[*]: 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 19 May 2023
EXPLORER II NEW BUILD, LLC
as Borrower
and
NCL CORPORATION LTD.
as Guarantor
and
SEVEN SEAS CRUISES S. DE R.L.
as Charterer
and 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
SOCIÉTÉ GÉNÉRALE
HSBC BANK PLC
KFW IPEX-BANK GMBH
as Joint Mandated Lead Arrangers
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent
and SACE Agent
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Security Trustee
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a facility agreement originally dated 30 March 2016, (as amended from time to time, including as amended by a supplemental agreement dated 4 June 2020, as further amended and restated pursuant to an amendment and restatement agreement dated 17 February 2021, as further
amended pursuant to a supplemental agreement dated 23 December 2021 and as further amended pursuant to a supplemental agreement dated 16 December 2022) in respect of the part financing of the passenger cruise ship m.v. "SEVEN SEAS SPLENDOR"
Index
Schedules
Execution
Appendices
Form of Amended and Restated Facility Agreement (marked to indicate amendments)
Form of Amended and Restated Guarantee (marked to indicate amendments)
THIS AGREEMENT is made on 19 May 2023
Parties
(1) | EXPLORER II NEW BUILD, LLC, a limited liability company formed in the state of Delaware whose registered office is at Corporate Creations Network, Inc., 3411 Silverside Road, Tatnall Building Suite 104, Wilmington, DE 19810, United States of America as borrower (the "Borrower") |
(2) | NCL CORPORATION LTD., an exempted company incorporated under the laws of Bermuda with its registered office at Park Place, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda (the "Guarantor") |
(3) | 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 (the "Holding") |
(4) | SEVEN SEAS CRUISES S. DE R.L., a Panamanian limited liability company ("sociedad de responsabilidad limitada") domiciled in Panama whose resident agent is at Arifa Building, West Boulevard, Santa Maria Business District, Panama, Republic of Panama and registered at the Mercantile Section of the Panama Public Registry at Microjacket 876, Document 1238212 since 7 November 2007 (the "Charterer" and "Shareholder") |
(5) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders (the "Lenders") |
(6) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France, SOCIÉTÉ GÉNÉRALE a French société anonyme having its registered office located at 29 Boulevard Haussmann, 75009 Paris under number Siren 552 120 222 at the Registre du Commerce et des Sociétés of Paris, France, HSBC BANK PLC of Level 2, 8 Canada Square, London, E14 5HQ, United Kingdom and KFW IPEX-BANK GMBH of Palmengartenstraße, 5-9 60325, Frankfurt, as mandated lead arrangers (the "Mandated Lead Arrangers") |
(7) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as agent and SACE agent (the "Agent" and the "SACE Agent") |
(8) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, a French société anonyme having its registered office located at 12, Place des États-Unis, CS 70052, 92547 Montrouge Cedex, France registered under number Siren 304 187 701 at the Registre du Commerce et des Sociétés of Nanterre, France as security trustee (the "Security Trustee") |
Background
By the Original Facility Agreement, the Lenders agreed to make available to the Borrower a facility of the Dollar Equivalent of up to EUR 360,222,680.41 (not to exceed USD 498,187,967.01) for the purpose of assisting the Borrower in financing (i) payment or reimbursement under the Shipbuilding Contract of all or part of 80% of the Final Contract Price up to the Eligible Amount and (ii) payment to SACE of 100% of the SACE Premium. |
(B) | Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector and cruise operators, the Original Facility Agreement was amended pursuant to an amendment agreement dated 4 June 2020 (the "2020 Amendment Agreement"), amended and restated pursuant to an amendment and restatement agreement dated 17 February 2021 (the "February 2021 Amendment and Restatement Agreement"), further amended pursuant to a supplemental agreement dated 23 December 2021 (the "December 2021 Amendment Agreement") and further amended pursuant to a supplemental agreement dated 16 December 2022 (the "December 2022 Amendment Agreement") pursuant to which, inter alia, the parties agreed to the temporary amendment of certain covenants under the Guarantee and addition of certain covenants under the Original Facility Agreement. |
(C) | The Parties have agreed to amend and restate the Facility Agreement as set out in this Agreement for the purposes of, inter alia, documenting the transition from LIBOR to SOFR (as defined below). |
Operative Provisions
Definitions and Interpretation |
Definitions |
In this Agreement:
"2023 Finance Documents" means this Agreement and the New Mortgage Addendum.
"Amended and Restated Facility Agreement" means the Facility Agreement as amended and restated by this Agreement in the form set out in Appendix 1.
"Amended and Restated Guarantee" means the Guarantee as amended and restated by this Agreement in the form set out in Appendix 2.
"Effective Date" means the date on which the Agent notifies the Borrower, the other Creditor Parties, SIMEST and SACE as to the satisfaction of the conditions precedent as provided in paragraph (a) of Clause 2.1 (Conditions Precedent).
"Facility Agreement" means the Original Facility Agreement, as amended by the 2020 Amendment Agreement, as amended and restated by the February 2021 Amendment and Restatement Agreement, as further amended by the December 2021 Amendment Agreement and as further amended by the December 2022 Amendment Agreement.
"New Mortgage Addendum" means the addendum to the Mortgage in the agreed form.
"Obligors" means the Borrower, the Guarantor, the Holding, the Charterer and the Shareholder.
"Original Facility Agreement" means the facility agreement dated 30 March 2016 and made between, amongst others, (i) the Borrower, (ii) the Lenders, (iii) the Mandated Lead Arrangers, (iv) the Agent and the SACE Agent and (v) the Security Trustee.
"Party" means a party to this Agreement.
"SOFR" means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that
rate) published by the Federal Reserve Bank of New York (or for any other person which takes over the publication of that rate).
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 | Agreed forms of new, and supplements to, Finance Documents |
References in Clause 1.1 (Definitions) to any new or supplement to a Finance Document being in "agreed form" are to that Finance Document:
(a) | in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Agent); or |
1.5 | Designation as a Finance Document |
The Borrower and the Agent designate this Agreement as a Finance Document.
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 to enjoy the benefit of any term of this Agreement other than SACE and SIMEST, who may enforce or to 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. |
(c) | For the avoidance of doubt and in accordance with clause 35.4 (Third party rights) of the Facility Agreement, nothing in this Clause 1.6 (Third party rights) shall limit or prejudice the exercise by SACE of its rights under this Agreement or the Finance Documents in the event that such rights are subrogated or assigned to it pursuant to the terms of the SACE Insurance Policy. |
Conditions Precedent |
The Effective Date cannot occur unless: |
the Agent has received (or on the instructions of all the Lenders, waived receipt of) all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent; |
(b) | save as disclosed in writing to the Agent and SACE prior to the date of this Agreement, the representations and warranties contained in Clause 3 (Representations) are true and correct on, and as of, each such time as if each was made with respect to the facts and circumstances existing at such time; |
(d) | the Agent is satisfied that the Effective Date can occur and have not provided any instructions to the contrary informing the Parties that the Effective Date cannot occur. |
Upon fulfilment or waiver of the conditions set out in Clause 2.1 above, the Agent shall provide the Borrower and the Creditor Parties SIMEST and SACE with a copy of the executed certificate in the form set out in Schedule 3 (Form of Effective Date Certificate) confirming that the Effective Date has occurred and such certificate shall be binding on all Parties. |
2.3 | Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent provides the certificate described in Clause 2.2 above, the Creditor Parties authorise (but do not require) the Agent to execute and provide such certificate. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such certificate. |
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, the Amended and Restated Guarantee and the New Mortgage Addendum, 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, and, where appropriate, the Amended and Restated Guarantee and the New Mortgage Addendum, by reference to the circumstances then existing.
Amendment and Restatement of Facility Agreement and other Finance Documents |
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.
Specific amendments to the Guarantee |
With effect on and from the Effective Date, the Guarantee shall be amended and restated in the form of the Amended and Restated Guarantee and, as so amended and restated, the Guarantor confirms that:
(a) | its 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 terms as so amended and restated. |
Holding confirmation |
On the Effective Date, the Holding confirms that, notwithstanding the amendments made to the Finance Documents pursuant to this Agreement, the undertakings given by the Holding under the Guarantee, as amended and restated by this Agreement and updated with appropriate modifications to refer to this Agreement shall remain in 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.
4.4 | Security Confirmation |
Without prejudice to the provisions of the New Mortgage Addendum, on the Effective Date, each Obligor confirms that:
(a) | any Security Interest created by it under the Finance Documents extends to the obligations of the relevant Obligors 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 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. |
4.5 | 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) | in the case of the Guarantee, as amended and restated pursuant to Clause 4.2 (Specific amendments to the Guarantee); |
(c) | the Facility Agreement and the applicable provisions of this Agreement will be read and construed as one document; |
(d) | the Guarantee and the applicable provisions of this Agreement will be read and construed as one document; and |
(e) | 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. |
Further Assurance |
Clause 12.19 (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.
Costs, Expenses and Fees |
Clause 10.11 (Transaction Costs) 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.
Notices |
Clause 31 (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.
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.
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.
Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
Enforcement |
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. |
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 Agent. Failing this, the 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)
for and on behalf of)
EXPLORER II NEW BUILD, LLC )
GUARANTOR
SIGNED by) /s/___Daniel S. Farkas___________
duly authorised)
for and on behalf of)
NCL CORPORATION LTD. )
HOLDING
SIGNED by) /s/___Daniel S. Farkas___________
for and on behalf of)
NORWEGIAN CRUISE LINE)
HOLDINGS LTD.)
as its duly appointed attorney-in-fact)
in the presence of:)
CHARTERER
SIGNED by) /s/___Daniel S. Farkas___________
duly authorised)
for and on behalf of)
SEVEN SEAS CRUISES S. DE R.L. )
SHAREHOLDER
SIGNED by) /s/___Daniel S. Farkas___________
duly authorised)
for and on behalf of)
SEVEN SEAS CRUISES S. DE R.L. )
LENDERS
SIGNED by ) /s/_______Anne-Laure Orange___________
duly authorised )
for and on behalf of)
AND INVESTMENT BANK ) /s/_______Jérôme Leblond______________
SIGNED by ) /s/_______Varsha Sharan______________
duly authorised )
for and on behalf of)
HSBC BANK PLC)
SIGNED by ) /s/_______André Tiele________________
duly authorised )
for and on behalf of)
KFW IPEX-BANK GMBH) /s/_______Claudia Coenenberg________
SIGNED by ) /s/______Isabelle Seneca_____________
duly authorised )
for and on behalf of)
SOCIÉTÉ GÉNÉRALE )
MANDATED LEAD ARRANGERS
SIGNED by ) /s/_______Anne-Laure Orange___________
duly authorised)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE)
AND INVESTMENT BANK ) /s/_______Jérôme Leblond______________
SIGNED by ) /s/_______Varsha Sharan______________
duly authorised )
for and on behalf of)
HSBC BANK PLC)
SIGNED by ) /s/_______André Tiele________________
duly authorised )
for and on behalf of)
KFW IPEX-BANK GMBH) /s/_______Claudia Coenenberg________
SIGNED by ) /s/______Isabelle Seneca_____________
duly authorised )
for and on behalf of)
SOCIÉTÉ GÉNÉRALE )
AGENT
SIGNED by ) /s/_______Anne-Laure Orange___________
duly authorised )
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK ) /s/_______Jérôme Leblond______________
SACE AGENT
SIGNED by ) /s/_______Anne-Laure Orange___________
duly authorised )
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK ) /s/_______Jérôme Leblond______________
SECURITY TRUSTEE
SIGNED by ) /s/_______Anne-Laure Orange___________
duly authorised )
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE AND)
INVESTMENT BANK ) /s/_______Jérôme Leblond______________
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 30 March 2016
(as amended from time to time, including by a supplemental agreement dated 4 June 2020 and , as further amended and restated pursuant to an amendment and restatement agreement dated _________ 17 February 2021, as amended pursuant to a supplemental agreement dated 23 December 2021, as further amended pursuant to a supplemental agreement dated 16 December 2022 as further amended and restated by an amendment and restatement agreement dated ___________________2023)
explorer II new build, llc
as Borrower
and
the banks and financial institutions
listed in Schedule 1
as Lenders
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
SOCIÉTÉ GÉNÉRALE
HSBC BANK PLC
KFW IPEX-BANK GMBH
as Joint Mandated Lead Arrangers
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Agent and SACE Agent
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Security Trustee
with the support of
SACE S.p.A.
AMENDED AND RESTATED loaN AGREEMENT
relating to
the part financing of the passenger cruise ship m.v. "SEVEN SEAS SPLENDOR"
Index
Schedules
Execution
THIS AGREEMENT is originally made on 30 March 2016 (as amended by a supplemental agreement dated 4 June 2020 and , as further amended and restated pursuant to by an amendment and restatement agreement dated _________ February 202117 February 2021, as further amended by a supplemental agreement dated 23 December 2021, as further amended by a supplemental agreement dated 16 December 2022 and as further amended and restated by an amendment and restatement agreement dated _____________________2023)
Parties
EXPLORER II NEW BUILD, LLC, a limited liability company formed in the state of Delaware whose registered office is at Corporate Creations Network, Inc., 3411 Silverside Road, Tatnall Building Suite 104, Wilmington, DE 19810, United States of America as borrower (the "Borrower") |
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders (the "Lenders") |
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, SOCIÉTÉ GÉNÉRALE, KFW IPEX-BANK GMBH and HSBC BANK PLC as joint mandated lead arrangers (the "Joint Mandated Lead Arrangers") |
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, acting through its office at 12 Place des États-Unis, CS 70052, 92547, Montrouge Cedex, France, as agent (the "Agent") and SACE agent (the "SACE Agent") |
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, acting through its office at 12 Place des États-Unis, CS 70052, 92547, Montrouge Cedex, France, as the security trustee (the "Security Trustee") |
Background
By a shipbuilding contract dated as of 22 December 2015 entered into between (i) Fincantieri S.p.A., a company incorporated in Italy with registered office in Trieste, via Genova, 1, and having fiscal code 00397130584 (the "Builder") and (ii) the Borrower, the Builder agreed to design, construct and deliver, and the Borrower agreed to purchase, the 754 passenger cruise ship “Seven Seas Splendor” (ex. hull number [*]), which was delivered to the Borrower on [*]. |
The total price payable by the Borrower to the Builder under the Shipbuilding Contract is EUR 422,000,000 (the "Initial Contract Price") which has been paid on the following terms: |
as to [*]%, being EUR [*], by an initial payment which is to be within 5 Business Days after the effective date of the Shipbuilding Contract in accordance with Article 10.1(A) of the Shipbuilding Contract; |
as to [*]%, being EUR [*], on the later of the date of commencement of steel cutting and the date falling 26 months prior to the Delivery Date; |
as to [*]%, being EUR [*], on the later of keel laying in dry-dock and the date falling 20 months prior to the Delivery Date; |
as to [*]%, being EUR [*], on the later of launching and the date falling 12 months prior to the Delivery Date; and |
as to [*]%, being EUR [*], on delivery of the Ship on the Delivery Date, |
as each such event is described in the Shipbuilding Contract.
By a facility agreement dated 30 March 2016 (the "Original Facility Agreement"), the Lenders agreed to make available to the Borrower a facility of the Dollar Equivalent of up to EUR 360,222,680.41 (not to exceed $498,187,967.01) for the purpose of assisting the Borrower in financing (i) payment or reimbursement under the Shipbuilding Contract of all or part of 80% of the Final Contract Price up to the Eligible Amount and (ii) payment to SACE of 100% of the SACE Premium. |
(E) | Due to the unprecedented and extraordinary impacts of the Covid-19 pandemic on the cruise sector and cruise operators, SACE informed the cruise operators of its availability to evaluate certain measures (the "Temporary Measures") applicable in relation to certain qualifying loan agreements in order to assist companies which are financially sound but dealing with the impact of the temporary but unprecedented Covid-19 pandemic; the possibility to access to such measures was subject, amongst other things, to certain principles dated 15 April 2020 for cruise lines offered by SACE (the "Original Principles"). |
(F) | Pursuant to the consent request letter dated 18 April 2020, the Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Temporary Measures in relation to certain loan agreements listed therein, including the Original Facility Agreement, and requested, amongst other things, the deferral of repayments of principal under the Original Facility Agreement for a period of one year from 1 April 2020 to 31 March 2021 (the "Borrower Request"). |
On 25 May 2020, the Agent (for and on behalf of the Lenders) provided its consent to part of the Borrower Request in accordance with and subject to certain conditions as set out in an amendment to the Original Facility Agreement and to the Original Guarantee dated 4 June 2020 between, amongst others, the Borrower, the Agent and the SACE Agent (the "2020 Amendment Agreement") (the Original Facility Agreement as amended pursuant to the 2020 Amendment Agreement, the "Facility Agreement"). |
(I) | Pursuant to the consent request letter dated 3 December 2020, the Borrower and the Guarantor notified the Agent and the SACE Agent of the wish to benefit from the Extended Temporary Measures in relation to certain loan agreements listed therein, including the Facility Agreement, and requested, amongst other things, the deferral of repayments of principal under the Facility Agreement for a further period of one year from 1 April 2021 to 31 March 2022 (the "Second Borrower Request"). |
By a supplemental agreement dated 16 December 2022 and made between, amongst others, the Borrower, the Guarantor, the Holding, the Agent and the SACE Agent (the "December 2022 Amendment Agreement"), the Parties agreed to, inter alia, amend certain financial covenants and certain other provisions under the Original Facility Agreement (as amended by the 2020 Amendment Agreement, as amended and restated by the 2021 Amendment and Restatement Agreement and as amended by the December 2021 Amendment Agreement). |
This Agreement sets out the terms and conditions of the Facility Agreement as amended and restated by the 2023 Amendment and Restatement Agreement. |
Operative Provisions
Interpretation |
Definitions |
Subject to Clause 1.5 1.6 (General Interpretation), in this Agreement:
"2020 Amendment Agreement" has the meaning given to such term in Recital (G).
"2020 Deferral Commitment" means in relation to any Lender as listed in Schedule 1 (Lenders and Commitments) to the 2020 Amendment Agreement, the amount in Dollars expressed as a percentage set opposite its name under the heading "Commitment" and the amount of any other commitment attributable to it (including the related 2020 Deferral Tranche Premium payable to SACE) under this Agreement in respect of the 2020 Deferral Tranche.
"2020 Deferral Effective Date" has the meaning given to the term Effective Date in the 2020 Amendment Agreement.
"2020 Deferral Fee Letters" means any letter between the Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the 2020 Amendment Agreement.
"2020 Deferral Final Repayment Date" means the Repayment Date falling 3 years and six months after the 2020 Deferral Repayment Starting Point, or, if earlier, the date on which the 2020 Deferral Tranche has been repaid or prepaid in full, as further set out in Schedule 6 (Deferred Repayment Schedule).
"2020 Deferral Period" means the period from 1 April 2020 to 31 March 2021.
"2020 Deferral Repayment Starting Point" means the date of the first Repayment Date falling after 31 March 2021, namely 30 July 2021.
"2020 Deferral Tranche" means the part of the Loan made available to the Borrower to finance the aggregate of the 2020 Deferred Repayment Instalments and the related 2020 Deferral Tranche Premium payable to SACE (amounting to zero point ten per cent. (0.10%) of the Total Commitments as of 1 April 2020) in a principal amount not exceeding thirty-five million, nine hundred and twenty-five thousand, three hundred and sixty-nine Dollars and ninety-nine Cents ($35,925,369.99).
"2020 Deferral Tranche Premium" has the meaning given to such term in paragraph (a) of Clause 8.5 9.5 (Deferral Tranches – additional premium).
"2020 Deferred Repayment Instalments" means the repayment instalments due during the 2020 Deferral Period.
"2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital J.
"2021 Deferral Commitment" means in relation to any Lender as listed in Schedule 1 (Lenders and Commitments) to the 2021 Amendment and Restatement Agreement, the amount in Dollars expressed as a percentage set opposite its name under the heading "Commitment" and the amount of any other commitment attributable to it under this Agreement in respect of the 2021 Deferral Tranche.
"2021 Deferral Effective Date" has the meaning given to the term Effective Date in the 2021 Amendment and Restatement Agreement.
"2021 Deferral Fee Letters" means any letter between the Agent or the SACE Agent and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the 2021 Amendment and Restatement Agreement.
"2021 Deferral Final Repayment Date" means the Repayment Date falling 4 years and six months after the 2021 Deferral Repayment Starting Point, or, if earlier, the date on which the 2021 Deferral Tranche has been repaid or prepaid in full, as further set out in Schedule 6 (Deferred Repayment Schedule).
"2021 Deferral Period" means the period from 1 April 2021 to 31 March 2022.
"2021 Deferred Repayment Instalments" means the repayment instalments due during the 2021 Deferral Period.
"2021 Deferral Repayment Starting Point" means the date of the first Repayment Date falling after 31 March 2022, namely 29 July 2022.
"2021 Deferral Tranche" means the part of the Loan made or to be made available to the Borrower to repay the aggregate of the 2021 Deferred Repayment Instalments, including, for the avoidance of doubt, the repayment instalments due pursuant to paragraph (a) of Clause 5.5 (Repayment of Deferral Tranches).
"2021 Deferral Tranche Premium" has the meaning given to such term in Clause 8.5(b9.5(b) (Deferral Tranches – additional premium).
"2021 Amendment and Restatement Agreement" has the meaning given to such term in Recital (J).
"2023 Amendment and Restatement Agreement" has the meaning given to such term in Recital (M).
"2023 Effective Date" has the meaning given to the term Effective Date in the 2023 Amendment and Restatement 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.
"Agent" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of EUR 7,851,636,342.00 and its registered office located at 12 Place des États-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 25 26 (Role of the Agent and the Joint Mandated Lead Arrangers).
"Annex VI" means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997, 2005, 2007, 2008, 2010 and 2012).
"Approved Broker" means Clarkson Platou, Barry Rogliano Salles, Fearnleys AS, Rocca & Partners, Brax Shipbrokers AS (or any Affiliate of such person through which valuations are commonly issued) or such other shipbroker or ship valuer experienced in valuing cruise ships nominated by the Borrower and approved by the Agent.
"Approved Flag" means the Marshall Islands flag, the Bahamas flag or such other flag as the Agent may approve from time to time.
"Approved Manager" means the Borrower, Seven Seas as bareboat charterer, Prestige Cruise Services LLC, or any other company (whether or not a member of the Group) which the Agent may 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 (Seven Seas (as bareboat charterer), a letter of undertaking executed or to be executed by the Approved Manager in favour of the Agent, which will include, without limitation, an agreement by the Approved Manager to subordinate its rights against the Ship and the Borrower to the rights of the Secured Parties under the Finance Documents, in the agreed form.
"Approved Project" means any of the projects identified in the Approved Projects List.
"Approved Projects List" means the approved projects list provided by the Guarantor and accepted by the Agent prior to the December 2021 Effective Date.
"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 the period commencing on the date of the Original Facility Agreement and ending on:
the earlier to occur of (i) the Delivery Date and (ii) 27 September 2020 (or such later date as the Agent may, with the authorisation of the Lenders, agree with the Borrower); or |
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated. |
"Backstop Rate Switch Date" means 30 June 2023 or any other date agreed between the Agent, the Majority Lenders and the Borrower.
"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 Seven Seas as bareboat charterer which shall be entered into no later than the Delivery Date in the form of draft approved by the Agent before the date of the Original Facility Agreement with such reasonable changes thereto as the Agent may approve from time to time.
"Base Rate" means one Euro for 1.3830 Dollars.
(a) | for the purposes of Recital (B) above, a day (other than a Saturday or a Sunday) on which banks are open in Paris, New York, Milan and Rome;and |
(in relation to the fixing of an interest rate for a Term SOFR Loan) which is a US Government Securities Business Day. |
the short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or |
if that target is not a single figure, the arithmetic mean of: |
the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and |
the lower bound of that target range. |
"Central Bank Rate Adjustment" means in relation to the Central Bank Rate prevailing at close of business on any US Government Securities Business Day, the 20 per cent trimmed arithmetic mean calculated by the Agent (or by any other Creditor Party which agrees to determine that mean in place of the Agent), of the Central Bank Rate Spreads for the five most immediately preceding US Government Securities Business Days for which SOFR is available.
"Central Bank Rate Spread" means in relation to any US Government Securities Business Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Creditor Party which agrees to calculate that rate in place of the Agent) of:
SOFR for that US Government Securities Business Day; and |
the Central Bank Rate prevailing at close of business on that US Government Securities Business Day. |
"Certified Copy" means in relation to any document delivered or issued by or on behalf of any company, a copy of such document certified as a true, complete and up-to-date copy of the original by any of the directors or the secretary or assistant secretary or any attorney-in-fact for the time being of that company.
"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" (Commercial Interest Reference Rate) means 2.76% per annum or any other CIRR rate being the fixed rate for medium and long term export credits in Dollars applicable to the
financing of the Ship according to the Organisation for Economic Co-operation and Development rules as determined by the competent Italian Authorities.
"CISADA" means the United States Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 as it applies to non-US persons.
"Code" means the United States Internal Revenue Code of 1986.
"Commitment" means, in relation to a Lender, the percentage of the Maximum Loan Amount set opposite its name in Schedule 1 (Lenders and Commitments) (including, in relation to a Lender, its Deferral Commitments), or, as the case may require, the amount specified in the relevant Transfer Certificate, 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).
"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 Secured Party becomes aware in its capacity as, or for the purpose of becoming, a Secured Party or which is received by a Secured Party in relation to, or for the purpose of becoming a Secured Party under, the Finance Documents or the Loan from either:
any member of the Group or any of its advisers; or |
another Secured Party, if the information was obtained by that Secured 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:
is or becomes public information other than as a direct or indirect result of any breach by that Secured Party of Clause 32 33 (Confidentiality); or |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
is known by that Secured Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Secured Party after that date, from a source which is, as far as that Secured Party is aware, unconnected with the Group and which, in either case, as far as that Secured Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
"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 Agent.
"Contribution" means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"Conversion Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date and notified to the Borrower as being the lower of:
the Base Rate; or |
the FOREX Contracts Weighted Average Rate. |
"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.
"Credit Adjustment Spread" means 0.42826% per annum.
"Creditor Party" means the Agent, the Security Trustee, the SACE Agent, the Joint Mandated Lead Arrangers or any Lender, whether as at the date of the Original Facility Agreement or at any later time.
"Daily Rate" means for any US Government Securities Business Day:
SOFR for that US Government Securities Business Day; or |
if SOFR is not available for that US Government Securities Business Day, the percentage rate per annum which is the aggregate of: |
the Central Bank Rate for that US Government Securities Business Day; and |
the applicable Central Bank Rate Adjustment; or |
if paragraph (b) above applies but the Central Bank Rate for that US Government Securities Business Day is not available, the percentage rate per annum which is the aggregate of: |
the most recent Central Bank Rate for a day which is no more than five US Government Securities Business Days before that US Government Securities Business Day; and |
the applicable Central Bank Rate Adjustment, |
rounded, in either case, to five decimal places and if, in either case, the aggregate of that rate and the applicable Credit Adjustment Spread is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is zero.
"Daily Simple SOFR" means, for any day, a rate per annum equal to the Daily Rate for the day that is:
for as long as the Interest Make-Up Agreement is in full force and effect, ten (10) US Government Securities Business Days; or |
if the Interest Make-Up Agreement ceases to be in full force and effect, five (5) US Government Securities Business Days, |
prior to (i) if such day is a US Government Securities Business Day, that day or (ii) if such day is not a US Government Securities Business Day, the US Government Securities Business Day immediately preceding such day.
"December 2021 Amendment Agreement" has the meaning given to such term in Recital (K).
"December 2021 Effective Date" has the meaning given to the term Effective Date in the December 2021 Amendment Agreement.
"December 2021 Fee Letters" means any letter between the Agent (or the SACE Agent, as applicable) and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the December 2021 Amendment Agreement.
"December 2022 Amendment Agreement" has the meaning given to such term in Recital (L).
"December 2022 Fee Letters" means any letter between the Agent (or the SACE Agent, as applicable) and any Obligor which sets out the fees payable in connection with the arrangements contemplated by the December 2022 Amendment Agreement.
"Deferral Commitment" means the 2020 Deferral Commitment or the 2021 Deferral Commitment and, together, "Deferral Commitments".
"Deferral Fee Letters" means any of the 2020 Deferral Fee Letters and/or the 2021 Deferral Fee Letters.
"Deferral Final Repayment Date" means any of the 2020 Deferral Final Repayment Date and/or the 2021 Deferral Final Repayment Date.
"Deferral Period" means the period from 1 April 2020 to 31 March 2022.
"Deferral Prepayment Event" means the occurrence of any event entitling the Agent to exercise any rights granted to it pursuant to Clause 16.5 17.5 (Breach of new covenants or the Principles), including, without limitation, the ability to cancel any part, or demand the immediate repayment of, any Deferral Tranche and to terminate the waiver of the covenant granted pursuant to Clause 15 16 (Security Value Maintenance) or the waiver of the financial covenants granted pursuant to paragraphs (b) and (c) of clause 11.15 (Financial Covenants) of the Guarantee.
"Deferral Tranche" means the 2020 Deferral Tranche or the 2021 Deferral Tranche.
"Deferral Tranche Premia" has the meaning given to such term in paragraph (b) of Clause 8.5 9.5 (Deferral Tranches – additional premium).
"Deferred Costs Percentage" means:
(a) | in relation to the 2020 Deferral Tranche, 0% p.a.; and |
(b) | in relation to the 2021 Deferral Tranche, 0% p.a.. |
"Delivered Vessel Facilities" means, together, Marina Facility Agreement, Riviera Facility Agreement, Seven Seas Explorer Facility Agreement and this Agreement (as further amended, restated and supplemented from time to time).
"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 Agent on the Conversion Rate Fixing Date to be the equivalent of an amount in Euro at the Conversion Rate.
"Dollars" and "$" means the lawful currency for the time being of the United States of America.
"Drawdown Date" means the date on which the Loan 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 Agent approves or reasonably requires).
"Earnings" means all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower, by Seven Seas as bareboat charterer and which arise out of the use or operation of the Ship, including (but not limited to):
all freight, hire, fare and passage moneys, compensation payable to the Borrower or the Agent in the event of requisition of the Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Ship; |
all moneys which are at any time payable under Insurances in respect of loss of earnings; |
all moneys which are at any time payable to the Borrower in respect of the general average contribution; and |
if and whenever the Ship is employed on terms whereby any moneys falling within paragraphs (a) or (b) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship. |
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Eligible Amount" means eighty per cent. (80%) of the lesser of:
the Dollar Equivalent of EUR 436,770,000; and |
the Dollar Equivalent of the Final Contract Price. |
"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:
any release, emission, spill or discharge into the Ship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the Ship; or |
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than the Ship and which involves a collision between the Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or the Ship and/or any Obligor and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from the Ship and in connection with which the Ship is actually or potentially liable to be arrested and/or where any Obligor and/or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval. |
"Environmental Law" means any present or future law relating 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.
"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" 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 19.1 (Events of Default).
"Existing Indebtedness" means Financial Indebtedness referred to in the financial statements of the Guarantor delivered to the Agent prior to the date of this Agreement.
"Exporter Declaration" means a declaration in the form required by SIMEST at the relevant time duly signed by an authorised signatory of the Builder.
"Facility Agreement" has the meaning given to such term in Recital G.
"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
"Fallback Interest Payment" means the aggregate amount of interest that is, or is scheduled to become, payable under paragraph (d) of Clause 7.9 (Unavailability of Term SOFR) and relates to a Term SOFR Loan.
sections 1471 to 1474 of the Code or any associated regulations; |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or |
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
"FATCA Application Date" means:
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; |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or |
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 Effective Date" has the meaning given to the term Effective Date in the 2021 Amendment and Restatement Agreement.
"Fee Letter" means any letter dated on or about the date of the Original Facility Agreement between the SACE Agent and the Borrower setting out the fees referred to in paragraph (f) of Clause 9.1 10 (Fees).
"Final Contract Price" has the meaning given in Recital (C).
"Finance Documents" means:
the 2020 Amendment this Agreement; |
(b) |
the Deferral Fee Letters; |
the December 2021 Amendment Agreement; |
the December 2022 Amendment Agreement; |
the 2023 Amendment and Restatement Agreement; |
the December 2021 Fee Letters; |
the Deferral Fee Letters; |
the December 2022 Fee Letters; |
(e)any Fee Letter; |
(f)the Guarantee; |
(g)the Tripartite General Assignment; |
(h)the Mortgage; |
(i)the Mortgage Addenda; |
(j)the Post-Delivery Assignment; |
(k)the Limited Liability Company Interests Security Deed; |
(l)the Approved Manager's Undertaking; |
(m)any Transfer Certificate; |
(n)any other document (whether creating a Security Interest or not) which is executed as security for, or for the purpose of establishing any priority or subordination arrangement in relation to, the Secured Liabilities; and |
(o)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 Agent. |
"Financial Indebtedness" means, in relation to a person (the "debtor"), a liability of the debtor:
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; |
under any loan stock, bond, note or other security issued by the debtor; |
under any acceptance credit, guarantee or letter of credit facility made available to the debtor; |
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; |
under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; |
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person; or |
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 9.1 (SACE Premium).
"Fixed Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of:
the Margin; and |
the CIRR. |
"Floating Interest Rate" means, in respect of any Interest Period, the rate per annum determined by the Agent to be the aggregate of::
in relation to each LIBOR Loan, the percentage rate per annum which is the aggregate of: |
(a)the Margin; and |
in relation to each Term SOFR Loan, the percentage rate per annum which is the aggregate of: |
the Margin; |
the Term SOFR Reference Rate; and |
the Credit Adjustment Spread. |
"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:
matures not later than the Intended Delivery Date, provided that option arrangements may mature up to one month after such date if at the time they are entered into there exists a reasonable uncertainty as to the date on which the Ship will be delivered; |
is entered into by the Borrower or the Guarantor or a combination of the foregoing not later than two (2) days before the Conversion Rate Fixing Date so that the Borrower, directly or through the Guarantor, purchases or may purchase Euro with Dollars at a pre-agreed rate; and |
is notified to the Agent within ten (10) days of its execution but in any event no later than the day preceding the Conversion Rate Fixing Date, with a Certified Copy of each such contract being delivered to the Agent at such time. |
"FOREX Contracts Weighted Average Rate" means the rate determined by the Agent on the Conversion Rate Fixing Date in accordance with the following principles which (inter alia) are intended to take into account any maturity mismatch between the maturity of the FOREX Contracts and the Intended Delivery Date as well as FOREX Contracts that are unwound as part of the hedging strategy of the Borrower:
FOREX Contracts that are spot or forward foreign exchange contracts, if any, shall be valued at the contract value (taking into account any rescheduling); |
the difference between the Euro amount available under (a) above and the Euro amount balance payable to the Builder on the Delivery Date is assumed to be purchased at the official daily fixing rate of the European Central Bank for the purchase of Euro with Dollars as displayed on "Reuters Page ECB 37" (or such other pages as may replace that page on that service or a successor service) at or around 2 p.m. (Paris time) on the Conversion Rate Fixing Date; |
any FOREX Contract which is an option or collar arrangement and is not unwound at the Conversion Rate Fixing Date will be marked to market and the resulting profit or loss shall reduce or increase the Dollar countervalue of the purchased Euro; |
any FOREX Contract which is an option or collar arrangement and is sold or purchased back at the time FOREX Contract(s) are entered into for an identical Euro amount shall be accounted for the net premium cost or profit, as the case may be. |
Any marked to market valuation, as required in paragraph (c) above, shall be performed by Crédit Agricole Corporate and Investment Bank's dedicated desk in accordance with market practices. The Borrower shall have the right to request indicative valuations from time to time prior to the Conversion Rate Fixing Date.
"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to sub-paragraph (i) of paragraph (e) of Clause 6.10 7.11 (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.
"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 pursuant to the 2020 Amendment Agreement and , as amended and restated pursuant to the 2021 Amendment and Restatement Agreement, as amended pursuant to the December 2021 Amendment Agreement, as further amended pursuant to the December 2022 Amendment Agreement and as further amended and restated by the 2023 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, 55 Par-la-Ville Road, Hamilton HM 11, Bermuda.
"Historic Term SOFR" means, in relation to any Term SOFR Loan, the most recent applicable Term SOFR for a period equal in length to the Interest Period of that Term SOFR Loan and which is as of a day which is no more than five US Government Securities Business Days before the Quotation Day.
"Holding" means Norwegian Cruise Line Holdings Ltd., a company incorporated under the laws of Bermuda with its registered office at Park Place 55, 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.
(a) | the information package in connection with the "Debt Holiday" application in the form set out in Schedule 4 (Information Package) of the 2020 Amendment Agreement, submitted by the Borrower (or the Guarantor on its behalf) in order to obtain the benefit of the measures provided for in the Original Principles; and |
(b) | the information package in connection with the "Debt Holiday" application in the form set out in Schedule 4 (Information Package) of the 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).
all policies and contracts of insurance, including entries of the Ship in any protection and indemnity or war risks association, which are effected in respect of the Ship, its Earnings or otherwise in relation to it; and |
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 Agent in accordance with paragraph (a)(i) of Clause 3.4 (No later than sixty (60) days before the Intended Delivery Date) or paragraph (c) of Clause 3.7 (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 Make-Up Agreement" means an interest make up agreement (Capitolato) to be entered into between SIMEST and the Agent on behalf of the Lenders and in form and substance acceptable to the Joint Mandated Lead Arrangers, whereby, inter alia, the return to the Lenders on the Loan made hereunder will be supplemented by SIMEST so that it equals that which the Lenders would have received if interest were payable on the Loan at LIBOR plus the Margin.
"Interest Period" means a period determined in accordance with Clause 7 8 (Interest Periods).
"Interpolated Screen RateHistoric Term SOFR" means, in relation to the Loan or any part of the Term SOFR Loan, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:
either: |
if no such Term SOFR is available for a period which is less than the Interest Period of that Term SOFR Loan, the most recent SOFR for a day which is no more than five US Government Securities Business Days (and no less than two US Government Securities Business Days) before the Quotation Day; and |
the most recent applicable Term SOFR (as of a day which is not more than five US Government Securities Business Days before the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Term SOFR Loan. |
"Interpolated Screen Rate" means, in relation to any LIBOR Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that LIBOR 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 LIBOR Loan, |
each as of the Specified Time for Dollars. .
"Interpolated Term SOFR" means, in relation to any Term SOFR Loan, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:
either |
the applicable Term SOFR (as of the Quotation Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Term SOFR Loan; or |
if no such Term SOFR is available for a period which is less than the Interest Period of that Term SOFR Loan, SOFR for the day which is five (5) US Government Securities Business Days before the Quotation Day; and |
the applicable Term SOFR (as of the Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Term SOFR Loan. |
"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.
"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.
"LIBOR" means, in relation to the Loan or any part of the LIBOR Loan:
(a) | the applicable Screen Rate as of the Specified Time for Dollars dollars and for a period equal in length to the Interest Period of the Loan or that part of the LIBOR Loan; or |
(b) | as otherwise determined pursuant to Clause 6.7 7.7 (Unavailability of Screen Rate before Rate Switch Date), |
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
"LIBOR Loan" means the Loan, any Deferral Tranche, any other part of the Loan or, if applicable, Unpaid Sum to which the Floating Interest Rate applies and which is not a Term SOFR Loan.
"Limited Liability Company Interests Security Deed" means a security pledge in relation to the limited liability company interests of the Borrower executed or to be executed by Seven Seas in favour of the Security Trustee in the agreed form.
"Loan" means the loan made or to be made available under this Agreement (including under the Deferral Tranches) or the principal amount outstanding for the time being of that loan.
before the Loan has been made, Lenders whose Commitments total [*] per cent. of the Total Commitments; and |
after the Loan 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.
in relation to the Fixed Interest Rate zero point twenty-five per cent. per annum (0.25% p.a.); and |
in relation to the Floating Interest Rate, one point seventy-five per cent. per annum (1.75% p.a.), save for the 2021 Deferral Tranche in respect of which it shall mean one point ninety-five per cent. (1.95%). |
"Marina Facility Agreement" means, in respect of m.v. MARINA, a facility agreement originally dated 18 July 2008 (as amended by a supplemental agreement dated 25 October 2010, as further amended and restated by an amendment and restatement agreement dated 31 October 2014, as amended by a supplemental agreement dated 4 June 2020, as further amended and restated by an amendment and restatement agreement dated 17 February 2021, as further amended by a supplemental agreement dated 23 December 2021 and as further amended by a supplemental agreement dated 16 December 2022), as further amended, restated and supplemented from time to time.
"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 the Marshall Islands, Bahamas or such other registry as the Agent may approve.
"Market Disruption Rate" means the percentage rate per annum which is the aggregate of the Term SOFR Reference Rate and the applicable Credit Adjustment Spread.
"Material Adverse Effect" means the occurrence of any event or circumstance which reasonably would be expected to have a material adverse effect on:
the business, operations, property, condition (financial or otherwise) of any Obligor or the Group as a whole; or |
the ability of any Obligor to perform its obligations under any Finance Document; or |
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Secured Party under any of the Finance Documents. |
"Maximum Loan Amount" means the aggregate of:
the Dollar Equivalent of Euro 349,416,000; |
100% of the Second Instalment of the SACE Premium payable on the original Drawdown Date, |
with (X) the Loan currently outstanding (including the drawn part of the 2020 Deferral Tranche and the 2021 Deferral Tranche) on the February 2021 Effective Date being equal to $426,413,887.05 and (Y) an amount equal to $44,480,298.60 under the 2021 Deferral Tranche being available for utilisation, to be made (or deemed to be made) available as provided for in this Agreement.
"Mortgage" means the Original Mortgage, as amended pursuant to both Mortgage Addenda and as may be further amended and/or supplemented from time to time.
"Mortgage Addenda" means:
(a) | the addendum to the Original Mortgage executed pursuant to the 2020 Amendment Agreement on 4 June 2020; and |
the addendum to the Original Mortgage (as amended pursuant to the addendum described in paragraph (a) and paragraph (b) above) executed pursuant to the 2023 Amendment and Restatement Agreement, on or about the date hereof. |
"Obligors" means the Borrower, the Guarantor, Seven Seas and (in the event that the Approved Manager is a member of the Group) the Approved Manager.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Original Facility Agreement" has the meaning given to such term in Recital (D).
"Original Guarantee" means the guarantee issued by the Guarantor in favour of the Security Trustee on 31 March 2016.
"Original Mortgage" means the first preferred Marshall Islands mortgage on the Ship, executed by the Borrower in favour of the Security Trustee on 30 January 2020.
"Original Principles" has the meaning given in Recital E.
"Overnight LIBOR" means, in relation to the Loan or any part of the LIBOR 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 6.7 7.7 (Unavailability of Screen Rate before Rate Switch Date), |
and if, in either case, that rate is less than zero, Overnight LIBOR shall be deemed to be zero.
"Overseas Regulations" means the United Kingdom Overseas Companies Regulations 2009.
"Parallel Debt" means any amount which an Obligor owes to the Security Trustee under Clause 26.2 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 12.13 13.13 (Financial Indebtedness and subordination of indebtedness). |
"Permitted Security Interests" means:
in the case of the Borrower: |
any of the Security Interests referred to in paragraph (b)(ii)(A) below, and |
any of the Security Interests referred to in paragraphs (b)(ii)(B), (b)(ii)(C), (b)(ii)(E), (b)(ii)(H) and (b)(ii)(I) below if, by reason of any chartering or management arrangements for the Ship approved by the Agent pursuant to the provisions of this Agreement, such Security Interests are created by the Borrower in the case of paragraphs (b)(ii)(C) or (b)(ii)(E) or incurred by the Borrower in the case of paragraphs (b)(ii)(B), (b)(ii)(H) or (b)(ii)(I); and |
in the case of the Guarantor: |
any of the Security Interests referred to in paragraphs (ii)(A), (ii)(D), (ii)(F) and (ii)(G) below, and |
any of the Security Interests referred to in paragraphs (C), (E), (H) and (I) below if, by reason of any chartering or management arrangements for the Ship approved by the Agent pursuant to the provisions of this Agreement, such Security Interests are created by the Guarantor in the case of paragraphs (C) or (E) or incurred by the Guarantor in the case of paragraphs (H) or (I); |
any Security Interest created by or pursuant to the Finance Documents and any deposits or other Security Interests placed or incurred in connection with any bond or other surety from time to time provided to the US Federal Maritime Commission in order to comply with laws, regulations and rules applicable to the operators of passenger vessels operating to or from ports in the United States of America; |
liens on the Ship up to an aggregate amount at any time not exceeding [*] Dollars ($[*]) for current crew's wages and salvage and liens incurred in the ordinary course of trading the Ship; |
any deposits or pledges up to an aggregate amount at any time not exceeding [*] Dollars ($[*]) to secure the performance of bids, tenders, bonds or contracts required in the ordinary course of business; |
any other Security Interest including in relation to the Existing Indebtedness over the assets of any Obligor other than the Borrower notified by the Borrower or any of the Obligors to the Agent and accepted by it prior to the date of this Agreement; |
other liens arising in the ordinary course of business of the Group unrelated to Financial Indebtedness and securing obligations not yet delinquent or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established provided that (i) the aggregate amount of all cash and the fair market value of all other property subject to such liens as are described in this paragraph (F) does not exceed [*] Dollars ($[*]) and (ii) such cash and/or other property is not an asset of the Borrower; |
subject to the other provisions of this Agreement and the Guarantee, any Security Interest in respect of existing Financial Indebtedness of a person which becomes a Subsidiary of the Guarantor or is merged with or into the Guarantor or any of its subsidiaries; |
liens in favour of credit card companies on unearned customer deposits pursuant to agreements therewith; and |
liens in favour of customers on unearned customer deposits. |
any Finance Document; |
any policy or contract of insurance contemplated by or referred to in Clause 12 13 (General Undertakings) or any other provision of this Agreement or another Finance Document; |
any other document contemplated by or referred to in any Finance Document; and |
any document which has been or is at any time sent by or to the Agent in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c). |
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or |
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.
"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 in Recital (H).
"Prohibited Payment" means:
any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would constitute bribery or an improper gift or payment under, or a breach of Sanctions, any laws of the Republic of Italy, England and Wales, Panama, the Council |
of the European Union, Germany, the United States of America or any other applicable jurisdiction; or
any offer, gift, payment, promise to pay, commission, fee, loan or other consideration which would or might constitute bribery within the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997. |
"Prohibited Person" means any person (whether designated by name or by reason of being included in a class of persons) against whom Sanctions are directed.
"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 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 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). :
"Quoted Tenor" means any period for which:
in relation to a LIBOR Loan, the Screen Rate is customarily displayed on the relevant page or screen of an information service (other than for one week and two months); and |
in relation to a Term SOFR Loan, Term SOFR is customarily displayed on the relevant page or screen of an information service. |
"Rate Switch Date" means the earlier of:
the Backstop Rate Switch Date; and |
any Rate Switch Trigger Event Date. |
"Rate Switch Trigger Event" means:
(1)
|
the administrator of the Screen Rate or its supervisor publicly announces that such administrator is insolvent; or |
provided that, in each case, at that time, there is no successor administrator to continue to provide the Screen Rate;
the supervisor of the administrator of the Screen Rate publicly announces that the Screen Rate has been or will be permanently or indefinitely discontinued for any Quoted Tenor; or |
the administrator of the Screen Rate or its supervisor publicly announces that the Screen Rate for any Quoted Tenor may no longer be used; or |
the supervisor of the administrator of the Screen Rate publicly announces or publishes information: |
stating that the Screen Rate for any Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying market and the economic reality that it is intended to measure and that such representativeness will not be restored (as determined by such supervisor); and |
with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication. |
"Rate Switch Trigger Event Date" means:
in the case of an occurrence of a Rate Switch Trigger Event described in sub-paragraph (1) of paragraph (1) of the definition of Rate Switch Trigger Event, the date on which the |
Screen Rate ceases to be published or otherwise becomes unavailable;
in the case of an occurrence of a Rate Switch Trigger Event described in sub-paragraph (2), (3) or (4) of paragraph (1) of the definition of Rate Switch Trigger Event, the date on which the Screen Rate for the relevant Quoted Tenor ceases to be published or otherwise becomes unavailable; and |
in the case of an occurrence of a Rate Switch Trigger Event described in paragraph (2) of the definition of Rate Switch Trigger Event, the date on which the Screen Rate for the relevant Quoted Tenor ceases to be representative of the underlying market and the economic reality that it is intended to measure (as determined by the supervisor of the administrator of such Screen Rate). |
"Reference Bank Quotation" means any quotation supplied to the 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 Agent at its request by the Reference Banks:
(a) | if: |
(i) | the Reference Bank is a contributor to the 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, as the rate at which the relevant Reference Bank could fund itself in Dollars for the relevant period with reference to the unsecured wholesale funding market. |
"Reference Banks" means such entities as may be appointed by the Agent in consultation with the Borrower.
"Relevant Interbank Market" means the London interbank market.
in relation to this Agreement (as further amended, restated and supplemented from time to time), 29 January 2027; |
in relation to the Marina Facility Agreement, 19 January 2027; |
in relation to the Riviera Facility Agreement, 27 October 2026; and |
in relation to the Seven Seas Explorer Facility Agreement, 31 December 2026. |
"Reinstatement Event" means the final Reinstatement Date or any date when all Deferral Tranches under the Delivered Vessel Facilities (as defined therein) are repaid or prepaid in full.
"Relevant Jurisdiction" means, in relation to an Obligor:
(a) | its jurisdiction of incorporation; |
(b) | any jurisdiction where any asset subject to, or intended to be subject to, any of the Security Interests created, or intended to be created, under the Finance Documents to which it is a party is situated; |
(c) | any jurisdiction where it conducts its business; and |
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. |
subject to paragraph (b) below, the London interbank market; and |
on or after the Rate Switch Date, the market for overnight cash borrowing collateralised by US Government securities. |
"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Repayment Date" means a 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 |
any Relevant Nominating Body, |
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;
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".
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"Restricted Creditor Party" means a Creditor Party which serves a notice pursuant to paragraph (a) of Clause 1.5 1.6 (Non-applicable provisions between the Obligors, German Lenders and any Creditor Party subject to the EU Blocking Regulation).
"Riviera Facility Agreement" means, in respect of m.v. RIVIERA, a facility agreement originally dated 18 July 2008 (as amended by a supplemental agreement dated 25 October 2010, as amended by a side letter dated 29 March 2012, as amended and restated by an amendment and restatement agreement dated 31 October 2014, as amended by a framework agreement dated 31 January 2018, as amended by a supplemental agreement dated 4 June 2020, as further amended and restated by an amendment and restatement agreement dated 17 February 2021, as further amended by a supplemental agreement dated 23 December 2021 and as further amended by a supplemental agreement dated 16 December 2022), as further amended, restated and supplemented from time to time.
"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 EUR 7,851,636,342.00 and its registered office located at 12 Place des États-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 25 26 (Role of the Agent and the Joint Mandated Lead Arrangers).
"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 by SACE for the benefit of the Lenders in respect of 95% of the Loan in form and substance satisfactory to the Agent and the Lenders.
"SACE Premium" means the amount payable by the Borrower to SACE directly or through the Agent in several instalments in respect of the SACE Insurance Policy as set out in Clause 8 9 (SACE Premium and Italian Authorities), including the Deferral Tranche Premia (provided, for the avoidance of doubt, that the 2021 Deferral Tranche Premium shall not be financed).
"SACE Required Documents" means in relation to the Drawdown Notice:
a duly completed and executed Qualifying Certificate; and |
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 sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or imposed by any member state of the European Union or Switzerland; |
imposed by CISADA or OFAC; or |
otherwise imposed by any law or regulation, |
by which any Obligor is bound or to which it is subject or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of any Obligor.
"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 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:
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)
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or |
provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate; |
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 |
(v) | the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Borrower) temporary; or |
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 9.1 (SACE Premium).
"Secured Liabilities" means all liabilities which the Borrower, the Obligors or any of them have, at the date of the Original Facility Agreement 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 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 mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien, assignment, hypothecation or any other security interest of any kind or other agreement or arrangement having the effect of conferring security; |
the security rights of a plaintiff under an action in rem; and |
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution. |
"Security Period" means the period commencing on the date of the Original Facility Agreement and ending on the date on which:
all amounts which have become due for payment by the Borrower or any Obligor under the Finance Documents have been paid; |
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document; |
the Agent does not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of the Borrower or an Obligor or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document. |
the Security Interests expressed to be granted in favour of the Security Trustee as trustee for the Secured Parties and all proceeds received or recovered by or on behalf of the Security Trustee under or by virtue of any Security Interest including any money or other assets which are received or recovered by it as a result of the enforcement or exercise by it of such a Security Interest or right; |
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; |
the Security Trustee's interest in any turnover trust created under the Finance Documents; |
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Trustee is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties, |
except:
rights intended for the sole benefit of the Security Trustee; and |
any moneys or other assets which the Security Trustee has transferred to the 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 Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which is at any relevant time one hundred per cent (100%) of the Loan.
"Security Trustee" means Crédit Agricole Corporate and Investment Bank, a French "société anonyme", having a share capital of EUR 7,851,636,342.00 and its registered office located at 12 Place des États-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 27 (The Security Trustee).
"Security Value" means the amount in Dollars (as certified by the Agent whose certificate shall, in the absence of manifest error, be conclusive and binding on the Borrower and the Agent) which, at any relevant time, is the aggregate of (i) the market value of the Ship as most recently
determined in accordance with Clause 13.4 14.4 (Valuation of the Ship); and (ii) the market value of any additional security for the time being actually provided to the Agent pursuant to Clause 15 16 (Security Value Maintenance).
"Servicing Party" means the Agent or the Security Trustee.
"Seven Seas" means Seven Seas 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.
"Seven Seas Explorer Facility Agreement" means, in respect of m.v. SEVEN SEAS EXPLORER, a facility agreement originally dated 31 July 2013 (as amended and restated by an amendment and restatement agreement dated 31 October 2014, as amended by a supplemental agreement dated 4 June 2020, as further amended and restated pursuant to an amendment and restatement agreement dated 17 February 2021, as further amended by a supplemental agreement dated 23 December 2021 and as further amended by a supplemental agreement dated 16 December 2022), as further amended, restated and supplemented from time to time.
"Ship" means the passenger cruise ship "Seven Seas Splendor" (ex. hull number [*]) in the in the registered ownership of the Borrower under the Marshall Islands maritime registry (official no. 7673).
"Shipbuilding Contract" has the meaning given in Recital (A).
"SIMEST" means Società Italiana per Le Imprese all'Estero - SIMEST Spa, which grants export subsidies in Italy under and according to the Italian Legislative Decree n. 143/98 and its amendments.
"SOFR" means the secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published (before any correction, recalculation or republication by the administrator) by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
"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 London time; and |
(b) | in relation to a Reference Bank Rate calculated by reference to the available quotations in accordance with Clause 6.8 7.8 (Calculation of Reference Bank Rate), noon on the Quotation Day. |
"Subsidiary" has the following meaning:
A a company (S) is a subsidiary of another company (P) if:
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or |
P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or |
P has the direct or indirect power to appoint or remove a majority of the directors of S; or |
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).
"Term and Revolving Credit Facilities" means the facilities granted pursuant to the credit agreement originally dated 24 May 2013 (as amended and restated from time to time) between, inter alios, the Guarantor and Voyager Vessel Company, LLC as borrowers, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent.
"Term SOFR" means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate).
"Term SOFR Loan" means the Loan, any Deferral Tranche, any other part of the Loan or, if applicable, Unpaid Sum to which the Floating Interest Rate applies and which is, or becomes, a "Term SOFR Loan" pursuant to Clause 6 (Rate Switch).
"Term SOFR Reference Rate" means, in relation to any Term SOFR Loan:
the applicable Term SOFR as of the Quotation Day and for a period equal in length to the Interest Period of that Term SOFR Loan; or |
as otherwise determined pursuant to Clause 7.9 (Unavailability of Term SOFR), |
and if, in either case, the aggregate of that rate and the applicable Credit Adjustment Spread is less than zero, the Term SOFR Reference Rate shall be deemed to be such a rate that the aggregate of the Term SOFR Reference Rate and the Credit Adjustment Spread is zero.
"Total Loss" means:
actual, constructive, compromised, agreed or arranged total loss of the Ship; |
any expropriation, confiscation, requisition or acquisition of the Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority, (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 1 month redelivered to the Borrower's full control; |
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. |
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; |
in the case of a constructive, compromised, agreed or arranged total loss of the Ship, the earliest of: |
the date on which a notice of abandonment is given to the insurers; and |
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 |
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent acting reasonably and in consultation with the Borrower that the event constituting the total loss occurred. |
"Transaction Documents" means the Finance Documents and the Underlying Documents.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.
"Tripartite General Assignment" means the tripartite general assignment dated 30 January 2020 and executed by the Borrower as owner and Seven Seas as bareboat charterer in favour of the Security Trustee.
"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, the Bareboat Charter and any charter and associated guarantee in respect of which a notice of assignment is required to be served under the terms of the Tripartite 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 SACE Premium unpaid by the Borrower.
"US" means the United States of America.
"US Government Securities Business Day" means any day other than:
a Saturday or a Sunday; and |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its |
members be closed for the entire day for purposes of trading in US Government securities.
"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 |
(b)any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere. |
"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. |
Construction of certain terms |
In this Agreement:
"Agent", the "SACE Agent", the "Joint Mandated Lead Arranger", the "Security Trustee", any "Creditor Party", any "Secured Party", any "Lender", any "Obligor" or any other "person", shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
"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 2021the 2023 Effective Date.
"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;
a Lender's "cost of funds" in relation to its participation in the Loan or any part of the Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in the Loan or that part of the Loan for a period equal in length to the Interest Period of the Loan or that part of the Loan;
"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.
Construction of Insurance Terms |
"approved" means, for the purposes of Clause 14 15 (Insurance Undertakings), approved in writing by the 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 15 (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 clause 1 of the Institute Time Clauses (Hulls)(1/10/82) or Clause clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down clause Clause (1/10/71) or any equivalent provision.
"war risks" includes the risk of mines and all risks excluded by Clause clause 23 of the Institute Time Clauses (Hulls)(1/10/83) or clause 24 of the Institute Time Clauses (Hulls) (1/11/1995).
Meaning of "month" |
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:
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or |
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day; |
and "month" and "monthly" shall be construed accordingly.
Non-applicable provisions between the Obligors, German Lenders and any Creditor Party subject to the EU Blocking Regulation |
If a Creditor Party elects to be a Restricted Creditor Party, in respect of any proposed requirement to comply, enforcement, waiver, non-waiver, consent, variation or amendment of or in relation to a Finance Document relating to any Sanctions Provision (a "Relevant Action"), the Restricted Creditor Party shall notify the Agent in writing whether or not it shall be deemed to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve the Relevant Action and upon receipt by the Agent of such notice such Restricted Creditor Party shall be so deemed for such purposes. |
General Interpretation |
In this Agreement:
references in Clause 1.1 (Definitions) to a Finance Document or any other document being an "agreed form" are to the form agreed between the Agent (acting with the authorisation of each of the Creditor Parties and SACE) and the Borrower with any modifications to that form which the Agent (with the authorisation of the Majority Lenders and SACE in the case of substantial modifications) approves or reasonably requires; |
references to, or to a provision of, a Finance Document or any other document are references to it as amended, amended and restated or supplemented, whether before the date of this Agreement or otherwise; |
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; |
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term; |
words denoting the singular number shall include the plural and vice versa; and |
Clauses 1.1 (Definitions) to 1.5 1.6 (General Interpretation) apply unless the contrary intention appears. |
Headings |
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.
Schedules |
The schedules form an integral part of this Agreement.
Effective Date |
This Agreement is effective from the 2023 Effective Date.
Facility |
Amount of facility |
Subject to the other provisions of this Agreement, the Lenders agree to make available to the Borrower a loan not exceeding the Maximum Loan Amount intended to be applied as follows:
in payment to the Builder, up to the Eligible Amount, of all or part of 70% of the Final Contract Price and in reimbursement to the Borrower of all or part of 10% 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 9.1 (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 9.1 (SACE Premium). |
Lenders' participations in Loan |
Subject to the other provisions of this Agreement, each Lender shall participate in the Loan in the proportion which, as at the Drawdown Date, its Commitment bears to the Total Commitments.
Purpose of Loan |
The Borrower undertakes with each Secured Party to use the Loan only to pay for:
goods and services of Italian origin incorporated in the design, construction or delivery of the Ship; |
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; |
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 9.1 (SACE Premium); |
(d) | reimbursement to the Borrower of all or part of 10% of the Final Contract Price paid by the Borrower to the Builder prior to the Delivery Date; |
the Second Instalment of the SACE Premium payable in accordance with paragraph (b) of Clause 8.1 9.1 (SACE Premium); and |
(f) | such purposes, relating to the 2020 Deferral Tranche and the 2021 Deferral Tranche, as specified in accordance with the 2020 Amendment Agreement and the 2021 Amendment and Restatement Agreement respectively. |
Creditor Parties' rights and obligations |
The obligations of each Creditor Party under the Finance Documents are several. Failure by a Creditor Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Creditor Party is responsible for the obligations of any other Creditor Party under the Finance Documents. |
The rights of each Creditor Party and SACE under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Creditor Party and SACE from an Obligor shall be a separate and independent debt. |
A Creditor Party and SACE may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. |
Notwithstanding any other provision of the Finance Documents and subject to the prior written consent of SACE, a Creditor Party may separately sue for any Unpaid Sum due to it without the consent of any other Creditor Party or joining any other Creditor Party to the relevant proceedings (it being understood that a Creditor Party may file a claim noting the amounts due to it in the event insolvency proceedings are commenced against the Borrower by a third party). |
Monitoring |
No Creditor Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
Obligations of Lenders several |
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:
the obligations of the other Lenders being increased; nor |
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.
Unconditional Obligations of the Borrower |
The obligations of the Borrower to make payments and to observe and perform its obligations under the Transaction Documents are absolute, unconditional, irrevocable and several and such obligations shall not:
(a) | in any way be discharged by reason of any matter affecting the Shipbuilding Contract including its performance, frustration or validity, the insolvency or dissolution of any party to the Shipbuilding Contract or the destruction, non-completion or non-functioning of the goods and equipment supplied under the Shipbuilding Contract; |
(b) | in any way be affected or discharged by reason of any dispute under the Shipbuilding Contract or any claim which it or any other person may have against, or consider that it has against, any person under the Shipbuilding Contract; |
(c) | in any way be affected or discharged by reason of unenforceability, illegality or invalidity of any obligation of the Borrower or any other person under the Shipbuilding Contract or any documents or agreements relating to the Shipbuilding Contract; |
(d) | in any way be affected by the fact that all or any part of the amount requested referred to in the Drawdown Notice is not or was not due or payable to the Builder; |
(e) | be conditional on the performance by the Creditor Parties of any obligations (except as otherwise stated herein) in order to give rise to a relevant obligation of the Borrower hereunder; or |
(f) | in any way be affected or discharged by the insolvency or dissolution of the Borrower. |
Conditions Precedent |
General |
The Borrower may only draw under the Loan when the following conditions have been fulfilled to the satisfaction of the 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. This Clause 3 (Conditions Precedent) shall not apply to the 2020 Deferral Tranche or the 2021 Deferral Tranche, save for Clause 3.15 (Deferral Tranches).
No later than the date of the Original Facility Agreement |
The Agent shall have received no later than the date of the Original Facility Agreement:
an opinion from legal counsel acceptable to the Secured Parties as to the laws of the state of Delaware in form and substance satisfactory to the Agent and the Secured Parties, together with the limited liability company documentation of the Borrower supporting the opinion, including but without limitation the Certificate of Formation and Limited Liability Company Agreement as filed with the competent authorities and a certificate of a competent officer or manager of the Borrower containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower, including, without limitation: |
the Borrower has been duly formed and is validly existing as a limited liability company under the laws of the state of Delaware; |
the Original Facility Agreement falls within the scope of the Borrower's limited liability company purpose as defined by its Certificate of Formation and Limited Liability Company Agreement; |
the Borrower's representatives were at the date of the Original Facility Agreement fully empowered to sign the Original Facility Agreement; |
either all administrative requirements applicable to the Borrower (whether in the state of Delaware or elsewhere), concerning the transfer of funds abroad and acquisitions of Dollars to meet its obligations hereunder have been complied with, or that there are no such requirements; |
no withholding tax or stamp duty implications arise by virtue of the Borrower entering into the Original Facility Agreement; |
the Original Facility Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms, |
and containing such qualifications and assumptions as are standard for opinions of this type;
an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties confirming, without limitation, that (i) the obligations of the Borrower under the Original Facility Agreement and (ii) that the obligations of the Guarantor under the Guarantee are legally valid and binding obligations enforceable by the relevant Creditor Parties; |
an opinion from legal counsel to the Secured Parties as to New York law in form and substance satisfactory to the Agent and the Secured Parties in respect of the validity and enforceability of the Limited Liability Company Interests Security Deed; |
(d) | an opinion from legal counsel to the Secured Parties as to Bermudian law in form and substance satisfactory to the Agent and the Secured Parties in respect of the Guarantor's execution of the Original Guarantee; |
a Certified Copy of the executed Shipbuilding Contract; |
a confirmation from EC3 Services Limited of The St Botolph Building, 138 Houndsditch, London EC3A 7AR that it will act for the Borrower and the Guarantor as agent for service of process in England in respect of the Original Facility Agreement and any other Finance Document; |
an opinion from legal counsel acceptable to the Secured Parties as to Panamanian law in form and substance satisfactory to the Agent and the Secured Parties, together with the corporate documentation of Seven Seas supporting the opinion, including but without limitation the Articles of Incorporation and By-laws as filed with the competent authorities and a certificate of a competent officer of Seven Seas containing specimen signatures of the persons authorised to sign the documents on behalf of Seven Seas including without limitation: |
Seven Seas has been duly organised and is validly existing and in good standing as a Panamanian sociedad anonima or a sociedad de responsibilidad limitada with its |
domicile in the Republic of Panama and its Resident Agent being Arias Fabrega & Fabrega with address at Plaza 2000 Building, 16th Floor, 50th Street, Panama;
the Limited Liability Company Interests Security Deed is the legal, valid and binding obligation of Seven Seas which issued it enforceable in accordance with its terms; |
the Limited Liability Company Interests Security Deed falls within the scope of Seven Seas' corporate purpose as defined by its Articles of Incorporation and By-laws; and |
the representative of Seven Seas was at the date of the Limited Liability Company Interests Security Deed fully empowered to sign the Limited Liability Company Interests Security Deed, |
and containing such qualifications and assumptions as are standard for opinions of this type;
duly executed originals of the Original Guarantee and the Limited Liability Company Interests Security Deed. |
No later than ninety (90) days before the Intended Delivery Date |
The Agent shall have received no later than ninety (90) days before the Intended Delivery Date:
notification from the Borrower of its chosen Maritime Registry; |
the SACE Insurance Policy documentation relating to the transaction contemplated by the Original Facility Agreement issued on terms whereby the SACE Insurance Policy will enter into full force and effect upon fulfilment of the conditions specified therein to be fulfilled on or before the Drawdown Date; |
evidence that the Borrower has paid the First Instalment of the SACE Premium to SACE in accordance with paragraph (a) of Clause 8.1 9.1 (SACE Premium); |
notification of the Approved Manager; |
an opinion from legal counsel to the Creditor Parties as to Italian law in form and substance satisfactory to the Agent and the Secured Parties in respect of SACE's issuance of the SACE Insurance Policy and compliance with the principles governing the eligibility of credit risk mitigation techniques as per Article 194 of the Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013. |
No later than sixty (60) days before the Intended Delivery Date |
The Agent shall have received from the Borrower no later than sixty (60) days before the Intended Delivery Date: |
notification of the Intended Delivery Date; and |
a US tax opinion from legal counsel to the Secured Parties in respect of the tax treatment of the entry by the US incorporated Borrower into the Original Facility |
Agreement and the other Finance Documents substantially in the form notified to the Borrower on or around the date of the Original Facility Agreement and updated to reflect any changes in law;
The Agent shall notify to the Borrower any documents required under the ISM Code and the ISPS Code which are to be provided at delivery pursuant to paragraph (f) of Clause 3.10 (At Delivery) below. |
No later than thirty (30) days before the Intended Delivery Date |
The Agent shall have received from the Borrower no later than thirty (30) days 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; and |
if the Floating Interest Rate is applicable, whether the duration of the Interest Periods applicable to the Loan shall be 3 months or 6 months, |
and in absence of any such notification, the Borrower shall be deemed to have opted for the Floating Interest Rate with Interest Periods of 6 months.
No later than fifteen (15) Business Days before the Intended Delivery Date |
The Agent shall have received no later than fifteen (15) Business Days before the Intended Delivery Date insurance documents in form and substance satisfactory to the Lenders confirming that the Insurances have been effected and will be in full force and effect on the Delivery Date.
No later than five (5) Business Days before the Intended Delivery Date |
The Agent shall have received no later than five (5) Business Days before the Intended Delivery Date:
the Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Loan to be drawn down; |
a Certified Copy of each of the Change Orders, of any amendments to the Shipbuilding Contract and of the power of attorney pursuant to which the authorised signatory of the Borrower signed the Drawdown Notice and a specimen of his signature; |
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. |
Examination of documents by the Agent |
The Agent shall ensure that an officer or employee or other person designated by it as its authorised representative is present at the Builder on the proposed Drawdown 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).
No later than the Delivery Date |
The Agent shall have received no later than the Delivery Date:
an opinion from legal counsel acceptable to the Secured Parties as to the laws of the state of Delaware in form and substance satisfactory to the Agent and the Secured Parties together with the limited liability company documentation of the Borrower and a certificate of a competent officer or manager of the Borrower containing specimen signatures of the persons authorised to sign the documents on behalf of the Borrower, confirming that, without limitation: |
the Original Mortgage, the Tripartite General Assignment, the Post-Delivery Assignment and the Bareboat Charter fall within the scope of the Borrower's limited liability company purpose as defined by its Certificate of Formation and Limited Liability Company Agreement and are binding on it; and |
the Borrower's representatives are fully empowered to sign the Protocol of Delivery and Acceptance, the Original Mortgage, the Tripartite General Assignment, the Post-Delivery Assignment and the Bareboat Charter; |
(b) | an opinion from legal counsel acceptable to the Secured Parties as to Panamanian law in form and substance satisfactory to the Agent and the Secured Parties together with the corporate documentation of Seven Seas and a certificate of a competent officer of Seven Seas containing specimen signatures of the persons authorised to sign the Tripartite General Assignment on behalf of Seven Seas, confirming that, without limitation: |
(i) | the Tripartite General Assignment falls within the scope of Seven Sea's corporate purpose as defined by its Articles of Incorporation and By-laws; and |
(ii) | the representative of Seven Seas is fully empowered to sign the Tripartite General Assignment; |
evidence of payment to and receipt by the Builder of: |
the [*] ([*]) 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; |
an original of the Interest Make-up Make-Up Agreement relative to the Loan and in full force and effect; |
an original of the SACE Insurance Policy; |
an original or a certified copy of each of the SACE Required Documents and SACE and the Agent shall be satisfied that the SACE Required Documents on their face appear properly completed and comply with the requirements of the Original Facility Agreement and the requirements of the SACE Insurance Policy; and |
provided always that the obligations of the Lenders to make the Loan available on the Delivery Date are subject to the Lenders remaining satisfied that each of the SACE Insurance Policy and the Interest Make-up Make-Up Agreement will cover the Loan following the advance of the Loan, payment of the Second Instalment of the SACE Premium and delivery to the Agent of the documents listed in Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery).
At Delivery |
Immediately prior to the delivery of the Ship by the Builder to the Borrower, the Agent shall have received:
evidence that immediately following delivery: |
the Ship will be registered in the name of the Borrower in the Maritime Registry; |
title to the Ship will be held by the Borrower free of all Security Interests other than any maritime lien in respect of crew's wages and trade debts arising out of equipment, consumable and other stores placed on board the Ship prior to or concurrently with delivery, none of which is overdue; |
the Original Mortgage will be duly registered in the Maritime Registry and constitutes a first priority security interest over the Ship and that all taxes and fees payable to the Maritime Registry in respect of the Ship have been paid in full; and |
the opinions mentioned in paragraphs (b) and (c) of Clause 3.11, in draft form immediately prior to the delivery of the Ship, and the documents mentioned in paragraph (d) of Clause 3.11 will be issued to and received by the Agent; |
duly executed originals of the Tripartite General Assignment, any Approved Manager's Undertaking and the Post-Delivery Assignment together with relevant notices of assignment and the acknowledgement of the notice of assignment to be issued pursuant to the Tripartite General Assignment and the Post-Delivery Assignment; |
a duly executed original of the Limited Liability Company Interests Security Deed (and of each document required to be delivered under the Limited Liability Company Interests Security Deed); |
a Certified Copy of any executed Management Agreement, the Bareboat Charter and any time charterparty in respect of the Ship; |
a Certified Copy of any current certificate of financial responsibility in respect of the Ship issued under OPA, a valid Safety Management Certificate (or interim Safety Management Certificate) issued to the Ship in respect of its management by the Approved Manager pursuant to the ISM |
Code, a valid Document of Compliance (or interim Document of Compliance) issued to the Approved Manager in respect of ships of the same type as the Ship pursuant to the ISM Code, a valid International Ship Security Certificate issued to the Ship in accordance with the ISPS Code and a valid IAPPC issued to the Ship in accordance with Annex VI and, if entered into, any carrier initiative agreement with the United States' Customs and Border Protection under the Customs-Trade Partnership Against Terrorism (C-TPAT) programme along with any other documents required under the ISM Code and the ISPS Code and notified to the Borrower in accordance with paragraph (b) of Clause 3.4 (No later than sixty (60) days before the Intended Delivery Date) above;
a Certified Copy of the power of attorney pursuant to which the authorised signatory(ies) of the Borrower signed the documents referred to in this Clause 3.10 (At Delivery) and to which the Borrower is a party and a specimen of his or their signature(s); |
a confirmation from EC3 Services Limited of The St Botolph Building, 138 Houndsditch, London EC3A 7AR (or any replacement process agent satisfactory to the Agent acting reasonably) that it will act for each of the relevant Obligors as agent for service of process in England in respect of the deed of covenants constituting part of the Original Mortgage (if applicable), the Tripartite General Assignment and the Post-Delivery Assignment. |
Immediately following the delivery of the Ship by the Builder to the Borrower, the Agent shall receive: |
a duly executed original of the Original Mortgage; |
an opinion from legal counsel acceptable to the Secured Parties as to the law of the Maritime Registry in form and substance satisfactory to the Agent and the Secured Parties confirming: |
the valid registration of the Ship in the Maritime Registry; and |
the Original Mortgage over the Ship has been validly registered in the Maritime Registry; |
an opinion from legal counsel to the Secured Parties as to English law in form and substance satisfactory to the Agent and the Secured Parties confirming, without limitation, that the obligations of the Borrower under the deed of covenants constituting part of the Original Mortgage (if applicable), the Tripartite General Assignment and the Post-Delivery Assignment are legally valid and binding obligations enforceable by the relevant Creditor Parties in the English courts; |
the documents listed in Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery). |
3.12 | Notification of satisfaction of conditions precedent |
The Agent shall notify the Lenders and SACE promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in this Clause 3 (Conditions Precedent).
Waiver of conditions precedent |
If the Majority Lenders, at their discretion, subject to the prior written consent of SACE, permit the Loan 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 Agent may agree in writing with the Borrower.
Changes to SACE requirements |
If SACE notifies the Agent in writing of a change to the requirements of the SACE Insurance Policy with the effect that, in the opinion of the Agent, certain documents which the Borrower is or may be required to provide for the purpose of drawing the Loan under this Agreement are no longer necessary to ensure that: |
such SACE Insurance Policy will apply to the Loan made or to be made under this Agreement; and |
any claim which may be made in respect of the Loan under such SACE Insurance Policy will be valid and continue to be issued by SACE, |
then the Agent shall promptly notify the Borrower of any changes the Agent considers appropriate to be made to this Agreement to reflect such a change in SACE's requirements.
If the Agent notifies the Borrower of any proposed changes to this Agreement under paragraph (a) above, and provided that: |
all the Lenders and the Borrower agree with such changes; and |
the Borrower indemnifies and holds harmless the Agent and the Lenders for any reasonable costs that it may incur arising from or in connection with any such amendments (including legal fees), |
then such changes will be made to this Agreement in accordance with the terms hereof.
If, in the opinion of the Lenders, there are any provisions of this Agreement that contradict or conflict with any provision of the SACE Insurance Policy to an extent that the same may have the effect of rendering all or any part of the SACE Insurance Policy void, voidable or otherwise not in full force and effect, this Agreement will be amended to the extent agreed in writing between the Borrower and the Agent to ensure compliance with the terms of the SACE Insurance Policy. |
Deferral Tranches |
The relevant part of a Deferral Tranche shall only be advanced if the Agent shall have received (a) no later than five (5) Business Days before the date of the relevant advance (and only if required under Clause 4.9 (Deferral Tranches) hereunder), a Drawdown Notice from the Borrower, signed by a duly authorised signatory of the Borrower, specifying the amount of the Deferral Tranche to be drawn down, and (b) on the relevant date of the relevant advance or deemed advance (as applicable), confirmation that:
it being provided that two advances under the 2020 Deferral Tranche have been made to the Borrower in respect of the 2020 Deferred Repayment Instalments.
Drawdown |
Borrower's irrevocable payment instructions |
The Lenders shall not be obliged to fulfil their obligation to make the Loan available other than (i) by reimbursing the Borrower, up to the Eligible Amount, all or part of 10% of the Final Contract Price and by paying the Builder all or part of 70% of the Final Contract Price on behalf of and in the name of the Borrower, (ii) by reimbursing the Borrower for the First Instalment of the SACE Premium which was paid by the Borrower to SACE on the earlier of (A) the date falling 30 days after the issuance of the SACE Insurance Policy and (B) the date falling 6 months after the date of SACE's board approval and (iii) by payment to SACE of the Second Instalment of the SACE Premium payable on the Delivery Date. For the avoidance of doubt, the amount of the Loan shall not exceed the Maximum Loan Amount.
The Borrower hereby instructs the 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 70% of the Final Contract Price and to reimburse the Borrower all or part of 10% 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 earlier of (i) the date falling 30 days after the issuance of the SACE Insurance Policy and (ii) the date falling 6 months after the date of SACE's board approval; and |
to pay to the Agent on behalf of the Lenders for onward payment to SACE (such payment to SACE to be made for value on the Drawdown Date), by drawing under the Loan, the amount of the Second Instalment of the related SACE Premium. |
Payment to the Builder of the amount drawn under paragraph (a) of Clause 4.1 (Borrower's irrevocable payment instructions) above shall be made on the Delivery Date of the Ship during usual banking hours in Italy to the Builder's account as specified by the Builder in accordance with the Shipbuilding Contract after receipt and verification by the Agent of the documents provided under Schedule 3 (Documents to be produced by the Builder to the Agent on Delivery).
Save as contemplated in Clause 4.3 (Modification of payment terms) below, the payment instruction contained in this Clause 4.1 (Borrower's irrevocable payment instructions) is irrevocable.
Conversion Rate for Loan |
The Dollar amount to be drawn down under paragraph (a) of Clause 4.1 (Borrower's irrevocable payment instructions) shall be calculated by the Agent on the Conversion Rate Fixing Date in accordance with the definitions of "Eligible Amount" and "Conversion Rate" in Clause 1.1 (Definitions).
Modification of payment terms |
The Borrower expressly acknowledges that the payment terms set out in this Clause may only be modified with the agreement of the Italian Authorities, the Agent, the Security Trustee, the Lenders and the Borrower in the case of paragraph (a) of Clause 4.1 (Borrower's irrevocable payment instructions) and with the agreement of the Italian Authorities, the Agent, the Lenders and the Borrower in the case of paragraphs (b) and (c) of Clause 4.1 (Borrower's irrevocable payment instructions); provided that it is the intention of the Borrower, the Lenders, the Security Trustee and the Agent that prior to the Conversion Rate Fixing Date agreement shall be reached with those financial institutions with whom the Borrower has entered into the FOREX Contracts (the "Counterparties") in order that the Euro payments due from the Counterparties under the FOREX Contracts shall be paid to the Agent for holding in escrow and to be released by the Agent simultaneously with (i) the payment 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 (a) 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 Agent before delivery, 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.
Availability and conditions |
Except as permitted by the provisions of the 2020 Amendment Agreement in respect of the 2020 Deferral Tranche and the 2021 Amendment and Restatement Agreement in respect of the 2021 Deferral Tranche:
(a) | drawing may not be made under this Agreement (and the Loan shall not be available) after the earlier of the Delivery Date and the expiry of the Availability Period; |
there will be only one drawing under this Agreement; and |
the drawing cannot exceed the Maximum Loan Amount. |
Notification to Lenders of receipt of a Drawdown Notice |
The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:
the amount of the Loan and the Drawdown Date; |
the amount of that Lender's participation in the Loan; and |
the duration of the first Interest Period. |
Lenders to make available Contributions |
Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent the amount due from that Lender under Clause 2.2 (Lenders' participations in Loan).
Disbursement of Loan |
Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay the amounts which the Agent receives from the Lenders under Clause 4.6 (Lenders to make available Contributions) in the like funds as the Agent received the payments from the Lenders:
in the case of the amount referred to in paragraph (a) of Clause 4.1 (Borrower's irrevocable payment instructions), to the account of the Builder and the Borrower which the Borrower specifies in the Drawdown Notice; and |
in the case of the amount referred to in paragraph (b) 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 the amount referred to in paragraph (c) of Clause 4.1 (Borrower's irrevocable payment instructions) to the account of SACE which the SACE Agent shall specify. |
Disbursement of Loan to third party |
The payment by the Agent under Clause 4.7 (Disbursement of Loan) shall constitute the making of the Loan and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender's Contribution.
Deferral Tranches |
The Lenders have agreed, pursuant to the 2020 Amendment Agreement and the 2021 Amendment and Restatement Agreement, as set out in this Agreement (but without increasing the Maximum Loan Amount and the Total Commitments of each Lender save for the related 2020 Deferral Tranche Premium to be advanced in accordance with paragraph (c) below) to make available to the Borrower the Deferral Tranches as follows, as set out in further detail in Schedule 6 (Deferred Repayment Schedule):
(b) | on each Repayment Date during the 2021 Deferral Period, a portion of the 2021 Deferral Tranche in an amount equal to the relevant 2021 Deferred Repayment Instalment due on such Repayment Date shall be automatically drawn by the Borrower and applied towards repayment of the relevant 2021 Deferred Repayment Instalment due on such date. Each such advance under the 2021 Deferral Tranche shall be automatic and notional only, and effected by means of a book entry to finance the 2021 Deferred Repayment Instalments then due; and |
together with the first advance of the 2020 Deferral Tranche under this Clause 4.9 (Deferral Tranches), a portion of the 2020 Deferral Tranche in an amount equal to the amount to be paid to SACE in respect of the 2020 Deferral Tranche Premium payable to SACE due on the first advance under the 2020 Deferral Tranche shall be drawn by the Borrower and paid to SACE as specified in the relevant Drawdown Notice, it being provided that such amount was advanced to the Borrower on 30 July 2020 together with the first advance under the 2020 Deferral Tranche in respect of the 2020 Deferred Repayment Instalments. |
Accordingly, the other provisions of this Clause 4 (Drawdown) shall not apply to the advances under the Deferral Tranches and each advance of any Deferral Tranches under this Clause 4.9 (Deferral Tranches) shall be deemed to satisfy the Borrower's obligations under Clause 5 (Repayment) in respect of the corresponding Deferred Repayment Instalment.
Repayment |
Number of repayment instalments |
Subject to Clause 5.5 (Repayment of Deferral Tranches), the Borrower shall repay the Loan by:
if the Borrower has specified a Fixed Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), twenty-four (24) consecutive six-monthly instalments; |
if the Borrower has specified a Floating Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date) and Interest Periods of 6 months pursuant to paragraph (b) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date)or the Borrower has not provided a notification pursuant to Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), twenty-four (24) consecutive six-monthly instalments; or |
if the Borrower has specified a Floating Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date) and Interest Periods of 3 months pursuant to paragraph (b) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date) forty-eight (48) quarterly instalments. |
Repayment Dates |
Subject to Clause 5.5 (Repayment of Deferral Tranches), the first instalment shall be repaid on the date falling:
(a) | if paragraph (a) or paragraph (b) of Clause 5.1 (Number of repayment instalments) apply, six (6) months after the Delivery Date; or |
(b) | if paragraph (c) of Clause 5.1 (Number of repayment instalments) applies, three (3) months after the Delivery Date, |
and the last instalment on the date falling one hundred and forty four (144) months after the Delivery Date, each date of payment of an instalment being a "Repayment Date".
Amount of repayment instalments |
Subject to Clause 5.5 (Repayment of Deferral Tranches), each repayment instalment of the Loan shall be of an equal amount.
Final Repayment Date |
Subject to Clause 5.5 (Repayment of Deferral Tranches), on the final Repayment Date, the Borrower shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
Repayment of Deferral Tranches |
Subject to Clause 4.9 (Deferral Tranches):
the 2020 Deferral Tranche shall be repaid in eight semi-annual instalments beginning on the 2020 Deferral Repayment Starting Point and until the 2020 Deferral Final Repayment Date, as set out in further detail in Schedule 6 (Deferred Repayment Schedule); and |
(b) | the 2021 Deferral Tranche shall be repaid in ten semi-annual instalments beginning on the 2021 Deferral Repayment Starting Point and until the 2021 Deferral Final Repayment Date, as set out in further detail in Schedule 6 (Deferred Repayment Schedule). |
Rate Switch |
Switch to Term SOFR Reference Rate |
Subject to Clause 6.2 (Delayed switch for existing LIBOR Loans), on and from the Rate Switch Date, where the Floating Interest Rate applies:
use of the Term SOFR Reference Rate will replace the use of LIBOR for the calculation of interest for the Loan or any part of the Loan; and |
the Loan or any part of the Loan or Unpaid Sum shall be a "Term SOFR Loan" and paragraph (b) of the definition of Floating Interest Rate shall apply to the Loan, any such part of the Loan or Unpaid Sum. |
Delayed Switch for Existing LIBOR Loans |
If the Rate Switch Date falls before the last day of an Interest Period for a LIBOR Loan:
on and from the first day of the next Interest Period (if any) for the Loan, relevant part of the Loan or Unpaid Sum (as applicable): |
the Loan, relevant part of the Loan or Unpaid Sum (as applicable) shall be a "Term SOFR Loan"; and |
paragraph (b) of the definition of Floating Interest Rate shall apply to it. |
Notifications by Agent |
Subject to paragraph (3) below, following the occurrence of a Rate Switch Trigger Event, the Agent shall: |
promptly upon becoming aware of the occurrence of that Rate Switch Trigger Event, notify the Borrower and the Lenders of that occurrence; and |
promptly upon becoming aware of the date of the Rate Switch Trigger Event Date applicable to that Rate Switch Trigger Event, notify the Borrower and the Lenders of that date. |
The Agent shall, promptly upon becoming aware of the occurrence of the Rate Switch Date, notify the Borrower and the Lenders of that occurrence. |
The Parties agree that the FCA Cessation Announcement constitutes a Rate Switch Trigger Event, that the Rate Switch Trigger Event Date applicable to such Rate Switch Trigger Event will be 1 July 2023 and that the Agent is not under any obligation under paragraph (1) above to notify any Party of such Rate Switch Trigger Event or Rate Switch Trigger Event Date resulting from the FCA Cessation Announcement. |
For the purposes of paragraph (3) above, the "FCA Cessation Announcement" means the announcement on 5 March 2021 by the UK's Financial Conduct Authority that all LIBOR settings will, as of certain specified future dates, either cease to be provided by any administrator or no longer be representative of the market and economic reality that they are intended to measure and that such representativeness will not be restored. |
6Interest |
6.1Fixed Interest Rate |
If the Borrower has specified a Fixed Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), the Loan shall bear interest 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 each Repayment Date.
6.2Floating Interest Rate |
If:
the Borrower has specified a Floating Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date); or |
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 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).
6.3Interest in respect of Deferral Tranches |
The rate of interest for each Interest Period in respect of each Deferral Tranche shall be the relevant Floating Interest Rate.
6.4Deferred Costs |
Independently to any other obligation to pay costs, expenses or interest under or in connection with this Agreement, the Borrower shall, as a separate obligation, also pay to the Agent (for distribution to each Lender) deferred costs in respect of any drawn portion of a Deferral Tranche at the relevant Deferred Costs Percentage for each Interest Period during which any part of that Deferral Tranche remains outstanding. Whilst not an interest liability, such deferred costs shall be charged from and including the first day of the applicable Interest Period in which an amount of the relevant Deferral Tranche is outstanding to (but not including) the last day of such Interest Period, and will be payable semi-annually in arrears on each interest payment date. Any deferred costs payable in accordance with this Clause 6.4 7.4 (Deferred Costs) shall be calculated on the basis of the actual number of days elapsed over a year comprised of 360 days. Any non-payment of such deferred costs shall be an Event of Default in accordance with Clause 18.2 19.2 (Non-payment).
6.5Payment of Floating Interest Rate |
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.
6.6Notification of Interest Periods and Floating Interest Rate |
The Save where paragraph (d) of Clause 7.9 (Unavailability of Term SOFR) applies, the Agent shall notify the Borrower and each 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. |
In respect of any Fallback Interest Payment, the Agent shall promptly upon a Fallback Interest Payment being determinable notify: |
the Borrower of that Fallback Interest Payment; |
each relevant Lender of the proportion of that Fallback Interest Payment which relates to that Lender's participation in the Loan or the relevant part of the Loan; and |
the relevant Lenders and the Borrower of each applicable Daily Simple SOFR relating to the determination of that Fallback Interest Payment. |
The Agent shall promptly notify the Borrower of each Funding Rate relating to the Loan or any part of the Loan. |
This Clause 7.6 (Notification of Interest Periods and Floating Interest Rate) shall not require the Agent to make any notification to any Party on a day which is not a Business Day. |
Reference Bank Rate: If no Screen Rate is available for LIBOR for: |
(i) | Dollars; |
(ii) | the Interest Period of the Loan or any part of the LIBOR 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 LIBOR Loan. |
6.8Calculation of Reference Bank Rate |
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. |
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. |
Unavailability of Term SOFR |
Interpolated Term SOFR: If no Term SOFR is available for the Interest Period of any Term SOFR Loan, the applicable Term SOFR Reference Rate shall be the Interpolated Term SOFR for a period equal in length to the Interest Period of that Term SOFR Loan. |
Historic Term SOFR: If no Term SOFR is available for the Interest Period of any Term SOFR Loan and it is not possible to calculate the Interpolated Term SOFR, the applicable Term SOFR Reference Rate shall be the Historic Term SOFR for that Term SOFR Loan. |
Interpolated Historic Term SOFR: If paragraph (b) above applies but no Historic Term SOFR is available for the Interest Period of any Term SOFR Loan, the applicable Term SOFR Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of that Term SOFR Loan. |
Daily Simple SOFR: If, after giving effect to paragraph (c) above, no Term SOFR is available for the Interest Period of a Term SOFR Loan and it is not possible to calculate the Interpolated Historic Term SOFR, that Term SOFR Loan shall bear interest for any day of the relevant Interest Period at a rate per annum equal to the aggregate of the applicable (i) Daily Simple SOFR; (ii) Margin; and (iii) Credit Adjustment Spread. |
Cost of funds: If paragraph (d) above applies but it is not possible to calculate the Daily Simple SOFR, there shall be no Term SOFR Reference Rate for that Term SOFR Loan and Clause 7.11 (Cost of funds) shall apply to that Term SOFR Loan for that Interest Period. |
6.9Market Disruption |
6.10Cost of funds |
(i) | the Margin; and |
(d) | If paragraph (e) below does not apply and any rate notified to the Agent under sub-paragraph (ii) of paragraph (a) above is less than zero, the relevant rate shall be deemed to be zero. |
If this Clause 6.10 7.11 (Cost of funds) applies pursuant to Clause 6.9 7.10 (Market disruption) and: |
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.
Replacement of Screen Rate |
Changes to the reference rates |
If a Screen If a Published Rate Replacement Event has occurred in relation to the Screen Published Rate for Dollars, any amendment or waiver which relates to:
(a) | providing for the use of a Replacement BenchmarkReference Rate; and |
(b)
(i) | aligning any provision of any Finance Document to the use of that Replacement BenchmarkReference Rate; |
(iii) | implementing market conventions applicable to that Replacement BenchmarkReference Rate; |
(iv) | providing for appropriate fallback (and market disruption) provisions for that Replacement BenchmarkReference Rate; or |
may be made with the consent of the Agent (acting on the instructions of the Majority Lenders), SACE and SIMEST (if applicable) and the Borrower.
If, as at 30 September 2021, 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 |
the Agent (acting on the instructions of the Majority Lenders) and the Obligors shall enter into negotiations in good faith with a view to agreeing the use of a Replacement Benchmark in relation to Dollars in place of that Screen Rate from and including a date no later than 30 November 2021, unless the Borrower and the Agent (acting on the instructions of the Majority Lenders) agree to defer the date of the negotiations required under this sub-paragraph (ii) together with the date for the use of such a Replacement Benchmark, in which case such dates shall be those so agreed. |
SOFR; or |
Term SOFR for any Quoted Tenor. |
"Published Rate Contingency Period" means, in relation to:
Term SOFR (all Quoted Tenors), ten US Government Securities Business Days; |
"Published Rate Replacement Event" means, in relation to a Published Rate:
the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders, and the Borrower materially changed; |
the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Published Rate is insolvent, |
provided that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate;
the administrator of that Published Rate publicly announces that it has ceased or will cease, to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate; |
the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or |
the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Borrower) temporary; or |
that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than the applicable Published Rate Contingency Period; or |
in the opinion of the Majority Lenders and the Borrower, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. |
"Replacement Reference Rate" means a reference rate which is:
formally designated, nominated or recommended as the replacement for a Published Rate by: |
the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or |
any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the replacement under sub-paragraph (ii) above;
in the opinion of the Majority Lenders and the Borrower, an appropriate successor or alternative to a Published Rate. |
6.12Notice of prepayment |
If no agreement is reached with the Borrower under Clause 6.11 7.12 (Replacement of Screen RateChanges to the reference rates), the Borrower may give the Agent not less than 15 Business Days', or, if the Fixed Interest Rate has been selected pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), the Borrower may give the Agent not less than 30 days' notice of its intention to prepay at the end of the interest period set by the Agent.
6.13Prepayment; termination of Commitments |
A notice under Clause 6.12 7.13 (Notice of prepayment) shall be irrevocable; the 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:
on the date on which the Agent serves that notice, the Total Commitments shall be cancelled; and |
6.14Application of prepayment |
The provisions of Clause 16 17 (Cancellation, Prepayment and Mandatory Prepayment) shall apply in relation to the prepayment.
6.15Certain Circumstances |
Notwithstanding anything to the contrary in this Agreement:
in the event of any circumstances falling within Clause 6.9 7.9 (Market Disruption) which might affect the advance of the Loan on the Drawdown Date (the "Relevant Circumstances"): |
occurring and being continuing on the date falling ninety (90) days before the Intended Delivery Date (the "Relevant Date"), each Lender will notify the Borrower (through the Agent) of the Relevant Circumstances on the Relevant Date or, if the Relevant Date is not a Business Day, on the next following Business Day; and |
occurring after the Relevant Date, each Lender will notify the Borrower (through the Agent) immediately each Lender become aware of the Relevant Circumstances; |
Circumstances have been notified by the Agent to the Borrower after the making of the Loan but also before the making of the Loan.
6.16Change of currency |
In the event that the Agent notifies the Borrower that SIMEST has requested a change in the currency of the Loan in accordance with clause 6.3 of the Interest Make-Up Agreement, the Borrower and the Lenders shall, without obligation, consider such request for a change of currency acting reasonably for a period of not exceeding 10 Business Days. Following such discussions the Agent shall report the decision of the Borrower and the Lenders to SIMEST, providing their reason for any negative decision. |
In the event that a change of currency is agreed the Parties agree to negotiate in good faith the necessary changes to this Agreement, the Finance Documents, the SACE Insurance Policy and the Interest Make-Up Agreement in order to document the change in currency. |
In the event that a change in currency is not acceptable to the Lenders or the Borrower, the provision of paragraph (c) of Clause 6.2 7.2 (Floating Interest Rate) shall apply. |
7Interest Periods |
7.1Commencement of Interest Periods |
The first Interest Period shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
7.2Duration of Interest Periods |
If:
the Borrower has specified a Fixed Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), each Interest Period shall be 6 months and shall end on the next succeeding Repayment Date; |
the Borrower has specified a Floating Interest Rate pursuant to paragraph (a) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date), each Interest Period shall be 3 months or 6 months at the Borrower's option, such option to be selected pursuant to paragraph (b) of Clause 3.5 (No later than thirty (30) days before the Intended Delivery Date); or |
(c) | paragraphs (b), (c) or (d) of Clause 6.2 7.2 (Floating Interest Rate) apply, each Interest Period shall be 6 months. |
7.3The first Interest Period in relation to each advance or deemed advance (as applicable) under each Deferral Tranche shall start on the date of such advance or deemed advance (as applicable) and end on the last day of the current Interest Period in respect of the Loan, following which all Interest Periods will be consolidated. |
8SACE Premium and Italian Authorities |
8.1SACE Premium |
The estimated SACE Premium for a maximum amount of $[*] (being [*]% of the Maximum Loan Amount) is due and payable in two instalments as follows:
the first instalment of the SACE Premium being an amount of $[*] (calculated as being [*]% of [*]% of the Maximum Loan Amount) (the "First Instalment") shall be paid by the Borrower to SACE (provided that the Borrower and the Lenders have been notified by the SACE Agent that the SACE Insurance Policy has been issued) on the earlier of (i) the date falling 30 days after the issuance of the SACE Insurance Policy and (ii) the date falling 6 months after the date of SACE's board approval; and |
the second instalment of the SACE Premium shall be such amount in Dollars as is calculated by SACE at the Conversion Rate as being [*]% of [*]% of the Loan actually advanced on the Drawdown Date (the "Second Instalment") and shall be payable on or prior to the Drawdown Date. For the sake of clarity, no set-off with the first instalment of the SACE Premium shall be permitted. |
8.2Reimbursement by the Borrower of the SACE Premium |
The Borrower irrevocably agrees to pay the First Instalment, and to instruct the Lenders to pay the Second Instalment on behalf of the Borrower, as follows:
the Borrower has requested and the Lenders have agreed to finance the payment of one hundred per cent. (100%) of the Second Instalment on the Drawdown Date in accordance with paragraph (c) of Clause 2.1 (Amount of facility) of this Agreement. |
Consequently, the Borrower hereby irrevocably instructs the Agent on behalf of the Lenders to pay the Second Instalment to SACE on the Drawdown Date in accordance with paragraph (c) 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 (b) 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 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.
8.3Italian Authorities |
The Borrower acknowledges and agrees that the Agent and the Lenders are entitled to provide the Italian Authorities with any information they may have relative to the Loan and the business of the Group, to allow the Italian Authorities to inspect all their records relating to this Agreement and the other Transaction Documents and to furnish them with copies thereof. Any such information relative to the Loan may also be given by any Italian Authorities to international institutions charged with collecting statistical data. |