interests Deed and of each document to be submitted pursuant to it;

 

(h)a notification, signed by a Borrower Authorised Signatory, specifying which of the Fixed Interest Rate or the Floating Interest Rate shall be applicable to all Loans until the date of payment of the final Repayment Instalment of the Loan in accordance with the provisions of Clause 8.1 (Fixed or Floating Interest Rate);

 

(i)such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender or Italian Authority) or any Lender or Italian Authority (for itself) in order for the Agent and such Lender or Italian Authority to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents;

 

(j)evidence that the Joint Mandated Lead Arranger Structuring Fee (as defined in the Fee Letter) has been or will be paid in accordance with Clause 11.2 (Joint Mandated Lead Arranger Structuring Fee); and

 

(k)evidence that the Agent Structuring Fee (as defined in the Fee Letter), has been or will be paid in accordance with terms of the Fee Letter.

 

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4.3No later than fifteen (15) days before the first Utilisation Date

 

The Agent shall have received no later than fifteen (15) days before the first Utilisation Date:

 

(a)from the Guarantor (and on each subsequent date on which a Compliance Certificate is to be received by the Agent pursuant to paragraph (c) of Clause 20.1 (Financial Statements)), a duly completed Compliance Certificate;

 

(b)an original of the ECA Cover Document;

 

(c)a Certified Copy of a bank statement from the Borrower evidencing receipt by the Builder of the First Shipbuilding Contract Instalment (as described in Recital (B)); and

 

(d)an agreed form version of the Italian law tax opinion from legal counsel to the Finance Parties in respect of the tax treatment of payments under the ECA Cover Document.

 

4.4No later than five (5) Business Days before each Utilisation Date

 

The Agent shall have received no later than five (5) Business Days before each Utilisation Date a Utilisation Request from the Borrower, signed by a Borrower Authorised Signatory, specifying the amount of the Loan to be drawn down.

 

4.5No later than five (5) Business Days before the first Utilisation Date

 

The Agent shall have received no later than five (5) Business Days before the first Utilisation Date:

 

(a)an agreed form version of the Pre-delivery Security and of each document to be issued pursuant to it;

 

(b)an agreed form version of the opinion to be issued by legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Pre-delivery Security;

 

(c)an agreed form version of the opinion to be issued by legal counsel to the Secured Parties as to Bermuda law in form and substance satisfactory to the Agent and the Secured Parties in respect of the Borrower's execution of the Pre-delivery Security;

 

(d)if applicable, evidence that the First Instalment has been paid;

 

(e)an agreed form version of the IMUA relative to the Loan;

 

(f)an agreed form version of the opinion to be issued by legal counsel to the Finance Parties as to Italian law in form and substance satisfactory to the Agent and the Finance Parties in respect of the ECA Cover Document and the IMUA and compliance with the principles governing the eligibility of credit risk mitigation techniques as per Article 194, paragraph 1, of the Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013;

 

(g)if applicable, an agreed form version of the Subordinated Debt Security; and

 

(h)the agreed form version of any opinions to be issued by legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security (if applicable), in form and substance satisfactory to the Agent and the Secured Parties.

 

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4.6No later than the first Utilisation Date

 

The Agent shall have received no later than the first Utilisation Date:

 

(a)a duly executed original of the Pre-delivery Security and of each document to be issued pursuant to it;

 

(b)an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Pre-delivery Security;

 

(c)an opinion from legal counsel to the Secured Parties as to Bermuda law in form and substance satisfactory to the Agent and the Secured Parties in respect of the Borrower's execution of the Pre-delivery Security;

 

(d)an original of the IMUA relative to the Loan in full force and effect duly executed by the parties thereto and all the documents required pursuant to the IMUA (including the letter of indemnity substantially in the form annexed as annex A ("Lettera di Manleva dell'Esportatore") to the IMUA and the SIMEST Builder Declaration in the form annexed as annex C ("Dichiarazione di Esportazione") issued by the Builder and any other document required by SIMEST for the purpose of effectiveness of the IMUA);

 

(e)a written confirmation from SACE that the ECA Cover Document is in full force and effect;

 

(f)evidence that any part of the ECA Premium that is not an ECA Premium Financed Amount and that is due and payable has been received by the Agent by the first Utilisation Date;

 

(g)an opinion from legal counsel to the Finance Parties as to Italian law in form and substance satisfactory to the Agent and the Finance Parties in respect of the ECA Cover Document and the IMUA and compliance with the principles governing the eligibility of credit risk mitigation techniques as per Article 194, paragraph 1, of the Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013; and

 

(h)an Italian law tax opinion from legal counsel to the Finance Parties in respect of the tax treatment of payments under the ECA Cover Document.

 

4.7No later than the Utilisation Date in respect of each Loan other than the first Loan and the Delivery Loan

 

The Agent shall have received no later than the Utilisation Date in respect of each Loan other than in respect of the first Loan and the Delivery Loan a copy of the class milestone certificate in respect of the instalment due under the Shipbuilding Contract to which the Loan relates issued by the Approved Classification Society.

 

4.8No later than the Utilisation Date in respect of each Loan other than the Delivery Loan

 

The Agent shall have received no later than the Utilisation Date in respect of each Loan other than in respect of the Delivery Loan:

 

(a)a Certified Copy of any executed Refund Guarantee and of the power of attorney (or other form of authority) and related corporate authorities pursuant to which such Refund Guarantee was signed;

 

(b)a copy of the relevant invoice from the Builder in respect of the instalment(s) under the Shipbuilding Contract to which the Loan relates;

 

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(c)written confirmation from the ECA Agent that there is no outstanding notice from the Export Credit Agency which terminates, cancels or repudiates, withdraws or suspends the ECA Cover Document (or any part of it) or states that the ECA Cover Document is not effective or not guaranteed by the Republic of Italy;

 

(d)in respect of a Utilisation Request for a Fixed Rate Loan, written confirmation from the ECA Agent that there is no outstanding notice from SIMEST which terminates, cancels or repudiates, withdraws or suspends or declares the revocation or cessation of the IMUA or the subsidy thereunder;

 

(e)evidence that any part of the ECA Premium that is not an ECA Premium Financed Amount and that is due and payable has been received by the Agent by the relevant Utilisation Date;

 

(f)save for the First Shipbuilding Contract Instalment (in respect of which the Builder shall have received from the Borrower an amount equal to one hundred per cent. (100%) of such instalment and the Agent shall have received a Certified Copy of a bank statement evidencing receipt by the Builder of the First Shipbuilding Contract Instalment in accordance with Clause 4.3 (No later than fifteen (15) days before the first Utilisation Date)), confirmation in writing from the Builder that it has received from the Borrower an amount equal to twenty per cent. (20%) of the relevant instalment(s) due under the Shipbuilding Contract to which the Loan relates;

 

(g)a copy of a duly executed Builder Qualifying Certificate;

 

(h)a certificate from the Borrower confirming that:

 

(i)the Shipbuilding Contract continues to be in full force and effect; and

 

(ii)in relation to each instalment under a Pre-delivery Contract, the proposed Refund Guarantee in respect of such instalment is or is to be provided by a Refund Guarantor who is not subject to an RG Downgrade Event.

 

(i)a certificate from the Borrower confirming that:

 

(i)no default or mandatory prepayment event pursuant to Clause 7 (Prepayment and Cancellation) is continuing or would result from the proposed Loan; and

 

(ii)the Repeating Representations and, in relation to the first Loan and first Utilisation Request, all of the other representations set out in Clause 18 (Representations) (except the representations to be made on the Delivery Date pursuant to Clause 18.32 (Representations on the Delivery Date)) are true;

 

(j)a certificate of confirmation from the Borrower attaching an original or a Certified Copy of each of the ECA Required Documents and the Agent shall be satisfied that the ECA Required Documents on their face appear properly completed and comply with the requirements of this Agreement and the requirements of the ECA Cover Document;

 

(k)if applicable, a duly executed original of the Subordinated Debt Security; and

 

(l)any opinions from legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security (if applicable), in form and substance satisfactory to the Agent and the Secured Parties.

 

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4.9No later than ninety (90) days before the Intended Delivery Date

 

The Agent shall have received no later than ninety (90) days before the Intended Delivery Date:

 

(a)notification from the Borrower of its chosen Maritime Registry; and

 

(b)notification of the Approved Manager.

 

4.10No later than sixty (60) days before the Intended Delivery Date

 

The Agent shall have received from the Borrower no later than sixty (60) days before the Intended Delivery Date:

 

(a)notification of the Intended Delivery Date; and

 

(b)a Bermudian tax opinion from legal counsel to the Secured Parties in respect of the tax treatment of the entry by the Bermudian incorporated Borrower into this Agreement and the other Finance Documents substantially in the form notified to the Borrower on or around the date of this Agreement and updated to reflect any changes in law.

 

4.11No later than fifteen (15) Business Days before the Intended Delivery Date

 

The Agent shall have received no later than fifteen (15) Business Days before the Intended Delivery Date insurance documents in form and substance satisfactory to the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date and including notably, a draft report from BankServe Insurance Services (or a similar provider) as to their insurance review of the Ship.

 

4.12No later than five (5) Business Days before the Intended Delivery Date

 

The Agent shall have received no later than five (5) Business Days before the Intended Delivery Date:

 

(a)a Certified Copy of any amendments to the Shipbuilding Contract which are not Minor Modifications and of the power of attorney pursuant to which the Borrower Authorised Signatory signed the relevant Utilisation Request and a specimen of his signature; and

 

(b)a final confirmation of the Intended Delivery Date signed by a Borrower Authorised Signatory, and counter-signed by a Builder Authorised Signatory.

 

4.13No later than the Delivery Date

 

The Agent shall have received no later than the Delivery Date:

 

(a)if applicable, a duly executed original of the Subordinated Debt Security;

 

(b)any opinions from legal counsel to the Secured Parties relating to the due execution, validity and enforceability of the Subordinated Debt Security, in form and substance satisfactory to the Agent and the Secured Parties;

 

(c)evidence that any part of the ECA Premium that is not an ECA Premium Financed Amount and that is due and payable has been received by the Agent by the Delivery Date;

 

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(d)evidence of payment to and receipt by the Builder of any other part of the Contract Price as at the Delivery Date not being financed hereunder;

 

(e)evidence of payment of all amounts which are due and payable hereunder by the Borrower on or prior to the Delivery Date;

 

(f)a certificate from the Borrower, signed by an authorised representative of the Borrower, confirming that the representations and warranties contained in Clause 18 (Representations) are true and correct as of the Delivery Date in consideration of the facts and circumstances existing as of the Delivery Date;

 

(g)a certificate from the Borrower confirming that:

 

(i)the Shipbuilding Contract continues to be in full force and effect;

 

(ii)no default or mandatory prepayment event pursuant to Clause 7 (Prepayment and Cancellation) is continuing or would result from the Delivery Loan;

 

(iii)the Repeating Representations are true; and

 

(iv)the representations to be made on the Delivery Date pursuant to Clause 18.32 (Representations on the Delivery Date) are true;

 

(h)an original or a Certified Copy of each of the ECA Required Documents and the Agent shall be satisfied that the ECA Required Documents on their face appear properly completed and comply with the requirements of this Agreement and the requirements of the ECA Cover Document,

 

provided always that the obligations of the Lenders to make the Loan available on the Delivery Date are subject to the Lenders remaining satisfied that each of the ECA Cover Document and the IMUA will cover the Loan following the advance of the Delivery Loan and the documents listed in Schedule 7 (Documents to be produced by the Builder to the Agent on Delivery) have been or will be delivered to the Agent on or before the Delivery Date.

 

4.14At Delivery

 

Immediately prior to the delivery of the Ship by the Builder to the Borrower, the Agent shall have received:

 

(a)evidence that immediately following delivery:

 

(i)the Ship will be registered in the name of the Borrower in the Maritime Registry;

 

(ii)title to the Ship will be held by the Borrower free of all Security other than any maritime lien in respect of crew's wages and trade debts arising out of equipment, consumable and other stores placed on board the Ship prior to or concurrently with delivery, none of which is overdue;

 

(iii)the Mortgage will be duly registered in the Maritime Registry and constitutes a first priority security interest over the Ship and that all taxes and fees payable to the Maritime Registry in respect of the Ship have been paid in full; and

 

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(iv)the opinions mentioned in paragraphs (b) to (d) of Clause 4.15 (Immediately following Delivery on the Delivery Date), in draft form immediately prior to the delivery of the Ship, and the documents mentioned in paragraph (e) of Clause 4.15 (Immediately following Delivery on the Delivery Date) will be issued to and received by the Agent;

 

(b)a Certified Copy of a classification certificate (or interim classification certificate) showing the Ship to be classed in accordance with paragraph (c) of Clause 18.32 (Representations on the Delivery Date);

 

(c)duly executed originals of the General Assignment, any Approved Manager's Undertaking and the Post-Delivery Assignment together with relevant notices of assignment and the acknowledgement of the notice of assignment to be issued pursuant to the General Assignment and the Post-Delivery Assignment;

 

(d)a Certified Copy of any executed Management Agreement, the Bareboat Charter and any related security pursuant to paragraph (b) of Clause 23.1 (Pooling of earnings and charters) (if applicable) and any time charterparty in respect of the Ship;

 

(e)copies of the Inventory of Hazardous Materials, a Certified Copy of any current certificate of financial responsibility in respect of the Ship issued under OPA, a valid Safety Management Certificate (or interim Safety Management Certificate) issued to the Ship in respect of its management by the Approved Manager pursuant to the ISM Code, a valid Document of Compliance (or interim Document of Compliance) issued to the Approved Manager in respect of ships of the same type as the Ship pursuant to the ISM Code, a valid International Ship Security Certificate issued to the Ship in accordance with the ISPS Code and a valid IAPPC issued to the Ship in accordance with Annex VI and, if entered into, any carrier initiative agreement with the United States' Customs and Border Protection under the Customs-Trade Partnership Against Terrorism (C-TPAT) programme along with any other documents required under the ISM Code and the ISPS Code;

 

(f)a Certified Copy of the power of attorney pursuant to which the Borrower Authorised Signatory signed the documents referred to in this Clause 4.14 (At Delivery) and to which the Borrower is a party and a specimen of his or their signature(s); and

 

(g)a confirmation from Hannaford Turner LLP, currently of 107 Cheapside, London, EC2V 6DN, UK (or any replacement process agent satisfactory to the Agent acting reasonably) that it will act for each of the relevant Transaction Obligors as agent for service of process in England in respect of the deed of covenants constituting part of the Mortgage (if applicable), the General Assignment and the Post-Delivery Assignment.

 

4.15Immediately following Delivery on the Delivery Date

 

Immediately following the delivery of the Ship by the Builder to the Borrower on the Delivery Date, the Agent shall receive:

 

(a)a duly executed original of the Mortgage;

 

(b)an opinion from legal counsel acceptable to the Secured Parties as to the law of the Maritime Registry in form and substance satisfactory to the Agent and the Secured Parties confirming:

 

(i)the valid registration of the Ship in the Maritime Registry; and

 

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(ii)the Mortgage over the Ship is a first priority security and has been validly registered in the Maritime Registry;

 

(c)an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the deed of covenants constituting part of the Mortgage (if applicable), the General Assignment, the Post-Delivery Assignment and any other relevant Security Document entered into at delivery;

 

(d)an opinion from legal counsel acceptable to the Secured Parties as to the laws of Bermuda in form and substance satisfactory to the Agent and the Secured Parties, together with the company documentation of the Bermudian Transaction Obligors including, but without limitation, the Constitutional Documents and a certificate of a competent officer or manager of each of the Bermudian Transaction Obligors entering into the documents set out in sub-paragraph (i) below containing specimen signatures of the persons authorised to sign the relevant documents on behalf of each of the Bermudian Transaction Obligors (as applicable), confirming that, without limitation:

 

(i)the Mortgage, the deed of covenants constituting part of the Mortgage (if applicable), the General Assignment, the Post-Delivery Assignment and the Bareboat Charter (if applicable) fall within the scope of the Borrower's company purpose as defined by its Constitutional Documents and are binding on it; and

 

(ii)the relevant Bermudian Transaction Obligors' representatives are fully empowered to sign, as applicable, the Protocol of Delivery and Acceptance, the Mortgage, the deed of covenants constituting part of the Mortgage (if applicable), the General Assignment, the Post-Delivery Assignment and the Bareboat Charter (if applicable) and any related security pursuant to paragraph (b) of Clause 23.1 (Pooling of earnings and charters); and

 

(iii)that the Bermudian Transaction Obligors have been duly formed and are validly existing as companies under the laws of Bermuda and containing such qualifications and assumptions as are standard for opinions of this type;

 

(e)the final report from BankServe Insurance Services (or a similar provider) as to their insurance review of the Ship; and

 

(f)the documents listed in Schedule 7 (Documents to be produced by the Builder to the Agent on Delivery).

 

4.16Notification of satisfaction of conditions precedent

 

The Agent shall notify the Lenders, the Export Credit Agency and SIMEST, as applicable, promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in this Clause 4 (Conditions of Utilisation).

 

4.17Waiver of conditions precedent

 

If the Majority Lenders, at their discretion, subject to the prior written consent of the Export Credit Agency and SIMEST (if required under the IMUA), permit a Loan to be borrowed before any of the conditions precedent referred to in Clause 4 (Conditions of Utilisation) has been satisfied, the Borrower shall ensure that that condition is satisfied within five (5) Business Days after the date (as specified in the relevant part of Clause 4 (Conditions of Utilisation)) or such later date as the Agent may agree in writing with the Borrower.

 

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4.18Changes to the Export Credit Agency's or SIMEST's requirements

 

(a)If the Export Credit Agency or SIMEST notifies the Agent in writing of a change of the ECA Cover Document or the IMUA (as applicable), or gives instructions to the ECA Agent with the effect that, in the opinion of the Agent, this Agreement or certain documents which the Borrower is or may be required to provide for the purpose of drawing a Loan under this Agreement shall be amended to comply with such change or instructions, then the ECA Agent shall promptly notify the Borrower of such a change in the Export Credit Agency's or SIMEST's requirements (as applicable) and of the relevant amendments to be made to this Agreement or any such documents as the Agent considers appropriate.

 

(b)If the Agent notifies the Borrower of any proposed changes to this Agreement under paragraph (a) above, and provided that:

 

(i)all the Lenders and the Borrower agree with such changes; and

 

(ii)the Borrower indemnifies and holds harmless the Agent and the Lenders for any reasonable costs that it may incur arising from or in connection with any such amendments (including legal fees),

 

then such changes will be made to this Agreement in accordance with the terms hereof.

 

(c)If, in the opinion of the Lenders, there are any provisions of this Agreement that contradict or conflict with any provision of the ECA Cover Document or the IMUA (as applicable), such that compliance by any Finance Party with the terms of the ECA Cover Document or the IMUA (as applicable) may result in a breach by such Finance Party of any of the terms of this Agreement or to an extent that the same may have the effect of rendering all or any part of the ECA Cover Document or the IMUA (as applicable) void, voidable or otherwise not in full force and effect, the Borrower agrees that any relevant terms of this Agreement will be amended to the extent agreed in writing between the Borrower and the Agent to ensure compliance with the terms of the ECA Cover Document or the IMUA (as applicable).

 

4.19No claim against the Finance Parties

 

The Borrower agrees that the Finance Parties may act on the instructions of the Italian Authorities in relation to this Agreement.

 

4.20Examination and reliance on documents by the Agent

 

(a)The Agent shall ensure that an officer or employee or other person designated by it as its authorised representative is present at the Builder on the Delivery Date for the purpose of examining originals (or Certified Copies) of the ECA Required Documents duly signed by the parties thereto and collecting copies thereof (which copies shall be certified as true copies by a Borrower Authorised Signatory and/or a Builder Authorised Signatory, as applicable).

 

(b)The Agent shall be entitled (but not obliged) to rely and act upon any documentation or information provided under this Clause 4 (Conditions of Utilisation), which appears on its face to have been duly completed.

 

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(c)The Agent's responsibility to the Borrower and the Lenders for the examination of any Utilisation Request, and, when applicable, the documents provided by any person other than the Borrower in connection with each Utilisation Request, shall be limited to the examination of their apparent compliance with the terms and conditions thereof in accordance with Articles 14 (Standard of examination of documents) and 34 (Disclaimer on effectiveness of documents) of the "Uniform Customs and Practice for Documentary Credits" (currently publication number 600 of the International Chamber of Commerce, latest edition) (except that no time limit for examination of documents shall apply).

 

(d)The Agent and the Lenders shall not be obliged to enquire as to, or be responsible for, the validity, truthfulness and genuineness and (where the relevant document is a conformed copy) conformity to the original of any Utilisation Request or any other document which appears on its face to be in order, or of any signatures thereon or any of the statements set out therein and shall be entitled to rely on the accuracy of any such statements.

 

(e)In case of any discrepancy in any such documents, the Agent shall notify the Borrower in writing thereof and shall request its approval of such discrepancy in writing.

 

The Agent and the Lenders shall not be responsible for any delay in making available any Loans resulting from any requirement for the delivery of further information or documents reasonably required by the Agent for the relevant conditions precedent in this Agreement to be satisfied.

 

4.21Borrower's irrevocable payment instructions

 

(a)The Lenders shall not be obliged to fulfil their obligation to make a Loan available other than in accordance with Clause 3 (Purpose), this Clause 4 (Conditions of Utilisation), Clause 5 (Utilisation) and Schedule 8 (Utilisation Schedules).

 

(b)The Borrower hereby instructs the Lenders in accordance with this Clause 4.21 (Borrower's irrevocable payment instructions) and in accordance with Schedule 8 (Utilisation Schedules):

 

(i)through the Agent, to reimburse to the Borrower or to pay to the Builder, all or part of eighty per cent. (80%) of the amount of the Shipbuilding Contract Instalment due to the Builder under the Shipbuilding Contract in five (5) Loans in accordance with Schedule 8 (Utilisation Schedules);

 

(ii)through the Agent, to reimburse the Borrower any amount of the ECA Premium paid by the Borrower to the Export Credit Agency in accordance with paragraph (b) of Clause 3.1 (Purpose); and

 

(iii)to pay to the Agent on behalf of the Lenders for onward payment to the Export Credit Agency (such payment to the Export Credit Agency to be made for value on the relevant Utilisation Date), by drawing under this Agreement, the relevant portion of the ECA Premium outstanding on such Utilisation Date.

 

(c)Payment to the Builder of the amounts drawn under paragraph (b)(i) of this Clause 4.21 (Borrower's irrevocable payment instructions) above shall be made on the relevant Utilisation Date during usual banking hours in Italy to the Builder Account and, in respect of the Delivery Loan, after receipt and verification by the Agent of the documents provided under Schedule 7 (Documents to be produced by the Builder to the Agent on Delivery).

 

(d)Save as contemplated in Clause 4.22 (Modification of payment terms) below, the payment instruction contained in this Clause 4.21 (Borrower's irrevocable payment instructions) is irrevocable.

 

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4.22Modification of payment terms

 

The Borrower expressly acknowledges that the payment terms set out in this Clause may only be modified with the agreement of the Italian Authorities, the Agent, the Security Agent, the Lenders and the Borrower in the case of paragraph (a) of Clause 4.21 (Borrower's irrevocable payment instructions) and with the agreement of the Italian Authorities, the Agent, the Lenders and the Borrower in the case of paragraphs (b) and (c) of Clause 4.21 (Borrower's irrevocable payment instructions), provided that it is the intention of the Borrower, the Lenders, the Security Agent and the Agent that prior to the Conversion Rate Fixing Date agreement shall be reached with those financial institutions with whom the Borrower has entered into the FOREX Contracts (the "Counterparties") in order that the Euro payments due from the Counterparties under the FOREX Contracts shall be paid to the Agent for holding in escrow and to be released by the Agent simultaneously with (i) the payment of each Loan to the Builder denominated in Euro and (ii) the payment to the Counterparties of the Dollars due to them under the relevant FOREX Contracts out of the Dollar amount available under paragraph (a) of Clause 4.21 (Borrower's irrevocable payment instructions), subject to the Borrower having deposited with the Agent before each Utilisation Date, if and to the extent required, any Dollar and/or Euro amounts as may be needed to ensure the payment in full of both the balance of the relevant Loan in Euro and the Dollars owed to the Counterparties under all the relevant FOREX Contracts.

 

4.23Maximum number of Loans and other limitations

 

(a)There will be no more than twelve (12) Loans under this Agreement, which shall be drawn as follows:

 

(i)one (1) Premium Loan for the First Instalment of the ECA Premium;

 

(ii)five (5) Premium Loans for each portion of the Second Instalment of the ECA Premium; and/or

 

(iii)six (6) Disbursement Loans or Reimbursement Loans (as the case may be) for each Shipbuilding Contract Instalment.

 

(b)The amount of a Disbursement Loan or Reimbursement Loan shall not exceed the Dollar Equivalent of eighty per cent. (80%) of the amount of the Shipbuilding Contract Instalment due to the Builder under the Shipbuilding Contract to which that Loan relates.

 

(c)The Lenders shall not be under any obligation to lend any Loan to the Borrower if prior to the making of that Loan any of the events specified in Article 20.2 of the Shipbuilding Contract occurs.

 

(d)The Lenders shall not be under any obligation to lend any Loan to the Borrower unless the full amount of the relevant portion of the ECA Premium has been paid in accordance with this Agreement and the ECA Cover Document.

 

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Section 3

 

Utilisation

 

5Utilisation

 

5.1Delivery of a Utilisation Request

 

The Borrower may utilise the Facility by delivery to the Agent of:

 

(a)in respect of a Disbursement Loan, a duly completed Disbursement Request which attaches a duly completed Builder Qualifying Certificate signed by a Builder Authorised Signatory (indicating, inter alia, a value of Italian Goods and Services, EU and Non-EU Goods and Services in compliance with the provisions of this Agreement and providing evidence of receipt of an amount of the relevant Cash Payment in compliance with the provisions of this Agreement); or

 

(b)in respect of a Reimbursement Loan, a duly completed Reimbursement Request which attaches a duly completed Builder Qualifying Certificate signed by a Builder Authorised Signatory (indicating, inter alia, a value of Italian Goods and Services, EU and Non-EU Goods and Services in compliance with the provisions of this Agreement and providing evidence of receipt of an amount of the relevant Cash Payment in compliance with the provisions of this Agreement); or

 

(c)in respect of a Premium Loan, a duly completed Premium Request,

 

in each case not later than the Specified Time.

 

5.2Completion of a Utilisation Request and a Builder Qualifying Certificate

 

(a)Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

(i)the proposed Utilisation Date is a Business Day within the Availability Period;

 

(ii)the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

 

(iii)it identifies whether the proposed Utilisation is a Disbursement Loan, a Premium Loan or a Reimbursement Loan; and

 

(iv)it provides for the proceeds of the proposed Utilisation to be credited to:

 

(A)(in respect of a Disbursement Loan) the Builder Account;

 

(B)(in respect of a Reimbursement Loan) the Borrower Account; or

 

(C)(in respect of a Premium Loan for the purpose of Clause 3.1(a)) the account of SACE;

 

(D)and (in respect of a Premium Loan purported to reimburse to the Borrower the upfront payment of the ECA Premium paid by the Borrower to SACE for the purpose of Clause 3.1(b)), the Borrower Account;

 

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(v)(other than in the case of a Premium Request) it specifically identifies the Builder Qualifying Certificate to which it relates; and

 

(vi)it is signed by a Borrower Authorised Signatory.

 

(b)The Borrower shall supply the Agent with any additional documents or other evidence reasonably requested by it in connection with a proposed Utilisation.

 

(c)Only one Loan may be requested in each Utilisation Request.

 

(d)Each Builder Qualifying Certificate will not be regarded as having been duly completed unless:

 

(i)it has been signed by a Builder Authorised Signatory; and

 

(ii)it itemises, inter alia, the value of the Eligible Goods and Services to be financed by the Loan requested under the Disbursement Request or Reimbursement Request to which the Builder Qualifying Certificate relates and includes, inter alia, a certification of the Builder that the amount paid or to be paid (as applicable) by the Borrower to the Builder in respect of Italian Goods and Services shall not be less than seven hundred and sixty seven million, four hundred and fifty three thousand, one hundred and forty one euros (€767,453,141.00).

 

5.3Currency and amount

 

(a)The currency specified in a Utilisation Request must be USD.

 

(b)The amount of the proposed Loan must be an amount which is not more than the Available Facility.

 

5.4Initial Utilisation

 

(a)The Agent shall notify the Borrower of the amount and the portion of the ECA Premium payable to the Export Credit Agency in respect of the ECA Cover Document, as notified by the Export Credit Agency to the Agent.

 

(b)The initial Utilisation shall be composed of the following Utilisation Requests:

 

(i)a Premium Request to be made for the purpose of financing or reimbursing the First Instalment of the ECA Premium; and/or

 

(ii)a Reimbursement Request relating to all or part of the First Shipbuilding Contract Instalment; and/or

 

(iii)if applicable, a Disbursement Request relating to part of any Shipbuilding Contract Instalment together with a Premium Request to be made for the purpose of financing the relevant portion of the Second Instalment of the ECA Premium in accordance with sub-paragraph (a)(ii) of Clause 11.5 (ECA Premium).

 

(c)All the Utilisation Requests referred to in sub-paragraph (b) above shall have the same Utilisation Date.

 

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5.5Lenders' participation

 

(a)If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

(b)The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

(c)The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan by the Specified Time.

 

5.6Cancellation of Commitment

 

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

 

5.7Disbursement Loans and Premium Loans

 

If:

 

(a)a Disbursement Loan is made available, in accordance with paragraph (b) of Clause 34.3 (Distributions in respect of Utilisations);

 

(b)a Premium Loan is made available, in accordance with sub-paragraph (i) of paragraph (c) of Clause 34.3 (Distributions in respect of Utilisations); or

 

(c)a Reimbursement Loan is made available, in accordance with paragraph (a) of Clause 34.3 (Distributions in respect of Utilisations),

 

the Borrower acknowledges that it will be obliged to repay that Disbursement Loan, that Premium Loan or that Reimbursement Loan (as the case may be) in full in accordance with the terms of this Agreement.

 

5.8Conversion Rate for Loan

 

The Dollar amounts of the Loans shall be calculated by the Agent on the relevant Conversion Rate Fixing Date in accordance with the definitions of "Conversion Rate" in Clause 1.1 (Definitions).

 

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Section 4

 

Repayment, Prepayment and Cancellation

 

6Repayment

 

6.1Repayment of Loans

 

(a)The Borrower shall repay the Loans in 24 equal instalments by repaying on each Repayment Date an amount which reduces the amount of any outstanding Loans by an amount equal to 1/24 of the Loans borrowed by the Borrower from the date falling six Months after the Starting Point of Credit.

 

(b)Any amounts outstanding on the Termination Date shall be repaid on the Termination Date.

 

6.2Reborrowing

 

The Borrower may not reborrow any part of the Facility which is repaid.

 

7Prepayment and Cancellation

 

7.1Illegality and Sanctions

 

(a)If:

 

(i)in any applicable jurisdiction, it is or becomes unlawful or contrary to any law or regulation (including as a result of the application of Sanctions) for any Lender to perform any of its obligations as contemplated by this Agreement or to fund its participation in any Loan; or

 

(ii)in any applicable jurisdiction, it becomes unlawful or contrary to any law or regulation (including as a result of the application of Sanctions) for any Lender to maintain its participation in any Loan; or

 

(iii)a Lender becomes a Prohibited Person as a result of funding or performing any of its obligations under this Agreement or maintaining its participation in any Loan,

 

then:

 

(A)that Lender shall promptly notify the Agent upon becoming aware of that event; and

 

(B)upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled.

 

(b)If any of the circumstances specified in sub-paragraphs (ii) or (iii) of paragraph (a) above occurs, then, to the extent that the Lender's participation has not been transferred pursuant to paragraph (d) of Clause 7.11 (Right of Replacement or Repayment and Cancellation in relation to a Single Lender), the Lender shall act in accordance with Clause 15.1 (Mitigation). To the extent no alternative arrangements have been agreed in accordance with Clause 15.1 (Mitigation), the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has so notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent pursuant to paragraph (a) above (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participations repaid.

 

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7.2Further illegality

 

(a)If it is or becomes or may become unlawful or contrary to any law, regulation or Sanctions in any applicable jurisdiction for any Affiliate of a Lender if that Lender performs any of its obligations as contemplated by this Agreement or funds or maintains its participation in any Loan:

 

(i)that Lender may notify the Agent upon becoming aware of that event; and

 

(ii)upon the Agent notifying the Borrower, the Available Commitment of that Lender will be immediately cancelled.

 

(b)If any of the events in sub-paragraph (i) of paragraph (a) of Clause 7.1 (Illegality and Sanctions) and paragraph (a) of Clause 7.2 (Further illegality) above occurs, without prejudice to the provisions of sub-paragraphs (A) and (B) of paragraph (a) of Clause 7.1 (Illegality and Sanctions) and paragraph (a) of Clause 7.2 (Further illegality) above, to the extent that the Lender's participation has not been transferred pursuant to paragraph (d) of Clause 7.11 (Right of Replacement or Repayment and Cancellation in relation to a Single Lender), the Lender shall act in accordance with Clause 15.1 (Mitigation). To the extent no alternative arrangements have been agreed in accordance with Clause 15.1 (Mitigation), the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has so notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent pursuant to paragraph (a) above (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be cancelled in the amount of the participations repaid.

 

7.3Change of control

 

(a)If a Change of Control occurs:

 

(i)the Borrower shall promptly notify the Agent upon becoming aware of that event;

 

(ii)a Lender shall not be obliged to fund a Utilisation; and

 

(iii)if a Lender so requires and notifies the Agent within thirty (30) days of the Borrower notifying the Agent of the event, the Agent shall, by not less than five (5) days' notice to the Borrower, cancel the Available Commitment of that Lender and declare the participation of that Lender in all Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be immediately cancelled, the Commitment of that Lender shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.

 

(b)For the purposes of paragraph (a) above, "Change of Control" means any circumstance in which a person or "group" (within the meaning of Rules 13d-3 and 13d-5 of the Exchange Act) acquires beneficial ownership of 35% or more on a fully diluted basis of the voting interest in the Guarantor's equity interests.

 

(c)In this Clause, "Exchange Act" means the Securities Exchange Act of 1934 (15 USC §78a et seq.) as in effect on the date of this Agreement.

 

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7.4ECA Mandatory Prepayment Event

 

If an ECA Mandatory Prepayment Event occurs:

 

(a)the Agent shall promptly notify the Borrower and the Lenders upon becoming aware of that event;

 

(b)a Lender shall not be obliged to fund a Utilisation; and

 

(c)if a Lender so requires, and notifies the Agent, the Agent shall:

 

(i)cancel the Available Commitment of that Lender; and

 

(ii)declare the participation of that Lender in all Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon such Available Commitment will be immediately cancelled, the Commitment of that Lender shall immediately cease to be available for further utilisation and all such Loans, accrued interest and other amounts shall become immediately due and payable.

 

7.5CDP Event

 

If a CDP Event occurs:

 

(a)CDP shall not be obliged to fund a Utilisation; and

 

(b)if CDP so requires, the Agent shall, by not less than twenty (20) Business Days' notice to the Borrower, cancel CDP's Commitments and declare that CDP's participation in all outstanding Loans, together with accrued interest and all other relevant amounts accrued thereon, immediately due and payable, at which time CDP's Commitments will be cancelled and the amount of such outstanding Loans will become immediately due and payable.

 

7.6ECA Premium refund

 

(a)If, at any time, the Export Credit Agency makes a Rating Premium Refund in accordance with Clause 11.6 (ECA Premium Refund), the Agent shall promptly notify the Borrower upon becoming aware of that event and such Rating Premium Refund shall be applied in prepayment of the Loans.

 

(b)The Agent is hereby authorised by the Borrower to apply any and all amounts of any Rating Premium Refund received by the Agent towards prepayment of the outstanding Loans.

 

(c)As soon as reasonably practicable after applying amounts in paragraph (b) above, the Agent shall notify the Borrower of the same.

 

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7.7Mandatory prepayment – Sale and Total Loss

 

The Borrower shall be obliged to prepay all outstanding Loans if the Ship is sold (without prejudice to Clause 22.5 (Disposals)) or becomes a Total Loss:

 

(a)in the case of a sale, on or before the date on which the sale is completed by delivery of the Ship to the buyer; or

 

(b)in the case of a Total Loss, on the earlier of the date falling 120 days after the Total Loss Date and the date of receipt by the Agent or the Security Agent (as the case may be) of the proceeds of insurance relating to such Total Loss.

 

7.8Mandatory prepayment on default under Shipbuilding Contract

 

If:

 

(a)prior to the delivery of the Ship it becomes unlawful for the Builder to perform its obligations under the Shipbuilding Contract;

 

(b)prior to the delivery of the Ship any of the events specified in Article 20.2 of the Shipbuilding Contract occurs and is not remedied in accordance with the time period specified therein;

 

(c)prior to the delivery of the Ship, any of the parties to the Shipbuilding Contract becomes entitled to terminate or repudiate the Shipbuilding Contract and commences the exercise of their rights to do so;

 

(d)prior to the delivery of the Ship the Builder ceases to carry on all or a substantial part of its cruise ship building business; or

 

(e)the Ship has not been delivered to, and accepted by, the Borrower by the date specified in sub-paragraph (b) of the definition of Availability Period,

 

then:

 

(i)the Borrower shall promptly notify the Agent upon becoming aware of that event; and

 

(ii)if the Majority Lenders so require, and subject (for the avoidance of doubt) to paragraph (b) of Clause 7.12 (Restrictions) the Agent shall, by not less than three (3) Business Days' notice to the Borrower, cancel the Facility and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable.

 

7.9Voluntary cancellation

 

Subject to the payment of SIMEST Break Costs, the Borrower may, if it gives the Agent not less than thirty-five (35) days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part of the Available Facility. Any cancellation under this Clause 7.9 (Voluntary cancellation) shall reduce the Commitments of the Lenders rateably.

 

7.10Voluntary prepayment of Loans

 

(a)The Borrower may, if it gives the Agent not less than 35 days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount equal to the amount of a Repayment Instalment).

 

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(b)A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Available Facility is zero).

 

(c)Any prepayment of Loans pursuant to this Clause 7.10 shall be subject to paragraph (b) of Clause 7.12 (Restrictions).

 

7.11Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)If:

 

(i)any sum payable to any Lender by a Transaction Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up); or

 

(ii)any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased Costs),

 

the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues and with the prior consent of the Italian Authorities, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

 

(b)On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment of that Lender shall be immediately reduced to zero.

 

(c)On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in that Loan and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participation repaid.

 

(d)If:

 

(i)any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

(ii)the Borrower becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality and Sanctions) or Clause 7.2 (Further illegality) to any Lender,

 

the Borrower may on five (5) Business Days' prior notice to the Agent and that Lender and with the prior consent of the Italian Authorities, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 28 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 28 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Loans and all accrued interest, Break Costs or (where applicable) SIMEST Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

(e)The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

(i)the Borrower shall have no right to replace the Agent;

 

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(ii)neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

(iii)in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender; and

 

(iv)the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.

 

(f)A Lender shall perform the checks described in sub-paragraph (iv) of paragraph (e) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

 

7.12Restrictions

 

(a)Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, SIMEST Break Cost and SIMEST Refund Amounts, without premium or penalty.

 

(c)The Borrower may not reborrow any part of the Facility which is prepaid.

 

(d)The Borrower shall not repay or prepay any Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

(e)No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

(f)If the Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate, and to the Italian Authorities.

 

(g)If all or part of any Lender's participation in a Loan is repaid or prepaid, an amount of that Lender's Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

 

7.13Application of prepayments

 

Any prepayment of a Loan pursuant to Clause 7.6 (ECA Premium refund) and Clause 7.10 (Voluntary prepayment of Loans) shall be applied pro rata to each Lender's participation in that Loan and shall satisfy the obligations under Clause 6.1 (Repayment of Loans) in inverse chronological order.

 

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Section 5

 

Costs of Utilisation

 

8Interest

 

8.1Fixed or Floating Interest Rate

 

The Borrower shall provide notification, signed by a Borrower Authorised Signatory, to the Agent on the date of this Agreement specifying which of the Fixed Interest Rate or the Floating Interest Rate shall be applicable to all Loans until the date of payment of the final Repayment Instalment of each Loan.

 

8.2Calculation of interest

 

Subject to Clause 8.1 (Fixed or Floating Interest Rate), the rate of interest on each Loan for each Interest Period is:

 

(a)in the event that the Borrower has selected the Fixed Interest Rate in accordance with Clause 8.1 (Fixed or Floating Interest Rate), the Fixed Interest Rate; or

 

(b)in the event that the Borrower has selected the Floating Interest Rate in accordance with Clause 8.1 (Fixed or Floating Interest Rate), the Floating Interest Rate.

 

8.3Switch from the Fixed Interest Rate to the Floating Interest Rate

 

If the Borrower has specified a Fixed Interest Rate pursuant to Clause 8.1 (Fixed or Floating Interest Rate) but thereafter:

 

(i)the Agent notifies the Borrower in writing that:

 

(A)the IMUA has been revoked, terminated, withdrawn or cancelled (in whole or in part) or has otherwise ceased to be in full force and effect; or

 

(B)the IMUA has been revoked, terminated, withdrawn or cancelled (in whole or in part) or has otherwise ceased to be in full force and effect in respect of one (1) or more specific Fixed Rate Loan(s),

 

(ii)SIMEST has failed to make a payment to the Lenders pursuant to the IMUA,

 

(in this Clause the Loans affected by any of the circumstances specified in sub-paragraphs (i)(A), (i)(B) or (ii) above are the "Relevant Loans") then:

 

(A)unless the IMUA applies to that Loan notwithstanding the occurrence of any circumstances specified in paragraph (ii) above, each such Loan made on or after the IMUA Event Date shall be a Floating Rate Loan; and

 

(B)in respect of each Relevant Loan outstanding on the IMUA Event Date:

 

(1)each such Relevant Loan shall, on the IMUA Event Date, be redesignated as a Floating Rate Loan (without any change to the principal amount of such Relevant Loan as a result of such redesignation);

 

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(2)each such Relevant Loan shall be deemed for all purposes to be a Floating Rate Loan on and from the IMUA Event Date;

 

(3)for the purposes of this Clause 8.3 (Switch from the Fixed Interest Rate to the Floating Interest Rate), interest on such Relevant Loan shall be deemed to have accrued at all times from the IMUA Event Date as if such Relevant Loan were a Floating Rate Loan for the relevant Interest Period; and

 

(4)the Borrower shall pay, in accordance with Clause 8.4 (Payment of Interest), (i) interest calculated on the basis of the Fixed Interest Rate on such Relevant Loan up to and including the IMUA Event Date, (ii) interest calculated on the basis of the Floating Interest Rate on such Relevant Loan starting from the IMUA Event Date, (iii) any Break Costs (if any) and (iv) any SIMEST Break Costs and/or SIMEST Refund Amounts (if payable by the Borrower pursuant to Clause 10.9 (SIMEST Break Costs) and Clause 10.10 (SIMEST Refund Amounts), respectively).

 

8.4Payment of interest

 

The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period.

 

8.5Default interest

 

(a)If an Obligor fails to pay any amount payable by it under a Finance Document (including in connection with, or pursuant to, the IMUA) on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is two per cent. (2%) per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Floating Rate Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 8.5 (Default interest) shall be immediately payable by the Obligor on demand by the Agent.

 

(b)If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

(i)the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)the rate of interest applying to the overdue amount during that first Interest Period shall be two per cent. (2%) per annum higher than the rate which would have applied if the overdue amount had not become due.

 

(c)Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

8.6Notification of Interest Periods and Interest Rate

 

(a)Save where paragraph (d) of Clause 10.1 (Unavailability of Term SOFR) applies, the Agent shall notify the Borrower and each Lender of each interest rate and the duration of each Interest Period as soon as reasonably practicable after each is determined and no later than the Quotation Day.

 

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(b)In respect of any Fallback Interest Payment, the Agent shall promptly upon a Fallback Interest Payment being determinable notify:

 

(i)the Borrower of that Fallback Interest Payment;

 

(ii)each Lender of the proportion of that Fallback Interest Payment which relates to that Lender's participation in the Loan or the relevant part of the Loan; and

 

(iii)the Lenders and the Borrower of each applicable Daily Simple SOFR relating to the determination of that Fallback Interest Payment.

 

(c)The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan or any part of the Loan.

 

This Clause 8.6 (Notification of Interest Periods and Floating Interest Rate) shall not require the Agent to make any notification to any Party on a day which is not a Business Day.

 

8.7Notification of IMUA Event

 

Following the occurrence of an IMUA Event, the Agent shall:

 

(a)promptly upon becoming aware of the occurrence of that IMUA Event, notify the Borrower and the Lenders and SACE of that occurrence; and

 

(b)promptly upon becoming aware of the IMUA Event Date applicable to that IMUA Event, notify the Borrower and the Lenders and SACE of that date.

 

8.8Acknowledgement

 

For the avoidance of doubt, the Borrower acknowledges that no provision in this Agreement is intended to grant any discretion to the Borrower to switch from the Fixed Interest Rate to the Floating Interest Rate or from the Floating Interest Rate to the Fixed Interest Rate in respect of any Loan.

 

9Interest Periods

 

The period for which each Loan is outstanding shall be divided into successive Interest Periods, each of which (other than the first Interest Period for that Loan, which shall begin on its Utilisation Date) shall start on the last day of such preceding period.

 

9.1Duration

 

(a)The last day of an Interest Period for a Loan shall be the earlier of:

 

(i)the date falling six Months after the first day of that Interest Period;

 

(ii)the last day of an Interest Period of any other Loan; and

 

(iii)the first Repayment Date falling after the first day of that Interest Period.

 

(b)An Interest Period for a Loan shall not extend beyond the Termination Date.

 

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9.2Non-Business Days

 

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

9.3Consolidation of Loans

 

If two or more Interest Periods relate to Loans and end on the same date, those Loans will be consolidated into, and treated as, a single Loan on the last day of the Interest Period.

 

10Changes to the Calculation of Interest

 

10.1Unavailability of Term SOFR

 

(a)Interpolated Term SOFR: If no Term SOFR is available for the Interest Period of a Loan, the applicable Reference Rate shall be the Interpolated Term SOFR for a period equal in length to the Interest Period of that Loan.

 

(b)Historic Term SOFR: If no Term SOFR is available for the Interest Period of a Loan and it is not possible to calculate the Interpolated Term SOFR, the applicable Reference Rate shall be the Historic Term SOFR for that Loan.

 

(c)Interpolated Historic Term SOFR: If paragraph (b) above applies but no Historic Term SOFR is available for the Interest Period of a Loan, the applicable Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of that Loan.

 

(d)Daily Simple SOFR: If, after giving effect to paragraph (c) above, no Term SOFR is available for the Interest Period of a Loan and it is not possible to calculate the Interpolated Historic Term SOFR, that Loan shall bear interest for any day of the relevant Interest Period at a rate per annum equal to the aggregate of the applicable (i) Daily Simple SOFR; and (ii) Floating Rate Margin.

 

(e)Cost of funds: If paragraph (d) above applies but it is not possible to calculate the Daily Simple SOFR, there shall be no Reference Rate for that Loan and Clause 10.3 (Cost of funds) shall apply to that Loan for that Interest Period.

 

10.2Market disruption

 

If:

 

(a)before close of business in London on the Quotation Day for the relevant Interest Period, in the case that, subject to paragraph (b) below, the relevant Loan is then a Floating Rate Loan; or

 

(b)at any time, in the case that the relevant Loan:

 

(i)is a Fixed Rate Loan; or

 

(ii)becomes, during the relevant Interest Period, a Floating Rate Loan pursuant to Clause 8.3 (Switch from the Fixed Interest Rate to the Floating Interest Rate),

 

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the Agent receives notification from a Lender or Lenders (whose participations in the relevant Loan exceed 50 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of:

 

(A)the Market Disruption Rate (in any of the cases specified in paragraph (a) and sub-paragraph (b)(ii) above); or

 

(B)the Reference Rate Component, as calculated in accordance with the IMUA, plus any applicable Fixed Rate Margin Negative Reference Rate Component (in the case specified in paragraph (b)(i) above),

 

then Clause 10.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

 

10.3Cost of funds

 

(a)If this Clause 10.3 (Cost of funds) applies:

 

(i)(in the case of a Floating Rate Loan) the rate of interest on the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

(A)the applicable Floating Rate Margin; and

 

(B)the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan from whatever source it may reasonably select; and

 

(ii)(in the case of a Fixed Rate Loan), the Borrower, in addition to interest due in accordance with Clause 8 (Interest), shall pay to each Lender, within ten (10) Business Days of notice of the Agent, an amount equal to the percentage rate per annum (applied on each Lender's share of the Loan for the relevant Interest Period) which is the difference of:

 

(A)the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event no later than twenty (20) Business Days after the payment by SIMEST of the contribution under the IMUA in respect of the Loan for that Interest Period (and taking into account any delay of SIMEST in paying the relevant contribution), to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan from whatever source it may reasonably select; and

 

(B)the Reference Rate Component plus the Fixed Rate Margin Negative Reference Rate Component.

 

(b)If this Clause 10.3 (Cost of funds) applies and the Agent or the Borrower so requires, the Agent, the Borrower and SIMEST shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.

 

(c)If this Clause 10.3 (Cost of funds) applies and the Agent or the Borrower requires the entry into negotiations as contemplated in paragraph (b) above and either (i) the Agent, the Borrower and SIMEST do not come to an agreement or (ii) not all the Lenders consent to the substitute or alternative basis agreed pursuant to paragraph (b) above then the applicable Reference Rate shall continue to be determined pursuant to the definition of "Reference Rate".

 

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(d)Subject to Clause 40.4 (Changes to the reference rates), any substitute or alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

 

(e)If paragraph (f) below does not apply and any rate notified to the Agent under sub-paragraphs (i)(B) or (ii)(B) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero.

 

(f)If this Clause 10.3 (Cost of funds) applies pursuant to Clause 10.2 (Market disruption) and a Lender's Funding Rate is less than the Market Disruption Rate (if such Loan is a Floating Rate Loan) or the aggregate of the Reference Rate Component, as calculated in accordance with the IMUA and any applicable Fixed Rate Margin Negative Reference Rate Component (in the case that such Loan is a Fixed Rate Loan), that Lender's cost of funds relating to its participation in the relevant Loan for that Interest Period shall be deemed, for the purposes of sub-paragraph (i)(B) of paragraph (a) above, to be the Market Disruption Rate for that Loan and, for the purposes of sub-paragraph (ii)(A) of paragraph (a) above, the aggregate of the Reference Rate Component, as calculated in accordance with the IMUA, and any applicable Fixed Rate Margin Negative Reference Rate Component.

 

(g)If this Clause 10.3 (Cost of funds) applies but any Lender does not notify a rate to the Agent by the time specified in sub-paragraph (i)(B) of paragraph (a) above or sub-paragraph (ii)(B) of paragraph (a) above, the relevant rate of interest shall be calculated on the basis of the rates notified by the remaining Lenders.

 

10.4Fixed Rate Loans

 

(a)The Borrower shall, within five (5) Business Days of demand, indemnify the Agent and each Lender in respect of any loss incurred by it in the event that the Reference Rate Component payable under the IMUA for the relevant currency and the relevant period may not be determined as a result of the screen rate referred to in the IMUA being unavailable and an alternative means of determining such amount not being agreed between the Finance Parties and SIMEST.

 

(b)The Borrower shall, within thirty (30) days of demand, indemnify the Agent and each Lender in respect of any loss incurred by it as a result of SIMEST making any deduction or withholding for or on account of any taxes on any amount paid by it to the Agent or the Lenders under the IMUA. Each such Lender shall notify the Agent on becoming so aware of any such deduction or withholding and any payment payable to that Lender pursuant to this Clause 10.4 (Fixed Rate Loans).

 

(c)The Agent shall promptly notify the Borrower, upon becoming aware, of the occurrence of any event described in paragraphs (a) or (b) above. In case of an event described in paragraph (b) above, each Finance Party making a claim thereunder shall request that SIMEST provide an original receipt (or copy thereof) evidencing that the payment has been duly remitted to the appropriate authority. To the extent the same shall have been provided to it by SIMEST, that Finance Party shall forward to the Borrower the original receipt (or copy thereof) evidencing that the payment has been duly remitted to the appropriate authority.

 

(d)Following receipt of any notice from the Agent described in paragraph (c) above, the Borrower may (with the prior written consent of the Export Credit Agency) request the Agent to terminate the IMUA, with effect from the Relevant Termination Date (as defined below), by giving not less than thirty (30) days' prior written notice to SIMEST, following which:

 

(i)Paragraph (ii)(B) of Clause 8.3 (Switch from the Fixed Interest Rate to the Floating Interest Rate) shall apply, as if references therein to the IMUA Event Date were references to the first day of the Interest Period immediately following the expiry of such thirty (30) day notice period (such date being the "Relevant Termination Date"); and

 

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(ii)the Borrower shall, within three (3) Business Days of demand, reimburse each Finance Party and SIMEST for the amount of all costs and expenses of whatever nature incurred by that Finance Party or SIMEST (as applicable) as a result of the operation of this paragraph (ii) (including all Break Costs, SIMEST Break Costs, any SIMEST Refund Amount and all other amounts payable under the IMUA).

 

10.5Notification to the Borrower

 

If Clause 10.3 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Borrower.

 

10.6Break Costs

 

(a)The Borrower shall, within five (5) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to any Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

(b)Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

10.7Suspension of the IMUA

 

(a)If:

 

(i)SIMEST has notified the Agent that a formal internal proceeding has been commenced by SIMEST for the termination or revocation of the IMUA in respect of a Fixed Rate Loan (the "SIMEST Proceeding") and that, pending the conclusion of the SIMEST Proceeding, the subsidy under the IMUA shall be suspended (the date specified in such notice being the "SIMEST Contribution Suspension Date"); and

 

(ii)SIMEST has notified the Agent that the decision taken at the conclusion of the SIMEST Proceeding is that the subsidy shall be revoked or terminated and with respect to the period starting from the SIMEST Contribution Suspension Date and ending on the date on which the Agent has been notified by SIMEST that the SIMEST Proceeding is concluded (such period being the "SIMEST Contribution Suspension Period"), SIMEST has made a net interest payment to the Lenders under the IMUA,

 

then the Borrower shall pay to the Agent (for remittance to SIMEST) within ten (10) Business Days of a request by the Agent, an amount equal to the net amount of interest that SIMEST has paid to the Lenders under the IMUA during the SIMEST Contribution Suspension Period.

 

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(b)The Agent shall promptly notify the Borrower upon becoming aware of the suspension of the subsidy under the IMUA under paragraph (a) above and shall provide the Borrower with the calculation evidencing any amount payable under this Clause 10.7 (Suspension of the IMUA).

 

10.8Non-payment under the IMUA

 

(a)If:

 

(i)the interest rate is calculated at the Fixed Interest Rate; and

 

(ii)SIMEST does not make a net payment to the Lenders under the IMUA and such failure to make a net payment of interest is not remedied within five (5) Business Days of the date on which such net payment is due and payable under the terms of the IMUA,

 

then the Agent shall promptly notify the Borrower upon becoming aware of that event (each being a "SIMEST Non-Payment Event") and the Borrower shall pay to the Agent within five (5) Business Days of a request by the Agent an amount equal to the net amount of interest that SIMEST should have paid to the Lenders under the IMUA in respect of the period starting from the SIMEST Non-Payment Event and for so long as that SIMEST Non-Payment Event is continuing.

 

(b)If the Borrower makes a payment pursuant to paragraph (a) above, the Agent and each Lender shall, upon the request of the Borrower, use all reasonable endeavours to procure that SIMEST pays the amount owed but unpaid by it under the IMUA. If the Agent or any Lender recovers any amount from SIMEST in respect of the amount paid by the Borrower pursuant to paragraph (a) above, it shall promptly pay such amount to the Borrower.

 

10.9SIMEST Break Costs

 

(a)If SIMEST has notified the Agent that the IMUA has been revoked or terminated in full or in part and/or the IMUA has otherwise ceased to be in full force and effect, in each case due to:

 

(i)an event specified in paragraphs (a), (b) and/or (c) of the definition of IMUA Event (each being a "IMUA Termination Event"); or

 

(ii)an event specified in paragraphs (d), (e), (f), (g) and/or (h) of the definition of IMUA Event (each being a "IMUA Revocation Event"), which is attributable (in whole or in part) to an act or an omission of the Borrower,

 

then the Agent shall promptly inform the Borrower of such IMUA Event and of any SIMEST Break Costs arising from the occurrence of such IMUA Event and the Borrower shall, within fifteen (15) Business Days of demand by SIMEST (or the ECA Agent on its behalf), pay to SIMEST (through the ECA Agent) such SIMEST Break Costs.

 

(b)In this Agreement, "SIMEST Break Costs" means all amounts due to SIMEST or that SIMEST is entitled to charge to the Borrower (through the Agent) pursuant to the IMUA, upon the occurrence of an IMUA Event, equal to:

 

(i)if the IMUA Event is an IMUA Termination Event the difference (if positive) between:

 

(A)the present value (calculated at the cost of funding on the market and excluding the SIMEST Margin Contribution) of the interest which would, but for the occurrence of an IMUA Termination Event, have accrued, at the CIRR, on the principal amount of a Fixed Rate Loan which have been accelerated, prepaid or converted or (as applicable) on the amount of the Available Commitments which has been cancelled, in each case for the period from the date of that IMUA Termination Event to the final Repayment Date of that Fixed Rate Loan; and

 

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(B)the present value (calculated at the cost of funding on the market and excluding the SIMEST Margin Contribution) of the interest which would, but for the occurrence of an IMUA Termination Event, have accrued on the principal amount of that Fixed Rate Loan which has been accelerated, prepaid or converted, or (as applicable) on the amount of the Available Commitments which has been cancelled, in each case at the rate calculated by the sum of the Reference Rate Component payable by SIMEST under the IMUA plus the SIMEST Margin Contribution, for the period from the date of that IMUA Termination Event to the final Repayment Date of that Fixed Rate Loan,

 

provided that, if SIMEST has entered into any hedging arrangement with respect to the relevant Fixed Rate Loan or with respect to any such amount of the Available Commitments which have been cancelled, SIMEST Break Costs shall instead be equal to any costs, expenses and fees (as these have been notified by SIMEST to the Agent) incurred by SIMEST in connection with the entry by it into any such hedging arrangement or as a result of the close-out, in whole or in part, of those hedging arrangements; and

 

(ii)if the IMUA Event is an IMUA Revocation Event the costs, expenses and fees (as these have been notified by SIMEST to the Agent) incurred by SIMEST in connection with the entry by it into, or as a result of the close-out (in whole or in part) of, any hedging arrangement with respect to that part of the Fixed Rate Loan and/or that amount of the Available Commitments which has been affected by that IMUA Revocation Event, provided that if no hedging arrangement has been entered into by SIMEST with respect to that Fixed Rate Loan or with respect to that amount of the Available Commitments which has been affected by that IMUA Event, the SIMEST Break Costs shall be equal to zero.

 

and, in the case of both paragraphs (i) and (ii) above, for the calculation of SIMEST Break Costs, the zero floor provisions shall not apply.

 

(c)The ECA Agent shall, as soon as reasonably practicable, request that SIMEST provide a certificate evidencing the amount of its SIMEST Break Costs for any period in which such amounts accrue and, promptly following receipt of the same, the ECA Agent shall provide such certificate to the Borrower.

 

(d)The Borrower acknowledges and agrees that on any amount due by the Borrower, through the Agent, to SIMEST under the IMUA which is due but unpaid, interest shall accrue, from the relevant payment date (included) until the actual payment date (excluded) at the rate specified in Clause 8.5 (Default Interest), with automatic accrual simply for the non-payment on the due date and without the need of any notice of non-payment.

 

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10.10SIMEST Refund Amounts

 

(a)If:

 

(i)the Agent has notified the Borrower that the IMUA or the subsidy thereunder in respect of that Fixed Rate Loan has been revoked or terminated; and

 

(ii)with respect to the period starting from the date on which the event that resulted in the termination or revocation of the IMUA or the subsidy thereunder occurred and ending on the date of the notice referred to in sub-paragraph (i) above (the "IMUA Overrun Period"), interest net payments with respect to that Fixed Rate Loan have been made by SIMEST and/or the Lenders under the IMUA (each being an "IMUA Payment"),

 

and:

 

(A)if:

 

(1)during the IMUA Overrun Period, the aggregate amount of all the IMUA Payments made by SIMEST is in excess of the aggregate amount of all the IMUA Payments made by the Lenders; and

 

(2)SIMEST has requested to the Agent, pursuant to the IMUA, to return any such excess amount, the Borrower shall pay to the Agent (for the account of the Lenders) an amount equal to that excess within fifteen (15) Business Days of demand by the Agent; or

 

(B)if during the IMUA Overrun Period the aggregate amount of all the IMUA Payments made by the Lenders are in excess of the aggregate amount of all the IMUA Payments made by SIMEST, the Borrower shall be entitled to request to the Lenders (acting through the Agent) to claim any such excess amount from SIMEST pursuant to the IMUA and the Lenders (acting through the Agent) shall:

 

(1)claim that excess amount from SIMEST within fifteen (15) Business Days of the request made by the Borrower; and

 

(2)return to the Borrower any amount paid by SIMEST in that respect promptly upon receipt.

 

(b)If the Agent has notified the Borrower that the IMUA has been revoked by SIMEST due to an IMUA Revocation Event specified in sub-paragraph (ii) of paragraph (a) of Clause 10.9 (SIMEST Break Cost) which is attributable (in whole or in part) to an act or an omission of the Borrower, then the Borrower shall pay to SIMEST (through the Agent), within fifteen (15) Business Days of demand by SIMEST, an amount equal to the difference (if positive) between:

 

(i)the aggregate amount of all IMUA Payments made by SIMEST in respect of that Fixed Rate Loan during the period starting from the date on which the IMUA has entered into force and the date of that IMUA Revocation Event; and

 

(ii)the aggregate amount of all IMUA Payments made by the Lenders in respect of that Fixed Rate Loan during the same period.

 

(c)The Agent shall promptly notify the Borrower of any amount payable under this paragraph (c).

 

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(d)The ECA Agent shall, as soon as reasonably practicable, request that SIMEST provide a certificate evidencing any amount payable under this paragraph (d) and, promptly following receipt of the same, the ECA Agent shall provide such certificate to the Borrower.

 

(e)The Borrower acknowledges and agrees that on any amount due by the Borrower to SIMEST (whether through the Agent or otherwise) pursuant to the IMUA which is due but unpaid, interest shall accrue on such amount from and including the date on which such amount was due to be paid until but excluding the actual payment date at the rate specified in Clause 8.5 (Default Interest), with automatic accrual simply for the non-payment on the due date and without the need of any notice of non-payment.

 

11Fees

 

11.1Commitment fee

 

(a)The Borrower shall pay to the Agent for the benefit of the Lenders, a commitment fee in Dollars for the period from the date of this Agreement to the Delivery Date of the Ship, or the date of receipt by the Agent of the written cancellation notice sent by the Borrower as described in Clause 7.9 (Voluntary cancellation) whichever is the earliest, computed at the rate of:

 

(i)from the date of this Agreement to and including 31 December 2024, [*] per annum;

 

(ii)from 1 January 2025 to and including 31 March 2026, [*] per annum; and

 

(iii)from 1 April 2026 to and including the Delivery Date, [*] per annum,

 

and calculated on the undrawn amount of the Total Commitments and payable in arrears on the date falling six (6) months after the date of this Agreement and on each date falling at the end of each following consecutive six (6) month period, with the exception of the commitment fee due in respect of the last period, which shall be paid on the Delivery Date, or the date of receipt by the Agent of the written cancellation notice sent by the Borrower as described in Clause 7.9 (Voluntary cancellation), whichever is the earliest, such commitment fee to be calculated on the actual number of days elapsed divided by three hundred and sixty (360). For the purpose of the computation of the periodical commitment fee payable to the Lenders, the Total Commitments are assumed to be [*];

 

(b)The accrued commitment fee is payable on the last day of each successive period of six Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.

 

11.2Joint Mandated Lead Arranger structuring fee

 

The Borrower shall pay to the Joint Mandated Lead Arrangers a structuring fee in the amount and at the times agreed in a Fee Letter.

 

11.3Agency fee

 

The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

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11.4Agent structuring fee

 

The Borrower shall pay to the Agent (for its own account) an agent structuring fee in the amount and at the times agreed in a Fee Letter.

 

11.5ECA Premium

 

(a)The Borrower shall pay to the Agent the ECA Premium as follows:

 

(i)the First Instalment being an amount equal to [*] of the ECA Premium, no later than the earlier of:

 

(A)thirty (30) days after the issuance of the ECA Cover Document; and

 

(B)the first Utilisation Date;

 

(ii)the Second Instalment ([*]) of the ECA Premium, which shall be paid pro rata to each Loan to be drawn in accordance with Schedule 8 (Utilisation Schedules), it being provided that each pro rata payment of the Second Instalment shall be calculated by using the applicable pricing rate set out below (the "ECA Premium Pricing Rate"), which shall be based on the Guarantor's highest unsecured corporate credit rating between S&P's or equivalent Moody's, provided by the Borrower to the Agent, by way of a Rating Notice, on the Rating Fixing Date for that Utilisation Date; and

 

Guarantor's
Rating *
ECA Premium
Pricing Rate
B [*]
B+ [*]
BB- [*]
BB [*]
BB+ [*]
BBB- [*]

 

* S&P or equivalent Moody's unsecured corporate credit ratings

 

(iii)if a Loan in respect of a Shipbuilding Contract Instalment is less than the Dollar Equivalent of eighty per cent. (80%) of the Contract Price instalment paid to the Builder under the Shipbuilding Contract to which that Loan relates, the portion of the Second Instalment of the ECA Premium applicable to such Loan and payable in accordance with this paragraph (iii) shall be adjusted pro rata.

 

(b)The Parties acknowledge and agree that the amount of each Premium Loan to be advanced for payment of each of the First Instalment and each portion of the Second Instalment is an amount which, in aggregate, is equivalent to one hundred per cent (100%) of the ECA Premium on the assumption that the ECA Premium Pricing Rate is fixed at [*] and is an amount which does not exceed the ECA Premium Financed Amount.

 

(c)Where, due to a rating downgrade of the Guarantor and subsequent increase in the ECA Premium Pricing Rate, the amount of the portion of the Second Instalment is greater than the amount of the Premium Loan intended to finance that portion of the Second Instalment, the Borrower shall, together with or prior to the submission of a Premium Request, pay to the Agent an amount which is equivalent to the difference between the portion of the Second Instalment and the Premium Loan which is intended to finance it.

 

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(d)The Agent shall pay such amounts in respect of the ECA Premium to the Export Credit Agency immediately upon receipt of a Premium Request and, if relevant, the payment referred to in paragraph (c) above from the Borrower.

 

(e)If the Agent has paid any amount of the ECA Premium to the Export Credit Agency (other than using the proceeds of a Premium Loan or without receiving the payment from the Borrower referred to in paragraph (c) above), the Borrower shall reimburse the Agent for such amount within five (5) Business Days of demand.

 

(f)Each Obligor acknowledges that none of the Finance Parties or the Builder is responsible for the calculation or final determination of the ECA Premium and no Obligor will raise against any Finance Party or the Builder, any claim or defence of any kind whatsoever in relation to the calculation or payment of the ECA Premium.

 

The Borrower acknowledges that no part of the ECA Premium is refundable for any reason, other than as specified in this Agreement and/or the ECA Cover Document.

 

11.6ECA Premium Refund

 

(a)If (i) on 31 October 2031, the Guarantor's highest unsecured corporate credit rating is at least BB+ (S&P's or equivalent Moody's), and (ii) no Event of Default (howsoever defined) has occurred and is continuing and no loss in connection with the ECA Cover Document has been incurred by SACE in respect of any Financial Indebtedness granted to any company within the Group and supported by SACE, the Borrower may request in writing to SACE through the ECA Agent (who shall promptly notify SACE upon receipt of such written request from the Borrower) a one-off refund of the Second Instalment of the ECA Premium referred to in sub-paragraph (a)(ii) of Clause 11.5 (ECA Premium) (the "Rating Premium Refund"). The Rating Premium Refund shall be calculated as being an amount equal to the difference between: (i) the amount of each portion of the Second Instalment already paid on each Utilisation Date and (ii) what each portion of the Second Instalment already paid on each Utilisation Date would have amounted to had the Guarantor's highest unsecured corporate credit rating between S&P's or equivalent Moody's at the time of each Utilisation been BB+ or higher multiplied by each percentage 'P' defined as below:

 

'P' equals to one (1) minus:

 

(i)Total WAL minus Residual WAL

 

divided by

 

(ii)Total WAL.

 

(b)For the purpose of the above:

 

(i)the number of years between the effective Delivery Date and each respective Utilisation Date is defined as "Pre-Delivery WAL" for each pro rata portion of the Second Instalment;

 

(ii)"Total WAL" for each pro rata portion of the Second Instalment is the sum of "Pre-Delivery WAL" plus 6.25; and

 

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(iii)"Residual WAL" for each pro rata portion of the Second Instalment is the weighted average life of the remaining number of years between the final Repayment Date and 31 October 2031.

 

(c)For the avoidance of doubt, the First Instalment of the ECA Premium is non-refundable, irrespective of whether any Loans have been made under this Agreement and irrespective of whether the ECA Cover Document has been terminated (in whole or in part).

 

(d)Any refund of the Second Instalment of the ECA Premium, whether in whole or in part, must be expressly requested by the ECA Agent to SACE in writing following receipt by the ECA Agent of the Borrower's notice referred to in paragraph (a) above.

 

(e)To the extent the Borrower is entitled to any Rating Premium Refund, SACE shall transfer such Rating Premium Refund as soon as practicably possible to the ECA Agent and in any case within thirty (30) days of receipt by SACE of the notification of the Rating Premium Refund from the ECA Agent upon which such amount shall be applied to mandatorily prepay the Loans in accordance with the provisions of Clause 7.6 (ECA Premium refund). The Borrower hereby acknowledges that SACE shall not be liable to pay interest to the Borrower on the amount of the Rating Premium Refund.

 

(f)Except as set out in paragraph (a) above, no part of the ECA Premium is refundable to any Transaction Obligor.

 

(g)In no event shall the ECA Agent be liable for any refund of the ECA Premium to be made by SACE or for the calculation of any Rating Premium Refund and/or withholding thereof.

 

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Section 6

 

Additional Payment Obligations

 

12Tax Gross-up and Indemnities

 

12.1Definitions

 

In this Agreement:

 

"Protected Party" means a Finance Party or Italian Authority which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document or Italian Support Document.

 

"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.

 

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

 

"Tax Payment" means either the increase in a payment made by a Transaction Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).

 

Unless a contrary indication appears, in this Clause 12 (Tax Gross-up and Indemnities) a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

 

12.2Tax gross-up

 

(a)Each Transaction Obligor shall make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b)The Borrower shall promptly upon becoming aware that a Transaction Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.

 

(c)If a Tax Deduction is required by law to be made by a Transaction Obligor, the amount of the payment due from that Transaction Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)If a Transaction Obligor is required to make a Tax Deduction, that Transaction Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(e)Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Transaction Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

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12.3Tax indemnity

 

(a)Each Obligor shall (within five (5) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document or an Italian Support Document.

 

(b)Paragraph (a) above shall not apply:

 

(i)with respect to any Tax assessed on a Finance Party (other than an Italian Authority):

 

(A)under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

(B)under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,

 

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

(ii)to the extent a loss, liability or cost:

 

(A)is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or

 

(B)relates to a FATCA Deduction required to be made by a Party.

 

(c)A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Obligors.

 

(d)A Protected Party shall, on receiving a payment from a Transaction Obligor under this Clause 12.3 (Tax Indemnity), notify the Agent.

 

12.4Tax Credit

 

If a Transaction Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

(a)a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)that Finance Party has obtained and utilised that Tax Credit,

 

the Finance Party shall pay an amount to the Transaction Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Transaction Obligor.

 

12.5Stamp taxes

 

Each Obligor shall pay and, within five (5) Business Days of demand, indemnify each Finance Party and Italian Authority against any cost, loss or liability that Finance Party or as applicable, that Italian Authority incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

 

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12.6VAT

 

(a)All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

(b)If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

(i)(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(c)Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d)Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in the Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction other than the United Kingdom or a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

 

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(e)In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

 

12.7FATCA information

 

(a)Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

 

(i)confirm to that other Party whether it is:

 

(A)a FATCA Exempt Party; or

 

(B)not a FATCA Exempt Party;

 

(ii)supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

 

(iii)supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.

 

(b)If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)Paragraph (a) above shall not oblige any Finance Party to do anything, and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

(i)any law or regulation;

 

(ii)any fiduciary duty; or

 

(iii)any duty of confidentiality.

 

(d)If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraph (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

(e)If the Borrower is a US Tax Obligor, or the Agent reasonably believes that its obligations under FATCA or any other require it, each Lender shall, within ten (10) Business Days of:

 

(i)where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

 

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(ii)where the Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

 

(iii)the date a new US Tax Obligor accedes as the Borrower; or

 

(iv)where the Borrower is not a US Tax Obligor, the date of a request from the Agent,

 

supply to the Agent:

 

(v)a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

(vi)any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

(f)The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

 

(g)If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

 

(h)The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraph (e), (f) or (g) above.

 

12.8FATCA Deduction

 

(a)Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Agent and the Agent shall notify the other Finance Parties.

 

13Increased Costs

 

13.1Increased Costs

 

(a)Subject to Clause 13.3 (Exceptions) the Borrower shall, within five (5) Business Days of a demand by the Agent, pay for the account of a Finance Party and the Export Credit Agency the amount of any Increased Costs incurred by that Finance Party or the Export Credit Agency or any of its Affiliates as a result of (i) the introduction of or any change in (or the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement or (iii) to the extent applicable, the implementation or application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV.

 

(b)In this Agreement

 

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"Basel III" means:

 

(a)the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(b)the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(c)any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".

 

"CRD IV" means EU CRD IV and UK CRD IV.

 

"EU CRD IV" means:

 

(a)Regulation (EU) No 575/2013 of the European Parliament and of the Council dated 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 ("CRR"); and

 

(b)Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC ("CRD").

 

"Increased Costs" means:

 

(a)with respect to a Finance Party:

 

(i)a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;

 

(ii)an additional or increased cost; or

 

(iii)a reduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

 

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(b)with respect to the Export Credit Agency:

 

(i)an additional or increased cost; or

 

(ii)a reduction in any amount due and payable under any Finance Document and/or the ECA Cover Document,

 

which is incurred or suffered by the Export Credit Agency to the extent that it is attributable to the Export Credit Agency having entered into or performing its obligations under the ECA Cover Document.

 

"UK CRD IV" means:

 

(a)CRR as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the "Withdrawal Act");

 

(b)the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020 ("WAA")) implemented CRD and its implementing measures;

 

(c)direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the WAA) implemented EU CRD IV as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act; and

 

(d)any law or regulation of the United Kingdom which introduces into domestic law of the United Kingdom a provision which is equivalent to a provision set out in CRR or CRD and/or implements Basel III standards.

 

13.2Increased Cost claims

 

(a)A Finance Party or the Export Credit Agency, as applicable, intending to make a claim pursuant to Clause 13.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

 

(b)Each Finance Party or the Export Credit Agency, as applicable, shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

13.3Exceptions

 

Clause 13.1 (Increased Costs) does not apply to the extent any Increased Cost is:

 

(a)attributable to a Tax Deduction required by law to be made by a Transaction Obligor;

 

(b)attributable to a FATCA Deduction required to be made by a Party;

 

(c)compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);

 

(d)attributable to the wilful breach by the relevant Finance Party or the Export Credit Agency or its Affiliates of any law or regulation; or

 

(e)attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

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14Other Indemnities

 

14.1Currency indemnity

 

(a)If any sum due from a Transaction Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:

 

(i)making or filing a claim or proof against that Transaction Obligor; or

 

(ii)obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

 

that Transaction Obligor shall as an independent obligation, within five (5) Business Days of demand, indemnify each Finance Party or (as the case may be) the Export Credit Agency to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion, including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

(b)Each Transaction Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

 

14.2Other indemnities

 

(a)Each Obligor shall, within five (5) Business Days of demand, indemnify each Finance Party and Italian Authority against any cost, loss, expense or liability incurred by that Finance Party or Italian Authority as a result of:

 

(i)the occurrence of any Event of Default;

 

(ii)any indemnity or cost payable under an Italian Support Document;

 

(iii)a failure by a Transaction Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 33 (Sharing among the Finance Parties);

 

(iv)funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

(v)a Loan not being prepaid in accordance with a notice of prepayment given by the Borrower.

 

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(b)Each Obligor shall, within five (5) Business Days of demand, indemnify each Finance Party, each Affiliate of a Finance Party, each Italian Authority and each officer or employee of a Finance Party or its Affiliate or an Italian Authority (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, the Ship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.

 

(c)Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:

 

(i)arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or

 

(ii)in connection with any Environmental Claim.

 

(d)Any Affiliate of a Finance Party, or any officer or employee of a Finance Party or any of its Affiliates, and any Italian Authority and any officer or employee of any Italian Authority, may rely on paragraph (b) above subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.

 

14.3Indemnity to the Agent

 

Each Obligor shall, within five (5) Business Days of demand, indemnify the Agent against:

 

(a)any cost, loss or liability incurred by it (acting reasonably) as a result of:

 

(i)investigating any event which it reasonably believes is a Default;

 

(ii)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

(iii)instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents; or

 

(iv)being party to the ECA Cover Document (otherwise than by reason of the Agent's gross negligence or wilful misconduct); and

 

(b)any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by it (otherwise than by reason of its gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 34.11 (Disruption to payment systems etc.), notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents or the ECA Cover Document.

 

14.4Indemnity to the Security Agent

 

(a)Each Obligor jointly and severally shall, within five (5) Business Days of demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by any of them:

 

(i)in relation to or as a result of:

 

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(A)any failure by the Borrower to comply with its obligations under Clause 16 (Costs and Expenses);

 

(B)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

 

(C)the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;

 

(D)the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

 

(E)any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;

 

(F)any action by any Transaction Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; or

 

(ii)acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).

 

(b)Each Obligor expressly acknowledges and agrees that the continuation of its indemnity obligations under this Clause 14.4 (Indemnity to the Security Agent) will not be prejudiced by any release under Clause 31.25 (Releases) or otherwise in accordance with the terms of this Agreement.

 

(c)The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.4 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

 

14.5Indemnity to the Italian Authorities

 

Each Obligor shall, within five (5) Business Days of demand, indemnify each Italian Authority against any cost, loss or liability incurred by that Italian Authority (acting reasonably) in connection with this Agreement as a result of:

 

(a)investigating any event which it reasonably believes is a Default;

 

(b)acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

(c)instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts; and

 

(d)being party to the relevant Italian Support Document.

 

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15Mitigation by the Lenders

 

15.1Mitigation

 

(a)Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 7.2 (Further illegality), Clause 12 (Tax Gross-Up and Indemnities) or Clause 13 (Increased Costs), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the Finance Documents.

 

15.2Limitation of liability

 

(a)Each Obligor shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).

 

(b)A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

16Costs and Expenses

 

16.1Transaction expenses

 

Each Obligor shall promptly pay the Italian Authorities, the Agent, the Security Agent and the Joint Mandated Lead Arrangers the amount of all costs and expenses (including legal fees) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution and syndication of:

 

(a)this Agreement and any other documents in connection with this Agreement or in a Security Document;

 

(b)any other Finance Documents executed after the date of this Agreement; and

 

(c)any Italian Support Document.

 

16.2Amendment costs

 

If:

 

(a)a Transaction Obligor requests an amendment, waiver or consent to a Finance Document or Italian Support Document;

 

(b)an amendment to a Finance Document is required in order to ensure that any Finance Document complies with the terms of the Italian Support Documents or any other requirement of the Italian Authorities;

 

(c)an amendment or waiver is required in connection with Clause 40.4 (Changes to the Reference Rates);

 

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(d)a Transaction Obligor requests, and the Security Agent agrees to, the release of all or any part of the Charged Property from the Transaction Security; or

 

(e)an amendment is required pursuant to Clause 34.10 (Change of currency),

 

the Obligors shall, within five (5) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party (and, in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.

 

16.3Costs of delayed Delivery Date

 

The Borrower undertakes to pay to the Agent, within five (5) Business Days of demand, any costs incurred by the Lenders and/or the Italian Authorities in funding the Loan in the event that the Delivery Date is later than the Intended Delivery Date unless the Borrower has given the Agent at least five (5) Business Days' notification of such delay in the Delivery Date.

 

16.4Enforcement costs

 

The Obligors shall, within five (5) Business Days of demand, pay to each:

 

(a)Finance Party; and

 

(b)Italian Authority,

 

the amount of all costs and expenses (including legal fees) incurred by that Finance Party or Italian Authority in connection with the enforcement of, or the preservation of any rights under, any Finance Document, or Italian Support Document and the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing these rights.

 

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Section 7

 

Guarantee

 

17Guarantee and Indemnity

 

17.1Guarantee and indemnity

 

The Guarantor irrevocably and unconditionally:

 

(a)guarantees to each Finance Party and Italian Authority punctual performance by the Borrower of all the Borrower's obligations under or in connection with this Agreement and every other Finance Document;

 

(b)undertakes with each Finance Party and Italian Authority that whenever the Borrower does not pay any amount when due under or in connection with this Agreement or any other Finance Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

 

(c)agrees with each Finance Party and Italian Authority that if any obligation guaranteed by it is, or becomes, unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party and that Italian Authority immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. Any such demand for indemnification shall be made through the Agent, for itself or on behalf of the other Finance Parties. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and indemnity) if the amount claimed had been recoverable on the basis of a guarantee.

 

17.2Continuing guarantee

 

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Transaction Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

17.3Reinstatement

 

If any discharge, release or arrangement (whether in respect of the obligations of any Transaction Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this Clause 17 (Guarantee and indemnity) will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

17.4Guarantor intent

 

Without prejudice to the generality of Clauses 1.2 (Construction) and Clause 17.5 (Waiver of defences), the Guarantor expressly confirms that it intends that this Clause 17 (Guarantee and indemnity) and any Security Interest created by it under any Finance Document shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

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17.5Waiver of defences

 

The obligations of the Guarantor under this Clause 17 (Guarantee and indemnity) and in respect of any Transaction Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 17 (Guarantee and indemnity), would reduce, release or prejudice any of its obligations under this Clause 17 (Guarantee and indemnity) or in respect of any Transaction Security (without limitation and whether or not known to it or any Finance Party), including:

 

(a)any time, waiver or consent granted to, or composition with, any Transaction Obligor or other person;

 

(b)the release of any Transaction Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

(c)the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing, any rights against, or security over assets of, any Transaction Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(d)any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Transaction Obligor or any other person;

 

(e)any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security, including, without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

(f)any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Finance Documents;

 

(g)any release or loss whatsoever of any guarantee, right or Security Interest created by the Finance Documents;

 

(h)any failure whatsoever promptly or properly to exercise or enforce any such right or Security Interest, including a failure to realise for its full market value an asset covered by such a Security Interest;

 

(i)any other Finance Document or any Security Interest now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it;

 

(j)any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

 

(k)any insolvency or similar proceedings.

 

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17.6Immediate recourse

 

(a)Without prejudice to paragraph (b) below, the Guarantor waives any right it may have of first requiring any Finance Party or Italian Authority (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 17 (Guarantee and Indemnity). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

(b)However, as against the Guarantor:

 

(i)any judgment or order of a court in England or the jurisdiction of the Approved Flag or Bermuda or the United States of America in connection with this Agreement; and

 

(ii)any statement or admission by the Borrower in connection with this Agreement,

 

shall be binding and conclusive as to all matters of fact and law to which it relates.

 

17.7Appropriations

 

Until all amounts which may be or become payable by the Transaction Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Secured Party or Italian Authority (or any trustee or agent on its behalf, which shall include the Agent and the Security Agent) may:

 

(a)refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party or Italian Authority (or any trustee or agent on its behalf, which shall include the Agent and the Security Agent) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and

 

(b)hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 17 (Guarantee and indemnity).

 

17.8Additional security

 

This guarantee is in addition to and shall not impair, nor in any way be impaired by any other guarantee, Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to combine accounts in connection with the Finance Documents.

 

17.9Costs of preservation of rights, enforcement etc

 

Without prejudice to the Guarantor's liabilities in respect of the Obligors' obligations under Clauses 11 (Fees) and 12 (Tax gross-up and indemnities), the Guarantor shall pay to the Agent on its demand the amount of all expenses incurred by the Agent, or any other Secured Party in connection with any matter arising out of this Clause 17 (Guarantee and indemnity) or any Security Interest connected with it, including any advice, claim or proceedings relating to this Clause 17 (Guarantee and indemnity) or such a Security Interest.

 

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17.10Reinstatement of obligation to pay

 

The Guarantor shall pay to the Agent on its demand any amount which any Secured Party is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of the Borrower or of any other Transaction Obligor (or similar person) on the ground that this Agreement or any other Finance Document, or a payment by the Borrower or of such other Transaction Obligor, was invalid or on any similar ground.

 

17.11Subordination of rights of Guarantor

 

(a)Until all amounts which may be or become payable by the Transaction Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, all rights which the Guarantor at any time has (by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17 (Guarantee and indemnity) or any other transaction) against the Borrower, any other Transaction Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents; and in particular, the Guarantor shall not:

 

(i)claim, or in a bankruptcy of the Borrower or any other Transaction Obligor prove for, any amount payable to the Guarantor by the Borrower or any other Transaction Obligor, whether in respect of this Clause 17 (Guarantee and indemnity) or any other transaction;

 

(ii)take or enforce any Security Interest for any such amount;

 

(iii)exercise any right to be indemnified by a Transaction Obligor;

 

(iv)bring legal or other proceedings for an order requiring the Borrower or any other Transaction Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under this Clause 17 (Guarantee and indemnity);

 

(v)claim to set-off any such amount against any amount payable by the Guarantor to the Borrower or any other Transaction Obligor;

 

(vi)claim any contribution from any third party providing security for, or any other guarantor of any Transaction Obligor's obligations under the Finance Documents;

 

(vii)take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Secured Party; and/or

 

(viii)claim or prove as a creditor of any Transaction Obligor in competition with any Finance Party.

 

(b)If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Transaction Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with this Agreement and the Finance Documents.

 

(c)The Guarantor will not be entitled to any right of contribution or indemnity from the Export Credit Agency and will not exercise any right that it may have to take the benefit (in whole or in part and whether by subrogation or otherwise) of any rights of the Finance Parties under the ECA Cover Document.

 

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Section 8

 

Representations, Undertakings and Events of Default

 

18Representations

 

Without prejudice to Clause 19 (Repetition of Representations), each Obligor makes the representations set out in this Clause 18 (Representations) to each Finance Party on the date of this Agreement (apart from the representations in Clause 18.32 (Representations on the Delivery Date), which shall be made on the Delivery Date) in respect of each relevant Transaction Obligor.

 

18.1Status

 

(a)Each Transaction Obligor is a company, an exempted company, an exempted limited liability company or body corporate duly organised or (as the case may be) incorporated or continued, constituted and validly existing and in good standing under the laws of the country of its formation or (as the case may be) incorporation or continuation, possessing perpetual existence, the capacity to sue and be sued in its own name and the power to own and charge its assets and carry on its business as it is now being conducted.

 

(b)The membership interests issued by the Borrower are represented by 1,000 common units all of which have been issued to the Shareholder.

 

(c)The legal title to and beneficial interest in the equity in the Borrower is held free of any security (other than pursuant to the LLC Interests Deed) or any other claim by the Shareholder.

 

(d)None of the equity in the Borrower is subject to any option to purchase, pre-emption rights or similar rights.

 

(e)Each Transaction Obligor has the power to enter into and perform this Agreement and those of the other Transaction Documents to which it is a party and the transactions contemplated hereby and thereby and has taken all necessary action to authorise the entry into and performance of this Agreement and such other Transaction Documents and such transactions.

 

18.2Binding obligations

 

This Agreement and each other Transaction Document constitutes (or will constitute when executed) legal, valid and binding obligations of each Transaction Obligor expressed to be a party thereto, which are enforceable in accordance with their respective terms, and in entering into this Agreement and borrowing the Loan, the Borrower is acting on its own account.

 

18.3Non-conflict with other obligations

 

The entry into and performance of this Agreement and the other Transaction Documents by the Transaction Obligors and the transactions contemplated hereby and thereby do not and will not conflict with:

 

(i)any law or regulation or any official or judicial order;

 

(ii)the Constitutional Documents of any Transaction Obligor; or

 

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(iii)any agreement or document to which any Transaction Obligor is a party or any other obligation or restriction which is binding upon such Transaction Obligor or any of its assets,

 

nor result in the creation or imposition of any Security Interest on the Borrower or its assets pursuant to the provisions of any such agreement or document, except for Security Interests which qualify as Permitted Security Interests with respect to the Borrower.

 

18.4Power and authority

 

(a)All authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry of each Transaction Obligor into, performance, validity and enforceability of this Agreement and each of the other Transaction Documents to which any Transaction Obligor is a party and the transactions contemplated thereby have been obtained or effected and are in full force and effect except authorisations, approvals, consents, licences, exemptions, filings and registrations required in the normal day to day course of the operation of the Ship and not already obtained by the Borrower.

 

(b)Each Obligor is disregarded as an entity separate from its owner for U.S. federal Tax purposes.

 

18.5Governing law

 

The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions and any judgment obtained in relation to a Transaction Document to which it is a party in the jurisdiction of the governing law of that Transaction Document will be recognised and enforced in its Relevant Jurisdictions.

 

18.6Centre of main interest

 

For the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings (recast) (the "Regulation"), the centre of main interest (as that term is used in Article 3(1) of the Regulation) of the Borrower is situated outside of the European Union and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in a European Union country.

 

18.7Pre-delivery Contracts

 

(a)The copies of the Pre-delivery Contracts are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and, subject to paragraph (b) of Clause 22.19 (Pre-delivery Contracts and Pre-delivery Insurance), no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable.

 

(b)The Borrower is the sole legal and beneficial owner of all rights and interests which each of the Pre-delivery Contracts creates in favour of the Borrower.

 

(c)Each of the Pre-delivery Contracts constitutes legal, valid, binding and enforceable obligations of the Builder and the Refund Guarantor respectively.

 

(d)Neither the Borrower, the Builder or the Refund Guarantor has waived any of their respective rights under any Pre-delivery Contract.

 

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18.8Insolvency

 

(a)The Borrower is and shall remain, after the advance to it of the Loan, solvent in accordance with the laws of Bermuda and the United Kingdom and in particular with the provisions of the Insolvency Act 1986 (as from time to time amended) and the requirements thereof.

 

(b)Neither any Obligor nor any other Transaction Obligor has taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against any of them for the reorganisation, winding-up, dissolution or for the appointment of a liquidator, administrator, receiver, administrative receiver, trustee or similar officer of any of them or any or all of their assets or revenues nor has it sought any other relief under any applicable insolvency or bankruptcy law.

 

18.9No filing or stamp taxes

 

Under the laws of its Relevant Jurisdictions it is not necessary that any stamp or similar taxes or fees be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by those Finance Documents.

 

18.10Deduction of Tax

 

The Borrower is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party.

 

18.11No withholding taxes

 

All payments which the Guarantor is liable to make under the guarantee set out in Clause 17 (Guarantee and indemnity) may be made without deduction or withholding for or on account of any tax payable under any law of Bermuda or the United States of America.

 

18.12No Default

 

(a)The Borrower represents that no Event of Default has occurred, which is continuing or is reasonably likely to result from the making of any Utilisation or the entry into, the performance of, or any transaction contemplated by, any Transaction Document and, to the knowledge of the Guarantor, no Event of Default has occurred, which is continuing.

 

(b)The Borrower represents that no event has occurred which constitutes a default under or in respect of any Transaction Document to which any Transaction Obligor or the Builder is a party or by which any Transaction Obligor or the Builder may be bound (including (inter alia) this Agreement) and no event has occurred which constitutes a default under or in respect of any agreement or document to which any Transaction Obligor is a party or by which any Transaction Obligor may be bound to an extent or in a manner which might have a material adverse effect on the ability of that Transaction Obligor to perform its obligations under the Transaction Documents to which it is a party.

 

18.13No misleading information

 

(a)All written information furnished by any Transaction Obligor relating to the business and affairs of any Transaction Obligor in connection with this Agreement and the other Transaction Documents (but excluding any forward looking statements and projections) was and remains true and correct in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading.

 

(b)Each Transaction Obligor has fully disclosed to the Agent all facts relating to each Transaction Obligor which it knows or should reasonably know and which might reasonably be expected to influence the Lenders in deciding whether or not to enter into this Agreement.

 

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18.14Financial statements

 

In relation to any date on which this representation is deemed to be repeated, the latest available annual consolidated audited accounts of the Guarantor at the date of repetition (which accounts satisfy the requirements of Clause 20.2 (Form of financial statements)) fairly represent the financial condition or state of affairs of the Guarantor as shown in such audited accounts and there has been no material adverse change in the financial position of the Guarantor from that disclosed in the latest of those accounts.

 

18.15Information

 

All information which has been provided in writing by or on behalf of the Guarantor to the Agent or any other Secured Party in connection with any Finance Document satisfied the requirements of Clause 20.4 (Information provided to be accurate).

 

18.16Pari passu ranking

 

The obligations of the Borrower, the Shareholder, the Charterer and the Guarantor under the Finance Documents rank at least pari passu with all their other present unsecured and unsubordinated indebtedness with the exception of any obligations which are mandatorily preferred by law.

 

18.17No proceedings

 

No litigation, arbitration or administrative proceedings are current or pending or, to its knowledge, threatened, which might, if adversely determined, have a material adverse effect on the ability of a Transaction Obligor to perform its obligations under the Transaction Documents to which it is a party or that Transaction Obligor's financial position or profitability.

 

18.18No breach of laws

 

Each Obligor is in all material respects (except in the case of compliance with Sanctions which each Obligor complies with in all respects) compliant with all laws or regulations relating to it and its business generally.

 

18.19Taxation

 

To the best of its knowledge, each of the Transaction Obligors has complied with all taxation laws in all jurisdictions in which it is subject to taxation and has paid all material Taxes due and payable by it.

 

18.20Title to assets

 

Each member of the Group has good and marketable title to all its assets which are reflected in the audited accounts referred to in Clause 18.14 (Financial statements).

 

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18.21No registration

 

None of the Transaction Obligors has a place of business in any jurisdiction (except as already disclosed to the Agent) which requires any of the Finance Documents to be filed or registered in that jurisdiction to ensure the validity of the Finance Documents to which it is a party.

 

18.22Place of business

 

The Borrower does not have a place of business in any country (except as already disclosed to the Agent) other than that of its Original Jurisdiction.

 

18.23No funds of Illicit Origin

 

No investments made and no payments made, received or to be made by the Borrower, the Shareholder, the Charterer or the Guarantor under this Agreement, the Transaction Documents or any Finance Document have been or shall be funded, whether directly or, to the knowledge of the Obligors, indirectly, out of funds of Illicit Origin or otherwise derived from any activity with a Prohibited Person or in a Prohibited Jurisdiction or which would otherwise cause any Party to be in breach of any Sanctions and none of the sources of funds to be used by the Borrower, the Shareholder, the Charterer or the Guarantor in connection with the Transaction Documents, the construction of the Ship or its business are, whether directly or, to the knowledge of the Obligors, indirectly, of Illicit Origin or derived from any activity with a Prohibited Person or in a Prohibited Jurisdiction.

 

18.24No Prohibited Payments

 

No Prohibited Payment has been or will be received, made or provided, directly or indirectly, by (or on behalf of) the Borrower, the Shareholder, the Charterer or the Guarantor (with respect to the Shareholder, the Charterer and the Guarantor, to the best of each Obligor's knowledge), any of its Affiliates or its officers, directors or any other person acting on its behalf to, or for the benefit of, any authority or public or government entity (or any official, officer, director, agent or key employee of, or other person with management responsibilities in, of any authority or public or government entity) in connection with the Ship, this Agreement and/or the Finance Documents.

 

18.25Security and Financial Indebtedness

 

None of the assets or rights of any Obligor is subject to any Security Interest except any Security Interest which (i) qualifies as a Permitted Security Interest with respect to that Obligor or (ii) is permitted by Clause 22.4 (Negative pledge) of this Agreement.

 

18.26No immunity

 

None of the Transaction Obligors nor any of their respective assets enjoys any right of immunity (sovereign or otherwise) from set-off, any legal action or proceeding including, without limitation, suit, attachment prior to judgment, execution or other enforcement in respect of their obligations under this Agreement or any of the other Transaction Documents or by any relevant or applicable law.

 

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18.27AML and Sanctions

 

(a)Any borrowing by the Borrower under this Agreement, and the performance of its obligations under this Agreement and the other Transaction Documents, will be for its own account and will not involve any breach by it of any law or regulatory measure relating to the fight against money laundering and international terrorism, including, but not limited to, the European Directives on anti-money laundering (and notably Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015) and the Italian Legislative Decree 231 as well as laws and regulations imposing restrictions on export, transfer and/or supply of dual-use goods and technologies and/or services and assistance relating to them (including, without limitation the EU Regulation No 2021/821).

 

(b)No Transaction Obligor, any director, officer, nor to its knowledge any Affiliate of any Transaction Obligor or any member of the Group:

 

(i)is a Prohibited Person;

 

(ii)is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person;

 

(iii)is the subject of any action or investigation under any applicable Sanctions;

 

(iv)owns or controls a Prohibited Person;

 

(v)has liaised, contracted, entered into arrangements or otherwise established any form of relationships related to this Agreement with any Prohibited Persons; or

 

(vi)has acted in breach of any Sanctions.

 

(c)No proceeds of the Loan shall be made available directly or indirectly to or for the benefit of a Prohibited Person or in a Prohibited Jurisdiction nor shall they be otherwise directly or indirectly applied in a manner or for a purpose prohibited by Sanctions or in any other manner that would result in a violation of any Sanctions by any Transaction Obligor or any Finance Party.

 

(d)The Guarantor has instituted and maintains adequate policies and procedures designed to promote and achieve compliance by it and the other members of the Group with Sanctions.

 

18.28Anti-Corruption laws

 

(a)In relation to the transactions contemplated by the Transaction Documents, each Transaction Obligor and each member of the Group:

 

(i)has conducted, and undertakes to conduct, its business in compliance with Anti-Corruption Laws and has instituted and shall maintain policies and procedures designed to promote and achieve compliance with such laws;

 

(ii)has not made or received, or directed or authorised any person to make or receive, directly or indirectly, any offer, payment or promise to pay, of any money, gift or other thing of value, where this violates or would violate, or creates or would create liability for it or any other person under, any Anti-Corruption Laws;

 

(iii)save as disclosed in writing to the Lenders or the Agent prior to the date of this Agreement or in accordance with this Agreement, it is not being investigated by any agency, or party to any proceedings, in each case in relation to any Anti-Corruption Laws.

 

(b)Each Transaction Obligor, and their respective directors, officers and (to the best of their knowledge) each of their respective Affiliates, agents and employees has conducted its businesses in compliance with applicable anti-bribery and anti-money laundering laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

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18.29Environmental provisions

 

Each of the Transaction Obligors and each member of the Group:

 

(a)is in compliance with all Environmental Laws and Environmental Approvals provided that any non-compliance would not be expected to result in a Material Adverse Effect;

 

(b)has not received any notice or threat of any Environmental Claim against any member of the Group and no person has claimed that an Environmental Incident has occurred in each case that would reasonably be expected to result in a Material Adverse Effect; and

 

(c)confirms that no Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred in each case that would reasonably be expected to result in a Material Adverse Effect.

 

18.30Social Matters

 

Each Obligor represents and warrants that it has conducted, and undertakes to conduct, its activities in compliance with applicable human rights, social laws and regulations, including the Minimum Safeguards.

 

18.31Italian compliance representations

 

(a)Each Obligor has read and acknowledged the principles provided under the CDP Code of Ethics the CDP Model and the CDP Group Anti-Corruption Policy.

 

(b)Each Obligor has implemented adequate internal procedures aimed at preventing commission of crimes provided under Legislative Decree 231.

 

(c)No litigation is pending against an Obligor in relation to administrative liability provided under Legislative Decree 231.

 

(d)No final judgment under Legislative Decree 231 has been issued against an Obligor and no plea bargain (also known as patteggiamento under Italian law) has been agreed by any Obligor pursuant to article 444 of the Italian code of criminal procedure.

 

(e)No Obligor and none of the Obligors' assets are subject to any precautionary measure provided under Legislative Decree 231.

 

18.32Representations on the Delivery Date

 

The Borrower further represents and warrants to each of the Secured Parties on the Delivery Date that:

 

(a)the Ship is in its absolute and unencumbered ownership save as contemplated by the Finance Documents;

 

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(b)the Ship is registered in its name under the laws and flag of the Maritime Registry;

 

(c)the Ship is classed with the highest classification available for a Ship of its type free of all recommendations and qualifications with the Approved Classification Society;

 

(d)the Ship is operationally seaworthy and in compliance with all relevant provisions, regulations and requirements (statutory or otherwise) applicable to ships registered under the laws and flag of the Maritime Registry;

 

(e)the Ship is in compliance with the ISM Code, the ISPS Code and Annex VI as they relate to the Borrower, any Approved Manager and the Ship;

 

(f)the Ship is insured in accordance with the provisions of Clause 24 (Insurance Undertakings) and in compliance with the requirements therein in respect of such insurances;

 

(g)the Ship is managed by the Approved Manager and, in the event that the Approved Manager is not a member of the Group, on and subject to the terms set out in the Management Agreement;

 

(h)there is no agreement or understanding to allow or pay any rebate, premium, inducement, commission, discount or other benefit or payment (however described) to the Borrower or any other member of the Group, the Builder or a third party in connection with the purchase by the Borrower of the Ship, other than as disclosed to the Agent in writing on or before the date of this Agreement;

 

(i)no Transaction Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Agent sufficient details to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry;

 

(j)the Borrower is in all material respects (except in the case of compliance with Sanctions which the Borrower complies with in all respects) compliant with all laws or regulations relating to the Ship, its ownership, employment, operation, management and registration;

 

(k)the copies of any Management Agreement, any charter and any charter guarantee which require a notice of assignment to be served under the terms of the General Assignment (if any) and any other relevant third party agreements including but without limitation the copies of any documents in respect of the Insurances delivered to the Agent are true and complete copies of each such document constituting valid and binding obligations of the parties thereto enforceable in accordance with their respective terms and, subject to Clause 23.2 (Management and employment), no amendments thereto or variations thereof have been agreed nor has any action been taken by the parties thereto which would in any way render such document inoperative or unenforceable; and

 

(l)except for:

 

(i)the filing of UCC-1 Financing Statements in such jurisdictions as the Security Agent may reasonably require;

 

(ii)the recording of the Mortgage with the relevant Maritime Registry; and

 

(iii)the registration of the Ship under an Approved Flag,

 

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all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and each of the other Transaction Documents to which any Transaction Obligor is a party and the transactions contemplated thereby have been obtained or effected and are in full force and effect except authorisations, approvals, consents, licences, exemptions, filings and registrations required in the normal day to day course of the operation of the Ship and not already obtained by the Borrower.

 

19Repetition of Representations

 

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on each day (or, in the case of the representations in Clause 18.32 (Representations on the Delivery Date), on each day after the Delivery Date) until the end of the Security Period.

 

20Information Undertakings

 

The undertakings in this Clause 20 (Information Undertakings) remain in force throughout the Security Period unless the Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.

 

20.1Financial statements

 

Each Obligor shall supply to the Agent for all the Lenders and the Export Credit Agency:

 

(a)as soon as practicable (and in any event within one hundred and twenty (120) days after the close of its financial year) a Certified Copy of the audited consolidated accounts of the Guarantor and its Subsidiaries for that year (commencing with accounts made up to 31 December 2023 in the case of the consolidated accounts of the Guarantor);

 

(b)as soon as practicable (and in any event within 45 days after the end of each contemplated quarter in respect of the first three quarters of each fiscal year and 90 days in respect of the final quarter) a copy of the unaudited consolidated quarterly management accounts of the Guarantor certified as to their correctness by the chief financial officer of the Guarantor (it being understood that the delivery by the Guarantor of quarterly or annual reports as filed with the Securities and Exchange Commission in respect of the Guarantor and its consolidated subsidiaries shall satisfy all the requirements of this paragraph (b));

 

(c)the Guarantor will send a Compliance Certificate to the Agent:

 

(i)for the first time, no later than fifteen (15) days prior to the first Utilisation Date on the basis of the latest available quarterly financial statements; and

 

(ii)at the same time as there is delivered to the Agent, and together with, each set of unaudited consolidated quarterly management accounts under paragraph (b) and, if applicable, audited consolidated accounts under paragraph (a), duly signed by the chief financial officer of the Guarantor and certifying whether or not the requirements of Clause 21.1 (Financial Covenants) are then complied with;

 

(d)such additional financial or other relevant information regarding the Obligors and the Group as the Agent may reasonably request; and

 

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(e)as soon as practicable (and in any event not later than January 31 of each fiscal year):

 

(i)updated financial projections of the Group for at least the next five years (including an income statement, balance sheet statement and cash flow statement and quarterly break downs for the first of those five years); and

 

(ii)an outline of the assumptions supporting such budget and financial projections including but without limitation any scheduled drydockings.

 

20.2Form of financial statements

 

All accounts (audited and unaudited) delivered under Clause 20.1 (Financial statements) will:

 

(a)be prepared in accordance with GAAP;

 

(b)when required to be audited, be audited by the auditors which are the Guarantor's auditors at the date of this Agreement or other auditors approved by the Agent, provided that, such approval by the Agent shall not be unreasonably withheld or delayed;

 

(c)give a true and fair view of the state of affairs of the Guarantor and its Subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and

 

(d)fully disclose or provide for all significant liabilities of the Guarantor and its Subsidiaries.

 

20.3Information: miscellaneous

 

(a)The Borrower shall supply to the Agent (in sufficient copies for all the Lenders and the Export Credit Agency, if the Agent so requests):

 

(i)promptly, such further information in its possession or control regarding the condition or operations of the Ship and its financial condition and operations of the Borrower and those of any company in the Group as the Agent may reasonably request for the benefit of the Secured Parties; and

 

(ii)details of any material litigation, arbitration or administrative proceedings (including proceedings relating to any alleged or actual breach of Sanctions, the ISM Code of the ISPS Code) which affect any company in the Group as soon as the same are instituted and served, or, to the knowledge of the Borrower, threatened (and for this purpose proceedings shall be deemed to be material if they might, if adversely determined, have a Material Adverse Effect, provided that this qualifier shall not apply to any proceedings related to Sanctions); and

 

(iii)any reasonably requested information which the Agent requests about any interest or right of any kind which the Borrower has at any time to, in or in connection with, each of the Pre-delivery Contracts or in relation to any matter arising out of or in connection with any Pre-delivery Contract including the progress of the construction of the Ship, any material dispute, termination, cancellation or suspension, material breach of or under any Pre-delivery Contract or material claim proposed or actual amendments (excluding Minor Modifications) of or under any Pre-delivery Contract, and any material litigation, arbitration, proceeding or investigation in relation to the Borrower and of any other event or matter affecting a Pre-delivery Contract which has or is reasonably likely to have a Material Adverse Effect; and

 

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(iv)promptly, such information as the Security Agent may reasonably require about the Charged Property and compliance of the Transaction Obligors with the terms of any Security Documents; and

 

(v)promptly, such further information as the Export Credit Agency requests from the Agent; and

 

(vi)promptly, such further information as may be required by applicable banking supervisory laws and regulations and/or in line with standard banking practice.

 

(b)The Guarantor will provide the Agent with:

 

(i)at the same time as they are despatched, copies of all communications which are despatched to the Guarantor's shareholders or creditors generally or any class of them.

 

(ii)details of any material legal or administrative action (including proceedings relating to any alleged or actual breach of Sanctions) involving the Guarantor as soon as such action is instituted or it becomes apparent to the Guarantor that it is likely to be instituted (and for this purpose proceedings shall be deemed to be material if they might, if adversely determined, have a Material Adverse Effect, provided that this qualifier shall not apply to any legal or administrative action related to Sanctions).

 

20.4Information provided to be accurate

 

All financial and other information which is provided in writing by or on behalf of the Obligors under or in connection with this Agreement will be true and not misleading and will not omit any material fact or consideration.

 

20.5Equator Principles Compliance

 

Upon the request of the Agent, the Borrower shall provide to the Agent information as may be reasonably requested by the Lenders for the purposes of monitoring that the Borrower conducts its operations in all material respects in accordance with the Equator Principles.

 

20.6Notification of default

 

(a)Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless it is aware that another Obligor has already provided such notification).

 

(b)Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by one of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

 

20.7"Know your customer" checks

 

(a)If:

 

(i)the introduction of or any change in (or in the interpretation, administration or application of) any law, regulation or internal policy or procedure made after the date of this Agreement;

 

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(ii)any change in the status of a Transaction Obligor (or of a Holding Company of a Transaction Obligor) including, without limitation, a change of ownership of a Transaction Obligor (or of a Holding Company of a Transaction Obligor) after the date of this Agreement;

 

(iii)any "know your customer" checks or similar identification procedures, internal policies of a Lender or the Agent, or any procedures required under any applicable money laundering and anti-terrorism acts applicable to a Finance Party; or

 

(iv)a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

 

obliges the Export Credit Agency, the Agent, or any Lender (or, in the case of sub-paragraph (iv) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures including, without limitation, in circumstances where the necessary information is not already available to it or the Lenders (acting reasonably) require any additional documents to supplement those already provided, the Borrower shall promptly upon the request of the Export Credit Agency, the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Export Credit Agency, the Agent (for itself or on behalf of any or any Lender) or any Lender (or, in the case of the event described in sub-paragraph (iv) above, any prospective new Lender) in order for the Export Credit Agency, the Agent or such Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

(b)Each Lender shall promptly, upon the request of the Agent (for itself or on behalf of the Export Credit Agency), supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of the Export Credit Agency) in order for the Agent or the Export Credit Agency to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents and the ECA Cover Document.

 

20.8Use of websites

 

(a)Each Obligor may satisfy its obligation under the Finance Documents to which it is a party to deliver any information in relation to those Lenders (the "Website Lenders") which accept this method of communication by posting this information onto Debt Domain or any other electronic website designated by the Borrower and the Agent and at the Borrower's expense (the "Designated Website") if:

 

(i)the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

(ii)both the relevant Obligor and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

(iii)the information is in a format previously agreed between the relevant Obligor and the Agent.

 

(b)The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligors or any of them and the Agent.

 

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(c)An Obligor shall promptly upon becoming aware of its occurrence notify the Agent if:

 

(i)the Designated Website cannot be accessed due to technical failure;

 

(ii)the password specifications for the Designated Website change;

 

(iii)any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

(iv)any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

(v)that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

 

If an Obligor notifies the Agent under sub-paragraph (i) or (v) of paragraph (c) above, all information to be provided by the Obligors under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

(d)Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligors shall comply with any such request within ten (10) Business Days.

 

(e)In this Clause 20.8 (Use of websites), "Debt Domain" means the debt domain website which is maintained by the Agent to store information, which is provided by the Group pursuant to the Finance Documents and to which certain of the Finance Parties have access.

 

21Financial Covenants

 

21.1Financial Covenants

 

(a)The Guarantor will not permit the Free Liquidity to be less than fifty million Dollars ($50,000,000) at any time save that until 30 September 2026, this amount shall be increased to two hundred and fifty million Dollars ($250,000,000).

 

(b)The Guarantor will not permit the ratio of Total Net Funded Debt to Total Capitalization to be greater than 0.70:1.00 at any time, save that from 1 January 2023 until 30 June 2028 (included), this ratio shall be computed in accordance with the table below:

 

Total Net Funded Debt to Total Capitalization 1Q 2023 2Q 2023 3Q 2023 4Q 2023 1Q 2024 2Q 2024 3Q 2024

4Q

2024

1Q

2025

2Q 2025 3Q 2025 4Q 2025 1Q 2026 2Q 2026 3Q 2026
0,93 0,92 0,91 0,91 0,91 0,90 0,88 0,87 0,87 0,87 0,85 0,84 0,84 0,82 0,80
4Q 2026 1Q 2027 2Q 2027 3Q 2027 4Q 2027

1Q

2028

2Q

2028

3Q

2028

 
0,80 0,79 0,77 0,76 0,75 0,73 0,72 0,70  
                               

 

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(c)The Guarantor will not permit the ratio of Consolidated EBITDA to Consolidated Debt Service for the Group at the end of any fiscal quarter, computed for the period of the four consecutive fiscal quarters ending as at the end of the relevant fiscal quarter, to be less than 1.25:1.00 unless the Free Liquidity of the Group at all times during such period of four consecutive fiscal quarters ending as at the end of such fiscal quarter was equal to or greater than one hundred million Dollars ($100,000,000), save that from 1 January 2023 until 30 September 2026, this amount shall be increased to three hundred million Dollars ($300,000,000).

 

21.2Financial definitions

 

For the purposes of Clause 21.1 (Financial Covenants):

 

(a)"Cash Balance" shall mean, at any date of determination, the unencumbered and otherwise unrestricted cash and Cash Equivalents of the Group;

 

(b)"Cash Equivalents" shall mean (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company having capital, surplus and undivided profits aggregating in excess of two hundred million Dollars ($200,000,000), with maturities of not more than one year from the date of acquisition by any person, (iii) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper issued by any person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least B-1 or the equivalent thereof by Moody's and in each case maturing not more than one year after the date of acquisition by any other person, and (v) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above;

 

(c)"Consolidated Debt Service" shall mean, for any relevant period, the sum (without double counting), determined in accordance with GAAP, of:

 

(i)the aggregate principal payable or paid during such period on any Indebtedness for Borrowed Money of any member of the Group, other than:

 

(A)principal of any such Indebtedness for Borrowed Money prepaid at the option of the relevant member of the Group or by virtue of "cash sweep" or "special liquidity" cash sweep provisions (or analogous provisions) in any debt facility of the Group;

 

(B)principal of any such Indebtedness for Borrowed Money prepaid upon a sale or a Total Loss of any ship (as if references in that definition were to all ships and not just the Ship) owned or leased under a capital lease by any member of the Group; and

 

(C)balloon payments of any such Indebtedness for Borrowed Money payable during such period (and for the purpose of this paragraph (c) a "balloon payment" shall not include any scheduled Repayment Instalment of such Indebtedness for Borrowed Money which forms part of the balloon);

 

(ii)Consolidated Interest Expense for such period;

 

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(iii)the aggregate amount of any dividend or distribution of present or future assets, undertakings, rights or revenues to any shareholder of any member of the Group (other than the Guarantor, or one of its wholly owned Subsidiaries) or any dividends or distributions other than tax distributions in each case paid during such period; and

 

(iv)all rent under any capital lease obligations by which the Guarantor or any consolidated Subsidiary is bound which are payable or paid during such period and the portion of any debt discount that must be amortized in such period;

 

as calculated in accordance with GAAP and derived from the then latest accounts delivered under Clause 20.1 (Financial statements);

 

(d)"Consolidated EBITDA" shall mean, for any relevant period, the aggregate of:

 

(i)Consolidated Net Income from the Guarantor's operations for such period; and

 

(ii)the aggregate amounts deducted in determining Consolidated Net Income for such period in respect of gains and losses from the sale of assets or reserves relating thereto, Consolidated Interest Expense, depreciation and amortization, impairment charges and any other non-cash charges and deferred income tax expense for such period.

 

(e)"Consolidated Interest Expense" shall mean, for any relevant period, the consolidated interest expense (excluding capitalised interest) of the Group for such period;

 

(f)"Consolidated Net Income" shall mean, for any relevant period, the consolidated net income (or loss) of the Group for such period as determined in accordance with GAAP;

 

(g)"Free Liquidity" shall mean, at any date of determination, the aggregate of the Cash Balance or any other amounts available for drawing under other revolving or other credit facilities of the Group, which remain undrawn, could be drawn for general working capital purposes or other general corporate purposes and would not, if drawn, be repayable within six months;

 

(h)"Indebtedness" shall mean any obligation for the payment or repayment of money, whether as principal or as surety and whether present or future, actual or contingent including, without limitation, pursuant to an Interest Rate Protection Agreement or Other Hedging Agreement;

 

(i)"Indebtedness for Borrowed Money" shall mean Indebtedness (whether present or future, actual or contingent, long-term or short-term, secured or unsecured) in respect of:

 

(i)moneys borrowed or raised;

 

(ii)the advance or extension of credit (including interest and other charges on or in respect of any of the foregoing);

 

(iii)the amount of any liability in respect of leases which, in accordance with GAAP, are capital leases;

 

(iv)the amount of any liability in respect of the purchase price for assets or services payment of which is deferred for a period in excess of 180 days;

 

(v)all reimbursement obligations whether contingent or not in respect of amounts paid under a letter of credit or similar instrument; and

 

(vi)(without double counting) any guarantee of Indebtedness falling within sub-paragraphs (i) to (v) above;

 

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PROVIDED THAT the following shall not constitute Indebtedness for Borrowed Money:

 

(A)loans and advances made by other members of the Group which are subordinated to the rights of the Secured Parties;

 

(B)loans and advances made by any shareholder of the Guarantor which are subordinated to the rights of the Secured Parties on terms reasonably satisfactory to the Agent; and

 

(C)any liabilities of the Guarantor or any other member of the Group under any Interest Rate Protection Agreement or any Other Hedging Agreement or other derivative transactions of a non-speculative nature;

 

(j)"Interest Rate Protection Agreement" shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement entered into between a Lender or its Affiliate, or a Joint Mandated Lead Arranger or its Affiliate, and the Guarantor and/or the Borrower in relation to the Secured Obligations of the Borrower under this Agreement;

 

(k)"Other Hedging Agreement" shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements entered into between a Lender or its Affiliate, or a Joint Mandated Lead Arranger or its Affiliates, and the Guarantor and/or the Borrower in relation to the Secured Obligations of the Borrower under this Agreement and designed to protect against the fluctuations in currency or commodity values;

 

(l)"Total Capitalization" means, at any date of determination, the Total Net Funded Debt plus the consolidated stockholders' equity of the Group at such date determined in accordance with GAAP and derived from the then latest accounts delivered under 20.1 (Financial statements); provided it is understood that the effect of any impairment of intangible assets and, in relation to exchangeable or convertible notes or other debt instruments containing similar equity mechanisms, any non-cash loss, charge or expense shall be added back to stockholders' equity;

 

(m)"Total Net Funded Debt" shall mean, as at any relevant date:

 

(i)Indebtedness for Borrowed Money of the Group on a consolidated basis; and

 

(ii)the amount of any Indebtedness for Borrowed Money of any person which is not a member of the Group but which is guaranteed by a member of the Group as at such date;

 

less an amount equal to any Cash Balance as at such date; provided that any Commitments and other amounts available for drawing under other revolving or other credit facilities of the Group which remain undrawn shall not be counted as cash or indebtedness for the purposes of the guarantee under Clause 17 (Guarantee and indemnity).

 

21.3Financial testing

 

The financial covenants set out in this Clause 21 (Financial Covenants) shall be calculated in accordance with GAAP and tested by reference to each of the financial statements of the Guarantor and the Compliance Certificate delivered under paragraph (c) of Clause 20.1 (Financial statements).

 

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22General Undertakings

 

The undertakings of each Obligor in this Clause 22 (General undertakings) remain in force throughout the Security Period except as the Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.

 

22.1Sanctions and Illicit Payments

 

(a)No Obligor shall (and shall procure that no other Transaction Obligor will) directly or indirectly use or make available any of the proceeds of the Loan to or for the benefit of a Prohibited Person or in a Prohibited Jurisdiction nor shall they be otherwise directly or indirectly applied in a manner or for a purpose prohibited by Sanctions or in any other manner that would result in a violation of any Sanctions by any Transaction Obligor or any Finance Party.

 

(b)No payments made or received by a Transaction Obligor under this Agreement or any Finance Document shall be funded directly or, to the knowledge of the Borrower, indirectly out of funds of Illicit Origin or derived from any activity with a Prohibited Person or in a Prohibited Jurisdiction or which would otherwise cause any Party to be in breach of any Sanctions, and none of the sources of funds to be used by a Transaction Obligor in connection with the Transaction Documents or the construction of the Ship or its business shall be of directly or, to the knowledge of the Borrower, indirectly Illicit Origin or derived from any activity with a Prohibited Person or in a Prohibited Jurisdiction.

 

(c)Without limiting the generality of the foregoing, no Loan nor any proceeds of the Loan shall be used to finance trade of equipment or any other kind of activity in relation to goods, technologies or sectors in a manner or for a purpose prohibited by Sanctions.

 

(d)Each Obligor shall (and shall procure that all other Transaction Obligors will) comply, or procure compliance with all Sanctions.

 

(e)The Guarantor shall maintain adequate policies and procedures designed to promote and achieve compliance by it and the other members of the Group with Sanctions.

 

22.2Prohibited Payments

 

No Prohibited Payment shall be received, made or provided, directly or indirectly, by (or on behalf of) the Borrower, the Shareholder, the Charterer, the Guarantor or any of their Affiliates, officers, directors or any other person acting on its behalf to, or for the benefit of, any authority or public or governmental authority (or any official, officer, director, agent or key employee of, or other person with management responsibilities in, of any authority or public or governmental authority) in connection with the Ship, this Agreement, the Finance Documents and/or the Pre-delivery Contracts.

 

22.3Consents and registrations

 

Each Obligor will procure that (and will promptly furnish Certified Copies to the Agent on the request of the Agent of) all such authorisations, approvals, consents, licences and exemptions as may be required under any applicable law or regulation to enable it or any Transaction Obligor to perform its obligations under, and ensure the validity or enforceability of, each of the Transaction Documents are obtained and promptly renewed from time to time and will procure that the terms of the same are complied with at all times. Insofar as such filings or registrations have not been completed on or before the relevant Utilisation Date the Borrower will procure the filing or registration within applicable time limits of each Finance Document which requires filing or registration together with all ancillary documents required to preserve the priority and enforceability of the Finance Documents.

 

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22.4Negative pledge

 

No Obligor shall create or permit to subsist any Security Interest on the whole or any part of its present or future assets, except for the following:

 

(a)Security Interests created with the prior consent of the Agent and the Security Agent or otherwise permitted by the Finance Documents;

 

(b)Security Interests qualifying as Permitted Security Interests with respect to the Borrower and described in paragraphs (a) and (b) of the definition of "Permitted Security Interests" in Clause 1 (Definitions and interpretation);

 

(c)Security Interests qualifying as Permitted Security Interests with respect to the Borrower and described in sub-paragraphs (C), (E), (H) or (I) of paragraph (c) of such definition, provided that insofar as they are enforceable against the Ship they do not prevail over the Mortgage;

 

(d)in the case of the Guarantor, Security Interests which qualify as Permitted Security Interests with respect to the Guarantor; or

 

(e)Security Interests provided in favour of lenders under or in connection with any refinancing of the Existing Indebtedness or any financing arrangements entered into by any member of the Group for the acquisition of additional or replacement ship(s) (including any refinancing of any such arrangement) but limited to:

 

(i)pledges of the share capital of the relevant ship owning subsidiary(/ies); and/or

 

(ii)ship mortgages and other securities over or in relation to the financed ship(s),

 

and for the purposes of this paragraph (e) "refinancing" shall encompass without limitation any renewal of revolving facilities, any application of advances from one tranche under a facility to another tranche within the same facility and any refinancing of term or revolving facilities in markets for institutional investors or with the proceeds of a capital markets instrument.

 

22.5Disposals

 

(a)Except in the case of a sale of the Ship if the completion of the sale is contemporaneous with prepayment of the Loan in accordance with the provisions of Clause 7.7 (Mandatory prepayment – Sale and Total Loss) and except for charters and other arrangements complying with Clause 23.1 (Pooling of earnings and charters), the Borrower shall not without the consent of the Majority Lenders and the Export Credit Agency, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily:

 

(i)sell, transfer, lease or otherwise dispose of the Ship or any of the Ship's equipment except in the case of items:

 

(A)being replaced (by an equivalent or superior item) or renewed; or

 

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(B)that are being disposed of in the ordinary course of business,

 

provided that in the case of both sub-paragraphs (A) and (B) above the net impact does not reduce the value of the Ship and, in the case of sub-paragraph (B), the value of any such disposals during the term of this Agreement do not, in aggregate, exceed thirty-five million Dollars ($35,000,000);

 

(ii)sell, transfer or otherwise dispose of any of its receivables on recourse terms;

 

(iii)enter into any arrangement under which money or the benefit of a bank or other account may be applied, set off or made subject to a combination of accounts; or

 

(iv)enter into any other preferential arrangement having the same effect in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

(b)The Guarantor will not, and shall procure that its Subsidiaries, as a group, shall not, transfer all or substantially all of the cruise vessels owned by them and shall procure that any cruise vessels which are disposed of in compliance with the foregoing shall be disposed on a willing seller willing buyer basis at or about market rate and at arm's length subject always to the provisions of any pertinent loan documentation.

 

22.6Change of business

 

(a)Except with the prior consent of the Agent, the Borrower shall not make or threaten to make any substantial change in its business as presently conducted, namely that of a single ship owning company for the Ship, or change its place of business to any country other than that of its Original Jurisdiction, or carry on any other business which is substantial in relation to its business as presently conducted so as to affect, in the opinion of the Agent, the Borrower's ability to perform its obligations hereunder.

 

(b)The Guarantor will continue to be a Holding Company for a group of companies whose main business is the operation of cruise vessels as well as the marketing of cruises on board such vessels and the Guarantor will not change its main line of business so as to affect any Transaction Obligor's ability to perform its obligations under the Finance Documents or to imperil, in the opinion of the Security Agent, the security created by any of the Finance Documents or the ECA Cover Document.

 

22.7Mergers

 

(a)Except with the prior consent of all the Lenders and the Export Credit Agency and subject to compliance with all necessary "know your customer" requirements, the Borrower will not enter into any amalgamation, restructure, sub-division, substantial reorganisation, merger, de-merger or consolidation or anything analogous to the foregoing nor will it acquire any equity, share capital or obligations of any corporation or other entity (each of the foregoing being a "Transaction").

 

(b)The Guarantor shall not enter into any Transaction unless:

 

(i)the Guarantor has notified the Agent in writing of the agreed terms of the relevant Transaction promptly after such terms have been agreed as heads of terms (or similar) and thereafter notified the Agent in writing of any significant amendments to such terms during the course of the negotiation of the relevant Transaction;

 

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(ii)the relevant Transaction does not require or involve or result in any dissolution of the Guarantor so that at all times the Guarantor remains in existence;

 

(iii)each notice delivered to the Agent pursuant to paragraph (i) above is accompanied by a certificate signed by the chief financial officer of the Guarantor whereby the Guarantor represents and warrants to the Agent that the relevant Transaction will not:

 

(A)adversely affect the ability of any Transaction Obligor to perform its obligations under the Finance Documents;

 

(B)imperil the Security created by any of the Finance Documents or the ECA Cover Document; or

 

(C)affect the ability of the Guarantor to comply with the financial covenants contained in Clause 21.1 (Financial Covenants); and

 

(iv)if the merger or analogous transaction involves the Guarantor or the Borrower, all the necessary "know your customer requirements" have been complied with.

 

22.8Domicile and principal place of business

 

The Guarantor:

 

(a)will maintain its domicile and registered office at the address stated at the date of this Agreement or at such other address in Bermuda as is notified promptly to the Agent;

 

(b)will maintain its principal place of business and keep its corporate documents and records in the United States of America at 7665 Corporate Center Drive, Miami, 33126, Florida or at such other address in the United States of America as is notified promptly to the Agent; and

 

(c)will not move its domicile out of Bermuda nor its principal place of business out of the United States of America without the prior agreement of the Agent, acting with the authorisation of the Secured Parties, such agreement not to be unreasonably withheld.

 

22.9Maintenance of status and franchises

 

(a)The Borrower will do all such things as are necessary to maintain its company existence in good standing and will ensure that it has the right and is duly qualified to conduct its business as it is conducted in all applicable jurisdictions and will obtain and maintain all franchises and rights necessary for the conduct of its business.

 

(b)The Guarantor will maintain its separate corporate existence and remain in good standing under the laws of Bermuda.

 

22.10Financial records

 

The Borrower will keep proper books of record and account, in which proper and correct entries shall be made of all financial transactions and the assets, liabilities and business of the Borrower in accordance with GAAP.

 

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22.11Financial Indebtedness and subordination of indebtedness

 

The following restrictions shall apply:

 

(a)otherwise than in the ordinary course of business as owner of the Ship, except as contemplated by this Agreement and except any loan, advance or credit extended by the Guarantor or any member of the Group which is a wholly owned Subsidiary of the Guarantor, the Borrower will not create, incur, assume or allow to exist any Financial Indebtedness, enter into any finance lease or undertake any material capital commitment (including but not limited to the purchase of any capital asset); and

 

(b)the Borrower shall procure that:

 

(i)any and all Financial Indebtedness (and in particular with any other Transaction Obligor) is at all times fully subordinated to the Finance Documents and the obligations of the Borrower hereunder; and

 

(ii)if required by any applicable laws, the subordinated liabilities created pursuant to such indebtedness shall be subject to security (in form and substance satisfactory to the Secured Parties) in favour of the Security Agent ("Subordinated Debt Security") and any related legal opinions shall be issued if so required by the Secured Parties.

 

Upon the occurrence of an Event of Default, the Borrower shall not make any repayments of principal, payments of interest or of any other costs, fees, expenses or liabilities arising from or representing such indebtedness. In this paragraph (b) "fully subordinated" shall mean that any claim of the lender against the Borrower in relation to such indebtedness shall rank after and be in all respects subordinate to all of the rights and claims of the Secured Parties under this Agreement and the other Finance Documents and that the lender shall not take any steps to enforce its rights to recover any monies owing to it by the Borrower and in particular but without limitation the lender will not institute any legal or quasi-legal proceedings under any jurisdiction at any time against the Ship, her Earnings or Insurances or the Borrower and it will not compete with the Secured Parties or any of them in a liquidation or other winding-up or bankruptcy of the Borrower or in any proceedings in connection with the Ship, her Earnings or Insurances.

 

(c)The Guarantor shall not, and shall procure that none of its Subsidiaries shall:

 

(i)make loans to any person that is not the Guarantor or a direct or indirect subsidiary of the Guarantor; or

 

(ii)issue or enter into one or more guarantees covering the obligations of any person which is not the Guarantor or a direct or indirect subsidiary of the Guarantor,

 

except if such loan is granted to a non-subsidiary or such guarantee is issued in the ordinary course of business covering the obligations of a non-subsidiary and the aggregate amount of all such loans and guarantees made or issued by the Guarantor and its Subsidiaries does not exceed the greater of (x) thirty million Dollars ($30,000,000) and (y) zero point two five per cent. (0.25%) of the Consolidated Total Assets as of the end of each relevant fiscal quarter, or is otherwise approved by the Agent which approval shall not be unreasonably withheld if such loan or guarantee in respect of a non-subsidiary would neither:

 

(A)affect the ability of any Transaction Obligor to perform its obligations under the Finance Documents; nor

 

(B)imperil the security created by any of the Finance Documents or the ECA Cover Document; nor

 

(C)affect the ability of the Guarantor to comply with the financial covenants contained in Clause 21.1 (Financial Covenants) if such covenants were to be tested immediately following the grant of such loan or the issuance of such guarantee, as demonstrated by evidence satisfactory to the Agent.

 

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22.12Investments

 

The Borrower shall not:

 

(a)be the creditor in respect of any loan or any form of credit to any person other than another Transaction Obligor and where such loan or form of credit is Permitted Financial Indebtedness;

 

(b)give or allow to be outstanding any guarantee or indemnity to or for the benefit of any person in respect of any obligation of any other person or enter into any document under which that Transaction Obligor assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents;

 

(c)enter into any material agreement other than:

 

(i)the Transaction Documents;

 

(ii)any other agreement expressly allowed under any other term of this Agreement;

 

(d)enter into any transaction on terms which are, in any respect, less favourable to that Transaction Obligor than those which it could obtain in a bargain made at arms' length; or

 

(e)acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks.

 

22.13Unlawfulness, invalidity and ranking; Security imperilled

 

No Obligor shall do (or fail to do) or cause or permit another person to do (or omit to do) anything which is likely to:

 

(a)make it unlawful for any Transaction Obligor to perform any of its obligations under the Transaction Documents;

 

(b)cause any obligation of any Transaction Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable if that cessation individually or together with any other cessations materially or adversely affects the interests of the Secured Parties under the Finance Documents;

 

(c)cause any Transaction Document to cease to be in full force and effect;

 

(d)cause any Transaction Security to rank after, or lose its priority to, any other Security Interest; and

 

(e)imperil or jeopardise the Transaction Security.

 

22.14Dividends

 

(a)The Borrower shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital other than dividends and distributions that are transferred to the Shareholder or the Guarantor provided that no Event of Default