Exhibit 10.8
[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
Dated 17 June 2021
O CLASS PLUS ONE, LLC
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
OCEANIA CRUISES S. DE R.L.
as Shareholder
and
NORWEGIAN CRUISE LINE HOLDINGS LTD.
as the Holding
and
THE Banks and FINANCIAL INSTITUTIONS listed IN SCHEDULE 1
as Lenders
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
BNP PARIBAS FORTIS S.A./N.V.
HSBC BANK PLC
KFW IPEX-BANK GMBH
CASSA DEPOSITI E PRESTITI S.P.A.
BANCO SANTANDER, S.A.
SOCIÉTÉ GÉNÉRALE
as Joint Mandated Lead Arrangers
and
BNP PARIBAS
as Facility Agent
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as SACE Agent
and
HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED
as Security Trustee
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a facility agreement originally dated 19 December 2018 (as amended and restated by an amendment and restatement agreement dated 17 February 2021)
in respect of the part financing of the 1,258 passenger cruise ship newbuilding
Index
Schedules
Execution
Appendices
Form of Amended and Restated Facility Agreement (marked to indicate amendments)
THIS AGREEMENT is made on 17 June 2021
(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 HM11, Bermuda (the "Guarantor") |
(3) | OCEANIA CRUISES S. DE R.L., a Panamanian sociedad de responsabilidad limitada domiciled in Panama whose resident agent is at Arifa Building, West Boulevard, Santa Maria Business District, Panama, Republic of Panama (the "Shareholder") |
(4) | NORWEGIAN CRUISE LINE HOLDINGS LTD., a company incorporated under the laws of Bermuda with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda (the "Holding") |
(5) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders (the "Lenders") |
(7) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as SACE agent (the "SACE Agent") |
(8) | BNP PARIBAS, as facility agent (the "Facility Agent") |
(9) | HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED, as security trustee (the "Security Trustee") |
(C) | The Parties have agreed to amend and restate the Facility Agreement as set out in this Agreement for the purposes of, inter alia, providing for an increase of the Facility for the |
purpose of (i) financing an amount to be applied towards payments relating to the Upsize Allowance (as defined below), (ii) financing an amount to be applied towards the second instalment of the Additional SACE Premium and (iii) financing an amount to be applied towards the Tranche B Premium. |
1. | Definitions and Interpretation |
1.1 | Definitions |
In this Agreement:
"Upsize Allowance" means an allowance in relation to:
1.2 | Defined expressions |
Defined expressions in the Facility Agreement and, with effect from the Effective Date, the Amended and Restated Facility Agreement, shall have the same meanings when used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
1.3 | Application of construction and interpretation provisions of Facility Agreement |
Clause 1.2 (Construction of certain terms) of the Facility Agreement applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
1.4 | Designation as a Finance Document |
The Borrower and the Facility Agent designate this Agreement as a Finance Document.
1.5 | Third party rights |
(a) | Unless 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 enjoy the benefit of any term of this Agreement other than SACE and SIMEST, who may enforce or enjoy the benefit of and rely on the provisions of this Agreement and the Amended and Restated Facility Agreement subject to the provisions of the Third Parties Act. |
(b) | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party (other than SACE and SIMEST) is not required to rescind or vary this Agreement at any time. |
2. | Conditions Precedent |
2.1 | The Effective Date cannot occur unless: |
(d) | the Facility Agent is satisfied that the Effective Date can occur and has not provided any instructions to the contrary informing the Parties that the Effective Date cannot occur. |
3. | Representations |
3.1 | Facility Agreement representations |
On the date of this Agreement and on the Effective Date, each Obligor that is a party to the Facility Agreement makes each of the representations and warranties as set out in clause 11 (Representations and warranties) of the Facility Agreement, as amended and restated by this Agreement and updated with appropriate modifications to refer to this Agreement and (where relevant) the Amended and Restated Facility Agreement, by reference to the circumstances then existing.
3.2 | Finance Document representations |
On the date of this Agreement and on the Effective Date, each Obligor (save for the Holding) makes the representations and warranties set out in the Finance Documents (other than the Facility Agreement) to which it is a party, as amended and restated and/or supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing.
4. | Amendment and Restatement of Facility Agreement and Other Finance Documents |
4.1 | Specific amendments to the Facility Agreement |
With effect on and from the Effective Date, the Facility Agreement shall be amended and restated in the form of the Amended and Restated Facility Agreement and, as so amended and restated, the Facility Agreement shall continue to be binding on each of the parties to it in accordance with its terms as so amended and restated.
4.2 | Confirmation of Guarantee |
With effect on and from the Effective Date the Guarantor confirms that:
(a) | the Guarantee extends to the obligations of the Borrower under the Finance Documents as amended, restated and/or supplemented by this Agreement; |
(b) | the obligations of the relevant Obligors under the Finance Documents as amended, restated and/or supplemented by this Agreement are included in the Secured Liabilities (as defined in the Facility Agreement); and |
(c) | the Guarantee shall continue to be binding on each of the parties to it and have full force and effect in accordance with its original terms and the amendments to the Finance Documents as amended, restated and/or supplemented by this Agreement. |
4.3 | Security Confirmation |
On the Effective Date, each Obligor confirms that:
(b) | the obligations of the relevant Obligors under the Finance Documents as amended, restated and/or supplemented by this Agreement are included in the Secured Liabilities (as defined in the Finance Documents to which it is a party); |
(c) | the Security Interests created under the Finance Documents continue in full force and effect on the terms of the respective Finance Documents; and |
(d) | to the extent that this confirmation creates a new Security Interest, such Security Interest shall be on the terms of the Finance Documents in respect of which this confirmation is given. |
4.4 | Finance Documents to remain in full force and effect |
The Finance Documents shall remain in full force and effect and, from the Effective Date:
(a) | in the case of the Facility Agreement as amended and restated pursuant to Clause 4.1 (Specific amendments to the Facility Agreement); |
(b) | the Facility Agreement and the applicable provisions of this Agreement will be read and construed as one document; and |
(c) | except to the extent expressly waived by the amendments effected by this Agreement, no waiver is given by this Agreement and the Lenders expressly reserve all their rights and remedies in respect of any breach of or other default under the Finance Documents. |
5. | Further Assurance |
Clause 12.20 (Further assurance) of the Facility Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
6. | Costs, Expenses and Fees |
6.2 | The Borrower shall pay to each of (i) the Facility Agent for its own account and (ii) the Facility Agent (for the account of each Lender) such fees in the amount and at the times specified in the relevant June 2021 Fee Letters. |
7. | Notices |
Clause 32 (Notices) of the Facility Agreement, as amended and restated by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
8. | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
9. | Signing Electronically |
The Parties acknowledge and agree that they may execute this Agreement and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the documents shall have the same effect as handwritten signatures and the use of an electronic signature on this Agreement shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Agreement, and evidencing the Parties' intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for contract performance and their legitimate interests including contract management.
10. | Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
11. | Enforcement |
11.1 | Jurisdiction |
(a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute"). |
(b) | The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary. |
11.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): |
(i) | irrevocably appoints Hannaford Turner LLP, currently of 107 Cheapside, London UK, EC2V 6DN as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
(ii) | agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within 10 days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
BORROWER
SIGNED by)/s/ Daniel S. Farkas
duly authorised)Daniel S. Farkas
for and on behalf of)
O CLASS PLUS ONE, LLC)
GUARANTOR
SIGNED by)/s/ Daniel S. Farkas
duly authorised)Daniel S. Farkas
for and on behalf of)
NCL CORPORATION LTD.)
SHAREHOLDER
SIGNED by)/s/ Daniel S. Farkas
for and on behalf of)Daniel S. Farkas
OCEANIA CRUISES S. DE R.L. )
as its duly appointed attorney-in-fact)
in the presence of:)/s/ Jared G. Silberhorn
)Jared G. Silberhorn
)7665 Corporate Center Drive
)Miami, FL 33126 USA
HOLDING
SIGNED by)/s/ Daniel S. Farkas
for and on behalf of)Daniel S. Farkas
NORWEGIAN CRUISE LINE)
HOLDINGS LTD.)
as its duly appointed attorney-in-fact)
in the presence of:) /s/ Jared G. Silberhorn
)Jared G. Silberhorn
)7665 Corporate Center Drive
)Miami, FL 33126 USA
LENDERS
SIGNED by)/s/ Cosmo Fisher
duly authorised )Cosmo Fisher
for and on behalf of)Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE)
AND INVESTMENT BANK)
SIGNED by)/s/ Bruno Cloquet
duly authorised )Bruno Cloquet
for and on behalf of)Global Head of Exporters and ECAs Origination
BNP PARIBAS FORTIS S.A./N.V.)
)/s/ Michel Froidebise
)Michel Froidebise
)Head of Export Finance Nordic Origination
SIGNED by)/s/ Varsha Sharan
duly authorised )Varsha Sharan
for and on behalf of)Director
HSBC BANK PLC)
SIGNED by)/s/ Maria Gazi
duly authorised )Maria Gazi
for and on behalf of)Attorney-in-Fact
KFW IPEX-BANK GMBH)
SIGNED by)/s/ Enrico Semprebene
duly authorised )Enrico Semprebene
for and on behalf of)
CASSA DEPOSITI E PRESTITI S.P.A.)
SIGNED by)/s/ Juana González Damen
duly authorised )Juana González Damen
for and on behalf of)
BANCO SANTANDER S.A.)
)/s/ Natalia San Miguel Aguado
) Natalia San Miguel Aguado
SIGNED by)/s/ Isabella Roberts
duly authorised )Isabella Roberts
for and on behalf of)Attorney-in-Fact
SOCIETE GENERALE)
MANDATED LEAD ARRANGERS
SIGNED by)/s/ Cosmo Fisher
duly authorised )Cosmo Fisher
for and on behalf of)Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
SIGNED by)/s/ Bruno Cloquet
duly authorised )Bruno Cloquet
for and on behalf of)Global Head of Exporters and ECAs Origination
BNP PARIBAS FORTIS S.A./N.V.)
)/s/ Michel Froidebise
)Michel Froidebise
)Head of Export Finance Nordic Origination
SIGNED by)/s/ Varsha Sharan
duly authorised )Varsha Sharan
for and on behalf of)Director
HSBC BANK PLC)
SIGNED by)/s/ Maria Gazi
duly authorised )Maria Gazi
for and on behalf of)Attorney-in-Fact
KFW IPEX-BANK GMBH)
SIGNED by)/s/ Enrico Semprebene
duly authorised )Enrico Semprebene
for and on behalf of)
CASSA DEPOSITI E PRESTITI S.P.A.)
SIGNED by)/s/ Juana González Damen
duly authorised )Juana González Damen
for and on behalf of)
BANCO SANTANDER S.A.)/s/ Natalia San Miguel Aguado
)Natalia San Miguel Aguado
SIGNED by)/s/ Isabella Roberts
duly authorised )Isabella Roberts
for and on behalf of)Attorney-in-Fact
SOCIETE GENERALE)
FACILITY AGENT
SIGNED by)/s/ Philippe Laude
duly authorised )Philippe Laude
for and on behalf of)
BNP PARIBAS )/s/ Georges Curey
)Georges Curey
)Head of Structured Export Finance
SACE AGENT
SIGNED by)/s/ Cosmo Fisher
duly authorised )Cosmo Fisher
for and on behalf of)Attorney-in-Fact
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
SECURITY TRUSTEE
SIGNED by)/s/ Daisuke Takekawa
duly authorised )Daisuke Takekawa
for and on behalf of)Authorised Signatory
HSBC CORPORATE TRUSTEE)
COMPANY (UK) LIMITED)
Form of Amended and Restated Facility Agreement (marked to indicate amendments)
Amendments are indicated as follows:
1 | additions are indicated by underlined text in blue; and |
2 | deletions are shown by strike-through text in red. |
Originally dated 19 December 2018
(as amended and restated by an amendment and restatement agreement dated 17 February 2021 and as further amended and restated by an amendment and restatement agreement dated _____ February____ 2021)
O CLASS PLUS one, LLC
as Borrower
and
THE BANKS AND FINANCIAL INSTITUTIONS
LISTED IN Schedule 1
as Lenders
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
BNP PARIBAS FORTIS S.A./N.V.
HSBC BANK PLC
KFW IPEX-BANK GMBH
CASSA DEPOSITI E PRESTITI S.P.A.
Banco Santander, S.A.
Société Générale
as Joint Mandated Lead Arrangers
and
BNP PARIBAS
as Facility Agent
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as SACE Agent
and
HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED
as Security Trustee
with the support of
SACE S.P.A.
amended and restated facility AGREEMENT
relating to
the part financing of the 1,258 passenger cruise ship
newbuilding presently designated as
Hull No. [*] at Fincantieri S.p.A.
Index
Schedules
Execution
THIS AGREEMENT is originally made on 19 December 2018 (as amended and restated by an amendment and restatement agreement dated _____ February17 February 2021 and as further amended and restated by an amendment and restatement dated __________ 2021)
(2) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders (the "Lenders") |
(4) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as SACE agent (the "SACE Agent") |
(5) | BNP PARIBAS, as facility agent (the "Facility Agent") |
(6) | HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED, as security trustee (the "Security Trustee") |
(ii) | as to [*], being [*], on the later of the date of commencement of steel cutting and the date falling 36 months prior to the Intended Delivery Date; |
(iii) | as to [*], being [*], on the later of keel laying in dry-dock and the date falling 24 months prior to the Intended Delivery Date; |
(iv) | as to [*], being [*], on the later of launching and 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 Original Shipbuilding Contract.
and restated by the February 2021 Amendment and Restatement Agreement, the "Facility Agreement").
This Agreement sets out the terms and conditions of the Original Facility Agreement as amended and restated by the June 2021 Amendment and Restatement Agreement. |
Subject to Clause 1.5 (General Interpretation), in this Agreement:
"2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital (H).
"2021 Deferral Effective Date" has the meaning given to the term Effective Date in the February 2021 Amendment and Restatement Agreement.
"2021 Deferral Fee Letters" means any letter between the Facility Agent (or, as the case may be, the SACE Agent) and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the February 2021 Amendment and Restatement Agreement.
"Additional SACE Premium" has the meaning given to such term in Clause 8.5 (Additional Premium).
"Advance" means the principal amount of each borrowing of all or part of a Tranche by the Borrower under 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.
"Aggregate SACE Premium" means, together, the SACE Premium, the Additional SACE Premium and the Tranche B Premium.
the Original Maximum Loan Amount, financed or to be financed pursuant to Tranche A, provided that such amount shall not, at any time, exceed the Total Tranche A Commitments; |
100% of the Tranche B Premium to be paid in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium), |
provided that such amount shall not, at any time, exceed the Total Tranche B Commitments; and
provided that such aggregate amount shall not, at any time, exceed the Total Commitments.
"Annex VI" means Annex VI (Regulations for the Prevention of Air Pollution from Ships, entered into on 19 May 2005) to the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (MARPOL) and as further revised in October 2008 with such revised version having entered into force on 1 July 2010.
"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 Facility Agent.
"Approved Flag" means the Bermudian flag, the Marshall Islands flag, the Bahamas flag or such other flag as the Facility 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., the Member as bareboat charterer or other member of the Group, or any company which is not a member of the Group which the Facility 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 or the Member as bareboat charterer, a letter of undertaking executed or to be executed by the Approved Manager in favour of the Facility 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.
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Availability Period" means, in relation to Tranche A, the period commencing on the Effective Date and, in relation to Tranche B and Tranche C, the period commencing on the date of this Agreement, and ending on:
(a) | the earlier to occur of (i) the Delivery Date and (ii) 28 July 2023 (or such later date as the Facility Agent may, with the authorisation of the Lenders, agree with the Borrower); or |
(b) | if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated. |
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means:
(b) | in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. |
"Bareboat Charter" means the bareboat charter of the Ship by the Borrower as owner to the Member as bareboat charterer which shall be entered into no later than the Delivery Date in a form of draft approved by the Facility Agent before the date of the Original Facility Agreement with such reasonable changes thereto as the Facility Agent may approve from time to time.
"Base Rate" means one Euro for as to [*] Dollars.
"Builder" has the meaning given in Recital (A).
"Business Day" means a day (other than a Saturday or a Sunday) on which banks are open in New York, Milan, Frankfurt, Brussels, Madrid, Paris, Rome and London; and
"CDP" means Cassa Depositi e Prestiti S.p.A.
"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 directors or the secretary or assistant secretary or any attorney-in-fact for the time being of that company or, in the case of the Borrower, the sole manager of the Borrower.
"Charged Property" means all of the assets which from time to time are, or are expressed to be, the subject of Security Interests pursuant to the Finance Documents.
"CIRR" means, in relation to the Loan, the applicable Commercial Interest Reference Rate determined in accordance with the OECD Arrangement on Guidelines for Officially Supported Export Credits, to be notified by SIMEST to the Facility Agent (through the SACE Agent) and expected to be three point thirty twothirty-two per cent. (3.32% p.a.) per annum.
"CIRR Break Costs" means, in respect of the Loan, all the amounts that SIMEST is entitled to charge, whether for taxes, costs, expenses, indemnities, penalties, losses or liabilities whatsoever, under and in accordance with the relevant Interest Make-Up Agreement, including without limitation, as a result of any prepayment of all or any part of the Loan under this Agreement (whether voluntary, following acceleration of the Loan or otherwise), as a result of an Interest Make-Up Event and/or as a result of the Borrower deciding to switch from the Fixed Interest Rate to another interest rate after the Drawdown Date. Such amounts include, without limitation, (i) breakage costs calculated on the basis of the net present value referred to in the relevant Interest Make-Up Agreement, (ii) any amount due as a consequence of the close-out of any hedging arrangement entered into by SIMEST in relation to this Agreement, (iii) default interest and penalties (maggiorazioni) whenever applicable, and (iv) all amounts (if any) to be returned by the SACE Agent or the Facility Agent (as applicable) to SIMEST under and pursuant to the Interest Make-Up Agreement.
"Code" means the United States Internal Revenue Code of 1986.
"Code of Ethics" means the code of ethics adopted by CDP, available on CDP's website (http://www.cdp.it/static/upload/cdp/cdp_code_ethics.pdf).
"Commitment" means, in relation to a Lender, the amount equal to the percentage of the Maximum Loan Amount set opposite its name in Schedule 1 (Lenders and Commitments), or, as the case may require, the amount specified in the relevant Transfer Certificate, in each case as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and "Total Commitments" means the aggregate of the Commitments of all the Lenders). a Tranche A Commitment, a Tranche B Commitment or a Tranche C Commitment.
"Common Units" means all membership interests held at any time during the term of the limited liability company agreement of the Borrower by the Member, including, without limitation, the Member's (i) right to a distributive share of the income, gain, losses and deductions of the Borrower in accordance with the limited liability company agreement, (ii) the right to a distributive share of the Borrower's assets, and (iii) any securities issued in respect of or in exchange for common units, whether by way of dividend or other distribution, split reverse split, recapitalization, merger, rollup transaction, consolidation conversion or reorganization.
"Compliance Certificate" has the meaning given to the term "Compliance Certificate" in the Guarantee.
"Confidential Information" means all information relating to any Obligor, the Group, the Finance Documents or the Loan of which a Creditor Party becomes aware in its capacity as, or for the purpose of becoming, a Creditor Party or which is received by a Creditor Party from either:
(a) |
(b) | another Creditor Party, if the information was obtained by that Creditor 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 information that:
(a) | is or becomes public information other than as a direct or indirect result of any breach by that Creditor Party of Clause 33 (Confidentiality); 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 |
(d) | any Reference Bank Quotation. |
"Confidentiality Undertaking" means a confidentiality undertaking in substantially the appropriate form recommended by the LMA from time to time or in any other form agreed between the Borrower and the Facility Agent.
"Contribution" means, in relation to a Lender, the amount of the Loan which is owing to that Lender.
"Conversion Rate" means the rate determined by the Facility Agent on the Conversion Rate Fixing Date and notified to the Borrower as being the lower of:
(a) |
(b) |
"Conversion Rate Fixing Date" means the date falling [*] days before the Intended Delivery Date.
"Corresponding Debt" means any amount, other than any Parallel Debt, which an Obligor owes to a Creditor Party under or in connection with the Finance Documents.
"Creditor Party" means the Facility Agent, the Security Trustee, the SACE Agent, the Joint Mandated Lead Arrangers or any Lender, whether as at the date of this Agreement or at any later time.
"Deferral Period" means the period from 1 April 2020 to 31 December 2022.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Trustee
"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.
"Document of Compliance" has the meaning given to it in the ISM Code.
"Dollar Equivalent" means such amount in Dollars as is calculated by the Facility Agent on the Conversion Rate Fixing Date to be the equivalent of an amount in Euro at the Conversion Rate.
"Dollars", "$" and "USD" means the lawful currency for the time being of the United States of America.
"Drawdown Date" means, in relation to an Advance under a Tranche, the date on which the Loanthat Advance is drawn down and applied in accordance with Clause 2 (Facility).
"Drawdown Notice" means a notice in the form set out in Schedule 2 (Form of Drawdown Notice) (or in any other form which the Facility Agent approves or reasonably requires).
"Earnings" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower, by the Member as bareboat charterer and which arise out of the use or operation of the Ship, including (but not limited to):
(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 |
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Effective Date" means the earlier of:
(a) | the Guarantor providing the Facility Agent with written notice stating that the Original Facility Agreement and the other Finance Documents signed on or about the date of the Original Facility Agreement have become effective; and |
(b) |
"Eligible Amount" means eighty per cent. (80%) of the lesser of:
(a) | the Dollar Equivalent of five hundred and seventy eightseventy-eight million and seven hundred thousand Euros (€578,700,000); and |
(b) |
"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:
"Environmental Law" means any present or future law relating to 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 Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"EU Blocking Regulation" means EU Regulation (EC) 2271/96 of 22 November 1996.
"Euro", "Euros" and "EUR" means the single currency of the Participating Member States.
"Event of Default" means any of the events or circumstances described in Clause 18.1 (Events of Default).
"Existing Indebtedness" means Financial Indebtedness referred to in the financial statements of the Guarantor delivered to the Facility Agent prior to the date of this Agreement.
"Exporter Declaration" means a declaration to be issued for an Advance under Tranche A and Tranche B, in the form required by SIMEST at the relevant time duly signed by an authorised signatory of the Builder.
"Facility" means the term loan facility under Tranche A, Tranche B and Tranche C to be made available under this Agreement as described in Clause 2.1 (Amount of facility).
"Facility Agent" means BNP Paribas, a French "société anonyme", having a share capital of two billion four hundred ninety-nine million five hundred ninety-seven thousand one hundred and twenty-two Euros (€2,499,597,122) and its registered office located at 16 Boulevard des Italiens, 75009, Paris, France, registered under the n° Siren 662.042.449 at the Registre du Commerce et des Sociétés of Paris or any successor of it appointed under Clause 26 (Role of the Facility Agent and the Joint Mandated Lead Arrangers, the SACE Agent and the Reference Banks).
"Facility Agreement" means the Original Facility Agreement as amended and restated by the 2021 Amendment and Restatement Agreementhas the meaning given to this term in Recital (H).
"Facility Office" means the office or offices notified by a Lender to the Facility 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.
(a) | sections 1471 to 1474 of the Code or any associated regulations; |
"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; |
(c) | in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019, |
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of the Original Facility Agreement.
"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.
"February 2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital (H).
"Fee Letter" means any letter dated on or about the date of the Original Facility Agreement between:
(a) | the Facility Agent and the Borrower setting out the fees referred to in paragraph (a) of Clause 9 (Fees); |
(b) | the Facility Agent and the Borrower setting out the fees referred to in paragraph (b) of Clause 9 (Fees); |
(c) | the SACE Agent and the Borrower setting out the fees referred to in paragraph (d) of Clause 9 (Fees); |
(d) | the Security Trustee and the Borrower setting out the fees referred to in paragraph (e) of Clause 9 (Fees); or |
(e) | the Borrower and a Creditor Party setting out the fees payable to such Creditor Party pursuant to the terms of the Original Facility Agreement. |
the June 2021 Amendment and Restatement Agreement; |
this Agreement; |
the Pledge Agreement; |
any Subordinated Debt Security; |
any Compliance Certificate; |
any other document (whether creating a Security Interest or not) which is designated as a Finance Document by agreement between the Borrower, SACE and the Facility Agent. |
"Final Contract Price" has the meaning given in Recital (C).
"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) | under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor; |
(g) | arising from receivables sold or discounted (other than receivables to the extent they are sold on a non-recourse basis). |
"First Instalment" means the first instalment of the SACE Premium as more particularly described in paragraph (a) of Clause 8.1 (SACE Premium).
"Fixed Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Facility Agent to be the aggregate of:
(a) |
(b) |
"Fixed Rate Margin" means the difference between the Floating Rate Margin and the SIMEST Margin Contribution.
"Floating Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Facility Agent to be the aggregate of:
(a) |
(b) |
"Floating Rate Margin" means one point forty fiveforty-five per cent. (1.45%).
"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 the delivery instalment under the Shipbuilding Contract, which:
"FOREX Contracts Weighted Average Rate" means the rate determined by the Facility 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 the Intended Delivery 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); |
Any marked to market valuation, as required in paragraph (c) above, shall be performed by BNP Paribas'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 Facility Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.9 (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 Earnings, the Insurances, any charter and any Requisition Compensation, executed or to be executed by the Borrower, the Member as 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 Trustee in the agreed form.
"German Blocking Provisions" means section 7 of the German Foreign Trade Regulation (AWV) (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 a no. 3 German Foreign Trade Law (AWG) (Außenwirtschaftsgesetz)).
"Gross Negligence" means any act or omission, whether deliberate or not, which in the circumstances (including both the probability and seriousness of the consequences likely to result) would reasonably be regarded by those familiar with the nature of the activity in question and with the surrounding circumstances, as amounting to the reckless disregard of, or serious indifference to, the consequences, being in any case more than a negligent failure to exercise proper skill and care.
"Group" means the Guarantor and its Subsidiaries.
"Guarantee" means the Original Guarantee as amended and restated pursuant to the February 2021 Amendment and Restatement Agreement and as may be further amended and/or supplemented from time to time.
"Guarantor" means NCL Corporation Ltd., a Bermuda company with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM11, Bermuda.
"Holding" means Norwegian Cruise Line Holdings Ltd., a company incorporated under the laws of Bermuda with its registered office at Park Place 55, Par-la-Ville Road, Hamilton HM 11, Bermuda.
"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.
"Illicit Origin" means any origin which is illicit, fraudulent or in breach of Sanctions including, without limitation, drug trafficking, corruption, organised criminal activities, terrorism, money laundering or fraud.
"Information Package" means the information package in connection with the "Debt Holiday" application in the form set out in schedule 4 (Information Package) of the February 2021 Amendment and Restatement Agreement, submitted by the Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Principles for the purpose of this Agreement and certain of the Borrower's and the Guarantor's obligations under this Agreement.
"Initial Contract Price" has the meaning given in Recital (B).
(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 [*] (the date on which the Ship will be ready for delivery pursuant to the Shipbuilding Contract as at the date of the Original Facility Agreement) or any other date notified by the Borrower to the Facility Agent in accordance with paragraph (a) of Clause 3.5 (No later than sixty (60) days before the Intended Delivery Date) or paragraph (c) of Clause 3.9 (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 Make-Up Agreement" means an agreement on interest stabilisation (Capitolato per il Contributo Interessi) to be entered into between SIMEST and the SACE Agent on behalf of the Lenders and in form and substance acceptable to the SACE Agent, the Facility Agent and the Lenders, which provides, inter alia, for the applicable CIRR to be subsidised in relation to the Loan made available under this Agreement and to which the CIRR applies.
"Interest Make-up Event" means the occurrence of any circumstances which result in the termination, cancellation, revocation, cessation or suspension (in each case, in whole or in part) of the Interest Make-up Agreement or the Interest Make-up Agreement otherwise ceases or may cease to be in full force and effect or the SACE Agent notifies the Borrower that the Fixed Interest Rate is not available for any reason, in each case, in accordance with the terms of the Interest Make-up Agreement.
"Interest Period" means a period determined in accordance with Clause 7 (Interest Periods).
"Interpolated Screen Rate" means, in relation to the Loan or any part of the Loan, the rate which results from interpolating on a linear basis between:
(a) | the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan or that part of the Loan; and |
(b) | the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of the Loan or that part of the Loan, |
each as of the Specified Time for Dollars.
"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 Authorities" means SACE and/or SIMEST and any other relevant Italian authorities involved in the implementation of the Loan.
"June 2021 Amendment and Restatement Agreement" has the meaning given to this term in Recital (J).
"June 2021 Fee Letters" means any letter between the Facility Agent or the SACE Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the June 2021 Amendment and Restatement Agreement.
"Legislative Decree 231/01" 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 bank, financial institution, trust, fund or other entity listed in Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.Tranche A Lender, a Tranche B Lender or a Tranche C Lender.
"LIBOR" means, in relation to the Loan or any part of the Loan:
(a) | the applicable Screen Rate as of the Specified Time for Dollars and for a period equal in length to the Interest Period of the Loan or that part of the Loan; or |
(b) | as otherwise determined pursuant to Clause 6.6 (Unavailability of Screen Rate). |
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero (except with respect to the Interest Make-Up Agreement).
"Loan" means the aggregate principal amount outstanding for the time being outstanding under this Agreementof the borrowings under the Facility and a "part of the Loan" means an Advance, a Tranche or a part of a Tranche.
(a) | before the Loanan Advance under any Tranche has been made, Lenders whose Commitments total [*] per cent. of the Total Commitments; and |
(b) | after the Loanan Advance under any Tranche has been made, Lenders whose Contributions total [*] per cent. of the Loan. |
"Management Agreement" means the management agreement (if any) entered or to be entered into between the Borrower 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 SACE.
(a) | in relation to the Fixed Interest Rate, the Fixed Rate Margin; and |
(b) | in relation to the Floating Interest Rate, the Floating Rate Margin. |
"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 Bermuda, the Marshall Islands, Bahamas or such other registry as the Facility Agent may, with the approval of the Italian Authorities and at least three Lenders representing as a minimum the Majority Lenders, approve.
"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 Obligor or the Group as a whole; |
(b) | the ability of any Obligor to perform its obligations under any Finance Document; or |
"Maximum Loan Amount" means the aggregate of:
the Dollar Equivalent of four hundred and sixty two million nine hundred and sixty thousand Euros (€462,960,000); and |
one hundred per cent. (100%) of the SACE Premium to be paid in accordance with Clause 8.1 (SACE Premium), |
provided that such amount shall not, at any time, exceed six hundred and ninety million seven hundred and eighteen thousand and seventy Dollars and fifty-four cents ($690,718,070.54).
"Member" means Oceania Cruises S. de R.L., a Panamanian sociedad de responsabilidad limitada domiciled in Panama whose resident agent is at Arifa Building, West Boulevard, Santa Maria Business District, Panama, Republic of Panama as the sole member of the Borrower.
"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 [*] Euros [*].
"Model" means the principles of the compliance system adopted by CDP pursuant to Legislative Decree 231/01, available on CDP's website (https://en.cdp.it/kdocs/1896656/Organization_Management_and_Control_Model_pursuant_to_Italian_Legislative_Decree_No._231-01_EN.pdf).
"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 Trustee in the agreed form.
"Obligors" means the Borrower, the Guarantor, the Member and (in the event that the Approved Manager is a member of the Group) the Approved Manager.
"Original Facility Agreement" has the meaning given to such term in Recital (E).
"Original Guarantee" means the guarantee issued by the Guarantor in favour of the Security Trustee on 19 December 2018.
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated or formed, as the case may be, as at the date of this Agreement.
"Original Maximum Loan Amount" means the aggregate of:
the Dollar Equivalent of four hundred and sixty-two million nine hundred and sixty thousand Euros (€462,960,000); and |
one hundred per cent. (100%) of the SACE Premium to be paid in accordance with Clause 8.1 (SACE Premium), |
provided that such amount shall not, at any time, exceed six hundred and ninety million seven hundred and eighteen thousand and seventy Dollars and fifty-four cents ($690,718,070.54).
"Original Principles" has the meaning given in Recital (F).
"Overnight LIBOR" means, in relation to the Loan or any part of the Loan:
(a) | on any date, the applicable day to day Screen Rate as of the Specified Time for Dollars; or |
(b) | as otherwise determined pursuant to Clause 6.6 (Unavailability of Screen Rate), |
and if, in either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero.
"Parallel Debt" means any amount which an Obligor owes to the Security Trustee under Clause 27.2 (Parallel Debt (Covenant to pay the Security Trustee)).
"Participating Member State" means any member state of the European Union that adopts or 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 12.14 (Financial Indebtedness and subordination of indebtedness). |
"Permitted Security Interests" means:
(a) |
(i) | any of the Security Interests referred to in sub-paragraph (A) of sub-paragraph (ii) of paragraph (b) below; and |
(b) |
(i) | any of the Security Interests referred to in paragraphs (A), (D), (F) and (G) of sub-paragraph (ii) of paragraph (b) below; and |
(B) | liens on the Ship up to an aggregate amount at any time not exceeding [*] 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 [*] to secure the performance of bids, tenders, bonds or contracts required in the ordinary course of business; |
Agreement or assets newly constructed or converted after the date of the Original Facility 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;
(H) | liens in favour of credit card companies on unearned customer deposits pursuant to agreements therewith; and |
(I) |
(a) |
(b) | any policy or contract of insurance contemplated by or referred to in Clause 12 (General Undertakings) or any other provision of this Agreement or another Finance Document; |
(c) | any other document contemplated by or referred to in any Finance Document; and |
(a) | any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or |
(b) | any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a); |
and covers any such transaction, matter or statement, whether entered into, arising or made at any time before the signing of this Agreement or on or at any time after that signing.
"Pledge Agreement" means a document creating security over the limited liability company interests in the Borrower in the agreed form.
"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 Trustee in the agreed form.
"Principles" has the meaning given to such term in Recital (F).
"Prohibited Jurisdiction" means any country or territory which is, or whose government is, the target of country-wide or territory-wide Sanctions.
"Prohibited Payment" means:
"Prohibited Person" means any person that (i) appears on any Sanctions list of prohibited persons, (ii) is directly or indirectly owned 50 percent 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.
"Qualifying Certificate" means the certificate to be issued by the Builder on the Delivery Date and issued to the Facility Agent and copied to the Borrower substantially in the form set out in Schedule 5 (Qualifying Certificate).
"Quotation Day" means in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property
"Reference Bank Quotation" means any quotation supplied to the Facility Agent by a Reference Bank.
"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as either:
(a) | if: |
(i) | the Reference Bank is a contributor to the applicable Screen Rate; and |
(ii) | it consists of a single figure, |
as the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or
(b) | in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market. |
"Reference Banks" means such entities as may be appointed by the Facility Agent in consultation with the Borrower.
"Relevant Interbank Market" means the London Interbank Market.
"Relevant Jurisdiction" means, in relation to an Obligor:
(a) | its jurisdiction of incorporation, or formation, as the case may be; |
(c) |
(d) | the jurisdiction whose laws govern the perfection of any of the Security Interests created, or intended to be created, under the Finance Documents to which it is a party. |
"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 date on which a repayment is required to be made under Clause 5 (Repayment).
"Replacement Benchmark" means a benchmark rate which is:
(a) | formally designated, nominated or recommended as the replacement for a Screen Rate by: |
(i) | the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or |
(ii) |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark" will be the replacement under paragraph (ii) above;
(b) | in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or |
(c) | in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate. |
"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 Creditor Party" means a Creditor Party which serves a notice pursuant to paragraph (a) of Clause 36.7 (Non-applicable provisions between the Obligors, German Lenders and any Creditor Party subject to the EU Blocking Regulation).
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"SACE" means SACE S.p.A., an Italian joint stock company (società per azioni) with a sole shareholder, whose registered office is located at Piazza Poli 37/42, 00187 Rome, Italy and registered with the Companies Registry of Rome under number 05804521002.
"SACE Agent" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of seven billion eight hundred and fifty one million six hundred and thirty six thousand three hundred and forty two Euros (€7,851,636,342) and its registered office located at 12, place des Etats-Unis, CS 70052, 92547 Montrouge cedex, France, registered under the n° Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre or any successor of it appointed under Clause 26 (Role of the Facility Agent and the Joint Mandated Lead Arrangers, the SACE Agent and the Reference Banks).
"SACE Insurance Policy" means the insurance policy (as amended and supplemented from time to time) in respect of this Agreement (which, in all material respects, is not inconsistent with the commercial terms of this Agreement) issued or to be issued by SACE for the benefit of the Lenders in respect of one hundred per cent. (100%) of the Loan together with interest thereon in form and substance satisfactory to the Facility Agent, the SACE Agent and all the Lenders.
"SACE Premium" means the amount payable by the Borrower to SACE directly or through the SACE Agent in two instalments, being the SACE Premium Instalments, in respect of the SACE Insurance Policy as set out in Clause 88.1 (SACE Premium and Italian Authorities), in addition
to the Additional SACE Premium (provided, for the avoidance of doubt, that the Additional SACE Premium shall not be financed).
"SACE Premium Instalments" means each of the First Instalment and Second Instalment.
"SACE Required Documents" means in relation to the Drawdown Notice under Tranche A and under Tranche B:
(a) |
(b) | each of the other documents, information and other evidence specified in or required to be enclosed with such Qualifying Certificate. |
"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):
(b) | imposed by the US, including the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC); or |
(c) |
"SBC Effective Date" means the effective date under the Shipbuilding Contract.
"Screen Rate" means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
"Screen Rate Contingency Period" means fifteen (15) Business Days.
"Screen Rate Replacement Event" means, in relation to a Screen Rate:
(a) | the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrower materially changed; |
(b)
(i)
(A) | the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; |
(B) | information is published in any order, decree, notice, petition or filing, however described or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent, |
provided that in each case, at that time, there is no successor or administrator to continue to provide that Screen Rate;
(ii) | the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate; |
(iii) | the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or |
(iv) | the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or |
in the case of a Screen Rate for LIBOR, the supervisor of the administrator of that Screen Rate makes a public announcement or publishes information: |
(c) | the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: |
(i) | the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Borrower) temporary; or |
(ii) | that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than the Screen Rate Contingency Period; or |
(d) | in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. |
"Second Instalment" means the second instalment of the SACE Premium as more particularly described in paragraph (b) of Clause 8.1 (SACE Premium).
"Secured Liabilities" means all liabilities which the Borrower, the Obligors or any of them have, at the Effective Date or at any later time or times, under or in connection with any Finance
Document or any judgment relating to any Finance Document; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.
"Secured Party" means SACE, the Facility Agent, the Security Trustee, the SACE Agent, the Joint Mandated Lead Arrangers or any Lender whether at the date of the Original Facility Agreement or any later time, a Receiver or any Delegate.
(b) | the security rights of a plaintiff under an action in rem; and |
"Security Period" means the period commencing on the Effective Date and ending on the date on which:
(a) | all amounts which have become due for payment by the Borrower or any 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; |
(b) | all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Trustee as trustee for the Secured Parties and |
secured by the Security Interests together with all representations and warranties expressed to be given by an Obligor in favour of the Security Trustee as trustee for the Secured Parties;
(c) | the Security Trustee's interest in any turnover trust created under the Finance Documents; |
except:
(i) | rights intended for the sole benefit of the Security Trustee; and |
(ii) | any moneys or other assets which the Security Trustee has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement. |
"Security Requirement" means the amount in Dollars (as certified by the Facility Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Facility Agent) which is at any relevant time one hundred and twenty-five per cent. (125%) of the Loan.
"Security Trustee" means HSBC Corporate Trustee Company (UK) Limited, a company incorporated in England and Wales (with registered number 6447555) whose registered office is located at 8 Canada Square, London, E14 5HQ or any successor of it appointed under Clause 27 (The Security Trustee).
"Security Value" means the amount in Dollars (as certified by the Facility Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Facility 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 13.4 (Valuation of the Ship); and (ii) the market value of any additional security for the time being actually provided to the Facility Agent pursuant to Clause 15 (Security Value Maintenance).
"Servicing Party" means the Facility Agent or the Security Trustee.
"Shareholder" means Oceania Cruises S. de R.L., a Panamanian sociedad de responsabilidad limitada domiciled in Panama whose resident agent is at Arifa Building, West Boulevard, Santa Maria Business District, Panama, Republic of Panama as the sole member of the Borrower.
"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" has the meaning given in Recital (A).
"SIMEST" means Società Italiana per Le Imprese all'Estero - SIMEST S.p.A., which grants export subsidies in Italy under and according to the Italian Legislative Decree n. 143/98 and its amendments.
"SIMEST Margin Contribution" means the margin contribution approved and granted by SIMEST to the Lenders under the Interest Make-up Agreement as communicated by the SACE Agent to the Creditor Parties and the Borrower following the date of the Original Facility Agreement as soon as the SACE Agent is made aware of it.
"Specified Time" means a day or time determined in accordance with the following:
(a) | if LIBOR is fixed, the Quotation Day as of 11:00 am Brussels time; and |
"Structuring Fee" has the meaning given in paragraph (a) of Clause 9 (Fees).
"Subordinated Debt Security" has the meaning given in sub-paragraph (ii) of paragraph (b)(ii) of Clause 12.14 (Financial Indebtedness and subordination of indebtedness).
"Subsidiary" has the following meaning:
a company (S) is a subsidiary of another company (P) if:
(b) | P has direct or indirect control over a majority of the voting rights attaching to the issued equity interests 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, assessment, fee, deduction or other charge or withholding of a similar nature imposed by any governmental authority (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Total Commitments" means the aggregate of the Total Tranche A Commitments, the Total Tranche B Commitments and the Total Tranche C Commitments, being seven hundred and ninety million, eight hundred fifty eight thousand, four hundred forty six United States Dollars and ninety eight Cents ($790,858,446.98) as at the date of this Agreement.
"Third Party Act" means the Contracts (Rights of Third Parties) Act 1999.
(a) | actual, constructive, compromised, agreed or arranged total loss of the Ship; |
(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. |
(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 |
"Total Tranche A Commitments" means the aggregate of the Tranche A Commitments, being six hundred and ninety million seven hundred and eighteen thousand and seventy Dollars and fifty-four cents ($690,718,070.54) as at the date of this Agreement.
"Total Tranche B Commitments" means the aggregate of the Tranche B Commitments, being eighty one million, one hundred and thirty two thousand and fifty one United States Dollars and twenty eight Cents ($81,132,051.28) as at the date of this Agreement.
"Total Tranche C Commitments" means the aggregate of the Tranche C Commitments, being nineteen million, eight thousand three hundred and twenty five United States Dollars and sixteen Cents ($19,008,325.16) as at the date of this Agreement.
"Tranche" means Tranche A, Tranche B or Tranche C.
"Tranche A" means the part of the Facility made or to be made available by the Tranche A Lenders to the Borrower to finance (i) up to the Eligible Amount, the Dollar Equivalent of four hundred and sixty-two million nine hundred and sixty thousand Euros (€462,960,000), corresponding to all or part of eighty per cent. (80%) of the Final Contract Price, (ii) the First Instalment of the SACE Premium and (iii) the Second Instalment of the SACE Premium.
"Tranche A Commitments" means, in relation to a Tranche A Lender, the amount set opposite its name under the heading "Tranche A Lenders" in Part A of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche A Commitment transferred to it under
this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche A Lender" means a bank, financial institution, trust, fund or other entity listed in Part A of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Tranche B" means the part of the Facility to be made available by the Tranche B Lenders to the Borrower to finance:
up to the Upsize Allowance Eligible Amount, the Dollar Equivalent of fifty two million eight hundred thousand Euros (€52,800,000), corresponding to all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
100% of the Tranche B Premium to be paid in accordance with Clause 8.6 (Tranche B Premium). |
"Tranche B Commitments" means, in relation to a Tranche B Lender, the amount set opposite its name under the heading "Tranche B Lenders" in Part B of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche B Commitment transferred to it under this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche B Lender" means a bank, financial institution, trust, fund or other entity listed in Part B of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Tranche B Premium" has the meaning given to this term in paragraph (a) of Clause 8.6 (Tranche B Premium).
"Tranche C" means the part of the Facility to be made available by the Tranche C Lenders to the Borrower to finance, if applicable, the second instalment of the Additional SACE Premium, calculated in accordance with paragraph (a)(ii) of Clause 8.5 (Additional Premium).
"Tranche C Commitments" means, in relation to a Tranche C Lender, the amount set opposite its name under the heading "Tranche C Lenders" in Part C of Schedule 1 (Lenders and Commitments) and the amount of any other Tranche C Commitment transferred to it under this Agreement, to the extent not cancelled, reduced, terminated or transferred by it under this Agreement.
"Tranche C Lender" means a bank, financial institution, trust, fund or other entity listed in Part C of Schedule 1 (Lenders and Commitments) and acting through its Facility Office or its transferee, successor or assign.
"Transaction Documents" means the Finance Documents and the Underlying 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 Facility Agent and the Borrower.
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part 1 of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial
institutes or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
"Underlying Documents" means the Shipbuilding Contract, any Management Agreement, any 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 (i) any sum due and payable but unpaid by an Obligor under the Finance Documents and (ii) any part of the Aggregate SACE Premium unpaid by the Borrower.
"Upsize Allowance" means an allowance in relation to:
the improvements to the Ship identified in the appendices and collateral arrangements to the Shipbuilding Contract and other changes agreed between the Borrower (as Owner under the Shipbuilding Contract) and the Builder, pursuant to article 9.2(ii)(b) of the Shipbuilding Contract. |
"Upsize Allowance Eligible Amount" means eighty per cent. (80%) of the Dollar Equivalent of the Upsize Allowance Price.
"Upsize Allowance Price" means the price for the Upsize Allowance, in an amount of sixty-six million Euros (€66,000,000).
"US" means the United States of America.
"VAT" means:
(a) | 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 |
"Write-down and Conversion Powers" means:
(a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
(b) | in relation to any other applicable Bail-In Legislation: |
(i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect |
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
(ii) | any similar or analogous powers under that Bail-In Legislation; and |
(c) | in relation to any UK Bail-In Legislation: |
(i) | any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and |
(ii) | any similar or analogous powers under that UK Bail-In Legislation. |
1.2 |
In this Agreement:
"Facility Agent", the "SACE Agent", the "Joint Mandated Lead Arranger", the "Security Trustee", "SACE", any "Creditor Party", any "Secured Party", any "Lender", any "Tranche A Lender", any "Tranche B Lender", any "Tranche C Lender", any "Obligor" or any other "person", shall be construed so as to include its successors in title, permitted assigns and permitted transferees.
"approved by the Lenders" (or any similar determination or instruction by the Lenders) means approved in writing by the Facility Agent acting on the instructions of all the Lenders and approved in writing by the SACE Agent acting on the instructions of SACE (or the Lenders only to the extent the SACE Insurance Policy does not cover the event for which such instruction or approval is required) (on such conditions as they may respectively impose) and any requirement for approval by all the Lenders shall mean prior approval.
"approved by the Majority Lenders" (or any similar determination or instruction by the Majority Lenders) means approved in writing by the Facility Agent acting on the instructions of the Majority Lenders and approved in writing by the SACE Agent acting on the instructions of SACE (or the Majority Lenders only to the extent the SACE Insurance Policy does not cover the event for which such instruction or approval is required) (on such conditions as they may respectively impose) and otherwise "approved" means approved in writing by the Facility Agent (on such conditions as the Facility Agent may impose) and "approval" and "approve" shall be construed accordingly and any requirement for approval by the Facility Agent, the SACE Agent or the Majority Lenders shall mean prior approval.
"asset" includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment.
"company" includes any partnership, joint venture and unincorporated association.
"consent" includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation.
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained.
"date of this Agreement" means _____ February_________ 2021.
"document" includes a deed; also a letter or electronic mail.
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Taxes including VAT.
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
"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;
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council.
"legal or administrative action" means any legal proceeding or arbitration and any administrative or regulatory action or investigation.
"liability" includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise.
"months" shall be construed in accordance with Clause 1.4 (Meaning of "month").
"parent company" has the meaning given in the definition of "Subsidiary".
"person" includes any individual, firm, company, corporation, government, any state, political sub-division of a state and local or municipal authority, agency of a state or any association, trust, joint venture, consortium or partnership; and any international organisation (whether or not having a separate legal personality).
"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.
"regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
1.3 |
"approved" means, for the purposes of Clause 14 (Insurance Undertakings), approved in writing by the Facility Agent.
"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.
"obligatory insurances" means all insurances effected, or which the Borrower is obliged to effect, under Clause 14 (Insurance Undertakings) or any other provision of this Agreement or another Finance Document.
"policy" in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms.
"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.
"war risks" includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03), clause 24 of the Institute Time Clauses (Hulls) (1/11/95) or clause 23 of the Institute Time Clauses (Hulls)(1/10/83).
1.4 |
A period of one or more "months" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started ("the numerically corresponding day"), but:
and "month" and "monthly" shall be construed accordingly.
1.5 |
In this Agreement:
(d) | references to, or to a provision of, any law or regulation include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; |
(f) | words denoting the singular number shall include the plural and vice versa; and |
(g) | Clauses 1.1 (Definitions) to 1.5 (General Interpretation) apply unless the contrary intention appears. |
1.6 |
In interpreting a Finance Document or any provision of a Finance Document, all clauses, sub-clauses and other headings in that and any other Finance Document shall be entirely disregarded.
1.7 |
The schedules form an integral part of this Agreement.
2 |
2.1 |
Subject to the other provisions of this Agreement,:
in payment to the Builder, up to the Eligible Amount, of all or part of eighty per cent. (80%) of the Final Contract Price; |
in reimbursement to the Borrower of the amount of the First Instalment of the SACE Premium paid by it to SACE in accordance with paragraph (a) of Clause 8.1 (SACE Premium); and |
in payment to SACE of the amount of the Second Instalment of the SACE Premium payable by the Borrower to SACE in accordance with paragraph (b) of Clause 8.1 (SACE Premium). |
the Tranche B Lenders agree to make available to the Borrower a loan in relation to Tranche B in one (1) Advance not exceeding, in aggregate, the Total Tranche B Commitments intended to be applied as follows: |
in reimbursement to the Borrower or in payment to the Builder, up to the Upsize Allowance Eligible Amount, of all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
2.2 |
Subject to the other provisions of this Agreement, each Lender shall participate in the Loan:
each Tranche A Lender shall participate in an Advance under Tranche A in the proportion which, as at the Drawdown Date, its Tranche A Commitment bears to the Total Tranche A Commitments; |
each Tranche B Lender shall participate in an Advance under Tranche B in the proportion which, as at the Drawdown Date, its Tranche B Commitment bears to the Total Tranche B Commitments; and |
each Tranche C Lender shall participate in an Advance under Tranche C in the proportion which, as at the Drawdown Date, its Tranche C Commitment bears to the Total Tranche C Commitments. |
2.3 |
The Borrower undertakes with each Secured Party to use the Loan only to pay for:
an Advance under Tranche A only to pay for: |
goods and services of Italian origin incorporated in the design, construction or delivery of the Ship; |
all or part of eighty per cent. (80%) of the Final Contract Price; |
reimbursement to the Borrower of the First Instalment of the SACE Premium paid by the Borrower direct to SACE in accordance with paragraph (a) of Clause 8.1 (SACE Premium); and |
the Second Instalment of the SACE Premium payable in accordance with paragraph (b) of Clause 8.1 (SACE Premium).; |
an Advance under Tranche B only to pay: |
for goods and services in relation to the Upsize Allowance; |
subject to the limits and conditions fixed by the Italian Authorities, goods and services incorporated in the design, construction or delivery of the Ship and originating from countries other than Italy where the provision of such goods or services has been sub-contracted by the Builder and therefore remains the Builder's responsibility under the Shipbuilding Contract; |
all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
100% of the Tranche B Premium, payable in accordance with the provisions of paragraph (a) of Clause 8.6 (Tranche B Premium); and |
an Advance under Tranche C only to pay for the second instalment of the Additional SACE Premium which may be payable in accordance with paragpraph (a)(ii) of Clause 8.5 (Additional Premium). |
2.4 |
(c) | A Creditor Party and SACE may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. |
2.5 |
No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
2.6 |
The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:
(a) |
(b) | any Obligor or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document, |
and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement or any other Finance Document.
3 |
3.1 |
The Borrower may only draw the Loanan Advance under a Tranche when the following conditions have been fulfilled to the satisfaction of the Facility Agent and provided no Event of Default shall have occurred and remains unremedied or is likely to occur as a consequence of the drawing of the Loan:
3.2 |
The Facility Agent shall have received no later than the Effective Date:
(c) | an opinion from legal counsel to the Secured Parties as to Bermuda law in form and substance satisfactory to the Facility Agent and the Secured Parties in respect of the Guarantor's execution of the Original Guarantee; |
(d) | an opinion from legal counsel to the Secured Parties as to the laws of the state of New York in form and substance satisfactory to the Facility Agent and the Secured Parties in respect of the validity and enforceability of the Pledge Agreement; |
(e) | an opinion from legal counsel to the Secured Parties as to Panamanian law in form and substance satisfactory to the Facility Agent and the Secured Parties in respect of the Member's execution of the Pledge Agreement; |
(f) |
(g) | such documentary evidence as the Facility 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; |
(i) | duly executed originals of the Original Guarantee and the Pledge Agreement and of each document to be submitted pursuant to it; |
(j) | such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender or SACE) or any Lender or SACE (for itself) in order for the Facility Agent and such Lender or SACE 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; |
(k) | payment of the initial portion of the Structuring Fee as set out in and payable in accordance with the relevant Fee Letter; and |
3.3 | No later than two (2) years before the Intended Delivery Date |
The Facility Agent shall have received no later than two (2) years before the Intended Delivery Date, payment of the remaining portion of the Structuring Fee as set out in and payable in accordance with the relevant Fee Letter.
3.4 | No later than ninety (90) days before the Intended Delivery Date |
The Facility Agent (or the SACE Agent in respect of paragraphs (c), (e) and (f) below) shall have received no later than ninety (90) days before the Intended Delivery Date:
(a) | notification from the Borrower of its chosen Maritime Registry; |
(b) | notification of the Approved Manager; |
(d) | evidence that the First Instalment has been paid; |
(e) | an original of the Interest Make-up Agreement relative to the Loan and in full force and effect; |
(f) |
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.
3.5 | No later than sixty (60) days before the Intended Delivery Date |
The Facility Agent shall have received from the Borrower no later than sixty (60) days before the Intended Delivery Date:
(a) |
(b) | a notice from the Borrower as described in paragraph (a) of Clause 8.4 (Refund) and in paragraph (f) of Clause 8.6 (Tranche B Premium); and |
3.6 | No later than forty-five (45) days before the Intended Delivery Date |
The Facility Agent shall have received from the Borrower no later than forty fiveforty-five (45) days before the Intended Delivery Date (and on each subsequent date on which a Compliance Certificate is to be received by the Security Trustee pursuant to clause paragraph (c) of clause 11.3 (Provision of financial statements) of the Guarantee) a duly completed Compliance Certificate from the Guarantor;.
3.7 |
The SACE Agent (with a copy to the Facility Agent) shall have received from the Borrower no later than [*] before the Intended Delivery Date notification, signed by a duly authorised signatory of the Borrower, specifying which of the Fixed Interest Rate or the Floating Interest Rate shall be applicable to the Loan until the date of payment of the final repayment instalment of the Loan.
3.8 | No later than fifteen (15) Business Days before the Intended Delivery Date |
The Facility 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.
3.9 | No later than five (5) Business Days before the Intended Delivery Date |
The Facility Agent shall have received no later than five (5) Business Days before the Intended Delivery Date:
(a) | the Drawdown Notice from the Borrower in relation to each Tranche, signed by a duly authorised signatory of the Borrower, specifying the amount of the Loan to be drawn down; |
(c) | a final confirmation of the Intended Delivery Date signed by a duly authorised signatory of the Borrower, and counter-signed by a duly authorised signatory of the Builder. |
3.10 |
In respect of the Advance to be made available by the Tranche A Lenders, the Facility Agent shall have received no later than the Delivery Date: |
if applicable, a duly executed original of the Subordinated Debt Security; |
the four (4) pre-delivery instalments of the Final Contract Price; and |
any other part of the Final Contract Price as at the Delivery Date not being financed hereunder; |
evidence of payment of all amounts which are due and payable hereunder by the Borrower on or prior to the Delivery Date; |
a certificate from the Borrower, signed by an authorised representative of the Borrower, confirming that: |
the representations and warranties contained in Clause 11 (Representations and Warranties) are true and correct as of the Delivery Date in consideration of the facts and circumstances existing as of the Delivery Date; and |
no mandatory prepayment event pursuant to Clause 16 (Cancellation, Prepayment and Mandatory Prepayment) is continuing or would result from the Loan; |
a copy of the Addendum and any other relevant addendum to the Shipbuilding Contract; and |
save for the case where the Builder shall have received from the Borrower an amount equal to one hundred per cent (100%) of the Upsize Allowance Price and the Facility Agent shall have received a certified true copy bank statement evidencing receipt by the Builder of such full amount and of which all or part of 80% shall be reimbursed to the Borrower pursuant to such Advance, confirmation in writing from the Builder that it has received from the Borrower an amount equal to at least twenty per cent. (20%) of the Upsize Allowance Price; and |
(h)provided always that, pursuant to paragraphs (a), (b) and (c) above, the obligations of the relevant Lenders to make the Loansuch Advance under each of Tranche A, Tranche B and Tranche C, as applicable, available on the Delivery Date are subject to the Lenders remaining satisfied that each of the SACE Insurance Policy and the Interest Make-up Agreement will cover the Loan following the advance of the Loansuch Advances, payment of the Second Instalment and delivery to the Facility Agent of the documents listed in Schedule 3 (Documents to be produced by the Builder to the Facility Agent on Delivery).
3.11 |
Immediately prior to the delivery of the Ship by the Builder to the Borrower, the Facility Agent shall have received:
(a) |
(i) | the Ship will be registered in the name of the Borrower in the Maritime Registry; |
3.12 |
Immediately following the delivery of the Ship by the Builder to the Borrower, the Facility Agent (with copy to the Security Trustee), or, in the case of paragraph (a) below, the Security Trustee (with copy to the Facility Agent), shall receive:
(a) |
(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 Facility Agent and the Secured Parties confirming: |
(i) | the valid registration of the Ship in the Maritime Registry; and |
(ii) | the Mortgage over the Ship is a first priority security and has been validly registered in the Maritime Registry; |
(ii) | the Borrower's representatives are fully empowered to sign 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 13.1 (Pooling of earnings and charters); and |
(i) | the General Assignment falls within the scope of the Member's corporate purpose as defined by its Articles of Incorporation and By-laws; and |
(ii) | the representative of the Member is fully empowered to sign the General Assignment; |
(f) | the documents listed in Schedule 3 (Documents to be produced by the Builder to the Facility Agent on Delivery). |
3.13 | Notification of satisfaction of conditions precedent |
The Facility Agent shall notify the Tranche A Lenders and SACE, the Tranche B Lenders, the Tranche C Lenders, SACE and SIMEST, as applicable, promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in this Clause 3 (Conditions Precedent).
3.14 |
If the Majority Lenders, at their discretion, subject to the prior written consent of SACE, permit the Loanan Advance under a Tranche to be borrowed before any of the conditions precedent referred to in Clause 3 (Conditions Precedent) 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 3 (Conditions Precedent)) or such later date as the Facility Agent may agree in writing with the Borrower.
3.15 |
(b) | If the SACE 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 |
then such changes will be made to this Agreement in accordance with the terms hereof.
3.16 | No claim against the Creditor Parties |
The Borrower agrees that the Creditor Parties may act on the instructions of the Italian Authorities in relation to this Agreement.
3.17 |
(a) | The SACE 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 SACE Required Documents duly signed by the parties thereto and collecting copies thereof (which copies shall be certified as true copies by an authorised signatory of the Builder and/or the Borrower, as applicable). |
(b) | The Facility Agent shall be entitled (but not obliged) to rely and act upon any documentation or information provided under this Clause 3 (Conditions Precedent), which appears on its face to have been duly completed. |
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 Facility Agent shall notify the Borrower in writing thereof and shall request its approval of such discrepancy in writing. |
(f) | The Facility Agent and the Lenders shall not be responsible for any delay in making available the Loan resulting from any requirement for the delivery of further information or documents reasonably required by the Facility Agent for the relevant conditions precedent in this Agreement to be satisfied. |
4 |
4.1 |
The Tranche B Lenders shall not be obliged to fulfil their obligation to make an Advance available under Tranche B other than: |
by reimbursing the Borrower or by paying the Builder all or part of eighty per cent. (80%) of the Upsize Allowance Price on behalf of and in the name of the Borrower; and |
by reimbursing to the Borrower the amount of the Tranche B Premium referred to in paragraph (a)(i) of Clause 8.6 (Tranche B Premium); and |
by paying SACE the amount of the Tranche B Premium referred to in paragraph (a)(ii) of Clause 8.6 (Tranche B Premium), |
such amounts of the Tranche B Premium to be paid by the Borrower to SACE in accordance with paragraph (a) of Clause 8.6 (Tranche B Premium).
The Borrower hereby instructs the Tranche A Lenders in accordance with this Clause 4.1 (Borrower's irrevocable payment instructions): |
to pay to the Builder, up to the Eligible Amount, all or part of eighty per cent. (80%) of the Final Contract Price; |
to reimburse the Borrower the amount of the First Instalment of the SACE Premium already paid by the Borrower to SACE on the date specified in paragraph (a) of Clause 8.1 (SACE Premium); and |
The Borrower hereby instructs the Tranche B Lenders in accordance with this Clause 4.1 (Borrower's irrevocable payment instructions) to: |
reimburse to the Borrower or pay to the Builder, up to the Upsize Allowance Eligible Amount, all or part of eighty per cent. (80%) of the Upsize Allowance Price; and |
pay to the Facility Agent on behalf of the Tranche B Lenders: |
such amounts of the Tranche B Premium to be paid by the Borrower to SACE pursuant to paragraph (a) of Clause 8.6 (Tranche B Premium).
Save as contemplated in Clause 4.24.3 (Modification of payment terms) below, the payment instruction contained in this Clause 4.1 (Borrower's irrevocable payment instructions) is irrevocable. |
The Dollar amount to be drawn down under paragraph (aparagraphs (a), (b) and (c) of Clause 4.1 (Borrower's irrevocable payment instructions) shall be calculated by the Facility Agent on the Conversion Rate Fixing Date in accordance with the definitions of "Eligible Amount", "Upsize Allowance Eligible Amount" and "Conversion Rate" in Clause 1.1 (Definitions).
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 Facility Agent, the Security Trustee, the Lenders and the Borrower in the case of paragraph (aparagraphs (d)(i) and (e)(i) of Clause 4.1 (Borrower's irrevocable payment instructions) and with the agreement of the Italian Authorities, the Facility Agent, the Lenders and the Borrower in the case of paragraphs (bd)(ii), (d)(iii), (e)(ii) and (cf) of Clause 4.1 (Borrower's irrevocable payment instructions) provided that it is the intention of the Borrower, the Lenders, the Security Trustee and the Facility 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 Facility Agent for holding in escrow and to be released by the Facility Agent simultaneously with (i) the payment in full to the Builder of the balance of the Final Contract Price denominated in Euro at the time of delivery of the Ship 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 (ad)(i) and (e)(i) of Clause 4.1 (Borrower's irrevocable payment instructions), subject only to delivery of the Ship by the Builder to the Borrower taking place as evidenced by the execution and delivery of the Protocol of Delivery and Acceptance and to the Borrower having deposited with the Facility Agent before the Drawdown 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 Final Contract Price in Euro and the Dollars owed to the Counterparties under all the relevant FOREX Contracts.
(a) | Drawing may not be made under this Agreement (and the Loanan Advance shall not be available) after the expiry of the Availability Period. |
(b) | There will be only one drawing Under this Agreement., there will be no more than: |
one (1) Advance under Tranche A; |
one (1) Advance under Tranche B; and |
one (1) Advance under Tranche C, |
it being provided that the Advances in relation to Tranche A, Tranche B and Tranche C shall occur on the same date.
The amount of the Advance under Tranche C shall not exceed the lower of (i) the amount calculated pursuant to the provisions of paragraph (a)(ii) of Clause 8.5 (Additional Premium) and (ii) the Total Tranche C Commitments. |
the Tranche A Advance cannot exceed the Total Tranche A Commitments; |
the Tranche B Advance cannot exceed the Total Tranche B Commitments; |
the Tranche C Advance cannot exceed the Total Tranche C Commitments; and |
the aggregate amount of the LoanAdvances under all Tranches cannot exceed the Maximum Loan AmountTotal Commitments. |
The Facility Agent shall promptly and, in any case, by no later than three (3) Business Days before the Drawdown Date, notify the Tranche A Lenders, the Tranche B Lenders and the Tranche C Lenders, as applicable, that it has received a Drawdown Notice in relation to a Tranche and shall inform each relevant Lender of:
(a) |
(b) | the amount of that Lender's participation in the LoanAdvance; and |
(c) |
Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date under a Tranche, make available to the Facility Agent the amount due from that Lender under Clause 2.2 (Lenders' participations in Loan).
Subject to the provisions of this Agreement, the Facility Agent shall on the Drawdown Date pay the amounts which the Facility Agent receives from the Lenders under Clause 4.54.6 (Lenders to make available Contributions) in the like funds as the Facility Agent received the payments from the Lenders:
(b) | in the case of an amount referred to in paragraph (bd)(ii) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of the Borrower which the Borrower shall specify; and |
in the case of an amount referred to in paragraph (d)(iii) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify; |
in the case of an amount referred to in paragraph (e)(ii)(B) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify; and |
in the case of an amount referred to in paragraph (cf) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify. |
The payment by the Facility Agent under Clause 4.64.7 (Disbursement of LoanAdvance) shall constitute the making of the LoanAdvance and the Borrower shall at that time become indebted, as principal and direct obligor, to each relevant Lender in an amount equal to that Lender's ContributionContributions.
5 |
5.1 |
The Borrower shall repay the Loan by twenty-four (24) consecutive six-monthly instalments from the earlier of (i) the Delivery Date and (ii) the date of actual disbursement of the Loan (the "Starting Point of Repayment").
5.2 |
The first repayment instalment shall be repaid on the date falling six (6) months after the Starting Point of Repayment and the last repayment instalment on the date falling one hundred and forty-four (144) months after the Starting Point of Repayment, each date of payment of an instalment being a "Repayment Date".
5.3 |
Each repayment instalment of the Loan shall be of an equal amount.
5.4 |
On the final Repayment Date, the Borrower shall additionally pay to the Facility Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
6 |
6.1 |
The Borrower shall provide notification, signed by a duly authorised signatory of the Borrower, to the SACE Agent (with a copy to the Facility Agent) at least [*] days before the Drawdown Date specifying which of the Fixed Interest Rate or the Floating Interest Rate shall be applicable until the date of payment of the final repayment instalment of the Loan.
6.2 |
If the Borrower has specified a Fixed Interest Rate pursuant to Clause 6.1 (Fixed or Floating Interest Rate), the Loan shall bear interest in respect of each Interest Period at the Fixed Interest Rate. Such interest shall accrue on the actual number of days elapsed based upon a 360 day year and shall be paid on the last day of each Interest Period.
6.3 |
If:
(a) | the Borrower has specified a Floating Interest Rate pursuant to Clause 6.1 (Fixed or Floating Interest Rate); or |
(d) | SIMEST has failed to make a net payment of interest to the Lenders pursuant to the Interest Make-up Agreement, |
the rate of interest on the Loan in respect of any Interest Period shall be the Floating Interest Rate applicable for that Interest Period and the following provisions of this Clause 6 (Interest) shall apply (in the case of the circumstances referred to in paragraph (b) above, with effect from the date on which the Interest Make-up Agreement ceases to be in effect, with such consequential amendments as shall be necessary to give effect to the switch from a Fixed Interest Rate to a Floating Interest Rate).
6.4 |
Subject to the provisions of this Agreement, interest on the Loan in respect of each Interest Period shall accrue on the actual number of days elapsed based upon a 360 day year and shall be paid by the Borrower on the last day of that Interest Period.
6.5 |
The Facility Agent shall notify the Borrower and each relevant Lender of each Floating 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.
6.6 |
(b) | Reference Bank Rate: If no Screen Rate is available for LIBOR for: |
(i) |
(ii) | the Interest Period of the Loan or any part of the Loan and it is not possible to calculate the Interpolated Screen Rate, |
(iii) | the applicable LIBOR shall be the Reference Bank Rate as of the Specified Time and for a period equal in length to the Interest Period of the Loan or that part of the Loan. |
6.7 |
(a) | Subject to paragraph (b) below, if LIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks. |
(b) | If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period. |
6.8 |
If before close of business in London on the Quotation Day for the relevant Interest Period the Facility Agent receives notification from a Lender or Lenders (whose participations in the Loan or the relevant part of the Loan in aggregate exceed [*] per cent. of the Loan or the relevant part of the Loan as appropriate) that the cost to it or each of them of funding its participation in the Loan or that part of the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 6.9 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
6.9 |
(i) | the Margin; and |
(d) | If paragraph (e) below does not apply and any rate notified to the Facility Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero. |
(e) | If this Clause 6.9 (Cost of funds) applies pursuant to Clause 6.8 (Market disruption) and: |
(i) |
(ii) | a Lender does not supply a quotation by the time specified in sub-paragraph (ii) of paragraph (a) above, |
the cost to that Lender of funding its participation in the Loan or the relevant part of the Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be LIBOR.
6.10 |
If a Screen Rate Replacement Event has occurred in relation to the Screen Rate for Dollars, any amendment or waiver which relates to:
(i) | providing for the use of a Replacement Benchmark; and |
(ii)
(A) | aligning any provision of any Finance Document to the use of that Replacement Benchmark; |
(B) | enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement); |
(C) | implementing market conventions applicable to that Replacement Benchmark; |
(D) | providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or |
(E) | adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent of the Facility Agent (acting on the instructions of the Majorityall Lenders), SACE and SIMEST (if applicable) and the Borrower.
(b) | If, as at 30 September 20212022 this Agreement provides that the rate of interest for the Loan in Dollars is to be determined by reference to the Screen Rate for LIBOR: |
(i) | a Screen Rate Replacement Event shall be deemed to have occurred on that date in relation to the Screen Rate for Dollars; and |
6.11 |
If no agreement is reached with the Borrower under Clause 6.10 (Replacement of Screen Rate), the Borrower may give the Facility Agent not less than 15 Business Days', or, if the Fixed Interest Rate has been selected pursuant to Clause 6.1 (Fixed or Floating Interest Rate), the Borrower may give the Facility Agent not less than 30 days' notice of its intention to prepay at the end of the interest period set by the Facility Agent.
6.12 | Prepayment; termination of Commitments |
A notice under Clause 6.11 (Notice of prepayment) shall be irrevocable; the Facility Agent shall promptly notify the Lenders and, if the Fixed Interest Rate has been selected by the Borrower, SIMEST of the Borrower's notice of intended prepayment, and:
(a) | on the date on which the Facility Agent serves that notice, the Total Commitments shall be cancelled; |
6.13 |
The provisions of Clause 16 (Cancellation, Prepayment and Mandatory Prepayment) shall apply in relation to the prepayment.
6.14 |
Notwithstanding anything to the contrary in this Agreement:
(ii) | occurring after the Relevant Date, each Lender will notify the Borrower (through the Facility Agent) immediately upon such Lender becoming aware of the Relevant Circumstances; |
6.15 |
(c) | In the event that a change in currency is not acceptable to the Lenders or the Borrower, the provision of paragraph (c) of Clause 6.3 (Floating Interest Rate) shall apply. |
7 |
7.1 |
The first Interest Period applicable to the Loanan Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
7.2 |
Subject to Clause 7.3 (Duration of Interest Periods for Repayment Instalments), each Interest Period shall be 6 months.
7.3 |
Any Interest Period that includes a Repayment Date shall expire on such Repayment Date.
8 |
8.1 |
The estimated SACE Premium for an amount equal to [*] (being [*] per cent. ([*]%) of the Original Maximum Loan Amount) is due and payable in two instalments as follows:
8.2 | Reimbursement by the Borrower of the SACE Premium |
The Borrower irrevocably agrees to pay the First Instalment, and to instruct the Tranche A Lenders to pay the Second Instalment on behalf of the Borrower as follows:
Consequently, the Borrower hereby irrevocably instructs the Facility Agent on behalf of the Tranche A Lenders to pay the Second Instalment to SACE on the Drawdown Date in accordance with paragraph (ciii) of Clause 2.1 (Amount of facility) of this Agreement and to reimburse the Borrower by the Borrower drawing under the Loan the amount of the First Instalment in accordance with paragraph (bii) of Clause 2.1 (Amount of facility) of this Agreement.
The First Instalment and Second Instalment each financed by the Loan will be repayable in any event by the Borrower to the Tranche A Lenders in the manner specified in Clause 5 (Repayment) and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan.
8.3 |
(c) | Each Party further undertakes not to act in a manner which is inconsistent with the terms of the SACE Insurance Policy and the Interest Make-up Agreement. |
8.4 |
(d) | To the extent the Borrower is entitled to the Refund, SACE shall transfer the Refund as soon as practicably possible to the SACE Agent who shall as soon as practicably possible following receipt thereof transfer such amount to the Borrower. The Borrower hereby acknowledges that SACE shall not be liable to pay interest to the Borrower on the amount of the Refund. |
(f) | Except as set out in paragraphs (a) to (c) above, no part of the SACE Premium is refundable to any Obligor. |
(g) | In no event shall the SACE Agent be liable for any refund of the SACE Premium to be made by SACE or for the calculation of any Refund and/or withholding thereof. |
8.5 |
(i) | no later than 30 days from the date of issuance of the relevant addendum to the SACE Insurance Policy in form and substance acceptable to the Lenders, an amount of $[*], corresponding to the first instalment of the Additional SACE Premium; and |
Rating S&P and Moody's | pricing |
BB / Ba2 | [*]% |
BB- / Ba3 | [*]% |
The Additional SACE Premium is not financed. |
The Borrower has requested, and the Tranche C Lenders have agreed to finance the payment of one hundred per cent. (100%) of the second instalment of the Additional SACE Premium to |
the Borrower on the Delivery Date, it being agreed that such second instalment shall be paid to SACE in accordance with paragraph (a)(ii) of this Clause 8.5 (Additional Premium) and upon notification by SACE to the SACE Agent and the Borrower of the amount of the second instalment of the Additional SACE Premium.
Consequently, the Borrower hereby irrevocably instructs the Facility Agent on behalf of the Tranche C Lenders to pay the amount of the second instalment of the Additional SACE Premium to SACE on the Delivery Date in accordance with paragraph (c) of Clause 2.1 (Amount of facility) of this Agreement. |
SACE Premium refund = Loan amount outstanding at the time of the Leonardo Six Intended Delivery Date x [*]% x ((TTMi + 0.5)/2)/6.25) x (Revised SACE Premium Rate – p%),
where:
(i) | TTMi means Time To Maturity at the date of the Leonardo Six Intended Delivery Date being the number of years, with two decimals, between the Leonardo Six Intended Delivery Date and the final Repayment Date. |
(ii) | p% equals to [*]%. |
For avoidance of doubt, in case of discrepancy between this Clause 8.5 (Additional Premium) and the relevant provision of the SACE Insurance Policy, the SACE Insurance Policy shall prevail.
16.6 (Mandatory Prepayment in case of refund by SACE to the Borrower of the second instalment of the Additional SACE Premium).
no later than the earlier of (x) 30 days from the date of issuance of the relevant addendum to the SACE Insurance Policy and (y) the Drawdown Date under Tranche B, an amount equal to $778,867.69, corresponding to fifteen per cent (15%) of the Tranche B Premium; and |
no later than the Drawdown Date under Tranche B, an amount equal to $4,413,583.59, corresponding to eighty-five per cent (85%) of the Tranche B Premium. |
the amount referred to in paragraph (a)(i) above shall be reimbursed to the Borrower; and |
the amount referred to in paragraph (a)(ii) above shall be paid to SACE, |
and upon notification by SACE to the SACE Agent and the Borrower of the amount of the Tranche B Premium.
Consequently, the Borrower hereby irrevocably instructs the Facility Agent on behalf of the Tranche B Lenders to: |
reimburse to the Borrower the amount of the Tranche B Premium referred to in paragraph (a)(i) above; and |
pay to SACE the amount of the Tranche B Premium referred to in paragraph (a)(ii) above, |
no later than the Drawdown Date in accordance with paragraph (b)(ii) of Clause 2.1 (Amount of facility) of this Agreement.
The Tranche B Premium financed by part of Tranche B will be repayable in any event by the Borrower to the Tranche B Lenders in the manner specified in Clause 5 (Repayment) and under any and all circumstances including but without limitation in the event of prepayment or acceleration of the Loan. |
shall confirm in such notice that the remaining Tranche B Commitments shall be deemed to be cancelled. The Borrower acknowledges, for the avoidance of doubt, that the shortfall (if any) to be paid to the Builder at the Delivery Date shall be funded and paid directly by the Borrower to the Builder.
Except as set out in paragraph (c) and (e) above, no part of the Tranche B Premium is refundable to any Obligor. |
In no event shall the SACE Agent be liable for any refund of the Tranche B Premium to be made by SACE or for the calculation of any Refund and/or withholding thereof. |
9 |
The following fees shall be due by the Borrower and payable as required hereunder:
(i) | from the Effective Date to and including 31 December 2019, [*] per cent. ([*]% p.a.) per annum; |
(ii) | from 1 January 2020 to and including 31 December 2020, [*] per cent. ([*]% p.a.) per annum; |
(iii) | from 1 January 2021 to and including the Delivery Date, [*] per cent. ([*]% p.a.) per annum; |
and calculated on the undrawn amount of the Original Maximum Loan Amount prior to the date of this Agreement and thereafter on the Amended Maximum Loan Amount and payable in arrears on the date falling six (6) months after the Effective Date 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 Facility Agent of the written cancellation notice (as described in paragraph (a) of Clause 16.1 (Cancellation)) or written termination notice (as described in paragraph (b) of Clause 16.1 (Cancellation)) (as applicable) sent by the Borrower, 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 Original Maximum Loan Amount is assumed to be six hundred and ninety million seven hundred and eighteen thousand and seventy Dollars and fifty-four cents ($690,718,070.54) and the Amended Maximum Loan Amount is assumed to be seven hundred and ninety million, eight hundred fifty eight thousand, four hundred forty six United States Dollars and ninety eight Cents ($790,858,446.98);
(c) | to the Facility Agent, for its own account, an agency fee in the amount and payable at the time separately agreed in writing between the Facility Agent and the Borrower; |
(d) | to the SACE Agent, a SACE agency fee in the amount and payable at the time separately agreed in writing between the SACE Agent and the Borrower; and |
(e) | to the Security Trustee, a security trustee fee in the amount and payable at the time separately agreed in writing between the Security Trustee and the Borrower. |
10 |
10.1 |
(a) |
"Protected Party" means a Secured Party 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.
"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 an Obligor to a Secured Party under Clause 10.2 (Tax gross-up) or a payment under Clause 10.3 (Tax indemnity).
10.2 |
(a) | Each 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. |
10.3 |
(b) |
(i) |
(B) | under the law of the jurisdiction in which that Lender'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 Secured Party; or
(d) | A Protected Party shall, on receiving a payment from an Obligor under this Clause 10.3 (Tax indemnity), notify the Facility Agent. |
10.4 |