EXHIBIT 4(d)
CONFORMED COPY
DATED 9 JULY 2003 AND AMENDED AND RESTATED
BY AN AGREEMENT DATED 20 APRIL 2004
NORWEGIAN SUN LIMITED
(AS BORROWER)
DNB NOR BANK ASA
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
(AS ARRANGERS AND UNDERWRITERS)
DNB NOR BANK ASA
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
KFW
NORDEA BANK NORGE ASA
CREDIT SUISSE
HSH NORDBANK AG
OVERSEA-CHINESE BANKING CORPORATION LIMITED
LABUAN BRANCH
NORDDEUTSCHE LANDESBANK GIROZENTRALE
BUMIPUTRA-COMMERCE BANK BERHAD
TOKYO BRANCH
MALAYAN BANKING BERHAD
HONG KONG BRANCH
(AS LENDERS)
DNB NOR BANK ASA
(AS PAYING AGENT)
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
(AS SECURITY AGENT)
SECURED LOAN AGREEMENT
FOR UP TO USD225,000,000
FINANCE FOR THE PURCHASE OF THE CRUISE VESSEL
"NORWEGIAN SUN"
STEPHENSON HARWOOD
ONE ST PAUL'S CHURCHYARD
LONDON EC4M 8SH
TEL: +44 (0)20 7329 4422
FAX: +44 (0)20 7606 0822
REF: JMC/1253/42-00036/42-02611
CONTENTS
PAGE
1 Definitions and Construction....................................................................... 1
1.1 Definitions.................................................................................. 1
1.2 Construction................................................................................. 15
1.3 Paying Agent and Security Agent.............................................................. 16
2 The Loan........................................................................................... 16
2.1 Availability................................................................................. 16
2.2 Purpose and Application...................................................................... 17
2.3 Drawdown..................................................................................... 17
2.4 Break costs.................................................................................. 17
2.5 Conditions of drawdown....................................................................... 18
2.6 Several obligations of the Lenders........................................................... 18
2.7 Lender's failure to perform.................................................................. 18
2.8 Fulfilment of conditions after drawdown...................................................... 18
3 Repayment.......................................................................................... 19
4 Prepayment......................................................................................... 19
4.1 Voluntary prepayment......................................................................... 19
4.2 Voluntary prepayment in case of increased cost............................................... 19
4.3 Mandatory prepayment in case of illegality................................................... 20
4.4 Voluntary prepayment following imposition of Substitute Basis................................ 20
4.5 Prepayment in case of Total Loss of the Vessel............................................... 21
4.6 Prepayment in case of sale of the Vessel..................................................... 21
4.7 Effect of prepayment......................................................................... 22
4.8 Break costs.................................................................................. 22
5 Interest........................................................................................... 22
5.1 Payment of interest.......................................................................... 22
5.2 Selection and duration of Interest Periods................................................... 22
5.3 No notice and unavailability................................................................. 23
5.4 Separate Interest Periods for Instalments.................................................... 23
5.5 Extension and shortening of Interest Periods................................................. 23
5.6 Interest Rate................................................................................ 24
5.7 Bank basis................................................................................... 24
5.8 Default interest............................................................................. 24
6 Substitute Basis of Funding........................................................................ 25
6.1 Market disturbance........................................................................... 25
6.2 Suspension of drawdown....................................................................... 25
6.3 Certificates of Substitute Basis............................................................. 26
6.4 Review....................................................................................... 26
7 Payments........................................................................................... 27
7.1 Place for payment............................................................................ 27
7.2 Deductions and grossing-up................................................................... 27
7.3 Production of receipts for Taxes............................................................. 28
7.4 Money of account............................................................................. 29
7.5 Accounts..................................................................................... 29
7.6 Earnings..................................................................................... 30
7.7 Continuing security.......................................................................... 30
8 Yield Protection and Force Majeure................................................................. 30
8.1 Increased costs.............................................................................. 30
8.2 Force majeure................................................................................ 32
9 Representations and Warranties..................................................................... 33
9.1 Duration..................................................................................... 33
9.2 Representations and warranties............................................................... 33
9.3 Representations on the Drawdown Date......................................................... 40
10 Undertakings....................................................................................... 41
10.1 Duration..................................................................................... 41
10.2 Information.................................................................................. 41
10.3 Notification of default...................................................................... 42
10.4 Consents and registrations................................................................... 42
10.5 Negative pledge.............................................................................. 42
10.6 Disposals.................................................................................... 43
10.7 Change of business........................................................................... 44
10.8 Mergers...................................................................................... 44
10.9 Maintenance of status and franchises......................................................... 46
10.10 Financial records............................................................................ 46
10.11 Financial indebtedness and subordination of indebtedness..................................... 46
10.12 Pooling of earnings and charters............................................................. 47
10.13 Loans and guarantees by the Borrower......................................................... 48
10.14 Management................................................................................... 48
10.15 Acquisition of shares and amendment of Bye-Laws.............................................. 48
10.16 Trading with the United States of America.................................................... 49
10.17 Further assurance............................................................................ 49
10.18 Valuation of the Vessel...................................................................... 49
10.19 Marginal security............................................................................ 50
10.20 Performance of employment contracts.......................................................... 51
10.21 Insurances................................................................................... 53
10.22 Operation and maintenance of the Vessel...................................................... 58
10.23 Irrevocable proxy............................................................................ 63
11 Rights of the Security Agent, the Paying Agent, the Arrangers and the Lenders...................... 63
11.1 No derogation of rights...................................................................... 63
11.2 Enforcement of remedies...................................................................... 63
12 Default............................................................................................ 64
12.1 Events of default............................................................................ 64
12.2 Acceleration................................................................................. 70
12.3 Default indemnity............................................................................ 71
12.4 Set-off...................................................................................... 71
13 Application of Funds............................................................................... 72
13.1 Total Loss proceeds/proceeds of sale/Event of Default monies................................. 72
13.2 General funds................................................................................ 74
13.3 Application of proceeds of Insurances........................................................ 75
13.4 Suspense account............................................................................. 75
14 Fees............................................................................................... 75
14.1 Management fee and agency fee................................................................ 75
14.2 Commitment fee............................................................................... 75
14.3 Restructuring fee............................................................................ 76
15 Expenses........................................................................................... 76
15.1 Initial expenses............................................................................. 76
15.2 Enforcement expenses......................................................................... 76
15.3 Stamp duties................................................................................. 77
16 Waivers, Remedies Cumulative....................................................................... 77
16.1 No waiver.................................................................................... 77
16.2 Remedies cumulative.......................................................................... 77
16.3 Severability................................................................................. 77
16.4 Time of essence.............................................................................. 78
17 Counterparts....................................................................................... 78
18 Assignment......................................................................................... 78
18.1 Benefit of agreement......................................................................... 78
18.2 No transfer by the Borrower.................................................................. 78
18.3 Assignments, participations and transfers by a Lender........................................ 78
18.4 Effectiveness of transfer.................................................................... 79
18.5 Transfer of rights and obligations........................................................... 79
18.6 Consent and increased obligations of the Borrower............................................ 80
18.7 Disclosure of information.................................................................... 80
18.8 Transfer Certificate to be executed by the Paying Agent and the Security Agent............... 81
18.9 Notice of Transfer Certificates.............................................................. 81
18.10 Documentation of transfer or assignment...................................................... 81
18.11 Contracts (Rights of Third Parties) Act 1999 (the "Act")..................................... 82
19 Notices............................................................................................ 82
19.1 Mode of communication........................................................................ 82
19.2 Address...................................................................................... 82
19.3 Telefax communication........................................................................ 82
19.4 Receipt...................................................................................... 83
19.5 Language..................................................................................... 83
20 Governing Law...................................................................................... 83
21 Waiver of Immunity................................................................................. 84
22 Jurisdiction....................................................................................... 84
Schedule 1 Particulars of Arrangers..................................................................... 89
Schedule 2 Particulars of Security Agent, Paying Agent and Lenders...................................... 90
Schedule 3 Notice of Drawdown........................................................................... 93
Schedule 4 Conditions Precedent......................................................................... 95
Schedule 5 Confidentiality Undertaking.................................................................. 101
Schedule 6 Transfer Certificate......................................................................... 103
Schedule 7 Chartering of the Six Vessels (as defined in Clause 10.6.4).................................. 110
LOAN AGREEMENT
DATED 9 JULY 2003 AND AMENDED AND RESTATED BY AN AGREEMENT DATED 20 APRIL 2004
BETWEEN:
(1) NORWEGIAN SUN LIMITED of Canon's Court, 22 Victoria Street, Hamilton HM
12, Bermuda as borrower (the "BORROWER");
(2) THE SEVERAL BANKS particulars of which are set out in Schedule 1 as
arrangers and underwriters (collectively the "ARRANGERS" and each
individually an "ARRANGER");
(3) THE SEVERAL BANKS particulars of which are set out in Schedule 2 and any
Transferee as lenders (collectively the "LENDERS" and each individually a
"LENDER");
(4) DNB NOR BANK ASA (as successor in title to Den norske Bank ASA) of
Stranden 21, NO-0021 Oslo, Norway as paying agent (the "PAYING AGENT");
and
(5) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED of 1 Queen's Road
Central, Hong Kong as security agent (the "SECURITY AGENT").
WHEREAS:
The Arrangers have agreed on the terms and subject to the conditions set out in
this Agreement to arrange and underwrite a loan of up to two hundred and twenty
five million Dollars (USD225,000,000) to be made by a syndicate of international
banks and/or financial institutions selected by the Arrangers after consultation
with the Borrower to part finance the purchase of the Vessel by the Borrower for
the Purchase Price.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNT CHARGE" means the charge given by the Borrower in respect
of the Operating Account in favour of the Security Agent such charge
to be in the form and on the terms and conditions required by the
Paying Agent and as specified in paragraph 26 of Schedule 4;
"AGENCY DEED" means the deed dated 9 July 2003 entered into by the
Lenders, the Paying Agent and the Security Agent whereby the Paying
Agent and the Security Agent have been appointed as agents for the
Lenders;
"AGREEMENT" means this agreement;
"ARRASAS" means Arrasas Limited of International House, Castle Hill,
Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles;
"ASSOCIATED COMPANY" in relation to any company, means any company
which is a Subsidiary or Holding Company of that company or the
majority of whose shares are beneficially owned by the same person
or persons as own the majority of the shares of that company;
"BUSINESS DAY" means any day on which banks and financial markets in
London, Oslo and New York are open for the transaction of business
of the nature contemplated by this Agreement;
"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 for the
time being of that company;
"CHARGE" means the charge over shares to be given by the Shareholder
as holder (legally and beneficially) of the Shares in favour of the
Security Agent on the Restatement Date such charge to be in the form
and on the terms and conditions required by the Paying Agent and
agreed on the date of the First Supplement;
"COMMITMENT" means, as to each Lender, the sum set out opposite its
name in Schedule 2 as the amount which, subject to the terms of this
Agreement, it is obliged to advance to the Borrower under Clause 2
(or, where the context so admits, such amount which any successor in
title, assignee or transferee (including any Transferee) of any
Lender shall be obliged to advance to the Borrower under Clause 2,
following the assumption of all or any portion of such liability
from any Lender hereunder) in each case as such amount may be
reduced, cancelled or terminated under this Agreement;
2
"COMMITMENT PERIOD" means the period beginning on 9 July 2003 and
ending on the date on which the Loan is drawn down in full or
cancelled hereunder;
"COMPULSORY ACQUISITION" means requisition for title or other
compulsory acquisition of the Vessel including its capture, seizure,
detention or confiscation or expropriation but excluding any
requisition for hire by or on behalf of any government or
governmental authority or agency or by any persons acting or
purporting to act on behalf of any such government or governmental
authority or agency;
"CONFIDENTIALITY UNDERTAKING" means the undertaking to be entered
into relating to the release of financial information pertaining to
the Group by the Paying Agent, the Security Agent or any Lender to a
potential Transferee or assignee such undertaking to be in the form
of Schedule 5;
"CONTRIBUTION" means as to each Lender the sum set out opposite its
name in Schedule 2 as the amount which it is obliged to advance to
the Borrower under Clause 2 or, as the case may be, the portion of
such sum so advanced and for the time being outstanding;
"CO-ORDINATION DEED" means the deed made between the Security Agent,
the Paying Agent, the Second Mortgagees, the Borrower and Star (as
indemnifier under the L/C Facility Agreements) in respect of the
Second Mortgage Documents;
"DEBENTURE" means the debenture entered into by the Borrower in
favour of the Security Agent on 9 July 2003 such debenture to be in
the form and on the terms and conditions required by the Paying
Agent and as specified in paragraph 13 of Schedule 4;
"DISCLOSURE LETTER" means the letter so designated given by the
Borrower and acknowledged by the Paying Agent (acting on the
instructions of the Lenders) on the date of the First Supplement;
"DOCUMENT OF COMPLIANCE" means a document issued to a vessel
operator as evidence of its compliance with the requirements of the
ISM Code;
"DOLLARS" AND "USD" means the lawful currency of the United States
of America;
3
"DRAWDOWN DATE" means the date being a Business Day on which the
Vessel is delivered to and accepted by the Borrower pursuant to the
MOA and the Loan is drawn down pursuant to Clause 2.3 and applied in
accordance with Clause 2.2;
"DRAWDOWN NOTICE" means the notice to be given by the Borrower to
the Paying Agent pursuant to Clause 2.3;
"EARNINGS" means, in respect of the Vessel, (whether earned or to be
earned) any and all freights, hire and passage monies, proceeds of
requisition (other than proceeds of Compulsory Acquisition), rebates
and commissions, all earnings deriving from contracts of employment,
demurrage, charterparties, contracts of affreightment, pooling
agreements and joint ventures, compensation, remuneration for
salvage and towage services, damages howsoever arising and detention
monies, damages for breach of any charterparty or other contract for
the employment of the Vessel, any amounts payable in consideration
of the termination or variation of any charterparty or other such
contract and any other earnings whatsoever due or to become due to
the Borrower;
"EARNINGS ASSIGNMENT" means the valid and effective first legal
assignment of the Earnings (together with the notice thereof and the
acknowledgement) executed by the Borrower in respect of the Vessel
in favour of the Security Agent such assignment, notice and
acknowledgement to be in the form and on the terms and conditions
required by the Paying Agent and as specified in paragraph 24 of
Schedule 4;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, assignment,
hypothecation, title retention, preferential right or trust
arrangement or any other security agreement or arrangement;
"EVENT OF DEFAULT" means any of the events specified in Clause 12;
"FINANCIAL INDEBTEDNESS" means any obligation for the payment or
repayment of money, whether as principal or as surety and whether
present or future, actual or contingent;
"FIRST L/C FACILITY" means the letter of credit facility in an
amount not exceeding eighty per cent (80%) of the aggregate of the
amounts of the First L/C Facility and the Second L/C Facility but
not exceeding the amount of eighty million
4
Dollars (USD80,000,000), made to Star as indemnifier pursuant to the
First L/C Facility Agreement;
"FIRST L/C FACILITY AGREEMENT" means the letter of credit facility
agreement dated 25 September 2003 made in respect of the First L/C
Facility between (among others) the First L/C Issuer and Star as
indemnifier;
"FIRST L/C ISSUER" means The Hongkong and Shanghai Banking
Corporation Limited;
"FIRST SUPPLEMENT" means the first supplemental agreement dated 2004
to the Original Loan Agreement;
"FORCE MAJEURE" means, in relation to the Paying Agent, the Security
Agent, any Lender or any Arranger, any event or circumstance which
is beyond the reasonable control of such party, which cannot be
foreseen or if foreseeable which is unavoidable, which occurs after
the date of this Agreement and which prevents that party from
performing any of its obligations under this Agreement;
"GROUP" means Star and its wholly owned Subsidiaries;
"GUARANTEE" means the guarantee to be executed by the Guarantor in
favour of the Security Agent on the Restatement Date such guarantee
to be in the form and on the terms and conditions required by the
Paying Agent and agreed on the date of the First Supplement;
"GUARANTOR" means NCL Corporation Ltd. of Reid Hall, 3 Reid Street,
Hamilton HM 11, Bermuda and with its principal place of business at
7665 Corporate Center Drive, Miami, Florida 33126, United States of
America;
"HOLDING COMPANY" has the meaning defined in the Companies Act 1985,
Section 736 as substituted by the Companies Act 1989, Section 144;
"IOL" means Inter-Ocean Limited of International House, Castle Hill,
Victoria Road, Douglas, Isle of Man IM2 4RB, British Isles;
"ISM CODE" means the International Management Code for the Safe
Operation of Ships and for Pollution Prevention adopted by the
International Maritime Organisation;
5
"ISPS CODE" means the International Ship and Port Facility Security
Code adopted by the International Maritime Organisation;
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness
(whether present or future, actual or contingent, long-term or
short-term, secured or unsecured) in respect of:
(i) moneys borrowed or raised;
(ii) the advance or extension of credit (including interest and
other charges on or in respect of any of the foregoing);
(iii) the amount of any liability in respect of leases which, in
accordance with US GAAP, are capital leases;
(iv) the amount of any liability in respect of the purchase price
for assets or services payment of which is deferred for a
period in excess of one hundred and eighty (180) days;
(v) all reimbursement obligations whether contingent or not in
respect of amounts paid under a letter of credit or similar
instrument;
(vi) all interest rate and currency swap and similar agreements
obliging the making of payments, whether periodically or upon
the happening of a contingency (and the value of such
Financial Indebtedness shall be the mark-to-market valuation
of such transaction at the relevant time); and
(vii) (without double counting) any guarantee of Financial
Indebtedness falling within paragraphs (i) to (vi) above;
For the avoidance of doubt, the arrangements contemplated by and
pursuant to the L/C Facilities shall not fall within this definition
of "INDEBTEDNESS FOR BORROWED MONEY" until the Beneficiary (as
defined in each of the L/C Facility Agreements) presents a draft
under a Letter of Credit (as defined in a L/C Facility Agreement)
when the amount of that draft shall fall within this definition
until the Standby Lenders and/or the Second L/C Issuer (as the case
may be) have or has been indemnified in full in respect of that
draft;
6
"INSTALMENT" means the amount of principal of the Loan repayable on
a Repayment Date in accordance with Clause 3.1.1;
"INSURANCE ASSIGNMENT" means the valid and effective first legal
assignment of the Insurances (together with the notice thereof)
executed by the Borrower in respect of the Vessel in favour of the
Security Agent such assignment and notice to be in the form and on
the terms and conditions required by the Paying Agent and as
specified in paragraph 25 of Schedule 4;
"INSURANCES" means all policies and contracts of insurance and
entries of the Vessel in a protection and indemnity or war risks
association which are effected in respect of the Vessel, its
freights, disbursements, profits or otherwise and all benefits,
including all claims and returns of premiums thereunder and shall
also include all compensation payable by virtue of Compulsory
Acquisition;
"INTEREST PAYMENT DATE" means the last day of each Interest Period
and if an Interest Period is longer than six (6) months' duration
the date falling at the end of each successive period of six (6)
months during such Interest Period from its commencement;
"INTEREST PERIOD" means each period ascertained in accordance with
Clause 5.2 or Clause 5.8;
"INTEREST RATE" means the rate of interest applicable to the Loan
calculated in accordance with Clause 5.6, Clause 5.8 or Clause 6.3;
"L/C FACILITIES" means the First L/C Facility and the Second L/C
Facility;
"L/C FACILITY AGREEMENTS" means the First L/C Facility Agreement and
the Second L/C Facility Agreement;
"L/C ISSUERS" means the First L/C Issuer and the Second L/C Issuer;
"LENDING BRANCH" means in respect of the Paying Agent, the Security
Agent and each Lender its office at the address set out beneath its
name in Schedule 2 or such other office as it shall from time to
time select and notify through the Paying Agent to the Borrower and
the Security Agent;
7
"LIBOR" means with respect to any Interest Period the rate of
interest (expressed as an annual rate) determined by the Paying
Agent to be:
(i) the offered rate for deposits in Dollars for a period
equivalent to such Interest Period which appears on the
Telerate Page 3750 at or about 11.00 a.m. London time on the
Quotation Date; or
(ii) if no rate is provided for the respective Interest Period on
the Telerate Page 3750, the interpolated rate per annum for
deposits in Dollars in an amount approximately equal to the
Loan as calculated by the Paying Agent, such interpolated rate
to be based on the Telerate Page 3750 (for periods of more
than one (1) month) or on the Reuters Page LIBO (for periods
of more than one (1) week and up to one (1) month) PROVIDED
THAT LIBOR for periods of less than one (1) week will be
ascertained under sub-section (iii) below;
OR (if Telerate Page 3750 or Reuters Page LIBO (as the case may be)
is discontinued or if the Paying Agent is unable to make the said
determination due to technical breakdown in the relevant system or
the Interest Period is less than one (1) week)
(iii) the arithmetic mean (rounded upwards, if necessary, to the
nearest one-sixteenth of one per cent (1/16%)) of the rates
per annum notified to the Paying Agent by each of the
Reference Banks as the rate at which deposits in Dollars in an
amount approximately equal to the Loan are offered to such
Reference Bank by leading banks in the London Interbank Market
at such Reference Bank's request at or about 11.00 a.m. London
time on the Quotation Date for a period equal to the Interest
Period and for delivery on the first Business Day thereof;
"LOAN" means the loan granted hereunder being in a maximum amount of
the lesser of two hundred and twenty five million Dollars
(USD225,000,000) and seventy per cent (70%) of the value of the
Vessel as assessed in accordance with the provisions of Clause 10.18
on or about the Drawdown Date or (as the context may require) the
amount thereof for the time being advanced and outstanding under
this Agreement;
8
"MOA" means the memorandum of agreement dated 18 March 2003 as
amended by a first addendum thereto dated 4 July 2003 for the sale
and purchase of the Vessel made between the Seller and the Borrower;
"MAJORITY LENDERS" shall have the same meaning as in the Agency
Deed;
"MANAGEMENT AGREEMENT" means the agreement to be entered into
between the Borrower and the Manager on or before the Restatement
Date providing for the commercial and technical management and
crewing of the Vessel such agreement to be in the form and on the
terms and conditions required by the Paying Agent and the Lenders
and agreed on the date of the First Supplement;
"MANAGEMENT AGREEMENT ASSIGNMENT" means the valid and effective
first legal assignment of the Management Agreement (together with
the notice thereof and the acknowledgement) to be executed by the
Borrower in respect of the Vessel in favour of the Security Agent on
the Restatement Date such assignment, notice and acknowledgement to
be in the form and on the terms and conditions required by the
Paying Agent and agreed on the date of the First Supplement;
"MANAGER" means NCL (Bahamas) Ltd. of Reid Hall, 3 Reid Street,
Hamilton HM 11, Bermuda the company which (amongst other things)
provides the commercial and technical management and crewing
services for the Vessel pursuant to the Management Agreement;
"MARGIN" means the rate of one point four per cent (1.4%) per annum;
"MATURITY DATE" means the date being a Business Day falling eight
(8) years from the Drawdown Date or such other date as is determined
by the provisions of Clause 4;
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month save that, where any such period would otherwise end on a day
which is not a Business Day, it shall end on the next Business Day,
unless that day falls in the calendar month succeeding that in which
it would otherwise have ended, in which case it shall end on the
preceding Business Day PROVIDED THAT, if a period starts on the last
Business Day in a calendar month or if there is no numerically
corresponding day
9
in the month in which that period ends, that period shall end on the
last Business Day in that later month;
"MORTGAGE" means the first priority statutory Bahamian ship mortgage
and deed of covenants collateral thereto granted by the Borrower
over the Vessel in favour of the Security Agent as security pursuant
hereto such mortgage and deed of covenants to be in the form and on
the terms and conditions required by the Paying Agent and as
specified in paragraph 23 of Schedule 4;
"NCL AMERICA" means NCL America Inc. of Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801, United States of
America;
"NCL AMERICA HOLDINGS" means NCL America Holdings, Inc. of
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, United States of America;
"NCLC FLEET" means the vessels owned by the companies in the NCLC
Group;
"NCLC GROUP" means the Guarantor and its wholly owned Subsidiaries;
"NCLL" means Norwegian Cruise Line Limited of Reid Hall, 3 Reid
Street, Hamilton HM 11, Bermuda;
"OBLIGORS" means the Borrower, the Guarantor, the Shareholder, the
Manager and any other party from time to time to any of the Security
Documents excluding the Security Agent, the Paying Agent, the
Arrangers and the Lenders;
"OPERATING ACCOUNT" means the account opened or to be opened by the
Borrower with Citibank N.A. of 3 Temasek Avenue, #17-00 Centennial
Tower, Singapore 039190 or such other bank or banks as may be
approved by the Paying Agent from time to time for receipt of the
Earnings of the Vessel;
"ORIGINAL LOAN AGREEMENT" means this agreement as executed on 9 July
2003 (prior to, inter alia, its amendment and restatement pursuant
to the First Supplement);
"OUTSTANDING INDEBTEDNESS" means all sums of any kind payable
actually or contingently to the Security Agent, the Paying Agent,
the Arrangers or the Lenders under or pursuant to this Agreement or
any other Transaction Document
10
(whether by way of repayment of principal, payment of interest or
default interest, payment of any indemnity or counter indemnity,
reimbursement for fees, costs or expenses or otherwise howsoever);
"PERMITTED LIENS" means (i) any Encumbrance created by or pursuant
to the Security Documents (ii) liens on the Vessel up to an
aggregate amount at any time not exceeding five million Dollars
(USD5,000,000) for current crew's wages and salvage and liens
incurred in the ordinary course of trading the Vessel (iii) the
Second Mortgage Documents (iv) any deposits or pledges to secure the
performance of bids, tenders, bonds or contracts and (v) any other
Encumbrance notified by any of the Obligors to the Paying Agent
prior to the Restatement Date;
"POSSIBLE EVENT OF DEFAULT" means any event which, with the giving
of notice, passage of time or occurrence of any other event, would
constitute an Event of Default;
"PROCESS AGENT" means Clifford Chance Secretaries Limited whose
registered office is presently at 10 Upper Bank Street, London E14
5JJ or any other person in England nominated by the Borrower or any
other Obligor and approved by the Paying Agent as agent to accept
service of legal proceedings on their behalf under any of this
Agreement and the Security Documents;
"PURCHASE PRICE" means three hundred and fifty million Dollars
(USD350,000,000) in respect of the Vessel being the price agreed
between the Seller and the Borrower for the sale and purchase of the
Vessel under clause 1 of the MOA;
"QUOTATION DATE" means, in relation to any Interest Period, the day
two (2) Business Days (in London) prior to the first day of the
relevant Interest Period;
"REFERENCE BANKS" means DnB NOR Bank ASA and HSBC Bank plc;
"REPAYMENT DATES" means in respect of the Loan, subject to the
provisions of Clause 4, the last day of each of the sixteen (16)
consecutive periods of six (6) months the first such period
commencing on the Drawdown Date and the sixteenth (16th) such period
terminating eight (8) years thereafter the last such Repayment Date
also being the Maturity Date;
11
"RESTATEMENT DATE" has the same meaning as set out in the First
Supplement;
"REUTERS PAGE LIBO" means the display currently designated as
Reuters Page LIBO, which includes London Interbank Offered Rates of
four (4) major banks, which are members of the International Swaps
and Derivatives Association, Inc. or such other service as may be
nominated by the British Bankers' Association as the information
vendor for displaying the London Interbank Offered Rates of major
banks in the London Interbank Market;
"SAME DAY FUNDS" means Dollar funds settled through the New York
Clearing House Interbank Payments System or such other funds for
payment in Dollars as the Paying Agent shall specify by notice to
the Borrower as being customary at the time for the settlement of
international transactions in New York of the type contemplated by
this Agreement;
"SAFETY MANAGEMENT CERTIFICATE" means a document issued to a vessel
as evidence that the vessel operator and its shipboard management
operate in accordance with an approved Safety Management System;
"SAFETY MANAGEMENT SYSTEM" means a structured and documented system
enabling the personnel of a vessel operator to implement effectively
the safety and environmental protection policy of such vessel
operator;
"SECOND L/C FACILITY" means the letter of credit facility in an
amount not exceeding twenty per cent (20%) of the aggregate of the
amounts of the First L/C Facility and the Second L/C Facility but
not exceeding the amount of twenty million Dollars (USD20,000,000),
made to Star as indemnifier pursuant to the Second L/C Facility
Agreement;
"SECOND L/C FACILITY AGREEMENT" means the letter of credit facility
agreement dated 25 September 2003 made in respect of the Second L/C
Facility between (among others) the Second L/C Issuer and Star as
indemnifier;
"SECOND L/C ISSUER" means DnB NOR Bank ASA, Singapore Branch;
"SECOND MORTGAGEES" means The Hongkong and Shanghai Banking
Corporation Limited as agent for itself as the First L/C Issuer and
the Standby Lenders and the Second L/C Issuer;
12
"SECOND MORTGAGE DOCUMENTS" means the documents set out in schedule
1 to the Co-ordination Deed to be granted to the Second Mortgagees
as security for the obligations of Star as indemnifier under the L/C
Facility Agreements;
"SECURITY DOCUMENTS" means this Agreement, the Debenture, the
Account Charge, the Mortgage, the Guarantee, the Earnings
Assignment, the Insurance Assignment, the Charge, the Management
Agreement Assignment, the Co-ordination Deed and all such other
documents as may be executed at any time in favour of the Security
Agent as security for the obligations of the Borrower and/or the
other Obligors whether executed pursuant to the express provisions
of this Agreement or otherwise howsoever;
"SECURITY PERIOD" means the period beginning on the Drawdown Date
and ending on the date on which the amounts outstanding under this
Agreement and under each of the other Security Documents are finally
paid or repaid in full;
"SELLER" means NCLL as seller of the Vessel;
"SHAREHOLDER" means NCL International, Ltd. of Reid Hall, 3 Reid
Street, Hamilton HM 11, Bermuda the sole registered and beneficial
shareholder of the entire issued share capital of the Borrower;
"SHARES" means the twelve thousand (12,000) shares in the Borrower
being one hundred per cent (100%) of the authorised and issued
shares in the Borrower registered in the name of and beneficially
owned by the Shareholder;
"STANDBY LENDERS" shall have the same meaning as in the First L/C
Facility Agreement;
"STAR" means Star Cruises Limited of Canon's Court, 22 Victoria
Street, Hamilton HM 12, Bermuda;
"SUBSIDIARY" has the meaning defined in the Companies Act 1985,
Section 736 as substituted by the Companies Act 1989, Section 144;
"SUBSTITUTE BASIS" means an alternative basis for maintaining the
Loan certified by the Paying Agent pursuant to Clause 6.3.1;
13
"SUSPENSION NOTICE" means a notice given by the Paying Agent to the
Borrower pursuant to Clause 6.1;
"TAXES" means all present and future income and other taxes, levies,
imposts, deductions, compulsory liens and withholdings whatsoever
together with interest thereon and penalties with respect thereto,
if any, and any payments made on or in respect thereof and
"TAXATION" shall be construed accordingly;
"TELERATE PAGE 3750" means the display currently designated as
Telerate Page 3750 (or such other page as may replace it on such
service) or such other service as may be nominated by the British
Bankers' Association as the information vendor for displaying the
London Interbank Offered Rates of major banks in the London
Interbank Market;
"TOTAL LOSS" means any actual or constructive or arranged or agreed
or compromised total loss or Compulsory Acquisition of the Vessel;
"TRANSACTION DOCUMENTS" means the Security Documents, the MOA, the
Drawdown Notice, the Management Agreement and any other material
document now or hereafter issued in connection with the documents or
the transaction herein referred to and also including any document
entered into in respect of interest rate swap agreements, hedging
agreements and/or funding documents at the request of the Borrower
for the purposes of this Agreement;
"TRANSFER CERTIFICATE" means the certificate attached hereto as
Schedule 6;
"TRANSFER DATE" means, in relation to any Transfer Certificate, the
date specified in such Transfer Certificate as the date for the
making of the transfer or, where such transfer is specified as being
subject to the fulfilment of certain conditions, the date on which
the Paying Agent receives a certificate from the Lender making the
transfer confirming that all such conditions have been fulfilled;
"TRANSFEREE" means any reputable bank acceptable to the Paying Agent
which becomes a party to this Agreement as a Lender pursuant to
Clause 18;
"US 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
14
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; and
"VESSEL" means the approximately two thousand (2,000) passenger
luxury cruise vessel built in 2001 and named "NORWEGIAN SUN" to be
purchased by the Borrower from the Seller pursuant to the MOA and
re-registered in the name of the Borrower under the laws and flag of
the Bahamas.
1.2 CONSTRUCTION
In this Agreement unless the context otherwise requires:
1.2.1 terms and expressions not defined herein but whose meanings
are defined in the Original Loan Agreement shall have the
meanings set out therein;
1.2.2 clause headings are inserted for convenience of reference
only and shall be ignored in the construction of this
Agreement;
1.2.3 references to Clauses and to Schedules are to be construed
as references to clauses of and schedules to this Agreement
unless otherwise stated and references to this Agreement
are to be construed as references to this Agreement
including its Schedules;
1.2.4 references to (or to any specified provision of) this
Agreement or any other document other than a L/C Facility
Agreement shall be construed as references to this
Agreement, that provision or that document as from time to
time amended, supplemented and/or novated;
1.2.5 references to any Act or any statutory instrument shall be
construed as references to that Act or that statutory
instrument as from time to time re-enacted, amended or
supplemented;
1.2.6 references to any party to this Agreement or any other
document shall include reference to such party's successors
and permitted assigns;
1.2.7 words importing the plural shall include the singular and
vice versa;
15
1.2.8 references to a person shall be construed as references to
an individual, firm, company, corporation, unincorporated
body of persons or any state or any agency thereof;
1.2.9 where any matter requires the approval or consent of the
Security Agent or the Paying Agent such approval or consent
shall not be deemed to have been given unless given in
writing; where any matter is required to be acceptable to
the Security Agent or the Paying Agent, the Security Agent
or the Paying Agent (as the case may be) shall not be
deemed to have accepted such matter unless its acceptance
is communicated in writing; each of the Security Agent and
the Paying Agent may give or withhold its consent, approval
or acceptance at its unfettered discretion; and
1.2.10 a certificate by the Paying Agent or the Security Agent as
to any amount due or calculation made hereunder shall be
conclusive except for manifest error.
1.3 PAYING AGENT AND SECURITY AGENT
The Paying Agent and the Security Agent will be appointed by the
Lenders as agents under the Agency Deed and (unless the context
otherwise requires) references herein to the Paying Agent or the
Security Agent shall be construed as references to itself, the
Lenders and the Security Agent or the Paying Agent (as the case may
be). The Borrower shall only communicate with the Lenders under this
Agreement and the other Security Documents through the Security
Agent or the Paying Agent (as the case may be) and as hereinafter
referred to.
2 THE LOAN
2.1 AVAILABILITY
2.1.1 The Lenders grant to the Borrower the Loan. So far as and
to the extent that any part of the Loan remains undrawn at
close of business in London forty five (45) days after 9
July 2003 it shall be automatically cancelled.
2.1.2 Each Lender shall advance its Contribution to the Loan in
the proportion which its Contribution for the time being
bears to the other Contributions of the Lenders.
16
2.1.3 None of the Paying Agent, the Security Agent, any other
Lender or any Arranger shall be liable for any failure or
delay on the part of any Lender in making any advance
hereunder nor shall the Paying Agent, the Security Agent or
the Arrangers have any obligation to seek to procure
additional Lenders in the event of such a failure PROVIDED
THAT if any Lender should fail to advance its Contribution
hereunder, that Lender and the Paying Agent will take all
reasonable steps to mitigate the effect of that failure.
Notwithstanding the aforesaid proviso, no Lender shall be
obliged to increase its Contribution hereunder in respect
of the failure by any other Lender to fund its
Contribution.
2.2 PURPOSE AND APPLICATION
The Borrower shall apply the Loan in part payment of the Purchase
Price due to the Seller under the MOA.
2.3 DRAWDOWN
The Borrower shall only draw down the Loan if:
2.3.1 the Paying Agent receives at least five (5) Business Days'
notice of the Borrower's request for such drawing in the
form of Schedule 3;
2.3.2 no Event of Default or Possible Event of Default has
occurred before the date of such drawing;
2.3.3 the representations and warranties set out in Clause 9 and
each of the other Security Documents are correct on the
date of such drawing; and
2.3.4 it is then lawful for each of the Lenders to make available
its Contribution to the Loan.
2.4 BREAK COSTS
If for any reason the Loan is not drawn down by the Borrower
hereunder after the Drawdown Notice has been given to the Paying
Agent pursuant to Clause 2.3, the Borrower will pay to the Paying
Agent for the account of the Lenders such amount as the Paying Agent
may certify as necessary to compensate the Lenders (other than any
Lender whose default has caused the Loan not to be drawn down)
17
for any loss (including any losses under any interest rate swap
agreements or other financial derivatives entered into for the
purpose of this Agreement) or expense on account of funds borrowed,
contracted for or utilised in order to fund its Contribution to the
Loan. Each Lender shall supply to the Paying Agent a certificate of
break costs which in the absence of manifest error shall be
conclusive as to the amounts due.
2.5 CONDITIONS OF DRAWDOWN
The Paying Agent shall not be under any obligation to advance the
Loan hereunder until all the documents and evidence referred to in
the relevant part of Schedule 4 are in the possession of the Paying
Agent in form and substance satisfactory to it.
2.6 SEVERAL OBLIGATIONS OF THE LENDERS
The obligations and rights of each Lender hereunder are several and
if for any reason the Borrower receives an amount greater than the
aggregate of the Contributions to the Loan, the Borrower forthwith
upon the demand of the Paying Agent shall pay to the Paying Agent
(for the account of those Lenders whose Contributions were exceeded)
the amount certified by the Paying Agent as representing the excess
of the amount paid to the Borrower over the due and proper amount of
the Contributions of the Lenders actually received by the Paying
Agent.
2.7 LENDER'S FAILURE TO PERFORM
Subject to Clause 2.1.3, the failure by a Lender to perform its
obligations hereunder shall not affect the obligations of the
Borrower towards any other party hereto nor shall any such other
party be liable for the failure by such Lender to perform its
obligations hereunder.
2.8 FULFILMENT OF CONDITIONS AFTER DRAWDOWN
If the Lenders, acting unanimously, decide (or the Paying Agent in
accordance with the Agency Deed decides) to permit the advance of
the Loan to the Borrower hereunder without having received all of
the documents or evidence referred to in Schedule 4, the Borrower
will nevertheless deliver the remaining documents or
18
evidence to the Paying Agent within fourteen (14) days of such
drawing (or such other period as the Paying Agent may stipulate) and
the advance of the Loan shall not be construed as a waiver of the
Paying Agent's right to receive the documents or evidence as
aforesaid nor shall this provision impose on the Paying Agent or the
Lenders any obligation to permit the drawing in the absence of such
documents or evidence.
3 REPAYMENT
3.1 Unless otherwise repaid in accordance with the provisions of this
Agreement, the Borrower hereby agrees to repay the Loan as follows:
3.1.1 by sixteen (16) Instalments each of nine million Dollars
(USD9,000,000) the first such Instalment to be paid six (6)
months from the Drawdown Date and the remainder at six (6)
monthly intervals thereafter the final such Instalment to
be paid on the Maturity Date; and
3.1.2 by a balloon payment of eighty one million Dollars
(USD81,000,000) to be paid on the Maturity Date.
4 PREPAYMENT
4.1 VOLUNTARY PREPAYMENT
On giving at least thirty (30) days' prior notice to the Paying
Agent, the Borrower may on the last day of an Interest Period
prepay, subject to Clause 4.8, the whole or any part of the Loan
(but if in part in an amount not less than twenty million Dollars
(USD20,000,000) and in integral multiples of ten million Dollars
(USD10,000,000)).
4.2 VOLUNTARY PREPAYMENT IN CASE OF INCREASED COST
At any time after any sum payable by the Borrower has been increased
under Clause 8 or a Lender has made any claim for indemnification
under Clause 8, the Borrower may, after giving to the Paying Agent
five (5) Business Days' notice of its intention to do so, prepay the
whole (but not part only) of the Contribution of that Lender,
subject to Clause 4.8.
19
4.3 MANDATORY PREPAYMENT IN CASE OF ILLEGALITY
If any change in, or in the interpretation or application of, any
law, regulation or treaty shall make it unlawful in any jurisdiction
applicable to any of the Lenders for that Lender to make available
or maintain its Contribution or to give effect to its obligations as
contemplated hereby, the Paying Agent may, by notice thereof to the
Borrower, declare that the relevant Lender's obligations shall be
terminated forthwith whereupon (if any of the Loan has then been
advanced) the Borrower shall prepay forthwith to the relevant Lender
its Contribution together with interest thereon to the date of such
prepayment and all other amounts due to such Lender under Clause 4.8
and under the Security Documents (or, if permitted by the relevant
law, regulation or treaty, at the end of the then current Interest
Period).
A Lender affected by any provision of this Clause 4.3 shall promptly
inform the Paying Agent after becoming aware of the relevant change
and the Paying Agent shall, as soon as reasonably practicable
thereafter, notify the Borrower of the change and its possible
results. Without affecting the Borrower's obligations under this
Clause 4.3 and in consultation with the Paying Agent, the affected
Lender will then take all such reasonable steps as may be open to it
to mitigate the effect of the change (for example (and if then
possible) by changing its Lending Branch or transferring some or all
of its rights and obligations under this Agreement to another
financial institution reasonably acceptable to the Borrower and the
Paying Agent). The reasonable costs of mitigating the effect of any
such change shall be borne by the Borrower save where such costs are
of an internal administrative nature and are not incurred in
dealings by any Lender with third parties.
4.4 VOLUNTARY PREPAYMENT FOLLOWING IMPOSITION OF SUBSTITUTE BASIS
The Borrower may notify the Paying Agent within ten (10) days of the
receipt of a certificate from the Paying Agent of a Substitute Basis
under Clause 6.3 whether or not it wishes to prepay the Loan or the
relevant part thereof, in which event the Borrower shall forthwith
prepay the Loan or such relevant part thereof together with interest
accrued thereon at the rate specified in the relevant certificate of
Substitute Basis and any break costs in accordance with Clause 4.8.
20
4.5 PREPAYMENT IN CASE OF TOTAL LOSS OF THE VESSEL
If the Vessel is or becomes a Total Loss, then the Borrower will,
within thirty (30) days thereof or, if the Paying Agent is satisfied
in its sole discretion that the Total Loss is adequately covered by
the Insurances and that the relevant insurance proceeds will be
payable to the Security Agent or the Paying Agent on its behalf
within one hundred and fifty (150) days thereof, by no later than
the date which is one hundred and fifty (150) days after the date of
the event giving rise to such Total Loss prepay the Loan in
accordance with Clause 4.7, Clause 4.8 and Clause 13.1.
For the purposes of this Clause a Total Loss shall be deemed to have
occurred:
4.5.1 if it consists of an actual loss, at noon Greenwich Mean
Time on the actual date of loss or, if that is not known,
on the date on which the Vessel was last heard of;
4.5.2 if it consists of a Compulsory Acquisition, at noon
Greenwich Mean Time on the date on which the requisition is
expressed to take effect by the person requisitioning the
Vessel; and
4.5.3 if it consists of a constructive or compromised or arranged
or agreed total loss or damage to the Vessel rendering
repair impracticable or uneconomical or rendering the
Vessel permanently unfit for normal use, at noon Greenwich
Mean Time on the date on which notice claiming the loss of
the Vessel is given to its insurers.
4.6 PREPAYMENT IN CASE OF SALE OF THE VESSEL
If the Vessel is sold by the Borrower with the prior consent of the
Paying Agent (which consent is not to be unreasonably withheld or
delayed PROVIDED THAT if an Event of Default has occurred and the
Borrower desires to sell the Vessel by private treaty at arm's
length the approval of the Paying Agent may be delayed by up to
fourteen (14) days from the date on which the Borrower's request for
approval is received by the Paying Agent), then the Borrower will
concurrent with completion of the sale prepay the Loan in accordance
with Clause 4.7, Clause 4.8 and Clause 13.1.
21
4.7 EFFECT OF PREPAYMENT
Any notice given by the Borrower under Clause 4.1, Clause 4.2 or
Clause 4.4 shall be irrevocable and shall oblige the Borrower to pay
to the Paying Agent on account of the Lenders the amount therein
stated on the date therein stated. No amount prepaid under this
Agreement may be redrawn. Each prepayment under this Agreement shall
be applied in satisfaction of the Borrower's remaining obligations
under Clause 3 in respect of the Loan pro rata to each Instalment
and the balloon payment of eighty one million Dollars
(USD81,000,000) repayable pursuant to Clause 3.1.2. Prepayments
under this Agreement shall be made together with accrued interest
thereon and the payment of all other sums then owing under any of
the Security Documents.
4.8 BREAK COSTS
If any repayment or prepayment of the Loan or part thereof is made
otherwise than on the last day of an Interest Period, the Borrower
shall pay to the Paying Agent on behalf of the Lenders on demand
such additional amount as the Paying Agent may certify (such
certificate to contain a calculation thereof in reasonable detail)
as necessary to compensate each of the Lenders for any loss
(including cost of breaking deposits (including warehousing and
other related costs)) or any losses under any interest rate swap
agreements or other financial derivatives entered into for the
purpose of this transaction or expense (including warehousing and
other related costs) on account of funds borrowed, contracted for or
utilised to fund the amount so repaid or prepaid.
5 INTEREST
5.1 PAYMENT OF INTEREST
The Borrower shall pay interest on the Loan at the Interest Rate
applicable for each Interest Period in respect thereof which
interest shall be payable in arrears on each Interest Payment Date.
5.2 SELECTION AND DURATION OF INTEREST PERIODS
The Borrower may give notice to the Paying Agent to be received by
the Paying Agent not later than 9.00 a.m. London time five (5)
Business Days prior to the
22
commencement of each Interest Period, specifying whether that
Interest Period is to be of one (1), three (3) or six (6) months'
duration. Interest Periods shall commence, in the case of the first,
on the Drawdown Date and, in the case of Interest Periods other than
the first, on the expiry of the preceding Interest Period. Each
Interest Period shall, subject to the following provisions of this
Clause 5, be of a duration selected by the Borrower as above
PROVIDED THAT the final Interest Period shall end on the Maturity
Date.
5.3 NO NOTICE AND UNAVAILABILITY
If the Borrower fails to select an Interest Period in accordance
with Clause 5.2 or the Paying Agent certifies that deposits for the
period selected by the Borrower are not available to each of the
Lenders in the ordinary course of business in the London Interbank
Market to fund the Loan, the Borrower shall be deemed to have
selected an Interest Period of six (6) months (or such other period
as the Paying Agent may in its sole discretion decide).
5.4 SEPARATE INTEREST PERIODS FOR INSTALMENTS
If an Interest Period would otherwise extend beyond any Repayment
Date, the Loan shall be divided into two (2) or more portions. One
(1) or more portions will be of an amount equal to the amount of the
Loan required to be repaid on each relevant Repayment Date and will
have an Interest Period of such length as will expire on that date
and the Interest Period relating to the remainder of the Loan will
be determined in accordance with Clauses 5.2 and 5.3.
5.5 EXTENSION AND SHORTENING OF INTEREST PERIODS
5.5.1 If an Interest Period would otherwise end on a day which is
not a Business Day, the Interest Period shall be extended
until the next following Business Day unless the next
following Business Day falls in the next calendar month in
which case the Interest Period will be shortened to expire
on the preceding Business Day.
5.5.2 If an Interest Period commences on the last Business Day in
a month and if there is no day in the month in which the
Interest Period will end which corresponds numerically to
the day on which it begins, the Interest Period shall end
on the last Business Day in that month.
23
5.6 INTEREST RATE
Subject to Clause 5.8 and Clause 6, the rate of interest applicable
to the Loan (or relevant part in the case of the division of the
Loan under Clause 5.4) during an Interest Period shall be the rate
per annum which is the sum of LIBOR plus the Margin.
5.7 BANK BASIS
Interest, commitment fee, management fee and any other payments
hereunder of an annual nature shall accrue from day to day and be
computed on the basis of a year of three hundred and sixty (360)
days and for the actual number of days elapsed.
5.8 DEFAULT INTEREST
If the Borrower fails to pay on the due date any sum due under this
Agreement or any of the other Security Documents to which it may at
any time be a party, the Borrower shall, without affecting any other
remedy of the Paying Agent or the Lenders, pay interest on such sum
from the due date to the actual date of payment (as well after as
before judgment). Such interest shall accrue on a daily basis at the
higher of the Interest Rate fixed for the latest Interest Period and
the rate computed by the Paying Agent and certified by the Paying
Agent to the Borrower as being the aggregate of (i) the Margin plus
two per cent (2%) and (ii) the greater of (a) in the case of the
Lenders, the average (rounded upwards if necessary to the next
integral multiple of one-sixteenth of one per cent (1/16%)) of the
respective rates per annum at which each of the Lenders is able to
acquire in accordance with its normal practice deposits in Dollars
in successive periods of one (1) month (or for such shorter period
as the Paying Agent may in its sole discretion select) in the London
Interbank Market in an amount equivalent to or comparable with its
Contribution to such sum, and, in the case of the Paying Agent, the
rate per annum at which it is able to acquire in accordance with its
normal practice deposits in Dollars in successive periods of one (1)
month (or for such shorter period as the Paying Agent may in its
sole discretion select) in the London Interbank Market in an amount
equivalent to such sum, as at approximately 11.00 a.m. London time
on any relevant day and (b) in the case of the Lenders, the average
(rounded upwards if necessary to the next integral multiple of
one-
24
sixteenth of one per cent (1/16%)) of the cost to each of the
Lenders of funding its Contribution to such sum, and, in the case of
the Paying Agent, the cost of funding such sum, such interest to be
compounded at the end of the period selected by the Paying Agent and
to be payable on demand. In the event of LIBOR not being available
then the Paying Agent shall in its discretion use the Substitute
Basis for its calculation as set out in Clause 6.3.
6 SUBSTITUTE BASIS OF FUNDING
6.1 MARKET DISTURBANCE
Notwithstanding anything to the contrary in this Agreement, if prior
to the commencement of any Interest Period the Paying Agent shall
determine in good faith (which determination shall be conclusive and
binding on the parties hereto) that:
6.1.1 by reason of circumstances affecting the London Interbank
Market adequate and fair means do not exist for
ascertaining the Interest Rate during such Interest Period
pursuant to Clause 5; or
6.1.2 deposits in Dollars of equal duration to such Interest
Period will not be available to any of the Lenders in the
London Interbank Market in sufficient amounts in the
ordinary course of business to fund its Contribution during
such Interest Period; or
6.1.3 by reason of any material change in applicable law or
regulation or of any change in national or international
financial or economic conditions any of the Lenders is
unable to fund or to continue to fund its Contribution
during such Interest Period by deposits obtained in the
London Interbank Market,
then the Paying Agent shall promptly give a notice (being a
Suspension Notice), containing full particulars thereof in
reasonable detail to the Borrower.
6.2 SUSPENSION OF DRAWDOWN
If a Suspension Notice is given by the Paying Agent before the
advance of the Loan in accordance with Clause 2 then the Paying
Agent shall not be obliged to advance the Loan until notice to the
contrary is given by the Paying Agent.
25
During the period of thirty (30) days from the giving of such
Suspension Notice, the Paying Agent and any Lender affected by the
relevant market disturbance shall consult in good faith with the
Borrower with a view to agreeing to an alternative basis for
advancing of the Loan or any relevant part thereof. If such
alternative basis is agreed between the Borrower, the Paying Agent
and the relevant Lender or Lenders, it shall apply in accordance
with its terms.
6.3 CERTIFICATES OF SUBSTITUTE BASIS
6.3.1 If the Loan or part thereof has been advanced before a
Suspension Notice is given, the Lender or Lenders affected
by the relevant market disturbance shall within thirty (30)
days following the date of the Suspension Notice, certify
(through the Paying Agent) in good faith to the Borrower an
alternative basis (being the Substitute Basis) for
maintaining its Contribution affected by the relevant
market disturbance. Such Substitute Basis may be
retroactive to the beginning of the then current Interest
Period and may include an alternative method of fixing the
Interest Rate (which shall reflect the cost to the relevant
Lender or Lenders of funding its Contribution from other
sources plus the Margin) or alternative Interest Periods
for the Loan or any relevant part thereof, provided always
that so far as practicable any such Substitute Basis shall
be computed in a manner and for periods as similar as
possible to those provided in Clause 5.
6.3.2 Each Substitute Basis so certified shall be binding upon
the Borrower, the Paying Agent and the Lenders and shall be
treated as part of this Agreement.
6.4 REVIEW
So long as any Substitute Basis is in force, the Paying Agent, in
consultation with the Borrower and the Lenders, shall from time to
time, but not less often than monthly, review whether or not the
circumstances referred to in Clause 6.1 still prevail with a view to
returning to the normal provisions of this Agreement.
26
7 PAYMENTS
7.1 PLACE FOR PAYMENT
All payments by the Borrower under this Agreement or any of the
other Security Documents to which it may at any time be a party
shall be made to the Paying Agent in Same Day Funds by 10.00 a.m.
New York time to Bank of New York, New York, for the account of DnB
NOR Bank ASA, Oslo account no 8033261374 or such other account or
bank as the Paying Agent may from time to time designate.
7.2 DEDUCTIONS AND GROSSING-UP
7.2.1 Each payment to be made by the Borrower to the Paying Agent
hereunder shall be made free and clear of and without
deduction for or on account of Taxes unless the Borrower is
required by law to make such a payment subject to the
deduction or withholding of Taxes, in which case the sum
payable by the Borrower in respect of which such deduction
or withholding is required to be made shall be increased to
the extent necessary to ensure that, after the making of
such deduction or withholding, the Paying Agent receives
and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which
it would have received and so retained had no such
deduction or withholding been made or required to be made.
7.2.2 Without prejudice to the provisions of Clause 7.2.1, if any
Lender or the Paying Agent on its behalf is required to
make any payment on account of tax (not being a tax imposed
on the net income of its Lending Branch by the jurisdiction
in which it is incorporated or in which its Lending Branch
is located or any other tax existing and applicable on the
date of this Agreement under the laws of any jurisdiction)
or otherwise on or in relation to any sum received or
receivable hereunder by such Lender or the Paying Agent on
its behalf (including, without limitation, any sum received
or receivable under this Clause 7) or any liability in
respect of any such payment is asserted, imposed, levied or
assessed against such Lender or the Paying Agent on its
behalf, the Borrower shall, upon demand of the Paying
Agent, indemnify such Lender or the Paying Agent
27
against such payment or liability, together with any
interest, penalties and expenses payable or incurred in
connection therewith. If any Lender proposes to make a
claim under the provisions of this Clause 7.2.2 it shall
certify to the Borrower in reasonable detail within thirty
(30) days (or such longer period as any Lender may
reasonably require) after becoming aware of the event by
reason of which it is entitled to make its claim or claims
the basis of its claim or claims, such certificate to be
conclusive, save for manifest error.
7.3 PRODUCTION OF RECEIPTS FOR TAXES
If the Borrower makes any payment hereunder in respect of which it
is required by law to make any deduction or withholding, it shall
pay the full amount to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment
under applicable law and shall deliver to the Paying Agent within
thirty (30) days after it has made such payment to the applicable
authority any original receipt issued by such authority evidencing
the payment to such authority of all amounts so required to be
deducted or withheld from such payment.
If an additional payment is made under Clause 7.2.2 and any Lender
or the Paying Agent on its behalf determines that it has received or
been granted a credit against or relief of or calculated with
reference to the deduction or withholding giving rise to such
additional payment, such Lender or the Paying Agent (as the case may
be) shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or
repayment, pay to the Borrower such amount as such Lender or the
Paying Agent shall in its opinion have concluded to be attributable
to the relevant deduction or withholding. Any such payment shall be
conclusive evidence of the amount due to the Borrower hereunder and
shall be accepted by the Borrower in full and final settlement of
its rights of reimbursement hereunder in respect of such deduction
or withholding. Nothing herein contained shall interfere with the
right of any Lender and the Paying Agent to arrange their respective
tax affairs in whatever manner they think fit.
28
7.4 MONEY OF ACCOUNT
If any sum due from the Borrower under this Agreement or any other
Security Document to which it may at any time be a party, or any
order or judgment given or made in relation thereto, has to be
converted from the currency (the "FIRST CURRENCY") in which the same
is payable under such Security Document, order or judgment into
another currency (the "SECOND CURRENCY") for the purpose of:
7.4.1 making or filing a claim or proof against the Borrower;
7.4.2 obtaining an order or judgment in any court or other
tribunal; or
7.4.3 enforcing any order or judgment given or made in relation
thereto;
the Borrower shall indemnify and hold harmless the Paying Agent, the
Security Agent and each of the Lenders from and against any damages
or losses suffered as a result of any discrepancy between (i) the
rate of exchange used to convert the sum in question from the first
currency into the second currency and (ii) the rate or rates of
exchange at which each Lender, the Security Agent or the Paying
Agent (as the case may be) may in the ordinary course of business
purchase the first currency with the second currency upon receipt of
a sum paid to it in satisfaction, in whole or in part, of any such
order, judgment, claim or proof. The above indemnity shall
constitute an obligation of the Borrower separate and independent
from its other obligations and shall apply irrespective of any
indulgence granted by the Paying Agent, the Security Agent or any of
the Lenders.
7.5 ACCOUNTS
The Paying Agent shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent by
and owing to each of the Lenders hereunder or under any of the other
Security Documents. In any legal action or proceeding arising out of
or in connection with this Agreement or any other Security
Documents, the entries made in the accounts so maintained shall be
prima facie evidence, save in the case of manifest error, of the
existence and amounts of the obligations of the Borrower recorded
therein.
29
7.6 EARNINGS
Provided no Event of Default or Possible Event of Default has
occurred (following which the Security Agent shall (inter alia) be
entitled to request the Borrower to give notice pursuant to Clause 3
of the Earnings Assignment and apply the Earnings in accordance with
Clause 13.1) the Earnings shall throughout the Security Period be at
the free disposal of the Borrower but the net earnings of the Vessel
shall be paid by the Manager to the Operating Account within five
(5) Business Days of the end of each cruise of the Vessel.
7.7 CONTINUING SECURITY
The security created by this Agreement and each of the other
Security Documents shall be held by the Security Agent, the Paying
Agent and/or the Lenders as a continuing security for the repayment
of the Outstanding Indebtedness and the security so created shall
not be satisfied by any intermediate payment or satisfaction of any
part of the amount hereby or thereby secured or by any amendment of
this Agreement or any of the other Security Documents. Such security
shall be in addition to and shall not in any way be prejudiced or
affected by any collateral or other security now or hereafter held
by the Security Agent, the Paying Agent or the Lenders or any of
them for all or any part of the amount hereby or thereby secured or
any other right or remedy of the Security Agent, the Paying Agent or
the Lenders or any of them under this Agreement or any of the other
Security Documents, by operation of law or otherwise howsoever
arising. All the powers arising from any and all such security may
be exercised from time to time as the Security Agent, the Paying
Agent or the Lenders or any of them may deem expedient.
8 YIELD PROTECTION AND FORCE MAJEURE
8.1 INCREASED COSTS
8.1.1 If by reason of:
(a) any change in law or in its interpretation or
administration; and/or
(b) compliance with any request from or requirement of
any central bank or other fiscal, monetary or other
authority including but
30
without limitation the Basle Committee on Banking
Regulations and Supervisory Practices whether or not
having the force of law:
(i) any of the Lenders or an Associated Company
incurs a cost as a result of its performing its
obligations under this Agreement and/or its
advancing its Contribution hereunder; or
(ii) there is any increase in the cost to any of the
Lenders or an Associated Company of funding or
maintaining all or any of the advances
comprised in a class of advances formed by or
including its Contribution advanced or to be
advanced by it hereunder; or
(iii) any of the Lenders or an Associated Company
incurs a cost as a result of its having entered
into and/or its assuming or maintaining its
commitment under this Agreement; or
(iv) any of the Lenders or an Associated Company
becomes liable to make any payment on account
of Tax or otherwise (other than Tax on its
overall net income) on or calculated by
reference to the amount of its Contribution
advanced or to be advanced hereunder and/or any
sum received or receivable by it hereunder; or
(v) any of the Lenders or an Associated Company
suffers any decrease in its rate of return as a
result of any changes in the requirements
relating to capital ratios, monetary control
ratios, the payment of special deposits,
liquidity costs or other similar requirements
affecting that Lender or Associated Company,
then the Borrower shall from time to time on demand pay to
the Paying Agent for the account of the relevant Lender,
Lenders, Associated Company or Associated Companies amounts
sufficient to indemnify the relevant Lender, Lenders,
Associated Company or Associated Companies
31
against, as the case may be, such cost, such increased cost
(or such proportion of such increased cost as is in the
reasonable opinion of the relevant Lender, Lenders,
Associated Company or Associated Companies attributable to
the funding or maintaining of its or their Contribution(s)
hereunder) or such liability.
8.1.2 A Lender affected by any provision of Clause 8.1.1 shall
promptly inform the Paying Agent after becoming aware of
the relevant change or request and its possible results and
the Paying Agent shall, as soon as reasonably practicable
thereafter, notify the Borrower of the change or request
and its possible results. Without affecting the Borrower's
obligations under Clause 8.1.1 and in consultation with the
Paying Agent, the affected Lender will then take all such
reasonable steps as may be open to it to mitigate the
effect of the change or request (for example (if then
possible) by changing its Lending Branch or transferring
some or all of its rights and obligations under this
Agreement to another financial institution reasonably
acceptable to the Paying Agent and after consultation with
the Borrower). The reasonable costs of mitigating the
effect of any such change shall be borne by the Borrower
save where such costs are of an internal administrative
nature and are not incurred in dealings by any Lender with
third parties.
8.2 FORCE MAJEURE
Where the Paying Agent, the Security Agent, any Arranger or
any Lender (the "NON-PERFORMING PARTY") is prevented from
performing any of its obligations under this Agreement by
reason of Force Majeure this Agreement shall remain in effect
but the Non-Performing Party's relevant obligations shall be
suspended for so long as the Force Majeure continues and to
the extent that the Non-Performing Party is so prevented,
PROVIDED THAT:
8.2.1 the suspension of performance is of no greater scope and of
no longer duration than is required by the Force Majeure;
8.2.2 the obligations of the Non-Performing Party shall not be
excused as a result of the Force Majeure; and
32
8.2.3 in respect of the suspension of the Non-Performing Party's
obligations:
(a) the Non-Performing Party gives the Paying Agent
prompt written notice which the Paying Agent shall
forthwith upon receipt send to the Borrower
describing the circumstances of Force Majeure
(including the nature of the occurrence, its expected
duration and the effects of the Force Majeure on the
ability of the Non-Performing Party to perform its
relevant obligations), and continues to furnish
weekly reports with respect thereto during the period
of Force Majeure;
(b) the Non-Performing Party uses all reasonable efforts
to remedy its inability to perform and to mitigate
the effects of the Force Majeure; and
(c) as soon as reasonably possible after the cessation of
the Force Majeure the Non-Performing Party shall
notify the Paying Agent (who shall notify the
Borrower) in writing of such cessation and shall
resume performance of its obligations under this
Agreement if such resumption is then possible.
9 REPRESENTATIONS AND WARRANTIES
9.1 DURATION
The representations and warranties in Clause 9.2 and Clause 9.3
shall survive the execution of this Agreement and shall be deemed to
be repeated, with reference mutatis mutandis to the facts and
circumstances subsisting, as if made on each day until the Borrower
has no remaining obligations, actual or contingent, under or
pursuant to this Agreement or any of the other Security Documents.
9.2 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Security Agent, the
Paying Agent and each of the Lenders that:
9.2.1 STATUS Each Obligor is a corporation duly organised,
constituted and validly existing under the laws of the
country of its incorporation, possessing perpetual
corporate existence, the capacity to sue and be sued
33
in its own name and the power to own and charge its assets
and carry on its business as it is now being conducted.
9.2.2 POWERS AND AUTHORITY Each of the Obligors has the power to
enter into and perform this Agreement and those of the
other Security Documents to which it is a party and the
transactions contemplated hereby and thereby and has taken
all necessary action to authorise the entry into and
performance of this Agreement and such other Security
Documents and such transactions.
9.2.3 LEGAL VALIDITY This Agreement constitutes legal, valid and
binding obligations of the Borrower enforceable in
accordance with its terms and in entering into this
Agreement and borrowing the Loan, the Borrower is acting on
its own account. Each other Transaction Document
constitutes (or will constitute when executed) legal, valid
and binding obligations of each Obligor expressed to be a
party thereto enforceable in accordance with their
respective terms.
9.2.4 NON-CONFLICT WITH LAWS The entry into and performance of
this Agreement and the other Transaction Documents and the
transactions contemplated hereby and thereby do not and
will not conflict with:
(a) any law or regulation or any official or judicial
order; or
(b) the constitutional documents of any Obligor save as
referred to in Clause 10.15; or
(c) any agreement or document to which any Obligor is a
party or which is binding upon such Obligor or any of
its assets,
nor result in the creation or imposition of any Encumbrance
on an Obligor or its assets pursuant to the provisions of
any such agreement or document.
9.2.5 NO DEFAULT Save as disclosed in the Disclosure Letter, no
event has occurred which constitutes a default under or in
respect of any Transaction Document to which any Obligor is
a party or by which any Obligor may be bound (including
(inter alia) this Agreement) and no
34
event has occurred which, with the giving of notice, lapse
of time, determination of materiality or other condition
might constitute a default under or in respect of any such
Transaction Document and no event has occurred which
constitutes a default under or in respect of any agreement
or document to which any Obligor is a party or by which any
Obligor may be bound to an extent or in a manner which
might have a material adverse effect on its business,
assets or financial condition and no event has occurred
which, with the giving of notice, lapse of time,
determination of materiality or other condition might
constitute a default under or in respect of any such
agreement or document.
9.2.6 CONSENTS Except for the prior consents of the Bermuda
Monetary Authority for the granting of the security
interest over the shares comprised in the Charged Property
(as defined in the Charge), the transfer and registration
of the shares comprised in the said Charged Property to or
in the name of the Security Agent or its nominee under
clause 9.2.4 of the Charge and the issue of the Debenture,
if the Debenture is registered in Bermuda, for the filing
of those Security Documents which require registration in
the Companies Registries in the Isle of Man, England and
Wales and/or Bermuda, which filing must be completed within
one (1) month and twenty one (21) days respectively of the
execution of the relevant Security Document(s) in the case
of the Isle of Man and England and Wales, and for the
registration of the Mortgage through the Bahamas Maritime
Authority, all authorisations, approvals, consents,
licences, exemptions, filings, registrations, notarisations
and other matters, official or otherwise, required in
connection with the entry into, performance, validity and
enforceability of this Agreement and each of the other
Transaction Documents and the transactions contemplated
thereby have been obtained or effected and are in full
force and effect.
9.2.7 ACCURACY OF INFORMATION All information furnished by any
Obligor relating to the business and affairs of any Obligor
in connection with this Agreement and the other Transaction
Documents was and remains true and correct in all material
respects and there are no other material facts or
considerations the omission of which would render any such
information misleading.
35
9.2.8 FULL DISCLOSURE Each Obligor has fully disclosed in writing
to the Paying Agent all facts relating to each Obligor
which it knows or should reasonably know and which might
reasonably be expected to influence the Lenders in deciding
whether or not to enter into this Agreement.
9.2.9 NO ENCUMBRANCES None of the assets or rights of any Obligor
is subject to any Encumbrance except Permitted Liens.
9.2.10 PARI PASSU OR PRIORITY STATUS The claims of the Security
Agent, the Paying Agent, the Arrangers and the Lenders
against the Borrower under this Agreement will rank at
least pari passu with the claims of all unsecured creditors
of the Borrower (other than claims of such creditors to the
extent that they are statutorily preferred) and in priority
to the claims of any creditor of the Borrower who is also
an Obligor.
9.2.11 SOLVENCY The Borrower is and shall remain, after the
advance to it of the Loan, solvent in accordance with the
laws of Bermuda and the United Kingdom and in particular
with the provisions of the Insolvency Act 1986 (as from
time to time amended) and the requirements thereof.
9.2.12 WINDING-UP, ETC. Neither the Borrower nor any other Obligor
has taken any corporate action nor have any other steps
been taken or legal proceedings been started or (to the
best of its knowledge and belief) threatened against any of
them for the winding-up, dissolution or for the appointment
of a liquidator, administrator, receiver, administrative
receiver, trustee or similar officer of any of them or any
or all of their assets or revenues nor have either sought
any other relief under any applicable insolvency or
bankruptcy law.
9.2.13 ACCOUNTS The consolidated audited accounts of the Group for
the periods ending on 31 December 2002 and 31 December 2003
(which accounts will be prepared in accordance with US
GAAP) fairly represent the financial condition of the Group
as shown in such audited accounts and the consolidated
audited accounts of the NCLC Group for the period ending on
31 December 2004 and for all subsequent periods (which
accounts will be prepared in accordance with US GAAP) will
fairly
36
represent the financial condition of the NCLC Group as
shown in such audited accounts.
9.2.14 LITIGATION Save as disclosed in writing to the Paying Agent
prior to 9 July 2003 and by way of the Disclosure Letter,
no litigation, arbitration or administrative proceedings
are current or pending or, to its knowledge, threatened,
which might, if adversely determined, have a material
adverse effect on the business, assets or financial
condition of any Obligor. For the avoidance of doubt, the
disclosure of any such litigation, arbitration or
administrative proceedings after 9 July 2003 shall not be
deemed to be a fact and circumstance subsisting at any time
that this representation is deemed to be repeated pursuant
to Clause 9.1.
9.2.15 TAX LIABILITIES The NCLC Group has complied with all
taxation laws in all jurisdictions in which it is subject
to Taxation and has paid all Taxes due and payable by it;
no material claims are being asserted against it with
respect to Taxes, which might, if such claims were
successful, have a material adverse effect on its business,
assets or financial condition.
9.2.16 OWNERSHIP OF ASSETS Each member of the Group or the NCLC
Group (as the case may be) has good and marketable title to
all its assets which is reflected in the audited accounts
referred to in Clause 9.2.13.
9.2.17 NO IMMUNITY None of the Obligors nor any of their
respective assets enjoys any right of immunity (sovereign
or otherwise) from set-off, suit or execution in respect of
their obligations under this Agreement or any of the other
Transaction Documents or by any relevant or applicable law.
9.2.18 TAXES ON PAYMENTS As at the date of this Agreement all
amounts payable by them hereunder may be made free and
clear of and without deduction for or on account of any
Taxation.
9.2.19 PLACE OF BUSINESS None of the Obligors has a place of
business in any jurisdiction (except as already disclosed)
which requires any of the Security Documents to be filed or
registered in that jurisdiction to ensure the validity of
the Security Documents to which it is a party.
37
9.2.20 OWNERSHIP OF SHARES The Shares and all the shares in the
Manager are legally and beneficially owned by the
Shareholder, all the shares in the Shareholder are legally
and beneficially owned by Arrasas and all the shares in
Arrasas are legally and beneficially owned by the Guarantor
and such structure shall remain so throughout the Security
Period. Further, no Event of Default has occurred under
clause 11.2 of the Guarantee in respect of the ownership
and/or control of the shares in the Guarantor.
9.2.21 COMPLETENESS OF DOCUMENTS The copies of the MOA, the
Management Agreement, the Second Mortgage Documents and any
other relevant third party agreements delivered to the
Paying Agent are true and complete copies of each such
document constituting valid and binding obligations of the
parties thereto enforceable in accordance with their
respective terms and no amendments thereto or variations
thereof have been agreed nor has any action been taken by
the parties thereto which would in any way render such
document inoperative or unenforceable.
9.2.22 NO UNDISCLOSED COMMISSIONS There are and will be no
commissions, rebates, premiums or other payments by or to
or on account of any Obligor, their shareholders or
directors in connection with the transaction as a whole
other than as disclosed to the Paying Agent in writing.
9.2.23 ENVIRONMENT Each of the Obligors:
(a) is in compliance with all applicable federal, state,
local, foreign and international laws, regulations,
conventions and agreements relating to pollution
prevention or protection of human health or the
environment (including, without limitation, ambient
air, surface water, ground water, navigable waters,
water of the contiguous zone, ocean waters and
international waters), including without limitation,
laws, regulations, conventions and agreements
relating to:
(i) emissions, discharges, releases or threatened
releases of chemicals, pollutants,
contaminants, wastes, toxic substances,
hazardous materials, oil, hazard substances,
38
petroleum and petroleum products and
by-products ("MATERIALS OF ENVIRONMENTAL
CONCERN"); or
(ii) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or
handling of Materials of Environmental Concern
(such laws, regulations, conventions and
agreements the "ENVIRONMENTAL LAWS");
(b) has all permits, licences, approvals, rulings,
variances, exemptions, clearances, consents or other
authorisations required under applicable
Environmental Laws ("ENVIRONMENTAL APPROVALS") and
are in compliance with all Environmental Approvals
required to operate its business as presently
conducted or as reasonably anticipated to be
conducted;
(c) has not received any notice, claim, action, cause of
action, investigation or demand by any other person,
alleging potential liability for, or a requirement to
incur, investigatory costs, clean-up costs, response
and/or remedial costs (whether incurred by a
governmental entity or otherwise), natural resources
damages, property damages, personal injuries,
attorney's fees and expenses or fines or penalties,
in each case arising out of, based on or resulting
from:
(i) the presence or release or threat of release
into the environment of any Material of
Environmental Concern at any location, whether
or not owned by such person; or
(ii) circumstances forming the basis of any
violation, or alleged violation, of any
Environmental Law or Environmental Approval
("ENVIRONMENTAL CLAIM"); and
there are no circumstances that may prevent or interfere
with such full compliance in the future.
There is no Environmental Claim pending or threatened
against any of the Obligors.
39
There are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge or
disposal of any Material of Environmental Concern, that
could form the basis of any Environmental Claim against any
of the Obligors.
9.2.24 MONEY LAUNDERING Any borrowing by the Borrower hereunder,
and the performance of its obligations hereunder and under
the other Security Documents, will be for its own account
and will not involve any breach by it of any law or
regulatory measure relating to "MONEY LAUNDERING" as
defined in Article 1 of the Directive (91/308/EEC) of the
Council of the European Communities.
9.3 REPRESENTATIONS ON THE DRAWDOWN DATE
The Borrower further represents and warrants to the Security Agent,
the Paying Agent and each of the Lenders that on the Drawdown Date
the Vessel will be:
9.3.1 in its absolute and unencumbered ownership save as
contemplated by the Security Documents and the Second
Mortgage Documents;
9.3.2 provisionally registered in its name under the Bahamian
flag;
9.3.3 classed with the highest classification available for a
vessel of its type free of all recommendations and
qualifications with Det Norske Veritas;
9.3.4 operationally seaworthy and in compliance with all relevant
provisions, regulations and requirements (statutory or
otherwise) applicable to ships registered under the
Bahamian flag;
9.3.5 insured in accordance with the provisions of Clause 10.21
and in compliance with the requirements therein in respect
of such insurances; and
9.3.6 managed by the Manager on and subject to the terms set out
in the Management Agreement.
40
10 UNDERTAKINGS
10.1 DURATION
The undertakings in this Clause 10 shall survive the execution of
this Agreement and shall be deemed to be repeated with reference
mutatis mutandis to the facts and circumstances subsisting, as if
made on each day until the Borrower has no remaining obligations,
actual or contingent, under or pursuant to this Agreement or any of
the other Security Documents.
10.2 INFORMATION
10.2.1 The Borrower will provide to the Paying Agent (or will
procure the provision of):
(a) as soon as practicable (and in any event within one
hundred and twenty (120) days after the close of each
of its financial years) a Certified Copy of its
audited accounts for that year and of the
consolidated Group accounts for that year (commencing
with audited accounts made up to 31 December 2003)
such Group accounts being substituted with NCLC Group
accounts commencing with the audited accounts made up
to 31 December 2004;
(b) as soon as practicable (and in any event within forty
five (45) days of the end of each quarter of each
financial year) a Certified Copy of the unaudited
consolidated accounts of the Borrower and the Group
for that quarter such Group accounts being
substituted with NCLC Group accounts commencing with
the unaudited accounts made up to 31 March 2004;
(c) promptly, such further information in its possession
or control regarding its financial condition and
operations and those of any company in the NCLC Group
as the Paying Agent may request; and
(d) details of any material litigation, arbitration or
administrative proceedings which affect any Obligor
as soon as the same are
41
instituted and served, or, to the knowledge of the
Borrower, threatened (and for this purpose
proceedings shall be deemed to be material if they
involve a claim in an amount exceeding five million
Dollars (USD5,000,000) or the equivalent in another
currency).
10.2.2 All accounts required under this Clause 10.2 shall be
prepared in accordance with US GAAP and shall fairly
represent the financial condition of the relevant company.
In this Clause 10.2.2 "NCLC GROUP" shall have the meaning
ascribed to it in Clause 11.4 of the Guarantee.
10.3 NOTIFICATION OF DEFAULT
The Borrower will notify the Paying Agent of any Event of Default or
Possible Event of Default forthwith upon any Obligor becoming aware
of the occurrence thereof. Upon the Paying Agent's request from time
to time the Borrower will issue a certificate stating whether any
Obligor is aware of the occurrence of any Event of Default or
Possible Event of Default.
10.4 CONSENTS AND REGISTRATIONS
The Borrower will procure that (and will promptly furnish Certified
Copies to the Paying Agent of) all such authorisations, approvals,
consents, licences and exemptions as may be required under any
applicable law or regulation to enable it or any Obligor to perform
its obligations under, and ensure the validity or enforceability of,
each of the Transaction Documents are obtained and promptly renewed
from time to time and will procure that the terms of the same are
complied with at all times. Insofar as such filings or registrations
have not been completed on or before the Drawdown Date the Borrower
will procure the filing or registration within applicable time
limits of each Security Document which requires filing or
registration together with all ancillary documents required to
preserve the priority and enforceability of the Security Documents.
10.5 NEGATIVE PLEDGE
The Borrower will not create or permit to subsist any Encumbrance on
the whole or any part of its present or future assets, except for
the following:
42
10.5.1 Encumbrances created with the prior consent of the Lenders;
or
10.5.2 Permitted Liens.
10.6 DISPOSALS
Except with the prior consent of all the Lenders, the Borrower shall
not (and will procure that no other company in the NCLC Group
shall), either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or
a substantial part of its assets except that the following disposals
shall not be taken into account:
10.6.1 disposals made in the ordinary course of trading of the
disposing entity (excluding disposal of ships) including
without limitation, the payment of cash as consideration
for the purchase or acquisition of any asset or service or
in the discharge of any obligation incurred for value in
the ordinary course of trading;
10.6.2 disposals of cash raised or borrowed for the purposes for
which such cash was raised or borrowed;
10.6.3 disposals of assets in exchange for other assets comparable
or superior as to type and value;
10.6.4 a vessel owned by any member of the NCLC Group (other than
the Borrower) may be sold provided such sale is on a
willing seller willing buyer basis at or about market rate
and at arm's length subject always to the provisions of any
loan documentation for the financing of such vessel and
NCLL may, following the sale of its shares by Arrasas to
IOL, a wholly owned Subsidiary of Star, transfer to other
wholly owned Subsidiaries of Star its vessels "NORWEGIAN
WIND", "NORWEGIAN DREAM", "NORWEGIAN SEA", "NORWEGIAN
MAJESTY", "NORWEGIAN CROWN" and "MARCO POLO" (the "SIX
VESSELS") for their transfer values as set out in Schedule
7 and sell m.v. "NORWAY" to a third party and, prior to the
sale of its shares as aforesaid, transfer its vessel
"NORWEGIAN SKY" to Pride of Aloha Inc., a wholly owned
Subsidiary of NCL America Holdings;
43
10.6.5 the Subsidiaries of Star to whom the Six Vessels (as
defined in Clause 10.6.4) have been transferred may let
each of the Six Vessels on demise or bareboat charter to
the Manager for the period and at the charterhire rate set
out in Schedule 7; and
10.6.6 Arrasas may transfer its shares in NCLL to IOL and Star may
transfer its shares in Arrasas to the Guarantor.
10.7 CHANGE OF BUSINESS
Except with the prior consent of the Majority Lenders, the Borrower
shall not make or threaten to make any substantial change in its
business as presently conducted, namely that of a single ship owning
company for the Vessel, or carry on any other business which is
substantial in relation to its business as presently conducted so as
to affect, in the opinion of the Paying Agent, the Borrower's
ability to perform its obligations hereunder and shall not form any
Subsidiaries and the Borrower will procure that the other Obligors
continue, throughout the Security Period, to perform their current
business activities PROVIDED THAT any new leisure or hospitality
venture embarked upon by any member of the NCLC Group (other than
the Borrower) shall not constitute a substantial change in its
business.
10.8 MERGERS
Except with the prior consent of the Majority Lenders, the Borrower
will not enter into any amalgamation, restructure, substantial
reorganisation, merger or consolidation or anything analogous to the
foregoing nor will it acquire any equity, share capital or
obligations of any corporation or other entity and will procure that
no company in the NCLC Group (other than the Shareholder or NCL
America Holdings) shall do so PROVIDED THAT:
10.8.1 Arrasas may form two (2) wholly owned Subsidiaries, namely
the Shareholder and NCL America Holdings;
10.8.2 the existing shareholders of the owners of the Bahamas flag
vessels in the NCLC Fleet may transfer their shares in such
owners to the Shareholder;
44
10.8.3 the existing shareholders of the owners of the US flag
vessels in the NCLC Fleet may transfer their shares in such
owners to NCL America Holdings;
10.8.4 the Shareholder may form a wholly owned Subsidiary, namely
the Manager, to operate the Bahamas flag vessels in the
NCLC Fleet and to charter in each of the Six Vessels (as
defined in Clause 10.6.4) on demise or bareboat charter for
the period and at the charterhire rate set out in Schedule
7; and
10.8.5 NCL America Holdings may form two (2) wholly owned
Subsidiaries, namely NCL America Inc., to operate the US
flag vessels in the NCLC Fleet, and Pride of Aloha Inc., to
own m.v. "NORWEGIAN SKY".
However, the prior consent of the Paying Agent shall not be required
in respect of any consolidation, reorganisation or restructure
involving wholly owned (whether directly or indirectly) Subsidiaries
of the Guarantor only which does not imperil the security created by
any of the Security Documents or affect the ability of any Obligor
duly to perform any of its obligations under any Security Document
to which it may be a party at any time, provided that the Borrower
has first consulted with the Paying Agent with regard to the
proposed consolidation, reorganisation or restructure, provides
evidence satisfactory to the Agent that the Guarantor will be in
compliance with the financial undertakings contained in Clause 11 of
the Guarantee after any such consolidation, reorganisation or
restructure and, if so required, transfers the Operating Account to
The Hongkong and Shanghai Banking Corporation Limited or DnB NOR
Bank ASA SUBJECT TO:
10.8.6 Clause 9.2.20;
10.8.7 the continuation in full force and effect of the Guarantee;
and
10.8.8 the cash flows from which the Outstanding Indebtedness will
be repaid remaining comparable as to amount (relative to
the amount of the Outstanding Indebtedness) and
accessibility for the Borrower to the cash flows as at the
date of this Agreement, in the sole discretion of the
Lenders.
45
For the avoidance of doubt, the acquisition by a member of the NCLC
Group of any shares in any company or corporation shall not in
itself constitute a merger or consolidation with such company or
corporation for the purpose of this Clause 10.8 provided that the
Paying Agent is satisfied the Guarantor will be in compliance with
the financial undertakings contained in Clause 11 of the Guarantee
after any such merger or consolidation.
10.9 MAINTENANCE OF STATUS AND FRANCHISES
The Borrower will do all such things as are necessary to maintain
its corporate existence in good standing and will ensure that it has
the right and is duly qualified to conduct its business as it is
conducted in all applicable jurisdictions and will obtain and
maintain all franchises and rights necessary for the conduct of its
business.
10.10 FINANCIAL RECORDS
The Borrower will keep proper books of record and account, in which
proper and correct entries shall be made of all financial
transactions and the assets, liabilities and business of the
Borrower in accordance with US GAAP.
10.11 FINANCIAL INDEBTEDNESS AND SUBORDINATION OF INDEBTEDNESS
10.11.1 Otherwise than in the ordinary course of business as owner
of the Vessel, except as contemplated by this Agreement and
except any loan, advance or credit extended by the
Guarantor or any member of the NCLC Group which is a wholly
owned Subsidiary of the Guarantor, the Borrower will not
create, incur, assume or allow to exist any financial
indebtedness, enter into any finance lease or undertake any
material capital commitment (including but not limited to
the purchase of any capital asset).
10.11.2 The Borrower shall procure that any and all indebtedness
(and in particular with any other Obligor) is at all times
fully subordinated to the Security Documents and the
obligations of the Borrower hereunder. Upon the occurrence
of an Event of Default or a Possible Event of Default, the
Borrower shall not make any repayments of principal,
payments of interest or of any other costs, fees, expenses
or liabilities arising from or representing such
indebtedness. In this Clause "FULLY
46
SUBORDINATED" shall mean that any claim of the lender
against the Borrower in relation to such indebtedness shall
rank after and be in all respects subordinate to all of the
rights and claims of the Paying Agent, the Security Agent
and the Lenders under this Agreement and the other Security
Documents and that the lender shall not take any steps to
enforce its rights to recover any monies owing to it by the
Borrower and in particular but without limitation the
lender will not institute any legal or quasi-legal
proceedings under any jurisdiction at any time against the
Vessel, its Earnings or Insurances or the Borrower and it
will not compete with the Paying Agent, the Security Agent
or the Lenders in a liquidation or other winding-up or
bankruptcy of the Borrower or in any proceedings in
connection with the Vessel, its Earnings or Insurances.
10.12 POOLING OF EARNINGS AND CHARTERS
The Borrower will not enter into in respect of the Vessel:
10.12.1 any pooling agreement or other arrangement for the sharing
of any of the Earnings or the expenses of the Vessel; or
10.12.2 any demise or bareboat charter; or
10.12.3 any charter whereunder two (2) months' charterhire (or the
equivalent thereof) is payable in advance in respect of the
Vessel; or
10.12.4 any charter of the Vessel or contract of affreightment
which, with the exercise of options for extension, could be
for a period longer than thirteen (13) months,
but if, with the prior written consent of the Majority Lenders, the
Borrower enters into in respect of the Vessel a charter on arm's
length terms with a company outside the NCLC Group, the Borrower
hereby undertakes to execute in favour of the Security Agent an
assignment of such charter and the Earnings therefrom such
assignment to be in substantially the form of the Earnings
Assignment and as required by the Paying Agent PROVIDED HOWEVER THAT
the Borrower may in respect of the Vessel enter into a bareboat
charter on arm's length terms and in form approved by the Paying
Agent with any company which is a member
47
of the NCLC Group PROVIDED THAT if so requested by the Agent and
without limitation:
(a) any such bareboat charterer shall enter into such
deeds (including but not limited to a subordination
and assignment deed), agreements and indemnities as
the Paying Agent shall in its sole discretion require
prior to entering into the bareboat charter with the
Borrower; and
(b) the Borrower shall assign the benefit of any such
bareboat charter and its interest in the Insurances
to the Security Agent by way of further security for
the Borrower's obligations under the Security
Documents.
10.13 LOANS AND GUARANTEES BY THE BORROWER
Otherwise than in the ordinary course of business as owner of the
Vessel or except as contemplated hereby, the Borrower will not make
any loan or advance or extend credit to any person, firm or
corporation (except any loans, advances or credits made available to
(a) passengers on board the Vessel for gambling purposes (b) ship's
agents and/or (c) the Guarantor and/or members of the NCLC Group
which are wholly owned Subsidiaries of the Guarantor and, in the
case of such loans, advances or credits as are referred to in this
paragraph (c), do not prevent the Borrower from performing its
obligations hereunder) or issue or enter into any guarantee or
indemnity or otherwise become directly or contingently liable for
the obligations of any other person, firm or corporation.
10.14 MANAGEMENT
Except with the prior consent of the Majority Lenders, the Borrower
will not permit any person other than the Manager to be the
commercial, technical and crewing manager of the Vessel or permit
any amendment to be made to the terms of the Management Agreement.
10.15 ACQUISITION OF SHARES AND AMENDMENT OF BYE-LAWS
The Borrower will not acquire any equity, share capital, assets or
obligations of any corporation or other entity or permit its shares
to be held by any party other than the Shareholder.
48
If so required by the Paying Agent at any time, the Borrower will
promptly procure the amendment of its Bye-Laws to permit the issue
of shareholder proxies of the type contemplated by the Charge.
10.16 TRADING WITH THE UNITED STATES OF AMERICA
Where the Vessel trades in the territorial waters of the United
States of America, the Borrower shall in respect of the Vessel take
all reasonable precautions to prevent any infringements of the
Anti-Drug Abuse Act of 1986 of the United States of America (as the
same may be amended and/or re-enacted from time to time hereafter)
or any similar legislation applicable to the Vessel in any other
jurisdiction in which the Vessel shall trade (a "RELEVANT
JURISDICTION") and, for this purpose the Borrower shall (inter alia)
enter into a "Carrier Initiative Agreement" with the United States'
Customs Service (if such is possible) and procure that the same (or
a similar agreement in a Relevant Jurisdiction) is maintained in
full force and effect and its obligations thereunder performed by it
in respect of the Vessel throughout any period of United States of
America (including coastal waters over which it claims jurisdiction)
or Relevant Jurisdiction related trading.
10.17 FURTHER ASSURANCE
The Borrower will, from time to time on being required to do so by
the Paying Agent, do or procure the doing of all such acts and/or
execute or procure the execution of all such documents in a form
satisfactory to the Paying Agent as the Paying Agent may reasonably
consider necessary for giving full effect to any of the Transaction
Documents or securing to the Security Agent, the Paying Agent and
the Lenders the full benefit of the rights, powers and remedies
conferred upon the Security Agent, the Paying Agent or the Lenders
in any such Transaction Document.
10.18 VALUATION OF THE VESSEL
10.18.1 The Borrower will from time to time (but at intervals no
more frequently than semi-annually at the Borrower's
expense) within fifteen (15) days of receiving any request
to that effect from the Paying Agent, procure that the
Vessel is valued by an independent reputable shipbroker or
shipvaluer
49
experienced in valuing cruise ships appointed by the
Borrower and approved by the Paying Agent (which approval
shall not be unreasonably withheld or delayed and such
valuation to be made with or without taking into account
the benefit or otherwise of any fixed employment relating
to the Vessel as the Paying Agent may require).
10.18.2 If the Borrower does not accept the valuation obtained
pursuant to Clause 10.18.1 (the "FIRST VALUATION") it may
(at its own expense) within five (5) Business Days of
receipt of the First Valuation obtain a second valuation
(the "SECOND VALUATION") from another independent reputable
shipbroker or shipvaluer experienced in valuing cruise
ships appointed by the Borrower and approved by the Paying
Agent which approval shall not be unreasonably withheld or
delayed.
10.18.3 If the Second Valuation exceeds the First Valuation by a
margin of no less than ten per cent (10%) of the First
Valuation the Borrower may at its expense forthwith upon
receipt of the Second Valuation request the shipbrokers
and/or shipvaluers appointed pursuant to Clauses 10.18.1
and 10.18.2 to obtain a third valuation (the "THIRD
VALUATION") from a further independent reputable shipbroker
or shipvaluer experienced in valuing cruise ships approved
by the Paying Agent such approval not to be unreasonably
withheld or delayed. Subject to the Third Valuation being
made available within five (5) Business Days of the date of
the Second Valuation the valuation of the Vessel will be
determined on the basis of the average of the three (3)
valuations so obtained. If the Third Valuation is not made
available within the aforementioned time limit the Vessel
shall be valued on the basis of the average of the First
Valuation and the Second Valuation.
10.18.4 The Borrower shall procure that forthwith upon the issuance
of any valuation obtained pursuant to this Clause 10.18 a
copy thereof is sent directly to the Paying Agent for
review.
10.19 MARGINAL SECURITY
If at any time after the Drawdown Date, the value of the Vessel as
assessed in accordance with the provisions of Clause 10.18 and the
value of any additional
50
cash collateral deposits or the value of other security (not
including any other security provided by the existing Security
Documents) acceptable to the Paying Agent provided by the Borrower
or any third party to secure the due performance by the Borrower of
its obligations hereunder at valuations reasonably estimated by the
Paying Agent from time to time is less than one hundred and twenty
five per cent (125%) of the amount of the Loan, then the Paying
Agent may give the Borrower notice requiring the Borrower to provide
additional security and in such event within thirty (30) days of
such notice, the Borrower will either:
10.19.1 provide additional security acceptable to the Lenders such
that the security value of the Vessel and any additional
security provided to the Security Agent or the Paying Agent
hereunder (at valuations reasonably estimated by the Paying
Agent from time to time) is at least one hundred and twenty
five per cent (125%) of the amount of the Loan; or
10.19.2 prepay, in accordance with Clause 4.7, Clause 4.8 and
Clause 13.1, all or an appropriate proportion of the Loan
together with accrued interest on the amount prepaid such
that the value of the security is one hundred and twenty
five per cent (125%) of the Loan.
10.20 PERFORMANCE OF EMPLOYMENT CONTRACTS
The Borrower will:
10.20.1 perform its obligations under each charterparty or
employment contract made in respect of the Vessel and take
all necessary steps to procure the due performance of the
obligations of any party under any charterparty or
contract. It will not without the prior written consent of
the Paying Agent rescind, cancel or otherwise terminate any
charterparty or contract in respect of the Vessel provided
always that any determination by it of any charterparty or
contract after such consent is given shall be without
responsibility on the part of the Paying Agent who shall be
under no liability whatsoever in the event that such
termination thereafter be adjudged to constitute a
repudiation of such charterparty or contract by the
Borrower;
51
10.20.2 promptly notify the Paying Agent (a) of any default under
any charterparty or contract of which it has knowledge by
it and/or by any party under any charterparty or contract
and (b) of any charterparty or contract being frustrated or
the performance thereof becoming impossible or
substantially different from that contemplated originally
by the parties thereto;
10.20.3 institute and maintain all such proceedings as may be
necessary or expedient to preserve or protect the interest
of the Security Agent as assignee and itself under any
charterparties or contracts made in respect of the Vessel;
10.20.4 not take or omit to take any action the taking or omission
of which might result in any material alteration or
impairment of any charterparty or contract made in respect
of the Vessel;
10.20.5 not substitute any other ship or ships for the Vessel under
any charterparty or contract made in respect of the Vessel;
10.20.6 not without the Majority Lenders' prior consent, agree to
any material variation, modification or amendment in the
terms of any charterparty or contract in respect of the
Vessel or release any other party from any of their
respective obligations thereunder or waive any breach of
the obligations of any person or consent to any such act or
omission of any person as would otherwise constitute such
breach;
10.20.7 not without the Majority Lenders' prior consent, let or
employ the Vessel below approximately the market rate
prevailing when the Vessel is fixed;
10.20.8 procure that the Earnings (if any) are paid in full without
set off and free and clear of and without deduction for any
taxes, levies, duties, imposts, charges, fees, restrictions
or conditions of any nature whatsoever; and
10.20.9 if, immediately following the termination (for whatever
reason) of any charterparty or contract in respect of the
Vessel, the Vessel is not employed in a manner acceptable
to the Lenders in their sole discretion the Borrower shall
provide additional security for its obligations
52
hereunder in such manner, of such type and within such
period as the Lenders may determine in their sole
discretion.
10.21 INSURANCES
The Borrower covenants with the Security Agent, the Paying Agent and
the Lenders and undertakes from the Drawdown Date:
10.21.1 to insure the Vessel, or to procure that the Vessel is
insured, in its name and keep the Vessel and procure that
the Vessel is kept insured on an agreed value basis for an
amount in Dollars approved by the Paying Agent but not
being less than the greater of:
(a) one hundred and twenty five per cent (125%) of the
Loan; or
(b) the full market and commercial value of the Vessel
determined in accordance with Clause 10.18 from time
to time
through internationally recognised independent first class
insurance companies, underwriters, war risks and protection
and indemnity associations acceptable to the Paying Agent
in each instance on terms and conditions approved by the
Paying Agent including as to deductibles but at least in
respect of:
(i) marine risks including all risks customarily and
usually covered by first-class and prudent shipowners
in the London insurance markets under English marine
policies or Paying Agent-approved policies containing
the ordinary conditions applicable to similar vessels
and, in particular but without limitation, the risk
of physical loss or damage to the Vessel, general
average contributions and liability for collision
damage to third parties;
(ii) war risks including the Lost Vessel Clause and,
should Institute War and Strike Clauses, Hulls
Conditions prevail, the London Blocking and Trapping
Addendum and war risks (protection and indemnity) up
to the insured amount;
53
(iii) excess risks that is to say the proportion of claims
for general average and salvage charges and under the
running down clause not recoverable in consequence of
the value at which the Vessel is assessed for the
purpose of such claims exceeding the insured value;
(iv) protection and indemnity risks with full standard
coverage and up to the highest limit of liability
available (for oil pollution risk the highest limit
currently available is one billion Dollars
(USD1,000,000,000) for pollution risk and this to be
increased if requested by the Paying Agent and the
increase is possible in accordance with the standard
protection and indemnity cover for vessels of its
type and is compatible with prudent insurance
practice for first class cruise shipowners or
operators in waters where the Vessel trades from time
to time during the Security Period);
(v) when and while the Vessel is laid-up, in lieu of hull
insurance, normal port risks;
(vi) such other risks as the Paying Agent may from time to
time reasonably require;
and in any event in respect of those risks and at those
levels covered by first class and prudent owners and/or
financiers in the international market in respect of
similar tonnage PROVIDED THAT if any of such insurances are
also effected in the name of any other person (other than
the Borrower, the Paying Agent and/or the Security Agent)
such person shall if so required by the Paying Agent
execute a first priority assignment of its interest in such
insurances in favour of the Security Agent in similar terms
mutatis mutandis to the Insurance Assignment;
10.21.2 to agree that the Paying Agent at the cost of the Borrower
shall take out, in each case, for an amount in Dollars
approved by the Paying Agent but not being less than one
hundred and twenty five per cent (125%) of the Loan,
mortgagee interest insurance on such conditions
54
as the Paying Agent may reasonably require and mortgagee
interest insurance for pollution risks as from time to time
agreed, the Borrower having no interest or entitlement in
respect of such policies;
10.21.3 if the Vessel shall trade in the United States of America
and/or the Exclusive Economic Zone of the United States of
America (the "EEZ") as such term is defined in the US Oil
Pollution Act 1990 ("OPA"), to comply strictly with the
requirements of OPA and any similar legislation which may
from time to time be enacted in any jurisdiction in which
the Vessel presently trades or may or will trade at any
time during the existence of this Agreement and in
particular before such trade is commenced and during the
entire period during which such trade is carried on:
(a) to pay any additional premiums required to maintain
protection and indemnity cover for oil pollution up
to the limit available to it for the Vessel in the
market;
(b) to make all such quarterly or other voyage
declarations as may from time to time be required by
the Vessel's protection and indemnity association and
to comply with all obligations in order to maintain
such cover, and promptly to deliver to the Paying
Agent copies of such declarations;
(c) to submit the Vessel to such additional periodic,
classification, structural or other surveys which may
be required by the Vessel's protection and indemnity
insurers to maintain cover for such trade and
promptly to deliver to the Paying Agent copies of
reports made in respect of such surveys;
(d) to implement any recommendations contained in the
reports issued following the surveys referred to in
sub-clause (c) above within the time limit specified
therein and to provide evidence satisfactory to the
Paying Agent that the protection and indemnity
insurers are satisfied that this has been done;
55
(e) in particular strictly to comply with the requirements
of any applicable law, convention, regulation,
proclamation or order with regard to financial
responsibility for liabilities imposed on the Borrower
or the Vessel with respect to pollution by any state or
nation or political subdivision thereof, including but
not limited to OPA, and to provide the Paying Agent on
demand with such information or evidence as it may
reasonably require of such compliance;
(f) to procure that the protection and indemnity insurances
do not contain a clause excluding the Vessel from
trading in waters of the United States of America and
the EEZ or any other provision analogous thereto and to
provide the Paying Agent with evidence that this is so;
and
(g) strictly to comply with any operational or structural
regulations issued from time to time by any relevant
authorities under OPA so that at all times the Vessel
falls within the provisions which limit strict liability
under OPA for oil pollution;
10.21.4 to give notice forthwith of any assignment of its interest in
the Insurances to the relevant brokers, insurance companies,
underwriters and/or associations in the form approved by the
Paying Agent;
10.21.5 to execute and deliver all such documents and do all such
things as may be necessary to confer upon the Security Agent
legal title to the Insurances in respect of the Vessel and to
procure that the interest of the Security Agent is at all
times filed with all slips, cover notes, policies and
certificates of entry and to procure (a) that a loss payable
clause in the form approved by the Paying Agent shall be
filed with all the hull, machinery and equipment and war
risks policies in respect of the Vessel and (b) that a loss
payable clause in the form approved by the Paying Agent shall
be endorsed upon the protection and indemnity certificates of
entry in respect of the Vessel;
56
10.21.6 to procure that each of the relevant brokers and
associations furnish the Security Agent with a letter of
undertaking in such form as may be required by the Paying
Agent and waives any lien for premiums or calls except in
relation to premiums or calls attributable to the Vessel;
10.21.7 punctually to pay all premiums, calls, contributions or
other sums payable in respect of the Insurances on the Vessel
and to produce all relevant receipts when so required by the
Paying Agent;
10.21.8 to renew each of the Insurances on the Vessel at least ten
(10) days before the expiry thereof and to give immediate
notice to the Paying Agent of such renewal and to procure
that the relevant brokers or associations shall promptly
confirm in writing to the Paying Agent that such renewal is
effected it being understood by the Borrower that any failure
to renew the Insurances on the Vessel at least ten (10) days
before the expiry thereof or to give or procure the relevant
notices of such renewal shall constitute an Event of Default;
10.21.9 to arrange for the execution of such guarantees as may from
time to time be required by any protection and indemnity
and/or war risks association;
10.21.10 to furnish the Paying Agent from time to time on request
with full information about all Insurances maintained on the
Vessel and the names of the offices, companies, underwriters,
associations or clubs with which such Insurances are placed;
10.21.11 not to agree to any variation in the terms of any of the
Insurances on the Vessel without the prior approval of the
Paying Agent nor to do any act or voluntarily suffer or
permit any act to be done whereby any Insurances shall or may
be rendered invalid, void, voidable, suspended, defeated or
unenforceable and not to suffer or permit the Vessel to
engage in any voyage nor to carry any cargo not permitted
under any of the Insurances without first obtaining the
consent of the insurers or reinsurers concerned and complying
with such requirements as to payment of extra premiums or
otherwise as the insurers or reinsurers may impose;
57
10.21.12 not without the prior written consent of the Paying Agent to
settle, compromise or abandon any claim in respect of any of
the Insurances on the Vessel other than a claim of less than
five million Dollars (USD5,000,000) or the equivalent in any
other currency and not being a claim arising out of a Total
Loss;
10.21.13 promptly to furnish the Paying Agent with full information
regarding any casualties or other accidents or damage to the
Vessel involving an amount in excess of five million Dollars
(USD5,000,000);
10.21.14 to apply or ensure the appliance of all such sums receivable
in respect of the Insurances on the Vessel for the purpose of
making good the loss and fully repairing all damage in
respect whereof the insurance monies shall have been
received;
10.21.15 that in the event of it making default in insuring and
keeping insured the Vessel as hereinbefore provided then the
Paying Agent may (but shall not be bound to) insure the
Vessel or enter the Vessel in such manner and to such extent
as the Paying Agent in its discretion thinks fit and in such
case all the cost of effecting and maintaining such insurance
together with interest thereon at the Interest Rate shall be
paid on demand by the Borrower to the Paying Agent; and
10.21.16 to agree that the Paying Agent shall be entitled from time to
time (but at intervals no more frequently than annually at
the Borrower's expense) to instruct independent reputable
insurance advisers for the purpose of obtaining any advice or
information regarding any matter concerning the Insurances
which the Paying Agent shall at its sole discretion deem
necessary, it being hereby specifically agreed that it shall
reimburse the Paying Agent on demand for all reasonable costs
and expenses incurred by the Paying Agent in connection with
the instruction of such advisers as aforesaid.
10.22 OPERATION AND MAINTENANCE OF THE VESSEL
From the Drawdown Date until the end of the Security Period at its
own expense the Borrower will in respect of the Vessel:
58
10.22.1 keep it in a good and efficient state of repair so as to
maintain it to the highest classification available for a
vessel of its age and type free of all recommendations and
qualifications with Det Norske Veritas or such other
classification society as is acceptable to the Lenders. On
the Drawdown Date and annually thereafter, it will furnish to
the Paying Agent a statement by such classification society
that such classification is maintained. It will comply with
all recommendations, regulations and requirements (statutory
or otherwise) from time to time applicable to the Vessel and
shall have on board as and when required thereby valid
certificates showing compliance therewith and shall procure
that all repairs to or replacements of any damaged, worn or
lost parts or equipment are carried out (both as regards
workmanship and quality of materials) so as not to diminish
the value or class of the Vessel. It will not make any
substantial modifications or alterations to the Vessel or any
part thereof without the prior consent of the Paying Agent;
10.22.2 submit it to continuous survey in respect of its machinery
and hull and such other surveys as may be required for
classification purposes and, if so required by the Paying
Agent, supply to the Paying Agent copies in English of the
survey reports;
10.22.3 permit surveyors or agents appointed by the Paying Agent to
board the Vessel at all reasonable times to inspect its
condition or satisfy themselves as to repairs proposed or
already carried out and afford all proper facilities for such
inspections;
10.22.4 comply, or procure that the Manager will comply, with the ISM
Code or any replacement of the ISM Code and the ISPS Code or
any replacement of the ISPS Code and in particular, without
prejudice to the generality of the foregoing, as and when
required to do so by the relevant code and at all times
thereafter:
(a) hold, or procure that the Manager holds, a valid
Document of Compliance duly issued to the Borrower or
the Manager (as the case may be) pursuant to the ISM
Code and a valid Safety
59
Management Certificate duly issued to the Vessel
pursuant to the ISM Code;
(b) provide the Paying Agent with copies of any such
Document of Compliance and Safety Management Certificate
as soon as the same are issued;
(c) pursuant to the ISM Code, keep, or procure that there is
kept, on board the Vessel a copy of any such Document of
Compliance and the original of any such Safety
Management Certificate;
(d) pursuant to the ISPS Code, keep, or procure that there
is kept, on board the Vessel the original of the
International Ship Security Certificate; and
(e) pursuant to the ISPS Code, keep, or procure that there
is kept, on board the Vessel a copy of the ship security
plan prepared pursuant to the ISPS Code;
10.22.5 not employ the Vessel or permit its employment in any trade
or business which is forbidden by any applicable law or is
otherwise illicit or in carrying illicit or prohibited goods
or in any manner whatsoever which may render it liable to
condemnation in a prize court or to destruction, seizure or
confiscation or that may expose the Vessel to penalties. In
the event of hostilities in any part of the world (whether
war be declared or not) it will not employ the Vessel or
permit its employment in carrying any contraband goods;
10.22.6 promptly provide the Paying Agent with (a) all information
which the Paying Agent may reasonably require regarding the
Vessel, its employment, earnings, position and engagements
(b) particulars of all towages and salvages and (c) copies of
all charters and other contracts for its employment and
otherwise concerning it;
10.22.7 give notice to the Paying Agent promptly and in reasonable
detail upon any Obligor becoming aware of:
60
(a) accidents to the Vessel involving repairs the cost of
which will or is likely to exceed five million Dollars
(USD5,000,000);
(b) the Vessel becoming or being likely to become a Total
Loss or a Compulsory Acquisition;
(c) any recommendation or requirement made by any insurer or
classification society or by any competent authority
which is not complied with within any time limit
relating thereto;
(d) any writ served against or any arrest of the Vessel or
the exercise of any lien or purported lien on the Vessel
its Earnings or Insurances;
(e) the occurrence of any Possible Event of Default and/or
Event of Default;
(f) the Vessel ceasing to be registered as a Bahamian vessel
or such other flagged vessel as is acceptable to the
Lenders or anything which is done or not done whereby
such registration may be imperilled;
(g) it becoming impossible or unlawful for it to fulfil any
of its obligations under the Security Documents; and
(h) anything done or permitted or not done in respect of the
Vessel by any person which is likely to imperil the
security created by the Security Documents;
10.22.8 promptly pay and discharge all debts, damages and
liabilities, taxes, assessments, charges, fines, penalties,
tolls, dues and other outgoings in respect of the Vessel and
keep proper books of account in respect thereof PROVIDED
ALWAYS that the Borrower shall not be obliged to compromise
any debts, damages and liabilities as aforesaid which are
being contested in good faith subject always that full
details of any such contested debt, damage or liability
which, either individually or in aggregate exceeds five
million Dollars (USD5,000,000) shall forthwith be provided to
the Paying Agent. As
61
and when the Paying Agent may so require it will make such
books available for inspection on behalf of the Paying Agent
and provide evidence satisfactory to the Paying Agent that
the wages and allotments and the insurance and pension
contributions of the master and crew are being regularly
paid, that all deductions of crew's wages in respect of any
tax liability are being properly accounted for and that the
master has no claim for disbursements other than those
incurred in the ordinary course of trading on the voyage then
in progress or completed prior to such inspection;
10.22.9 maintain the type of the Vessel as at 9 July 2003 and not put
the Vessel into the possession of any person without the
prior consent of the Paying Agent for the purpose of work
being done on it in an amount exceeding or likely to exceed
five million Dollars (USD5,000,000) unless such person shall
first have given to the Paying Agent a written undertaking
addressed to the Paying Agent in terms satisfactory to the
Paying Agent agreeing not to exercise a lien on the Vessel or
its Earnings for the cost of such work or for any other
reason;
10.22.10 promptly pay and discharge all liabilities which have given
rise, or may give rise, to liens or claims enforceable
against the Vessel under the laws of all countries to whose
jurisdiction the Vessel may from time to time be subject
PROVIDED ALWAYS that the Borrower shall not be obliged to
compromise any liabilities as aforesaid which are being
contested in good faith subject always that full details of
any such contested liabilities which, either individually or
in aggregate, exceed five million Dollars (USD5,000,000)
shall be forthwith provided to the Paying Agent. If the
Vessel is arrested or detained for any reason it will procure
its immediate release by providing bail or taking such other
steps as the circumstances may require;
10.22.11 give to the Paying Agent at such times as it may from time to
time require a certificate, duly signed on its behalf as to
the amount of any debts, damages and liabilities relating to
the Vessel and, if so required
62
by the Paying Agent, forthwith discharge such debts, damages
and liabilities to the Paying Agent's satisfaction; and
10.22.12 maintain the registration of the Vessel as a Bahamian vessel
and not do or permit anything to be done whereby such
registration may be forfeited or imperilled.
10.23 IRREVOCABLE PROXY
The Borrower will act in accordance with the terms of the
irrevocable proxy executed or to be executed by the Shareholder in
favour of the Security Agent pursuant to the Charge and will procure
that resolution 3.2.6 approved by its directors on 2004
is not amended, supplemented or revoked and remains in full force
and effect until its Bye-Laws are amended in the manner referred to
in Clause 10.15.
11 RIGHTS OF THE SECURITY AGENT, THE PAYING AGENT, THE ARRANGERS AND THE
LENDERS
11.1 NO DEROGATION OF RIGHTS
Any rights conferred on the Security Agent, the Paying Agent, the
Arrangers and the Lenders or any of them by this Agreement or any
other Security Document shall be in addition to and not in
substitution for or in derogation of any other right which the
Security Agent, the Paying Agent, the Arrangers and the Lenders or
any of them might at any time have to seek from the Borrower or any
other person for payment of sums due from the Borrower or
indemnification against liabilities as a result of the Borrower's
default in payment of sums due from it under this Agreement or other
Security Document.
11.2 ENFORCEMENT OF REMEDIES
None of the Security Agent, the Paying Agent, the Arrangers or the
Lenders shall be obliged before taking steps to enforce any rights
conferred on it or them by this Clause or exercising any of the
rights, powers and remedies conferred on it or them hereby or by
law:
11.2.1 to take action or obtain judgment in any court against the
Borrower or any other person from whom it or they may seek
payment of any sum due from the Borrower under this Agreement
or any other Security Document;
63
11.2.2 to make or file any claim in a bankruptcy, winding-up,
liquidation or re-organisation of the Borrower or any other
such person; or
11.2.3 to enforce or seek to enforce any other rights it or they may
have against the Borrower or any other such person.
12 DEFAULT
12.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default:
12.1.1 NON-PAYMENT
The Borrower or any other Obligor does not pay on the due
date any amount of principal or interest of the Loan
(provided however that if any such amount is not paid when
due solely by reason of some error or omission on the part of
the bank or banks through whom the relevant funds are being
transmitted no Event of Default shall occur for the purposes
of this Clause 12.1.1 until the expiry of three (3) Business
Days following the date on which such payment is due), or
within three (3) days of the due date any other amount,
payable by it under any Security Document to which it may at
any time be a party, at the place and in the currency in
which it is expressed to be payable.
12.1.2 BREACH OF OTHER OBLIGATIONS
(a) Any Obligor fails to comply with any other material
provision of any Security Document or there is any other
material breach in the sole opinion of the Paying Agent
of any of the Transaction Documents and such failure (if
in the opinion of the Paying Agent in its sole discretion
it is capable of remedy) continues unremedied for a
period of twenty one (21) days from the date of its
occurrence and in any such case as aforesaid the Paying
Agent in its sole discretion considers that such failure
is or could reasonably be expected to become materially
prejudicial to the interests, rights or position of the
Lenders; or
64
(b) If there is a repudiation or termination of any
Transaction Document or if any of the parties thereto
becomes entitled to terminate or repudiate any of them
and evidences an intention so to do.
12.1.3 MISREPRESENTATION
Any representation warranty or statement made or repeated in,
or in connection with, any Security Document or in any
accounts, certificate, statement or opinion delivered by or
on behalf of any Obligor thereunder or in connection
therewith is materially incorrect when made or would, if
repeated at any time hereafter by reference to the facts
subsisting at such time, no longer be materially correct.
12.1.4 CROSS DEFAULT
(a) Any event of default occurs under any financial contract
or financial document relating to any Financial
Indebtedness of any member of the NCLC Group.
(b) Any such Financial Indebtedness or any sum payable in
respect thereof is not paid when due (after the expiry
of any applicable grace period(s)) whether by
acceleration or otherwise.
(c) Any Encumbrance over any assets of any member of the
NCLC Group becomes enforceable.
(d) Any other Financial Indebtedness of any member of the
NCLC Group is not paid when due or is or becomes capable
of being declared due prematurely by reason of default
or any security for the same becomes enforceable by
reason of default,
PROVIDED THAT:
(i) No Event of Default will arise if the relevant Financial
Indebtedness is not accelerated or, if it is accelerated
but, in aggregate, the Financial Indebtedness is less
than five million Dollars (USD5,000,000); and
65
(ii) Financial Indebtedness being contested by the Borrower
in good faith will be disregarded PROVIDED first that
full details of the dispute shall be submitted to the
Paying Agent forthwith upon its occurrence and second if
the dispute remains unresolved for a period of one
hundred and fifty (150) days this Clause 12.1.4(ii)
shall not apply to that Financial Indebtedness.
12.1.5 WINDING-UP
Any order is made or an effective resolution passed or other
action taken for the suspension of payments or dissolution,
termination of existence, liquidation, winding-up or
bankruptcy of any member of the NCLC Group.
12.1.6 MORATORIUM OR ARRANGEMENT WITH CREDITORS
A moratorium in respect of all or any debts of any member of
the NCLC Group or a composition or an arrangement with
creditors of any member of the NCLC Group or any similar
proceeding or arrangement by which the assets of any member
of the NCLC Group are submitted to the control of its
creditors is applied for, ordered or declared or any member
of the NCLC Group commences negotiations with any one or more
of its creditors with a view to the general readjustment or
rescheduling of all or a significant part of its Financial
Indebtedness.
12.1.7 APPOINTMENT OF LIQUIDATORS ETC.
A liquidator, trustee, administrator, receiver, manager or
similar officer is appointed in respect of any member of the
NCLC Group or in respect of all or any substantial part of
the assets of any member of the NCLC Group and in any such
case such appointment is not withdrawn within thirty (30)
days (the "GRACE PERIOD") unless the Paying Agent considers
in its sole discretion that the interest of the Lenders might
reasonably be expected to be adversely affected in which
event the Grace Period shall not apply.
66
12.1.8 INSOLVENCY
Any member of the NCLC Group becomes or is declared insolvent
or is unable, or admits in writing its inability, to pay its
debts as they fall due or becomes insolvent within the terms
of any applicable law.
12.1.9 LEGAL PROCESS
Any distress, execution, attachment or other process affects
the whole or any substantial part of the assets of any member
of the NCLC Group and remains undischarged for a period of
twenty one (21) days PROVIDED THAT no Event of Default shall
be deemed to have occurred unless the distress, execution,
attachment or other process adversely affects any Obligor's
ability to meet any of its material obligations under this
Agreement or the other Security Documents (the determination
of which shall be in the Paying Agent's sole discretion).
12.1.10 ANALOGOUS EVENTS
Anything analogous to or having a substantially similar
effect to any of the events specified in sub-clauses 12.1.5
to 12.1.9 of this Clause shall occur under the laws of any
applicable jurisdiction.
12.1.11 CESSATION OF BUSINESS
Any member of the NCLC Group ceases to carry on all or a
substantial part of its business.
12.1.12 REVOCATION OF CONSENTS
Any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Obligor to comply with any of its
obligations under any of the Transaction Documents is
materially adversely modified, revoked or withheld or does
not remain in full force and effect and within ninety (90)
days of the date of its occurrence such event is not remedied
to the satisfaction of the Paying Agent and the Paying Agent
considers in its sole discretion that such failure is or
might be expected to become materially prejudicial to the
interests, rights or position of the Lenders PROVIDED THAT
the
67
Borrower shall not be entitled to the aforesaid ninety (90)
day period if the modification, revocation or withholding of
the authorisation, approval or consent is due to an act or
omission of any Obligor and the Paying Agent is satisfied in
its sole discretion that the Lenders' interests might
reasonably be expected to be materially adversely affected.
12.1.13 UNLAWFULNESS
At any time it is unlawful or impossible for any Obligor to
perform any of its obligations under any Security Document to
which it is a party or it is unlawful or impossible for the
Security Agent, the Paying Agent, any Arranger or any Lender
to exercise any of its rights under any of the Security
Documents PROVIDED THAT no Event of Default shall be deemed
to have occurred (except where the unlawfulness or
impossibility adversely affects any Obligor's payment
obligations under this Agreement and the other Security
Documents (the determination of which shall be in the Paying
Agent's sole discretion) in which case the following
provisions of this Clause 12.1.13 shall not apply) where the
unlawfulness or impossibility prevents any Obligor from
performing its obligations (other than its payment
obligations under the Loan Agreement and the other Security
Documents) and is cured within a period of twenty one (21)
days of the occurrence of the event giving rise to the
unlawfulness or impossibility and the relevant Obligor,
within the aforesaid period, performs its obligation(s) and
PROVIDED FURTHER THAT no Event of Default shall be deemed to
have occurred where the Security Agent, the Paying Agent, any
relevant Arranger and/or any relevant Lender could, in its
sole discretion, mitigate the consequences of unlawfulness or
impossibility in the manner described in Clause 4.3. The
costs of mitigation shall be determined in accordance with
Clause 4.3.
12.1.14 INSURANCES
The Borrower fails to insure the Vessel in the manner
specified in Clause 10.21 or fails to renew the Insurances at
least ten (10) days prior to the date of expiry thereof and
produce prompt confirmation of such renewal to the Paying
Agent.
68
12.1.15 TOTAL LOSS
If the Vessel shall become a Total Loss and the proceeds of
the Insurances in respect thereof shall not have been
received by the Paying Agent within one hundred and fifty
(150) days after the date of the event giving rise to such
Total Loss.
12.1.16 DISPOSALS
If the Borrower or any other member of the NCLC Group shall
have concealed, removed, or permitted to be concealed or
removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or made or
suffered a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or shall have made any transfer of its property
to or for the benefit of a creditor with the intention of
preferring such creditor over any other creditor.
12.1.17 PREJUDICE TO SECURITY
Anything is done or suffered or omitted to be done by any
Obligor which in the reasonable opinion of the Paying Agent
would or might be expected to imperil the security created by
any of the Security Documents.
12.1.18 MATERIAL ADVERSE CHANGE
Any material adverse change in the business, assets or
financial condition of any Obligor occurs which in the
reasonable opinion of the Paying Agent would or might
reasonably be expected to affect the ability of that Obligor
duly to perform any of its material obligations under any
Security Document to which it may at any time be a party. For
the purposes of this Clause 12.1.18 and without prejudice to
the generality of the expression "MATERIAL OBLIGATIONS" any
payment obligations of any Obligor shall be deemed material.
12.1.19 GOVERNMENTAL INTERVENTION
The authority of any member of the NCLC Group in the conduct
of its business is wholly or substantially curtailed by any
seizure or intervention
69
by or on behalf of any authority and within ninety (90) days
of the date of its occurrence any such seizure or
intervention is not relinquished or withdrawn and the Paying
Agent reasonably considers that the relevant occurrence is or
might be expected to become materially prejudicial to the
interests, rights or position of the Lenders PROVIDED THAT
the Borrower shall not be entitled to the aforesaid ninety
(90) day period if the seizure or intervention executed by
any authority is due to an act or omission of any member of
the NCLC Group and the Paying Agent is satisfied, in its sole
discretion, that the Lenders' interest might reasonably be
expected to be materially adversely affected.
12.2 ACCELERATION
12.2.1 On the occurrence of an Event of Default or a Possible Event
of Default and at any time thereafter whilst such event shall
be continuing the Paying Agent may if the Loan has not yet
been drawn down, by notice to the Borrower cancel the
obligations of the Lenders under this Agreement.
12.2.2 On the occurrence of an Event of Default and at any time
thereafter whilst such event shall be continuing, if the Loan
has been drawn down the Paying Agent may:
(a) by notice to the Borrower declare the whole or any part
of the Loan due and repayable in accordance with the
terms of such notice whereupon the same shall become due
and repayable accordingly together with all interest
accrued thereon and all other amounts payable hereunder
and under any of the other Security Documents; and/or
(b) from time to time exercise all or any of its rights
under any of the Security Documents in such order and in
such manner as it shall deem appropriate; and/or
(c) at its sole discretion terminate or continue with the
Management Agreement.
70
12.3 DEFAULT INDEMNITY
The Borrower shall on demand indemnify the Paying Agent, the
Security Agent, the Arrangers and the Lenders, without prejudice to
any of their other rights under this Agreement and the other
Security Documents, against any loss or expense which the Paying
Agent, the Security Agent, the Arrangers or the Lenders shall
certify as sustained or incurred by any of them as a consequence of:
12.3.1 any default in payment by the Borrower of any sum under this
Agreement or any of the other Security Documents when due,
including, without limitation, any liability incurred by the
Paying Agent, the Security Agent, the Arrangers and the
Lenders by reason of any delay or failure of the Borrower to
pay any such sums;
12.3.2 any break in funding (including without limitation
warehousing and other related costs) due to the occurrence of
any Event of Default or Possible Event of Default;
12.3.3 any prepayment of the Loan or part thereof being made at any
time for any reason; and/or
12.3.4 the Loan not being drawn for any reason (excluding any
default by the Paying Agent or any Lender) after the Drawdown
Notice has been given,
including, in any such case, but not limited to, any loss or expense
sustained or incurred in maintaining or funding the Loan or in
liquidating or re-employing deposits from third parties acquired to
effect or maintain the Loan and also any loss or expense (including
without limitation warehousing and other related costs) incurred in
connection with any interest rate swap agreements or other financial
instruments entered into for the purposes of this transaction.
12.4 SET-OFF
Following the occurrence of any Event of Default and for so long as
the same is continuing, the Borrower irrevocably authorises the
Paying Agent, the Security Agent and the Lenders to apply any credit
balance to which the Borrower is entitled upon any account of the
Borrower with any branch of any of the Paying Agent, the Security
Agent and the Lenders in or towards satisfaction of any sum
71
due to the Paying Agent, the Security Agent or any Lender hereunder
but unpaid, and to combine any accounts of the Borrower for this
purpose. If such set-off requires a credit balance in a currency
other than Dollars to be transferred to an account maintained in
connection herewith the transfer shall be effected by crediting to
the account in question the amount of Dollars which the Paying
Agent, the Security Agent or the Lender (as the case may be) could
obtain by exchanging such currency for Dollars at the rate of
exchange at which its Lending Branch would, at the opening of
business on the date on which the combination is effected, have sold
the currency of that credit balance for Dollars for immediate
delivery.
13 APPLICATION OF FUNDS
13.1 TOTAL LOSS PROCEEDS/PROCEEDS OF SALE/EVENT OF DEFAULT MONIES
In the event of the Vessel becoming a Total Loss or if the Vessel is
sold or if an Event of Default has occurred then all Total Loss
proceeds or proceeds of sale of the Vessel or any monies received by
the Paying Agent, the Security Agent or any Lender under or pursuant
to the Security Documents shall be held by the Paying Agent and
applied in the following manner and order:
FIRSTLY to the payment of all fees, expenses and charges
(including brokers' commissions), the expenses of any
sale, the expenses of retaining any attorney,
solicitors' fees, court costs and any other expenses or
advances made or incurred by the Paying Agent, the
Security Agent or any Lender in the protection of the
Paying Agent's, the Security Agent's and the Lender's
rights or the pursuance of its or their remedies
hereunder and under the other Security Documents or to
any payments whether voluntary or not which the Paying
Agent considers advisable to protect its or their
security and to provide adequate indemnity against liens
claiming priority over or equality with the lien of all
Security Documents or any other Encumbrances;
SECONDLY in or towards payment in such order as the Lenders may
require of any accrued (but unpaid) fees and interest
thereon to which the Lenders and/or the Paying Agent
and/or the Security Agent are
72
entitled hereunder and/or under the other Security
Documents in connection with the Loan;
THIRDLY in or towards satisfaction of all interest accrued on
the Loan;
FOURTHLY in retention by the Paying Agent in its discretion in a
suspense or impersonal interest bearing security
realised account of such sum as it considers appropriate
by way of security for the Outstanding Indebtedness or
for any actual or contingent liability of the Paying
Agent, the Security Agent or the Lenders or any of them
in connection with the transactions herein contemplated;
FIFTHLY in or towards payment of the balloon payment of eighty
one million Dollars (USD81,000,000) repayable pursuant
to Clause 3.1.2 and the Instalments (whether or not then
due and payable) in reverse order of maturity date;
SIXTHLY in or towards satisfaction of any other amounts due from
the Borrower to the Paying Agent, the Security Agent or
the Lenders under the Security Documents using in the
discretion of the Paying Agent the same order of
application as FIRSTLY to FIFTHLY;
SEVENTHLY in retention of such other sum or sums as the Paying
Agent may require as security for any further monies
which may reasonably be expected to become due and
payable to the Paying Agent and/or the Security Agent
and/or the Lenders under this Agreement or any of the
other Security Documents and which the assigned Earnings
may be insufficient to satisfy; and
EIGHTHLY the balance, if any, in payment to the Borrower or
whomsoever shall then be entitled thereto.
In the event of the proceeds being insufficient to pay the amounts
referred to above the Paying Agent shall be entitled to collect the
balance from the Borrower.
73
13.2 GENERAL FUNDS
Any other monies received by or in the possession of the Paying
Agent, the Security Agent or any Lender under or pursuant to the
Security Documents which are expressed hereunder and/or under the
Security Documents to be distributed in accordance with the
provisions of this Clause or where no express provisions are made
for disposal shall be applied in the discretion of the Paying Agent
as follows:
FIRSTLY in or towards payment of all fees, costs and expenses
incurred by the Paying Agent, the Security Agent or any
Lender in connection with the Loan and which are for the
time being unpaid;
SECONDLY in or towards payment in such order as the Lenders may
require of any accrued (but unpaid) fees and interest
thereon to which the Lenders and/or the Paying Agent
and/or the Security Agent are entitled hereunder and/or
under the other Security Documents in connection with
the Loan;
THIRDLY in or towards satisfaction of all interest accrued on
the Loan;
FOURTHLY in retention by the Paying Agent in its discretion in a
suspense or impersonal interest bearing security
realised account of such sum as it considers appropriate
by way of security for the Outstanding Indebtedness or
for any actual or contingent liability of the Paying
Agent, the Security Agent or the Lenders or any of them
in connection with the transactions herein contemplated;
FIFTHLY in or towards payment of the balloon payment of eighty
one million Dollars (USD81,000,000) repayable pursuant
to Clause 3.1.2 and the Instalments in reverse order of
maturity date;
SIXTHLY in retention of such other sum or sums as the Paying
Agent may require as security for any further monies
which may reasonably be expected to become due and
payable to the Paying Agent and/or the Security Agent
and/or the Lenders under this Agreement or any of the
other Security Documents and which the assigned Earnings
may be insufficient to satisfy; and
74
SEVENTHLY the balance (if any) shall be released to the Borrower
or to its order or whomsoever else may be entitled
thereto.
13.3 APPLICATION OF PROCEEDS OF INSURANCES
Proceeds of the Insurances for partial losses shall be applied in
accordance with the Insurance Assignment and/or the loss payable
clause endorsed on the Insurances in the form approved by the Paying
Agent and in the case of a Total Loss of the Vessel in accordance
with Clause 4.5 and Clause 13.1.
13.4 SUSPENSE ACCOUNT
Any monies received or recovered by the Paying Agent, the Security
Agent or any Lender under or in connection with the Security
Documents and credited to any suspense or impersonal interest
bearing security realised account in accordance with FOURTHLY of
Clause 13.1 or Clause 13.2 may be held in such account for so long
as the Paying Agent thinks fit pending application at the Paying
Agent's discretion in accordance with FOURTHLY of Clause 13.1 or
Clause 13.2 (as the case may be).
14 FEES
14.1 MANAGEMENT FEE AND AGENCY FEE
The Borrower shall enter into a fees side letter with the Paying
Agent and the Security Agent on signing hereof and pay to the Paying
Agent such fees and on such dates as shall be referred to therein.
14.2 COMMITMENT FEE
The Borrower shall pay to the Paying Agent for distribution to the
Lenders on the earlier of the Drawdown Date and the date on which
the Loan is cancelled a commitment fee in Dollars calculated at the
rate of nought point three seven five per cent (0.375%) per annum on
the daily undrawn, uncancelled amount of the Loan during the
Commitment Period.
75
14.3 RESTRUCTURING FEE
The Borrower shall pay to each of the Lenders on the earlier of five
(5) Business Days from the date of the First Supplement and the
Restatement Date a non-refundable restructuring fee of fifty
thousand Dollars (USD50,000) provided that a Lender which is the
provider of any other loan or other facility to the Borrower or any
other member of the Group shall only be entitled to receive one (1)
such fee of fifty thousand Dollars (USD50,000). The Borrower
represents and warrants that the fee payable to each Lender under
this Clause 14.3 is in the same amount and on the same terms as the
restructuring fee payable to every other provider of any other loan
or other facility to the Borrower or any other member of the Group
in respect of the restructuring contemplated by the First
Supplement. Notwithstanding any provision of this Agreement or the
Agency Deed to the contrary, no Lender shall be required to share
with the other Lenders, the Paying Agent and/or the Security Agent
any such restructuring fee received.
15 EXPENSES
15.1 INITIAL EXPENSES
The Borrower shall reimburse the Paying Agent and the Security Agent
on demand on a full indemnity basis for the reasonable charges and
expenses (together with value added tax or any similar tax thereon
and including without limitation the fees and expenses of legal,
insurance and other advisers) incurred by the Paying Agent or the
Security Agent in respect of the syndication, negotiation,
preparation, printing, execution and registration of this Agreement
and the other Transaction Documents and any other documents required
in connection with the implementation of this Agreement.
15.2 ENFORCEMENT EXPENSES
The Borrower shall reimburse the Paying Agent, the Security Agent,
the Arrangers and the Lenders on demand on a full indemnity basis
for all charges and expenses (including value added tax or any
similar tax thereon and including the fees and expenses of legal
advisers) incurred by the Paying Agent, the Security Agent, each of
the Arrangers and each of the Lenders in connection with
76
the enforcement of, or the preservation of any rights under, this
Agreement and the other Security Documents.
15.3 STAMP DUTIES
The Borrower shall pay or indemnify the Paying Agent, the Security
Agent, each of the Arrangers and each of the Lenders on demand
against any and all stamp, registration and similar Taxes which may
be payable in any jurisdiction in connection with the entry into,
performance and enforcement of this Agreement or any of the other
Security Documents.
16 WAIVERS, REMEDIES CUMULATIVE
16.1 NO WAIVER
No failure to exercise and no delay in exercising on the part of the
Paying Agent, the Security Agent, any of the Arrangers or any of the
Lenders any right or remedy under any of the Security Documents
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further
exercise thereof, or the exercise of any other right or remedy. No
waiver by the Paying Agent, the Security Agent, any of the Arrangers
or any of the Lenders shall be effective unless it is in writing.
16.2 REMEDIES CUMULATIVE
The rights and remedies of the Paying Agent, the Security Agent, the
Arrangers and the Lenders provided herein are cumulative and not
exclusive of any rights or remedies provided by law.
16.3 SEVERABILITY
If any provision of this Agreement is prohibited or unenforceable in
any jurisdiction, such prohibition or unenforceability shall not
invalidate the remaining provisions hereof or affect the validity or
enforceability of such provision in any other jurisdiction.
77
16.4 TIME OF ESSENCE
Time is of the essence in respect of all of the obligations of the
Borrower under the Security Documents provided however that none of
the Paying Agent, the Security Agent, any of the Arrangers or any of
the Lenders shall be entitled to terminate or treat this Agreement
or any of the other Security Documents as having been repudiated
otherwise than in circumstances which constitute an Event of
Default.
17 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the same
agreement.
18 ASSIGNMENT
18.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon the Borrower and its successors
and shall inure to the benefit of the other parties hereto and their
successors and assigns.
18.2 NO TRANSFER BY THE BORROWER
The Borrower may not assign or transfer all or any of its rights,
benefits or obligations hereunder or under any of the other Security
Documents.
18.3 ASSIGNMENTS, PARTICIPATIONS AND TRANSFERS BY A LENDER
Each Lender may at any time transfer or assign all of its rights and
benefits hereunder and under the Security Documents to any other
international bank or financial institution but shall, prior to such
transfer or assignment, on request by the Paying Agent, pay a fee to
the Paying Agent of one thousand Dollars (USD1,000) to be shared
between the Paying Agent and the Security Agent equally PROVIDED
THAT (save in the case of a transfer or assignment of rights and
benefits to any subsidiary or holding company of such Lender or to
another Lender) no such transfer or assignment may be made without
prior consultation with the Borrower and without prior notice to the
Paying Agent and the Security Agent. If a Lender transfers or
assigns its rights and benefits hereunder as provided above, all
references in this Agreement and the other Security
78
Documents to that Lender shall be construed as a reference to that
Lender and/or its Transferee or assignee to the extent of their
respective interests.
18.4 EFFECTIVENESS OF TRANSFER
If a Lender transfers or assigns all or any of its rights and
benefits hereunder in accordance with Clause 18.3, then, unless and
until the Transferee or assignee has agreed that it shall be under
the same obligations towards the parties to this Agreement as it
would have been under if it had been a party hereto as a lender, the
parties to this Agreement shall not be obliged to recognise such
Transferee or assignee as having the rights against each of them
which it would have had if it had been such a party hereto.
18.5 TRANSFER OF RIGHTS AND OBLIGATIONS
If any Lender wishes to transfer all or any of its rights, benefits
and/or obligations hereunder or under the other Security Documents
as contemplated in Clause 18.3, then such transfer may be effected
by the due completion and execution by the Lender and the relevant
Transferee of a Transfer Certificate in the form of Schedule 6. The
Security Agent and the Paying Agent (on behalf of itself, the other
parties to this Agreement (other than the Security Agent) and the
Guarantor in accordance with the provisions of Clause 18.8) shall
then forthwith execute the Transfer Certificate. On the later of the
Transfer Date and the fifth (5th) Business Day following the date of
delivery of the Transfer Certificate to the Paying Agent and the
Security Agent for execution:
18.5.1 to the extent that in such Transfer Certificate the Lender
party thereto seeks to transfer its rights, benefits and/or
its obligations hereunder or under the other Security
Documents, the Borrower and the relevant Lender shall each
be released from further obligations to the other hereunder
and their respective rights against each other shall be
cancelled (such rights and obligations being referred to in
this Clause 18.5 as "DISCHARGED RIGHTS, BENEFITS AND
OBLIGATIONS");
18.5.2 the Borrower and the Transferee party thereto shall each
assume obligations towards each other and/or acquire rights
against each other which differ from such discharged rights,
benefits and obligations only
79
insofar as the Borrower and such Transferee have assumed
and/or acquired the same in place of the Borrower and the
relevant Lender; and
18.5.3 such Transferee shall acquire the same rights and benefits
and assume the same obligations as it would have acquired
and assumed had such Transferee been an original party
hereto as a Lender with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer.
18.6 CONSENT AND INCREASED OBLIGATIONS OF THE BORROWER
In the event that a Lender transfers its Lending Branch or transfers
or assigns its rights and/or benefits hereunder to any subsidiary or
holding company or another Lender and, at the time of such transfer
or assignment, there arises an obligation on the part of the
Borrower hereunder to pay to the relevant Lender or any other person
any amount in excess of the amount it would have been obliged to pay
but for such transfer or assignment and the consent of the Borrower
has not been obtained to such transfer or assignment and the
increased cost then, without prejudice to any obligation of the
Borrower which arises after the time of such transfer or assignment,
the Borrower shall not be obliged to pay the amount of such excess.
18.7 DISCLOSURE OF INFORMATION
Each of the Arrangers, each of the Lenders, the Security Agent and
the Paying Agent (in this Clause 18.7 a "BANK") acknowledges that
all information received now or in the future from or on behalf of
the Obligors under or pursuant to or in connection with the
Transaction Documents (other than any information which is in the
public domain other than as a result of a breach of this Clause), is
confidential information. Any of the Banks may disclose to:
18.7.1 a potential Transferee or assignee who may otherwise propose
to enter into contractual relations with the Bank in
relation to this Agreement;
18.7.2 any person who is any of the Bank's professional advisers or
auditors;
18.7.3 its Holding Company and/or Subsidiary;
18.7.4 any person who is a party to this Agreement other than the
Borrower; or
80
18.7.5 any banking or regulatory authority or as required by law,
regulation or legal process,
such information about any Obligor or the Group and the Transaction
Documents as the Bank shall consider appropriate PROVIDED THAT in
the case of Clauses 18.7.1, 18.7.2 and 18.7.3, such person has
agreed to execute a Confidentiality Undertaking, and in the case of
Clause 18.7.3 the Holding Company and/or the Subsidiary shall also
be entitled to make such disclosure to the Bank and/or to the
Holding Company and/or to the Subsidiaries of the Bank.
18.8 TRANSFER CERTIFICATE TO BE EXECUTED BY THE PAYING AGENT AND THE
SECURITY AGENT
In order to give effect to a Transfer Certificate each of the
parties to this Agreement (other than the Security Agent) hereby
irrevocably and unconditionally appoints the Paying Agent as its
true and lawful attorney with full power to execute on its behalf
each Transfer Certificate delivered to the Paying Agent pursuant to
Clause 18.5 without the Paying Agent being under any obligation to
take any further instructions from, or give any prior notice to such
parties before doing so. The Security Agent and the Paying Agent (on
behalf of such parties) shall so execute each such Transfer
Certificate forthwith upon its receipt thereof pursuant to Clause
18.5.
18.9 NOTICE OF TRANSFER CERTIFICATES
The Paying Agent shall promptly notify the other parties hereto
(other than the Security Agent), the Transferee and the Guarantor
upon the execution by it of any Transfer Certificate together with
details of the amount transferred, the Transfer Date and the parties
to such transfer.
18.10 DOCUMENTATION OF TRANSFER OR ASSIGNMENT
The Borrower shall at the request of the Paying Agent promptly
execute or promptly procure the execution of such documents and do
(or procure the doing of) all such acts and things as may be
necessary or desirable to give effect to any transfer or assignment
pursuant to this Clause 18.
81
18.11 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 (THE "ACT")
A person who is not a party to this Agreement has no right under the
Act to enforce any term of this Agreement but this does not affect
any right or remedy of a third party which exists or is available
apart from the Act.
19 NOTICES
19.1 MODE OF COMMUNICATION
Except as otherwise provided herein, each notice, request, demand or
other communication or document to be given or made hereunder shall
be given in writing but unless otherwise stated, may be made by
telex or telefax.
19.2 ADDRESS
Any notice, demand or other communication (unless made by telefax)
to be made or delivered by the Paying Agent or the Security Agent to
the Borrower pursuant to this Agreement shall (unless the Borrower
has by fifteen (15) days' written notice to the Paying Agent
specified another address) be made or delivered to the Borrower c/o
NCLC, 7665 Corporate Center Drive, Miami, Florida 33126, United
States of America (marked for the attention of Mr Lamarr Cooler and
the Legal Department (but one (1) copy shall suffice)) with a copy
to the Borrower c/o Star Cruises Limited, 25th Floor, Wisma Genting,
Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia (marked for the
attention of Mr Gerard Lim). Any notice, demand or other
communication to be made or delivered by the Borrower to the Paying
Agent or the Security Agent pursuant to this Agreement shall (unless
the Paying Agent has by fifteen (15) days' written notice to the
Borrower specified another address) be made or delivered to the
Paying Agent or the Security Agent (as the case may be) at its
Lending Branch, the details of which are set out in Schedule 2.
19.3 TELEFAX COMMUNICATION
Any notice, demand or other communication to be made or delivered
pursuant to this Agreement may be sent by telefax to the relevant
telephone numbers (which at the date hereof in respect of the
Borrower is +1 305 436 4140 (marked for the attention of Mr Lamarr
Cooler) and +1 305 436 4117 (marked for the attention of
82
the Legal Department) with a copy to +60 (0)3 2161 3621 (marked for
the attention of Mr Gerard Lim) and in the case of the Paying Agent,
the Security Agent or any Lender is as recorded in Schedule 2)
specified by it from time to time for the purpose and shall be
deemed to have been received when transmission of such telefax
communication has been completed. Each such telefax communication,
if made to the Paying Agent, the Security Agent or any Lender by the
Borrower, shall be signed by the person or persons authorised in
writing by the Borrower and whose signature appears on the list of
specimen signatures contained in the secretary's certificate
required to be delivered by paragraph 2 of Schedule 4 and shall be
expressed to be for the attention of the department or officer whose
name has been notified for the time being for that purpose by the
Paying Agent, the Security Agent or any Lender to the Borrower.
19.4 RECEIPT
Each such notice, demand or other communication shall be deemed to
have been made or delivered (in the case of telex) when the
addressee's answerback shall have been received at the end of the
transmission or (in the case of any letter) when delivered to its
office for the time being or, if sent by post, five (5) days after
being deposited in the post first class or express airmail (as the
case may be) postage prepaid in an envelope addressed to it at that
address.
19.5 LANGUAGE
Each notice, demand or other communication made or delivered by one
(1) party to another pursuant to this Agreement or any other
Security Document shall be in the English language or accompanied by
a certified English translation. In the event of any conflict
between the translation and the original text the translation shall
prevail unless the original text is a statutory instrument, legal
process or any other document of a similar type.
20 GOVERNING LAW
This Agreement shall be governed by English law.
83
21 WAIVER OF IMMUNITY
To the extent that the Borrower may in any jurisdiction claim for itself
or its assets immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process in
relation to this Agreement or the other Security Documents and to the
extent that in any such jurisdiction there may be attributed to itself or
its assets such immunity (whether or not claimed) the Borrower hereby
irrevocably and unconditionally agrees throughout the Security Period not
to claim and hereby irrevocably waives such immunity to the full extent
permitted by the laws of such jurisdiction. In respect of any legal action
or proceedings arising out of or in connection with any of the Security
Documents the Borrower hereby consents generally as a matter of procedure
in relation to the waiver of immunity (but not so as to prejudice any
defence which the Borrower may have on the merits of the substantive
issue) to the giving of any relief or the issue of any process in
connection with such legal action or proceedings including without
limitation, the making, enforcement or execution against any property
whatsoever (irrespective of its uses or intended uses) of any order or
judgment which may be made or given in such legal action or proceedings.
22 JURISDICTION
22.1 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) (a "DISPUTE"). Each party to this
Agreement agrees that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no party
will argue to the contrary.
This Clause 22.1 is for the benefit of the Arrangers, the Lenders,
the Paying Agent and the Security Agent only. As a result, no such
party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed
by law, any such party may take concurrent proceedings in any number
of jurisdictions.
22.2 The Borrower may not, without the Paying Agent's prior written
consent, terminate the appointment of the Process Agent; if the
Process Agent resigns or its appointment ceases to be effective, the
Borrower shall within fourteen (14) days appoint a company which has
premises in London and has been approved by
84
the Paying Agent to act as the Borrower's process agent with
unconditional authority to receive and acknowledge service on behalf
of the Borrower of all process or other documents connected with
proceedings in the English courts which relate to this Agreement.
22.3 For the purpose of securing its obligations under Clause 22.2, the
Borrower irrevocably agrees that, if it for any reason fails to
appoint a process agent within the period specified in Clause 22.2,
the Paying Agent may appoint any person (including a company
controlled by or associated with the Paying Agent, the Security
Agent or any Arranger or Lender) to act as the Borrower's process
agent in England with the unconditional authority described in
Clause 22.2.
22.4 No neglect or default by a process agent appointed or designated
under this Clause (including a failure by it to notify the Borrower
of the service of any process or to forward any process to the
Borrower) shall invalidate any proceedings or judgment.
22.5 The Borrower appoints in the case of the courts of England the
Process Agent to receive, for and on its behalf service of process
in England of any legal proceedings with respect to this Agreement
and any other Security Document.
22.6 A judgment relating to this Agreement which is given or would be
enforced by an English court shall be conclusive and binding on the
Borrower and may be enforced without review in any other
jurisdiction.
22.7 Nothing in this Clause shall exclude or limit any right which the
Paying Agent, the Security Agent, an Arranger or a Lender may have
(whether under the laws of any country, an international convention
or otherwise) with regard to the bringing of proceedings, the
service of process, the recognition or enforcement of a judgment or
any similar or related matter in any jurisdiction.
22.8 In this Clause "JUDGMENT" includes order, injunction, declaration
and any other decision or relief made or granted by a court.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed as a deed on the day first written above.
85
SIGNED SEALED and DELIVERED ) P A Turner
as a DEED )
by PAUL TURNER )
for and on behalf of )
NORWEGIAN SUN LIMITED )
in the presence of: )
R Cheung
Regina Cheung
Trainee Solicitor
Stephenson Harwood
One, St. Paul's Churchyard
London EC4M 8SH
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
DnB NOR BANK ASA )
as the Paying Agent in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) Donny Lam Hung Ki
as a DEED )
by DONNY LAM HUNG KI )
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION LIMITED )
as the Security Agent in the presence of: )
Helen Mok Lai Sim
1 Queen's Road Central,
Hong Kong
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
DnB NOR BANK ASA )
as an Arranger and a Lender )
in the presence of: )
R Cheung
as above
86
SIGNED SEALED and DELIVERED ) Donny Lam Hung Ki
as a DEED )
by DONNY LAM HUNG KI )
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION LIMITED )
as an Arranger and a Lender )
in the presence of: )
Helen Mok Lai Sim
1 Queen's Road Central,
Hong Kong
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
KfW )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
NORDEA BANK NORGE ASA )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
CREDIT SUISSE )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
HSH NORDBANK AG )
in the presence of: )
R Cheung
as above
87
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
OVERSEA-CHINESE BANKING )
CORPORATION LIMITED )
Labuan Branch )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
NORDDEUTSCHE LANDESBANK )
GIROZENTRALE )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) J Clegg
as a DEED )
by JULIE CLEGG )
for and on behalf of )
BUMIPUTRA-COMMERCE BANK )
BERHAD )
Tokyo Branch )
in the presence of: )
R Cheung
as above
SIGNED SEALED and DELIVERED ) Ong Seet Joon
as a DEED )
by ONG SEET JOON )
for and on behalf of )
MALAYAN BANKING BERHAD )
Hong Kong Branch )
in the presence of: )
D Leung
19/F, Entertainment Building,
30 Queen's Road Central,
Hong Kong
88
SCHEDULE 1
PARTICULARS OF ARRANGERS
UNDERWRITTEN UNDERWRITTEN
AMOUNT AMOUNT AS A
IN USD PERCENTAGE
DnB NOR BANK ASA 112,500,000 50.00%
(as successor in title to Den norske Bank ASA)
Stranden 21
NO-0021 Oslo
Norway
Attn: Mr Jon Flovik
Fax: +47 22 482020
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED 112,500,000 50.00%
Level 16
HSBC Main Building
1 Queen's Road Central
Hong Kong
Attn: Transaction Management
Fax: +852 2530 1538
89
SCHEDULE 2
PARTICULARS OF SECURITY AGENT, PAYING AGENT AND LENDERS
NAME AND ADDRESS
SECURITY AGENT
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
Level 30
HSBC Main Building
1 Queen's Road Central
Hong Kong
Fax: +852 2523 4641
Attn: Ms Helen Mok/Ms Letitia Chau
Corporate Trust and Loan Agency
Email: helenmok@hsbc.com.hk/letitiachau@hsbc.com.hk
PAYING AGENT
DnB NOR BANK ASA
(as successor in title to Den norske Bank ASA)
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482894
Attn: Mrs Solveig Nuland Knoff
Email: solveig.knoff@dnbnor.no
LENDERS
NAME AND ADDRESS CONTRIBUTION IN
USD
DnB NOR BANK ASA 37,500,000
(as successor in title to Den norske Bank ASA)
Stranden 21
NO-0021 Oslo
Norway
Fax: +47 22 482020
Attn: Mr Jon Flovik
Email: jon.flovik@dnbnor.no
90
THE HONGKONG AND SHANGHAI 30,000,000
BANKING CORPORATION LIMITED
Level 8
HSBC Main Building
1 Queen's Road Central
Hong Kong
Fax: +852 2845 9033
Attn: Mr Maurice Lee/Ms Stella Chan
Email: mauricelee@hsbc.com.hk/stellachan@hsbc.com.hk
KfW 37,500,000
(formerly known as Kreditanstalt fur Wiederaufbau)
Palmengartenstrasse 5-9
60325 Frankfurt am Main
Germany
Fax: +49 69 7431 3768/4110
Attn: Mr Wolfgang Pfisterer/Ms Claudia Kochen
Email: wolfgang.pfisterer@kfw.de/claudia.kochen@kfw.de
NORDEA BANK NORGE ASA 30,000,000
Middelthuns gate 17
Oslo
P O Box 1166 Sentrum
NO-0107 Oslo
Norway
Fax: +47 22 484278
Attn: Mr Arne Berglund
Email: arne.berlund@nordea.com
CREDIT SUISSE 18,750,000
Ship Finance/BBY
St Alban-Graben 1-3
P O Box 4002 Basel
Switzerland
Fax: +41 61 266 7939
Attn: Mr John Haefelfinger/Ms Nadja Gautschi
Email: john.haefelfinger@credit-suisse.com
nadja.gautschi@credit-suisse.com
HSH NORDBANK AG 18,750,000
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
Fax: +49 40 3333-34307
Attn: Ms Uta Urbaniak/Ms Frauke Hay
Email: uta.urbaniak@hsh-nordbank.com
frauke.hay@hsh-nordbank.com
91
OVERSEA-CHINESE BANKING CORPORATION LIMITED 18,750,000
Labuan Branch
Level 8(C)
Main Office Tower
Financial Park Labuan
Jalan Merdeka
87000 Labuan Federal Territory
Malaysia
Fax: +60 87 423390
Attn: Mr Bernard Fernando/Ms Ann Teo
Email: ocbclbn@tm.net.my
NORDDEUTSCHE LANDESBANK GIROZENTRALE 15,000,000
30151 Hannover
Germany
Fax: +49 511 361 4785
Attn: Mr Willy Idler/Mr Thomas Schramme
Email: shipping@nordlb.de
BUMIPUTRA-COMMERCE BANK BERHAD 11,250,000
Tokyo Branch
1F Hibiya Daibiru
1-2-2 Uchisaiwai-cho
Chiyoda-ku, 1 chome
Tokyo 100-0011
Japan
Fax: +81 3 3508 1049
Attn: Mr Nor Azzam Abdul Jalil
Email: naj-bcb@eos.ocn.ne.jp
MALAYAN BANKING BERHAD 7,500,000
Hong Kong Branch
18-19/F Entertainment Building
30 Queen's Road Central
Hong Kong
Fax: +852 2810 6013
Attn: Ms Tengku Zarina Tengku Chik/Ms Chai Ngan Fui
Email: tzarina@maybank.com.hk/nicole@maybank.com.hk
92
SCHEDULE 3
NOTICE OF DRAWDOWN
Clause 2.3
FROM: NORWEGIAN SUN LIMITED
Cedar House
41 Cedar Avenue
Hamilton HM 12
Bermuda
TO: DEN NORSKE BANK ASA
Singapore Branch
8 Shenton Way
#48-02, Temasek Tower
Singapore 068811
2003
Dear Sirs
LOAN AGREEMENT DATED 9 JULY 2003 (THE "LOAN AGREEMENT")
We refer to the Loan Agreement pursuant to which you have agreed to advance to
us the Loan on the terms and conditions set out therein.
Terms and expressions defined in the Loan Agreement shall have the same
respective meanings when used in this notice.
We hereby give you notice that we wish to draw down the amount of [ ]
Dollars (USD[ ]) under Clause 2.3 of the Loan Agreement on [ ]
2003.
Of such amount, the amount of [ ] Dollars (USD[ ]) is to be paid
to the Seller's bank as follows:
Bank of Nova Scotia, New York, FedWire Routing Number 026-002-532, for the
account of Bank of Nova Scotia London, Account Number 06008-30 under reference
LAG/NCLL/Norwegian Sun
and the balance is to be paid to the Sellers at:
JP Morgan Chase Bank, 4 New York Plaza, 15th Floor, New York, NY 10004, Federal
Routing Number 021-000-021, USD Account Number 544-0-80563
We confirm that:
93
(i) all of the representations and warranties contained in Clause 9 of the
Loan Agreement remain true and correct;
(ii) no Possible Event of Default or Event of Default has occurred;
(iii) the first Interest Period shall be of [one (1) three (3) six (6)] months'
duration;
(iv) the Loan will be applied in financing the Purchase Price due to the Seller
pursuant to the MOA; and
(vi) upon application of the Loan hereby requested to be drawn down in the
manner hereinbefore appearing all sums owing to the Seller under the MOA
shall have been fully and finally paid.
Yours faithfully
NORWEGIAN SUN LIMITED
By: ________________________
94
SCHEDULE 4
CONDITIONS PRECEDENT
Clause 2.5
The Loan is expressly conditional upon the Paying Agent having received in such
form and substance as it shall require:
A ON SIGNING HEREOF
THE BORROWER
1 Certified Copies of any consents required from any ministry, governmental,
financial or other authority for the execution of and performance by the
Borrower of its obligations under this Agreement and each of the Security
Documents or if no such consents are required a secretary's certificate of
the Borrower to this effect confirming that no such consents are required.
2 Notarially attested secretary's certificate for the Borrower:
2.1 attaching a copy of its Certificate of Incorporation and Memorandum
of Association and Bye-Laws evidencing power to:
2.1.1 enter into the transactions contemplated in this Agreement and
in the other Security Documents and to buy ships and enter
into arrangements for the chartering and management thereof;
and
2.1.2 borrow money in the amount referred to in this Agreement and
as security therefor to mortgage or charge assets;
2.2 giving the names of the present officers and directors;
2.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform the Borrower's obligations
under the Security Documents;
2.4 giving the legal and beneficial owners of the Shares;
2.5 attaching copies of resolutions passed at a duly convened meeting of
the directors authorising the borrowing of the Loan, the granting of
the Mortgage and the
95
execution of this Agreement and such of the other Security Documents
to which the Borrower is a party and the issue of any power of
attorney to execute the same; and
2.6 containing a declaration of solvency as at the date of the
secretary's certificate.
3 Where the secretary's certificate referred to in paragraph 2 of this
Schedule 4 is dated more than five (5) Business Days prior to 9 July 2003,
a bringdown certificate, which need not be notarially attested if signed
by the same person that signed the secretary's certificate referred to in
paragraph 2 of this Schedule 4.
4 The original power of attorney issued pursuant to (A) the resolutions
referred to above and (B) paragraph 2.3 above, notarially attested.
GUARANTOR AND SHAREHOLDER
5 Notarially attested secretary's certificate:
5.1 attaching a copy of its Certificate of Continuance and Memorandum of
Continuance and Bye-Laws evidencing power to enter into the
transactions contemplated by this Agreement;
5.2 giving the names of the present officers and directors;
5.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform obligations under the
Security Documents;
5.4 attaching copies of resolutions passed at a duly convened meeting of
the directors approving the granting and the execution of the
documents whose execution is contemplated hereby, insofar as they
relate to it and the issue of any power of attorney to execute the
same; and
5.5 containing a declaration of solvency as at the date of the
secretary's certificate.
6 Where the secretary's certificate referred to in paragraph 5 of this
Schedule 4 is dated more than five (5) Business Days prior to 9 July 2003,
a bringdown certificate, which need not be notarially attested if signed
by the same person that signed the secretary's certificate referred to in
paragraph 5 of this Schedule 4.
96
7 The original powers of attorney issued pursuant to (A) the resolutions
referred to above and (B) paragraph 5.3 above, notarially attested.
GENERAL
8 Confirmation from the Process Agent that it will act for each of the
Obligors as agent for service of process in England.
9 Opinions from lawyers appointed by the Paying Agent including English,
Bermudan and Isle of Man lawyers as to any of the foregoing matters or
otherwise as the Paying Agent may require in the form required by the
Paying Agent.
10 Certified Copy of the MOA including all addenda.
11 Agency Deed duly executed.
12 [Intentionally left blank.]
13 Debenture duly executed.
14 [Intentionally left blank.]
15 Copies of the audited consolidated report and accounts of the Guarantor
for 2002 and the unaudited consolidated accounts of the Group for the
financial year quarter to 31 December 2002.
16 Copies of all Companies Acts forms for filing of charges in Bermuda and
the Isle of Man.
17 Payment of all fees under Clause 14.
B AT LEAST FIVE (5) BUSINESS DAYS BEFORE THE DRAWDOWN DATE
18 Drawdown notice duly executed by the Borrower in the form of Schedule 3.
C ON THE DRAWDOWN DATE
19 Such evidence as the Paying Agent may require that the Vessel is:
19.1 provisionally registered in the name of the Borrower under the
Bahamian flag, with a certificate of registry free from all liens
and encumbrances except the Mortgage;
97
19.2 classified with the highest classification available free of all
recommendations and qualifications with Det Norske Veritas;
19.3 insured in accordance with the terms of the Security Documents; and
19.4 managed by the Manager pursuant to the Management Agreement.
20 Certified Copy of the bill of sale.
21 Certified Copy of the unconditional protocol of delivery and acceptance
duly signed by the Seller and the Borrower.
22 Copies of valid trading and other certificates to be produced by the
Seller pursuant to the MOA.
23 Mortgage over the Vessel duly executed and lodged for registration at the
Bahamas Maritime Authority in London.
24 Earnings Assignment duly executed.
25 Insurance Assignment duly executed.
26 Account Charge duly executed.
27 [Intentionally left blank.]
28 [Intentionally left blank.]
29 Co-ordination Deed duly executed.
30 Telefax confirmations from the insurance brokers for marine risks (hull
and machinery) and the managers of any protection and indemnity or war
risks association through whom any Insurances have been placed in respect
of the Vessel that the Insurances have been placed and upon receipt of a
notice of assignment of the Insurances they will issue letters of
undertaking in the form approved by the Paying Agent.
31 Opinions from Bahamian lawyers appointed by the Paying Agent as to due
registration of the Vessel and due registration of the Mortgage and from
English, Bermudan, Isle of Man and Singaporean lawyers appointed by the
Paying Agent as to any of the foregoing matters or otherwise as the Paying
Agent may require in the form required by the Paying Agent.
98
32 Written confirmation from the Paying Agent's insurance advisers that the
Insurances are in a form satisfactory to the Paying Agent.
33 Notarially attested bringdown certificate in respect of the Borrower.
34 A Certified Copy of the carrier initiative agreement executed pursuant to
the Mortgage.
35 A Certified Copy of any current certificate of financial responsibility in
respect of the Vessel issued under OPA.
36 A Certified Copy of a valid safety management certificate (or interim
safety management certificate) issued to the Vessel in respect of its
management by the Manager pursuant to the International Safety Management
Code.
37 A Certified Copy of a valid document of compliance (or interim document of
compliance) issued to the Manager in respect of ships of the same type as
the Vessel pursuant to the International Safety Management Code.
MANAGER AND SCML
38 Notarially attested secretary's certificate for each of the above:
38.1 attaching a copy of its Certificate of Incorporation and Memorandum
and Articles of Association (or equivalent documents) evidencing
power to enter into the transactions contemplated by this Agreement;
38.2 giving the names of the present officers and directors;
38.3 setting out specimen signatures of persons who would be authorised
to sign documents or otherwise perform obligations under the
Security Documents;
38.4 giving the legal and beneficial owners of its issued shares and the
number of shares held by each shareholder;
38.5 attaching copies of resolutions passed at a duly convened meeting of
the directors approving the granting and the execution of the
documents whose execution is contemplated hereby, insofar as they
relate to it and the issue of any power of attorney to execute the
same; and
38.6 containing a declaration of solvency as at the date of the
secretary's certificate.
99
39 Where the secretary's certificate referred to in paragraph 38 of this
Schedule 4 is dated more than five (5) Business Days prior to the Drawdown
Date, a bringdown certificate, which need not be notarially attested if
signed by the same person that signed the secretary's certificate referred
to in paragraph 38 of this Schedule 4.
40 The original powers of attorney issued pursuant to (A) the resolutions
referred to above and (B) paragraph 38.3 above, notarially attested.
GENERAL
41 Copies of Companies Act forms for filing of charges in Bermuda.
42 Payment of all fees due under Clause 14.
100
SCHEDULE 5
CONFIDENTIALITY UNDERTAKING
[On Bank's Headed Paper]
TO: NORWEGIAN SUN LIMITED
Canon's Court
22 Victoria Street
Hamilton HM 12
Bermuda
(the "BORROWER")
DnB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
(the "PAYING AGENT")
NORWEGIAN SUN LIMITED
USD 225,000,000 TERM LOAN (THE "LOAN")
FORM OF CONFIDENTIALITY UNDERTAKING
1 We hereby undertake that we will keep confidential and will not make use
of for any purposes (other than for the purposes of the Loan) all
information delivered to us in connection with the Loan and all
information obtained by us in the course of discussions with the Paying
Agent, the Borrower or any other party involved with the Loan
(collectively the "INFORMATION") until and save to the extent that the
Information has been released into the public domain by persons duly
authorised by the Borrower to do so. However, we shall be entitled to
supply the Information to:
1.1 professional advisers solely for use in connection with the Loan
after drawing to the attention of those advisers the content of the
undertaking as to confidentiality given by us and after obtaining
similar undertakings from them; and
1.2 any third party where we have been authorised in writing to do so by
the Borrower; and
1.3 subject to giving reasonable prior notice to the Borrower, to any
banking or regulatory authority to which we are subject after
drawing to the attention of such authority the content of the
undertaking as to confidentiality given by us; and
101
1.4 pursuant to subpoena or other legal process and pursuant to any law
or regulation having the force of law.
2 We further undertake that if we decide not to participate in the Loan, we
will return to the Paying Agent the originals and additional copies or
extracts made therefrom and all documentary Information delivered to us by
the Paying Agent in relation to the Loan and/or the Borrower (including
any supplied to third parties as contemplated in paragraph 1).
For and on behalf of
BANK NAME:
By: ________________________
Date:
102
SCHEDULE 6
TRANSFER CERTIFICATE
Lenders are advised not to employ Transfer Certificates or otherwise to assign
or transfer interests in the Loan Agreement without further ensuring that the
transaction complies with all applicable laws and requisitions, including the
Financial Services Act 1986 and regulations made thereunder and similar statutes
which may be in force in other jurisdictions.
TO: DNB NOR BANK ASA (the "PAYING AGENT") as agent on its own behalf and for
and on behalf of the Arrangers, the Borrower, the Guarantor and the
Lenders as defined in the Loan Agreement referred to below
ATTENTION: Mrs Solveig Nuland Knoff
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED (the "SECURITY
AGENT")
ATTENTION: Mr Donny Lam/Ms Helen Mok
Date:
This certificate (the "TRANSFER CERTIFICATE") relates to a loan agreement dated
9 July 2003 as amended and restated by a first supplemental agreement dated 2004
(as the same may from time to time be further amended, supplemented and/or
novated the "LOAN AGREEMENT") made between (among others) (1) Norwegian Sun
Limited as borrower (the "BORROWER") (2) the banks and financial institutions
referred to therein as lenders (the "LENDERS") (3) The Hongkong and Shanghai
Banking Corporation Limited (the "SECURITY AGENT") and (4) DnB NOR Bank ASA (the
"PAYING AGENT") whereby the Lenders have agreed to make available to the
Borrower a term loan facility in the amount of up to two hundred and twenty five
million Dollars (USD225,000,000). Terms defined in the Loan Agreement shall,
unless otherwise defined herein, have the same meanings herein as therein.
In this Transfer Certificate:
the "TRANSFEROR" means [full name] of [lending branch];
the "TRANSFEREE" means [full name] of [lending branch].
1 The Transferor with full title guarantee transfers to the Transferee
absolutely in accordance with Clause 18.5 of the Loan Agreement all rights
and interests (present, future or contingent) which the Transferor has as
Lender under or by virtue of the Loan Agreement and all the other Security
Documents insofar as such rights and interests relate
103
to that portion of its Contribution to the Loan in an amount equal to
[ ] Dollars (USD[ ]) out of its total Contribution which
at the date hereof is [ ] Dollars (USD[ ]).
2 By virtue of this Transfer Certificate and Clause 18.5 of the Loan
Agreement, the Transferor is discharged entirely with effect from the
Transfer Date from that portion of its Contribution to the Loan and its
obligations relating thereto to the extent of [ ]
Dollars (USD[ ]) out of its total Contribution at such date.
3 The Transferee hereby requests:
3.1 the Borrower, the Guarantor, the Security Agent, the Paying Agent,
the Arrangers and the Lenders to accept the executed copies of this
Transfer Certificate as being delivered pursuant to and for the
purposes of Clause 18.5 of the Loan Agreement; and
3.2 the Paying Agent to execute this Transfer Certificate on behalf of
itself and the other said parties pursuant to Clause 18.8 of the
Loan Agreement so that this Transfer Certificate will take effect in
accordance with the terms thereof on [specify date of transfer] [or]
[the date on which the Paying Agent receives a certificate signed by
[the Transferor] confirming that the following conditions have been
fulfilled [specify conditions to transfer].
4 The Transferee:
4.1 confirms that it has received a copy of the Loan Agreement, the
Agency Deed and the other Security Documents together with such
other documents and information as it has required in connection
with the transaction contemplated thereby;
4.2 confirms that it has not relied and will not hereafter rely on the
Transferor, the Security Agent, the Paying Agent, the Arrangers or
the Lenders to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of the
Loan Agreement, the Agency Deed or any other of the Security
Documents or any other documents or information;
104
4.3 agrees that it has not relied and will not rely on the Transferor,
the Security Agent, the Paying Agent, the Arrangers or the Lenders
to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of
the Borrower or any other party to the Loan Agreement or any other
of the Security Documents (save as otherwise expressly provided
therein);
4.4 warrants that it has power and authority to become a party to the
Loan Agreement and the Agency Deed and has taken all necessary
action to authorise execution of this Transfer Certificate and to
obtain all necessary approvals and consents to the assumption of its
obligations under the Loan Agreement, the Agency Deed and the other
Security Documents;
4.5 if not already a Lender, appoints the Paying Agent and the Security
Agent to act as its agents as provided in the Loan Agreement, the
Agency Deed and the other Security Documents and agrees to be bound
by the terms of Clause 18.8 of the Loan Agreement and by all the
terms of the Agency Deed.
5 The Transferor:
5.1 warrants to the Transferee that it has full power to enter into this
Transfer Certificate and has taken all corporate action necessary to
authorise it to do so;
5.2 warrants to the Transferee that this Transfer Certificate is binding
on the Transferor under the laws of England, the country in which
the Transferor is incorporated and the country in which its Lending
Branch is located; and
5.3 agrees that it will, at its own expense, execute any documents which
the Transferee reasonably requests for perfecting in any relevant
jurisdiction the Transferee's title under this Transfer Certificate
or for any similar purpose.
6 The Transferee hereby undertakes to the Transferor and each of the other
parties to the Loan Agreement and the Agency Deed that it will perform in
accordance with its terms all those obligations which by the terms of the
Loan Agreement and the Agency Deed will be assumed by it after the
transfer contemplated by this Transfer Certificate has taken effect.
7 If a Transferor and a Transferee effect a transfer in accordance with
Clause 3 of this Transfer Certificate during an Interest Period, the
Paying Agent shall make all payments
105
which would have become due to the Transferor under the Loan Agreement
during the relevant Interest Period to the Transferor, as if no such
transfer had been effected by the Transferor to the Transferee, according
to the percentages of the Transferor's Contribution and/or Commitment
transferred and retained pursuant to Clauses 1 and 2 of this Transfer
Certificate, and the Transferor and the Transferee shall be responsible
for paying to each other pro rata all amounts (if any) due to them from
each other for such Interest Period. On and from the commencement of the
immediately succeeding Interest Period, the Paying Agent shall make all
payments due under the Loan Agreement for the account of the Transferor,
to the Transferor, and shall make all payments due under the Loan
Agreement for the account of the Transferee, to the Transferee. This
provision is for administrative convenience only and shall not affect the
rights of the Transferor and the Transferee under the Loan Agreement.
8 None of the Transferor, the Paying Agent, the Security Agent, the
Arrangers or the Lenders:
8.1 makes any representation or warranty nor assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Loan Agreement, the Agency Deed or any other
of the Security Documents or any document relating thereto;
8.2 assumes any responsibility for the financial condition of the
Borrower or any other party to the Loan Agreement, the Agency Deed
or any other of the Security Documents or any such other document or
for the performance and observance by the Borrower or any other
party to the Loan Agreement, the Agency Deed or any other of the
Security Documents or any such other document (save as otherwise
expressly provided therein) and any and all such conditions and
warranties, whether expressed or implied by law or otherwise, are
hereby excluded (except as aforesaid).
9 The Transferor and the Transferee each undertakes that it will on demand
fully indemnify the Paying Agent and the Security Agent in respect of any
claim, proceeding, liability or expense which relates to or results from
this Transfer Certificate or any matter connected with or arising out of
it unless caused by the Paying Agent's or the Security Agent's gross
negligence or wilful misconduct, as the case may be.
106
10 The agreements and undertaking of the Transferee in this Transfer
Certificate are given to and for the benefit of and made with each of the
other parties to the Loan Agreement.
11 This Transfer Certificate shall be governed by, and construed in
accordance with, English law.
IN WITNESS whereof the Transferor, the Transferee and the Paying Agent (as agent
for and on behalf of itself as the Paying Agent, the Security Agent, the
Arrangers, the Borrower, the Guarantor and the Lenders (other than the
Transferor)) have caused this Transfer Certificate to be executed on the day
first written above.
THE TRANSFEROR
SIGNED by )
)
for and on behalf of )
[ ] )
in the presence of: )
THE TRANSFEREE
SIGNED by )
)
for and on behalf of )
[ ] )
in the presence of: )
THE PAYING AGENT
SIGNED by )
)
for and on behalf of )
DnB NOR BANK ASA )
as agent for and on behalf )
of itself as Paying Agent, the Arrangers, )
the Borrower, the Guarantor and the Lenders )
in the presence of: )
107
THE SECURITY AGENT
SIGNED by )
)
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION LIMITED )
in the presence of: )
Note: The execution of this Transfer Certificate alone may not transfer a
proportionate share of the Transferor's interest in the security
constituted by the Security Documents in the Transferor's or Transferee's
jurisdiction. It is the responsibility of each individual Lender to
ascertain whether any other documents are required to perfect a transfer
of such a share in the Transferor's interest in such security in any such
jurisdiction, and, if so, to seek appropriate advice and arrange for
execution of the same.
108
SCHEDULE
ADMINISTRATIVE DETAILS OF TRANSFEREE
Name of Transferee:
Lending Branch:
Contact Person
(Loan Administration Department):
Telephone:
Fax:
Email:
Contact Person
(Credit Administration Department):
Telephone:
Fax:
Email:
Account for Payments:
109
SCHEDULE 7
CHARTERING OF THE SIX VESSELS (AS DEFINED IN CLAUSE 10.6.4)
VESSEL NEW OWNER DAILY HIRE REDELIVERING TRANSFER VALUE
------ --------- ---------- ------------ --------------
Norwegian Sea Ocean Pacific Limited [***] [Confidential Treatment]
Norwegian Majesty Ocean Voyager Limited [***] [Confidential Treatment]
Norwegian Wind Crown Wind Limited [***] [Confidential Treatment]
Norwegian Crown Crown Odyssey Limited [***] [Confidential Treatment]
Norwegian Dream Ocean Dream Limited [***] [Confidential Treatment]
Marco Polo Ocean World Limited [***] [Confidential Treatment]
110
CONFORMED COPY
DATED 23 APRIL 2004
NCL CORPORATION LTD.
TO
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
----------------------------
GUARANTEE
----------------------------
STEPHENSON HARWOOD
ONE ST PAUL'S CHURCHYARD
LONDON EC4M 8SH
TEL: +44 (0)20 7329 4422
FAX: +44 (0)20 7606 0822
REF: JMC/1253/42-02611
CONTENTS
Page
----
1 Definitions.................................................................................2
2 Guarantee and Indemnity.....................................................................4
3 Survival of Guarantor's Liability...........................................................5
4 Continuing Guarantee........................................................................6
5 Exclusion of the Guarantor's Rights.........................................................7
6 Payments....................................................................................8
7 Enforcement.................................................................................9
8 Representations and Warranties..............................................................9
9 General Undertakings: Positive Covenants...................................................12
10 General Undertakings: Negative Covenants...................................................15
11 Financial Undertakings and Ownership and Control of the Guarantor..........................19
12 Discharge..................................................................................26
13 Assignment and Transfer....................................................................26
14 Miscellaneous Provisions...................................................................27
15 Waiver of Immunity.........................................................................28
16 Notices....................................................................................28
17 Governing Law..............................................................................29
18 Jurisdiction...............................................................................29
Schedule 1 Quarterly Statement of Financial Covenants.................................................32
Schedule 2 Letter of Instruction......................................................................35
DEED OF GUARANTEE AND INDEMNITY
DATED 23 APRIL 2004
BY:
(1) NCL CORPORATION LTD. being a company validly existing under the laws of
Bermuda with its registered office at Reid Hall, 3 Reid Street,
Hamilton HM 11, Bermuda as guarantor (the "GUARANTOR");
IN FAVOUR OF:
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, a company
incorporated in and under the laws of the Hong Kong Special
Administrative Region of the People's Republic of China with its
registered office at 1 Queen's Road Central, Hong Kong as agent for the
Beneficiaries (as defined herein) (the "SECURITY AGENT" which
expression shall include its successors and assigns).
WHEREAS:
(A) By a loan agreement dated 9 July 2003 (the "ORIGINAL LOAN AGREEMENT")
made between (among others) (1) Norwegian Sun Limited as borrower (the
"BORROWER") (2) the banks whose names and Lending Offices appear in
schedule 2 to the Loan Agreement (the "LENDERS") (3) DnB NOR Bank ASA
(as successor in title to Den norske Bank ASA) as agent for the Lenders
(the "PAYING AGENT") and (4) the Security Agent and to be amended and
restated by an agreement dated 20 APRIL 2004 (the "FIRST SUPPLEMENTAL
AGREEMENT" and together with the Original Loan Agreement the "LOAN
AGREEMENT") between (among others) the parties to the Original Loan
Agreement, Star Cruises Limited (the "ORIGINAL GUARANTOR") and the
Guarantor, the Lenders agreed to make available to the Borrower a
secured term loan of up to two hundred and twenty five million Dollars
(USD225,000,000) (the "LOAN") on the terms and conditions contained
therein.
(B) By a deed of agency dated 9 July 2003 made between (1) the Paying Agent
(2) the Security Agent (3) the Arrangers and (4) the Lenders it has
been agreed that the benefit of this Deed shall be held by the Security
Agent as agent for itself, the Paying Agent, the Arrangers and the
Lenders and its and their respective successors, assignees and
transferees (together the "BENEFICIARIES").
(C) Pursuant to the First Supplemental Agreement the Lenders agreed to
release the Original Guarantor from its guarantee dated 9 July 2003 of
the obligations of the Borrower under the Original Loan Agreement (the
"ORIGINAL GUARANTEE") on the condition that the Guarantor enters into
this Deed.
THIS DEED WITNESSES:
1 DEFINITIONS
1.1 In this Deed the following terms and expressions shall have
the meanings set out below; in addition, terms and expressions
not defined herein but whose meanings are defined in the Loan
Agreement shall have the meanings set out therein.
"ACCOUNTS" means the audited consolidated profit and loss
account and balance sheet (including all additional
information and notes thereto) of the Guarantor and its
consolidated Subsidiaries together with the relative
directors' and auditors' reports;
"BONDS" means the bonds, in an aggregate amount of at least
two hundred million Dollars (USD200,000,000) and with a life
of ten (10) years but which may be redeemed by the Guarantor
at an earlier date, to be issued by the Guarantor in one (1)
or more tranches, in the first instance to qualified
institutional buyers as unregistered privately placed bonds
and thereafter as bonds registered with the Securities
Exchange Commission of the United States of America;
"EVENT OF DEFAULT" means any of the events specified in clause
12 of the Loan Agreement or specified as such in Clause 11;
and
"OUTSTANDING INDEBTEDNESS" means all sums of any kind at any
time owing, actually or contingently, by any Obligor to the
Paying Agent, the Security Agent and/or the Lenders under or
pursuant to the Loan Agreement and each other Security
Document to which any of the Obligors is a party (whether by
way of repayment of principal, payment of interest or default
interest, payment upon any indemnity or counter-indemnity,
reimbursement for fees, costs or expenses or otherwise
howsoever).
1.2 In this Deed unless the context otherwise requires:
2
1.2.1 clause headings are inserted for convenience of
reference only and shall be ignored in the
construction of this Deed;
1.2.2 references to Clauses and to Schedules are to be
construed as references to clauses of and schedules
to this Deed unless otherwise stated and references
to this Deed are to be construed as references to
this Deed including its Schedules;
1.2.3 references to (or to any specified provision of) this
Deed or any other document shall be construed as
references to this Deed, that provision or that
document as from time to time amended, supplemented
or novated;
1.2.4 references to any Act or any statutory instrument
shall be construed as references to that Act or that
statutory instrument as from time to time re-enacted,
amended or supplemented;
1.2.5 references to any party to this Deed or any other
document shall include reference to such party's
successors and permitted assigns;
1.2.6 words importing the plural shall include the singular
and vice versa;
1.2.7 references to a person shall be construed as
references to an individual, firm, company,
corporation, unincorporated body of persons or any
state or any agency thereof;
1.2.8 where any matter requires the approval or consent of
the Security Agent or the Paying Agent such approval
or consent shall not be deemed to have been given
unless given in writing; where any matter is required
to be acceptable to the Security Agent or the Paying
Agent, the Security Agent or the Paying Agent (as the
case may be) shall not be deemed to have accepted
such matter unless its acceptance is communicated in
writing; each of the Security Agent and the Paying
Agent may give or withhold its consent, approval or
acceptance at its unfettered discretion;
1.2.9 a certificate by the Paying Agent or the Security
Agent as to any amount due or calculation made
hereunder shall be conclusive except for manifest
error.
3
1.3 The provisions of clause 1.3 of the Loan Agreement shall apply
hereto (mutatis mutandis) as if set out herein.
2 GUARANTEE AND INDEMNITY
2.1 In consideration of the Lenders agreeing at the request of the
Original Guarantor to release it from its obligations under
the Original Guarantee and to continue to make the Loan
available to the Borrower in accordance with the terms of the
Loan Agreement, the payment by the Security Agent to the
Guarantor of ten Dollars (USD10) and other good and valuable
consideration (the receipt and adequacy of which the Guarantor
hereby acknowledges) the Guarantor:
2.1.1 as primary obligor as and for its own debt and not
merely as surety hereby undertakes to the Security
Agent to be responsible for and hereby guarantees to
the Security Agent on behalf of the Beneficiaries:
(a) the due and punctual payment by each of the
Obligors to the Paying Agent on behalf of
the Beneficiaries (as and when due by
acceleration, demand or otherwise howsoever)
of the Outstanding Indebtedness and every
part thereof; and
(b) the due and punctual performance of all the
obligations to be performed by each of the
Obligors under or pursuant to the Loan
Agreement and the other Security Documents;
and
2.1.2 unconditionally and irrevocably undertakes
immediately on demand by the Paying Agent from time
to time to pay and/or perform its obligations under
Clause 2.1.1.
2.2 For the same consideration as referred to in Clause 2.1 the
Guarantor (as a separate and independent obligation)
unconditionally and irrevocably undertakes immediately on
demand by the Paying Agent from time to time to indemnify the
Security Agent and/or any of the other Beneficiaries and hold
each of them harmless in respect of:
2.2.1 any loss incurred by the Security Agent and/or any of
the other Beneficiaries as a result of the Loan
Agreement or any other Security Document to which any
of the Obligors is a party or any provision thereof
4
becoming invalid, void, voidable or unenforceable for
any reason whatsoever after execution hereof; and
2.2.2 any loss or damage of any kind arising directly or
indirectly from any failure on the part of any of the
Obligors to perform any obligation to be performed by
any of the Obligors under and pursuant to the Loan
Agreement and each other Security Document to which
any of the Obligors is a party.
3 SURVIVAL OF GUARANTOR'S LIABILITY
3.1 The Guarantor's liability to the Security Agent under this
Deed shall not be discharged, impaired or otherwise affected
by reason of any of the following events or circumstances
(regardless of whether any such events or circumstances occur
with or without the Guarantor's knowledge or consent):
3.1.1 any time, forbearance or other indulgence given or
agreed by the Security Agent, the Paying Agent, the
Arrangers and/or the Lenders to or with any of the
Obligors in respect of any of their obligations under
the Loan Agreement and each other Security Document
to which any of the Obligors is a party; or
3.1.2 any legal limitation, disability or incapacity
relating to any of the Obligors; or
3.1.3 any invalidity, irregularity, unenforceability,
imperfection or avoidance of or any defect in any
security granted by, or the obligations of any of the
Obligors under, the Loan Agreement and each other
Security Document to which any of the Obligors is a
party or any amendment to or variation thereof or of
any other document or security comprised therein; or
3.1.4 any change in the name, constitution or otherwise of
any of the Obligors or the merger of any of the
Obligors with any other corporate entity; or
3.1.5 the liquidation, bankruptcy or dissolution (or
proceedings analogous thereto) of any of the Obligors
or the appointment of a receiver or administrative
receiver or administrator or trustee or similar
officer of any of the assets of any of the Obligors
or the occurrence of any circumstances whatsoever
affecting any Obligor's liability to discharge its
obligations
5
under the Loan Agreement and each other Security
Document to which it is a party; or
3.1.6 any challenge, dispute or avoidance by any liquidator
of any of the Obligors in respect of any claim by the
Guarantor by right of subrogation in any such
liquidation; or
3.1.7 any release of any other Obligor or any renewal,
exchange or realisation of any security or obligation
provided under or by virtue of any of the Security
Documents or the provision to the Security Agent or
any of the other Beneficiaries at any time of any
further security for the obligations of the Borrower
under any of the Security Documents; or
3.1.8 the release of any co-guarantor and/or indemnitor who
is now or may hereafter become under a joint and
several liability with the Guarantor under this Deed
or the release of any other guarantor, indemnitor or
other third party obligor in respect of the
obligations of any Obligor under any of the Security
Documents; or
3.1.9 any failure on the part of the Security Agent or any
of the other Beneficiaries (whether intentional or
not) to take or perfect any security agreed to be
taken under or in relation to any of the Security
Documents or to enforce any of the Security
Documents; or
3.1.10 any other act, matter or thing (save for repayment in
full of the Outstanding Indebtedness) which might
otherwise constitute a legal or equitable discharge
of any of the Guarantor's obligations under this
Deed.
4 CONTINUING GUARANTEE
4.1 This Deed shall be:
4.1.1 a continuing guarantee remaining in full force and
effect until irrevocable payment in full has been
received by the Paying Agent on behalf of the
Beneficiaries of each and every part and the ultimate
balance of the Outstanding Indebtedness in accordance
with the Loan Agreement and each other Security
Document to which any of the Obligors is a party; and
6
4.1.2 in addition to and not in substitution for or in
derogation of any other security held by the Security
Agent or any of the other Beneficiaries from time to
time in respect of the Outstanding Indebtedness or
any part thereof.
4.2 Any satisfaction of obligations by the Guarantor to the
Security Agent or any discharge given by the Security Agent to
the Guarantor or any other agreement reached between the
Security Agent and the Guarantor in relation to this Deed
shall be, and be deemed always to have been, void ab initio if
any act satisfying any of the said obligations or on the faith
of which any such discharge was given or any such agreement
was entered into is subsequently avoided in whole or in part
by or pursuant to any provision of any applicable law
whatsoever.
4.3 This Deed shall remain the property of the Security Agent on
behalf of the Beneficiaries and, notwithstanding that all
monies and liabilities due or incurred by any of the Obligors
to the Security Agent and/or any of the other Beneficiaries
which are guaranteed hereunder shall have been paid or
discharged, the Security Agent shall be entitled not to
discharge this Deed or any security held by the Security Agent
for the obligations of the Guarantor hereunder for such period
as may in the reasonable opinion of the Paying Agent be
necessary or appropriate under any applicable insolvency law
after the last of such monies and liabilities have been paid
or discharged and in the event of bankruptcy, winding-up or
any similar proceedings being commenced in respect of any of
the Obligors, the Security Agent shall be at liberty not to
discharge this Deed or any security held by the Security Agent
for the obligations of the Guarantor hereunder for and during
such further period as the Paying Agent may determine at its
sole discretion.
5 EXCLUSION OF THE GUARANTOR'S RIGHTS
5.1 Until the obligations of any Obligor under the Loan Agreement
and each other Security Document to which any Obligor is a
party have been fully performed, the Guarantor shall not:
5.1.1 be entitled to share in or succeed to or benefit from
(by subrogation or otherwise) any rights which the
Security Agent may have in respect of the
7
Outstanding Indebtedness or any security therefor or
all or any of the proceeds of such rights or
security; or
5.1.2 without the prior written consent of the Paying
Agent:
(a) exercise in respect of any amount paid by it
hereunder any right of indemnity,
subrogation, contribution or any other right
or remedy which it may have in respect
thereof; or
(b) claim payment of any other monies for the
time being due to it or to which it may
become entitled or exercise or enforce or
benefit from any other right, remedy or
security in respect thereof; or
(c) prove in a liquidation of any Obligor in
competition with the Security Agent and/or
the other Beneficiaries for any monies owing
to the Guarantor by any other Obligor on any
account whatsoever,
PROVIDED ALWAYS that if the Guarantor, in breach of this
Clause, receives or recovers any monies pursuant to any such
exercise, claim or proof, such monies shall be held by the
Guarantor as trustee upon trust for the Security Agent to
apply the same as if they were monies received or recovered by
the Security Agent under this Deed.
6 PAYMENTS
6.1 Each payment to be made by the Guarantor hereunder shall be
made in immediately available funds in the currency in which
such payment is due without set-off, counterclaim, deduction
or retention of any kind by payment to the account referred to
in clause 7.1 of the Loan Agreement or such account of the
Paying Agent with such other bank or financial institution as
the Paying Agent may from time to time notify to the Guarantor
in writing.
6.2 The certificate of the Paying Agent or the Security Agent from
time to time as to sums owed by any Obligor under the Security
Documents and sums owed by the Guarantor hereunder shall, save
for manifest error, be conclusive and binding for all purposes
and prima facie evidence of the existence and extent of such
debts in any legal action or proceedings arising in connection
herewith.
8
7 ENFORCEMENT
7.1 The Security Agent shall not be obliged before taking steps to
enforce this Deed to take any action whatsoever against any of
the Obligors under the Loan Agreement or any other Security
Documents to which they are a party and the Guarantor hereby
waives all such formalities or rights to which it would
otherwise be entitled or which the Security Agent would
otherwise first be required to satisfy or fulfil before
proceeding or making demand against the Guarantor hereunder
PROVIDED THAT the Security Agent shall not be entitled to
enforce its rights under this Deed otherwise than in
circumstances which would constitute an Event of Default.
8 REPRESENTATIONS AND WARRANTIES
8.1 The Guarantor represents and warrants to the Security Agent
that:
8.1.1 it is a limited liability exempt company, duly
incorporated and validly existing under the laws of
Bermuda, possessing perpetual corporate existence,
the capacity to sue and be sued in its own name and
the power to own its assets and carry on its business
as it is now being conducted;
8.1.2 it has the power to enter into and perform this Deed
and all necessary corporate or other action has been
taken to authorise the entry into and performance of
this Deed;
8.1.3 this Deed constitutes its legal, valid and binding
obligations enforceable in accordance with its terms;
8.1.4 the entry into and performance of this Deed and the
transactions contemplated hereby do not and will not
be a breach of or conflict with:
(a) any law or regulation or any official or
judicial order; or
(b) its constitutional documents; or
(c) any agreement or document to which it is a
party or which is binding upon it or any of
its assets,
nor result in the creation or imposition of any
Encumbrance on any of its assets pursuant to the
provisions of any such agreement or document;
9
8.1.5 no event has occurred and is continuing which
constitutes a default under or in respect of any
agreement or document to which the Guarantor is a
party or by which it may be bound (including, inter
alia, this Deed) and no event has occurred which,
with the giving of notice, lapse of time,
determination of materiality or other condition would
or might constitute a default under or in respect of
any such agreement or document;
8.1.6 all authorisations, approvals, consents, licences,
exemptions, filings, registrations, notarisations and
other matters, official or otherwise, required in
connection with the entry into, performance, validity
and enforceability of this Deed and the transactions
contemplated hereby have been obtained or effected
and are in full force and effect;
8.1.7 all information furnished by or on behalf of the
Guarantor or any of its subsidiaries relating to the
business and affairs of any member of the NCLC Group
in connection with this Deed and the Loan was and
remains true, correct and complete in all material
respects and there are no other material facts or
considerations the omission of which would render any
such information misleading;
8.1.8 the Guarantor has fully disclosed in writing to the
Lenders through the Arrangers and/or the Paying Agent
all facts relating to the NCLC Group which it knows
or should reasonably know and which might reasonably
be expected to influence the Lenders in deciding
whether or not to enter into the First Supplemental
Agreement;
8.1.9 the Accounts for the financial year ended 31 December
2004 (which accounts will be prepared in accordance
with US GAAP) will fairly represent the consolidated
financial condition of the NCLC Group as at 31
December 2004 and from that date there will be no
material adverse change in the consolidated financial
condition of the NCLC Group as shown in such audited
accounts save as disclosed in writing to the Paying
Agent (in this Clause 8.1.9 "NCLC GROUP" shall have
the meaning ascribed to it in Clause 11.4);
8.1.10 the claims of the Security Agent against the
Guarantor under this Deed will rank at least pari
passu with the claims of all other unsecured
10
creditors of the Guarantor other than claims of such
creditors to the extent that the same are statutorily
preferred;
8.1.11 no member of the NCLC Group has taken any corporate
action nor have any other steps been taken or legal
proceedings been started or (to the best of the
Guarantor's knowledge and belief) threatened against
any member of the NCLC Group for its winding-up or
dissolution or for the appointment of a liquidator,
administrator, receiver, administrative receiver,
trustee or similar officer of it or any or all of its
assets or revenues nor has any member of the NCLC
Group sought any other relief under any applicable
insolvency or bankruptcy law;
8.1.12 save as disclosed in writing to the Paying Agent
prior to the date hereof, no litigation, arbitration
or administrative proceedings are current or pending
or (to the best of the Guarantor's knowledge and
belief) threatened, which might, if adversely
determined, have a material adverse effect on the
business, assets or financial condition of the
Guarantor or any other member of the NCLC Group. For
the avoidance of doubt, the disclosure of any such
litigation, arbitration or administrative proceedings
after the date hereof shall not be deemed to be a
fact and circumstance subsisting at any time that
this representation is deemed to be repeated pursuant
to Clause 8.2;
8.1.13 each member of the NCLC Group has complied with all
taxation laws in all jurisdictions in which it is
subject to Taxation and has paid all Taxes due and
payable by it; no material claims are being asserted
against any member of the NCLC Group with respect to
Taxes which might, if such claims were successful,
have a material adverse effect on its business,
assets or financial condition;
8.1.14 neither the Guarantor nor any of its assets enjoys
any right of immunity from set-off, suit or execution
in respect of its obligations under this Deed;
8.1.15 all amounts payable by the Guarantor hereunder may be
made free and clear of and without deduction for or
on account of any Taxes;
11
8.1.16 the Shares and all the shares in the Manager are
legally and beneficially owned by the Shareholder,
all the shares in the Shareholder are legally and
beneficially owned by Arrasas and all the shares in
Arrasas are legally and beneficially owned by the
Guarantor and such structure shall remain so
throughout the Security Period. Further, no Event of
Default has occurred under Clause 11.2 in respect of
the ownership and/or control of the shares of the
Guarantor;
8.1.17 the Guarantor does not have a place of business in
any jurisdiction which would require this Deed to be
filed or registered (if it had a place of business in
that jurisdiction) to ensure the validity of this
Deed; and
8.1.18 it has reviewed and agrees to all the terms and
conditions of the Loan Agreement and each other
Security Document to which any Obligor is a party.
8.2 The representations and warranties set out in Clause 8.1 other
than those set out in Clauses 8.1.4(a), 8.1.8, 8.1.15 and
8.1.18 shall survive the execution of this Deed and shall be
deemed to be repeated, with reference mutatis mutandis to the
facts and circumstances then subsisting, on each day until the
actual and contingent obligations of each Obligor has been
performed in full.
9 GENERAL UNDERTAKINGS: POSITIVE COVENANTS
9.1 The undertakings contained in this Clause 9 shall remain in
full force from the date of this Deed until the end of the
Security Period.
9.2 The Guarantor will provide to the Paying Agent:
9.2.1 as soon as practicable (and in any event within one
hundred and twenty (120) days after the close of each
of its financial years) a Certified Copy of its
Accounts (commencing with the audited accounts made
up to 31 December 2004);
9.2.2 as soon as practicable (and in any event within forty
five (45) days after the close of each quarter of
each financial year) a Certified Copy of the
unaudited consolidated accounts of the NCLC Group for
that quarter (commencing with the unaudited accounts
made up to 31 March 2004);
12
9.2.3 as soon as practicable (and in any event within forty
five (45) days after the close of each quarter of
each financial year), beginning with the quarter
ending 31 March 2004, monthly cash flow projections
on a consolidated basis of the NCLC Group showing
advance ticket sales (for at least twelve (12) months
following the date of such statement) for the NCLC
Group, together with a certificate of the NCLC
Group's chief financial officer stating that no Event
of Default or Possible Event of Default has occurred
and is continuing, or setting forth in detail any
such Event of Default or Possible Event of Default
and any steps being taken by the Guarantor or any
other Obligor to cure the same;
9.2.4 as soon as practicable (and in any event not later
than 31 January of each financial year):
(a) a budget for the NCLC Group for such new
financial year including a twelve (12) month
liquidity budget for such new financial
year; and
(b) updated financial projections of the NCLC
Group for at least the next five (5) years
(including an income statement and projected
results for the operation of the vessels
owned and/or operated by any member of the
NCLC Group) and an outline of the
assumptions supporting such budget and
financial projections and details of any
scheduled dry-docking of any of the vessels
owned and/or operated by companies in the
NCLC Group during such new financial year;
9.2.5 from time to time (but at intervals no more
frequently than semi-annually at the Guarantor's
expense) within fifteen (15) days of receiving any
request to that effect from the Paying Agent, a
valuation of each of the vessels in the NCLC Fleet
obtained in accordance with the provisions of clause
10.18 of the Loan Agreement;
9.2.6 as soon as practicable (and in any event within forty
five (45) days after the close of each quarter of its
financial year) a statement signed by the NCLC
Group's chief financial officer in the form of
Schedule 1
13
(commencing with the first quarter of the financial
year ending 31 December 2004);
9.2.7 promptly, such further information in its possession
or control regarding its financial condition and
operations and those of any company in the NCLC Group
as the Paying Agent may request;
9.2.8 details of any material litigation, arbitration or
administrative proceedings which affect any Obligor
as soon as the same are instituted and served, or, to
the knowledge of the Guarantor, threatened (and for
this purpose proceedings shall be deemed to be
material if they involve a claim in an amount
exceeding five million Dollars (USD5,000,000) or the
equivalent in another currency); and
9.2.9 promptly, such information as the Paying Agent may
request regarding the Bonds, either before their
issue or during their lifetime.
All accounts required under this Clause 9.2 shall be prepared
in accordance with US GAAP and shall fairly represent the
financial condition of the relevant company. In this Clause
9.2 "NCLC GROUP" shall have the meaning ascribed to it in
Clause 11.4.
9.3 Subject to the provisions of Clause 11.3, the Guarantor will
procure that any dividends or other distributions and interest
paid or payable in connection therewith received by the
Shareholder and/or Arrasas will be paid to the Guarantor by
way of dividend promptly on receipt.
9.4 The Guarantor will keep proper books of record and account in
which proper and correct entries shall be made of all
financial transactions and the assets, liabilities and
business of the Guarantor in accordance with US GAAP.
9.5 The Guarantor will notify the Paying Agent of any Event of
Default or Possible Event of Default forthwith upon the
Guarantor becoming aware of the occurrence thereof.
9.6 The Guarantor will procure that all such authorisations,
approvals, consents, licences and exemptions as may be
required under any applicable law or regulation to enable it
to perform its obligations under, and ensure the validity or
enforceability of, this Deed are obtained and promptly renewed
from time to time
14
and will promptly furnish certified copies thereof to the
Paying Agent and will procure that the terms of the same are
complied with at all times.
9.7 The Guarantor will do all such things as are necessary to
maintain its corporate existence in good standing and will
ensure that it has the right and is duly qualified to conduct
its business as it is conducted in all applicable
jurisdictions and will obtain and maintain all franchises and
rights necessary for the conduct of its business.
9.8 Forthwith upon the execution of this Deed, and as a condition
precedent to the amendment and restatement of the Original
Loan Agreement, the Guarantor shall deliver to the Paying
Agent a letter addressed to the Paying Agent irrevocably and
unconditionally authorising and instructing the Paying Agent
forthwith to execute on behalf of the Guarantor each Transfer
Certificate delivered to the Paying Agent pursuant to clause
18 of the Loan Agreement, such letter to be in the form of
Schedule 2.
10 GENERAL UNDERTAKINGS: NEGATIVE COVENANTS
10.1 The undertakings contained in this Clause 10 shall remain in
full force from the date of this Deed until the end of the
Security Period.
10.2 Except with the prior written consent of the Majority Lenders,
the Guarantor will not, and will procure that no other member
of the NCLC Group will, either in a single transaction or in a
series of transactions whether related or not and whether
voluntarily or involuntarily, agree to or actually sell,
assign, abandon or otherwise transfer or dispose of all or any
of its assets or any share or interest therein except that:
10.2.1 the Borrower may agree to sell the Vessel on the
condition that contemporaneously with the completion
of such sale the Loan is prepaid in accordance with
the provisions of clause 4.6 of the Loan Agreement;
10.2.2 the Borrower may let the Vessel on charter in
accordance with the provisions of clause 10 of the
Loan Agreement;
10.2.3 disposals may be made in the ordinary course of
trading of the disposing entity (excluding disposal
of ships) including without limitation, the payment
of cash as consideration for the purchase or
acquisition of any
15
asset or service or in the discharge of any
obligation incurred for value in the ordinary course
of trading;
10.2.4 disposals of cash raised or borrowed may be made for
the purposes for which such cash was raised or
borrowed;
10.2.5 disposals of assets in exchange for other assets
comparable or superior as to type and value may be
made; and
10.2.6 a vessel owned by any member of the NCLC Group (other
than the Borrower) may be sold provided such sale is
on a willing seller willing buyer basis at or about
market rate and at arm's length subject always to the
provisions of any loan documentation for the
financing of such vessel and NCLL may, following the
sale of its shares by Arrasas to IOL, a wholly owned
Subsidiary of the Original Guarantor, transfer to
other wholly owned Subsidiaries of the Original
Guarantor its vessels "NORWEGIAN WIND", "NORWEGIAN
DREAM", "NORWEGIAN SEA", "NORWEGIAN MAJESTY",
"NORWEGIAN CROWN" and "MARCO POLO" (the "SIX
VESSELS") for their transfer values as set out in
schedule 7 to the Loan Agreement and sell m.v.
"NORWAY" to a third party and, prior to the sale of
its shares as aforesaid, transfer its vessel
"NORWEGIAN SKY" to Pride of Aloha Inc., a wholly
owned Subsidiary of NCL America Holdings;
10.2.7 the Shareholder may assign, pledge or charge the
Shares as security for the obligations of the
Borrower under the Loan Agreement; and
10.2.8 Arrasas may transfer its shares in NCLL to IOL and
the Original Guarantor may transfer its shares in
Arrasas to the Guarantor.
10.3 Except with the prior written consent of the Majority Lenders,
the Guarantor will not, and will procure that no other member
of the NCLC Group will, make any loan or advance or extend
credit to any person, firm or corporation (except any loan,
advance or credit made available to passengers on board a
vessel for gambling purposes or to ship's agents and except
any loan, advance or credit to a wholly-owned Subsidiary of
the Guarantor, which loan, advance or credit is fully
subordinated to the rights of the Beneficiaries under the
Security Documents).
16
10.4 The Guarantor will not, and will procure that no other member
of the NCLC Group will, issue or enter into any guarantee or
indemnity or otherwise become directly or contingently liable
for the obligations of any other person, firm or corporation
without first notifying the Paying Agent with full details of
the amount(s) and the period(s) of the guarantee(s) or
indemnity(ies), if such is or are in excess of (in aggregate
(if applicable)) the amount of twenty million Dollars
(USD20,000,000).
10.5 Except with the prior written consent of the Majority Lenders,
the Guarantor will not, and will procure that no other member
of the NCLC Group will, make or threaten to make any
substantial change in its business as presently conducted, or
carry on any other business which is substantial in relation
to its business as presently conducted so as to affect, in the
opinion of the Paying Agent, the ability of the Guarantor or
any other Obligor to perform its obligations under the
Security Documents to which it is a party PROVIDED THAT any
new leisure or hospitality venture embarked upon by any member
of the NCLC Group (other than the Borrower) shall not
constitute a substantial change in its business and PROVIDED
THAT NCLL may transfer the Six Vessels (as defined in Clause
10.2.6) to wholly owned Subsidiaries of the Original Guarantor
and m.v. "NORWEGIAN SKY" to Pride of Aloha Inc., a wholly
owned Subsidiary of NCL America Holdings as aforesaid, sell
m.v. "NORWAY" to a third party, cease to be either an owner or
manager of ships and conduct such business as is contemplated
by the restructure and recapitalisation of the Group as more
particularly described in the letter dated 12 December 2003
from NCLL to the Paying Agent and the Security Agent.
10.6 Except with the prior written consent of the Majority Lenders,
the Guarantor will not, and will procure that no other member
of the NCLC Group will, enter into any amalgamation, merger or
consolidation or anything analogous to the foregoing. Further,
no member of the NCLC Group will acquire any equity, share
capital or obligations of any corporation or other entity
PROVIDED THAT the Shareholder or NCL America Holdings may so
acquire equity, share capital or obligations of a corporation
or entity whose business is the ownership, operation or
management of cruise vessels and PROVIDED FURTHER THAT:
10.6.1 Arrasas may form two (2) wholly owned Subsidiaries,
namely the Shareholder and NCL America Holdings;
17
10.6.2 the existing shareholders of the owners of the
Bahamas flag vessels in the NCLC Fleet may transfer
their shares in such owners to the Shareholder;
10.6.3 the existing shareholders of the owners of the US
flag vessels in the NCLC Fleet may transfer their
shares in such owners to NCL America Holdings;
10.6.4 the Shareholder may form a wholly owned Subsidiary,
namely the Manager, to operate the Bahamas flag
vessels in the NCLC Fleet and to charter in each of
the Six Vessels (as defined in Clause 10.2.6) on
demise or bareboat charter for the period and at the
charterhire rate set out in schedule 7 to the Loan
Agreement; and
10.6.5 NCL America Holdings may form two (2) wholly owned
Subsidiaries, namely NCL America Inc., to operate the
US flag vessels in the NCLC Fleet, and Pride of Aloha
Inc., to own m.v. "NORWEGIAN SKY".
However, the prior consent of the Paying Agent shall not be
required in respect of any consolidation, reorganisation or
restructure involving wholly owned (whether directly or
indirectly) Subsidiaries of the Guarantor only which does not
imperil the security created by any of the Security Documents
or affect the ability of any Obligor duly to perform any of
its obligations under any Security Document to which it may be
a party at any time, provided that the Guarantor has first
consulted with the Paying Agent with regard to the proposed
consolidation, reorganisation or restructure, provides
evidence satisfactory to the Majority Lenders that the
Guarantor will be in compliance with the financial
undertakings contained in Clause 11 after any such
consolidation, reorganisation or restructure and, if so
required, procures the transfer of the Operating Account to
The Hongkong and Shanghai Banking Corporation Limited or DnB
NOR Bank ASA SUBJECT TO:
10.6.6 Clause 8.1.16;
10.6.7 the continuation in full force and effect of this
Deed; and
10.6.8 the cash flows from which the Outstanding
Indebtedness will be repaid remaining comparable as
to amount (relative to the amount of the
18
Outstanding Indebtedness) and accessibility for the
Borrower to the cash flows as at the date of this
Deed, in the sole discretion of the Lenders.
For the avoidance of doubt, the acquisition by a member of the
NCLC Group of any shares in any company or corporation shall
not in itself constitute a merger or consolidation with such
company or corporation for the purpose of this Clause 10.6
provided that the Paying Agent is satisfied the Guarantor will
be in compliance with the financial undertakings contained in
Clause 11 after any such merger or consolidation.
10.7 Except with the prior written consent of the Paying Agent, the
Guarantor will not alter its financial year end.
10.8 The Guarantor has not taken and shall not take from any other
Obligor any security or counter-security in respect of any of
its obligations under this Deed PROVIDED ALWAYS THAT if the
Guarantor, in breach of this Clause, takes any security or
counter-security as aforesaid, such security shall be held by
the Guarantor as trustee upon trust for the Security Agent.
11 FINANCIAL UNDERTAKINGS AND OWNERSHIP AND CONTROL OF THE GUARANTOR
11.1 The Guarantor will ensure that:
11.1.1 at all times the minimum Cash Balance will be not
less than fifty million Dollars (USD50,000,000);
11.1.2 as at 31 December 2004 and as at the end of each
subsequent financial quarter either:
(a) the ratio of Consolidated EBITDA to
Consolidated Debt Service for the NCLC Group
for the period of twelve (12) months ending
as at the end of the relevant financial
quarter shall not be less than:
(i) for the financial quarter ending on
31 December 2004, one point two
(1.2) to one (1.0); and
(ii) for each subsequent financial
quarter, one point two five (1.25)
to one (1.0); or
19
(b) the NCLC Group has maintained a minimum Cash
Balance during such period of twelve (12)
months ending as at the end of the relevant
financial quarter in an amount which is not
less than whichever is the greater of:
(i) one hundred million Dollars
(USD100,000,000); and
(ii) seven point five per cent (7.5%) of
Total Funded Debt as at the end of
the relevant financial quarter and
each of the three (3) preceding
financial quarters; and
11.1.3 as at 31 December 2004 and as at the end of each
subsequent financial quarter, the ratio of Total Net
Funded Debt to Total Capitalisation of the NCLC Group
shall not exceed:
(a) nought point seven (0.7) to one (1.0) for
financial quarters ending on or before 31
December 2006; and
(b) nought point six five (0.65) to one (1.0)
for each subsequent financial quarter.
Amounts available for drawing under any revolving or
other credit facilities of the NCLC Group which
remain undrawn at the time of the relevant
calculation shall not be counted as cash or
indebtedness for the purposes of this ratio.
11.2 It will be an Event of Default if:
11.2.1 at any time when the ordinary share capital of the
Guarantor is not publicly listed on an Approved Stock
Exchange, the Lim Family together or individually do
not, directly or indirectly, control the Guarantor
and beneficially own, directly or indirectly, at
least fifty one per cent (51%) of the issued share
capital of, and equity interest in, the Guarantor; or
11.2.2 at any time following the listing of the ordinary
share capital of the Guarantor on an Approved Stock
Exchange:
(a) any Third Party:
20
(i) owns more than thirty three per
cent (33%) of the ordinary share
capital of the Guarantor; or
(ii) owns shares in the ordinary share
capital of the Guarantor
representing more than thirty three
per cent (33%) of all the voting
rights attributable to such
ordinary share capital; or
(iii) gains control of more than thirty
three per cent (33%) of such voting
rights
and, at the same time as any of the events
described in paragraphs (i), (ii) or (iii)
of this Clause have occurred and are
continuing, the Lim Family together or
individually do not, directly or indirectly,
control the Guarantor and beneficially own,
directly or indirectly, at least fifty one
per cent (51%) of the issued share capital
of, and equity interest in, the Guarantor;
or
(b) the Guarantor ceases to be a listed company
on an Approved Stock Exchange without the
prior written consent of the Paying Agent,
(and, for the purpose of this Clause 11.2.2 "CONTROL"
of any company, limited partnership or other legal
entity (a "BODY CORPORATE") by a member of the Lim
Family, means that one (1) or more members of the Lim
Family has, directly or indirectly, the power to
direct the management and policies of such a body
corporate, whether through the ownership of more than
fifty per cent (50%) of the issued voting capital of
that body corporate or by contract, trust or other
arrangement).
11.3 During any financial year of the Guarantor until the date on
which the Guarantor becomes a listed company on an Approved
Stock Exchange (on which date the restriction contained in
this Clause 11.3 shall cease to apply), the Guarantor shall
not and shall procure that no other member of the NCLC Group
shall, pay any dividends or make any other distributions in
respect of its share capital to any person or make any
repayments of capital or payments of interest in respect of
Financial Indebtedness to an Affiliate of the Guarantor (other
than to the Guarantor and/or its wholly owned Subsidiaries)
which during any financial year
21
of the Guarantor in aggregate exceeds fifty per cent (50%) of
the Consolidated Net Income (if positive) of the NCLC Group
for such financial year, PROVIDED HOWEVER THAT the NCLC Group
shall not be entitled to pay any dividend or make any
distribution in respect of any of its share capital or make
any repayments of capital or payments of interest if an Event
of Default has occurred and is continuing or would occur as a
result of the payment of such dividend or the making of such
distribution.
11.4 In Clause 11.1, Clause 11.2, Clause 11.3 and Schedule 1:
11.4.1 "AFFILIATE" means, with respect to any person, any
other person controlling, controlled by or under
common control with, such person and for purposes of
this definition, "CONTROL" (including, with
correlative meanings, the terms "controlling",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as
applied to any person, means the possession, directly
or indirectly, of the power to vote ten per cent
(10%) or more of the securities having voting power
for the election of directors of such person, or
otherwise to direct or cause the direction of the
management and policies of that person, whether
through the ownership of voting securities or by
contract or otherwise;
11.4.2 "APPROVED STOCK EXCHANGE" means the New York Stock
Exchange, NASDAQ or such other stock exchange in the
United States of America as is approved in writing by
the Paying Agent (acting on the instructions of the
Majority Lenders);
11.4.3 "CASH BALANCE" means the unencumbered and otherwise
unrestricted cash and cash equivalents as set forth
on the consolidated balance sheet of the NCLC Group
prepared in accordance with US GAAP at the end of
every month;
11.4.4 "CONSOLIDATED DEBT SERVICE" means, for any relevant
period, the sum (without double counting), determined
in accordance with US GAAP, of:
(a) the aggregate principal payable or paid
during such period on any Indebtedness for
Borrowed Money of any member of the NCLC
Group, other than:
22
(i) principal of any such Indebtedness
for Borrowed Money prepaid at the
option of the relevant member of
the NCLC Group;
(ii) principal of any such Indebtedness
for Borrowed Money prepaid upon the
sale or Total Loss of any vessel
owned or leased under a capital
lease by any member of the NCLC
Group; and
(iii) balloon payments of any such
Indebtedness for Borrowed Money
payable during such period (and for
the purpose of this paragraph (iii)
a "BALLOON PAYMENT" shall not
include any scheduled repayment
instalment of such Indebtedness for
Borrowed Money which forms part of
the balloon);
(b) Consolidated Interest Expense for such
period;
(c) the aggregate amount of any dividend or
distribution of present or future assets,
undertakings, rights or revenues to any
shareholder of any member of the NCLC Group
(other than the Guarantor or one of its
wholly owned Subsidiaries) or any
distribution in respect of share capital
during such period ("DISTRIBUTIONS"); and
(d) all rent under any capital lease obligations
by which the Guarantor or any consolidated
Subsidiary is bound which are payable or
paid during such period and the portion of
any debt discount that must be amortised in
such period,
as calculated in accordance with US GAAP and derived
from the then latest unaudited consolidated accounts
of the NCLC Group delivered to the Paying Agent in
the case of any period ending at the end of any of
the first three (3) financial quarters of each
financial year of the Guarantor and the then latest
Accounts delivered to the Paying Agent in the case of
the final quarter of each such financial year;
11.4.5 "CONSOLIDATED EBITDA" means, for any relevant period,
the aggregate of:
23
(a) Consolidated Net Income (but excluding (i)
gains and losses from the sale of assets or
reserves relating thereto and (ii) items
classified as extraordinary or non
recurring) from the Guarantor's operations
for such period;
(b) the aggregate amounts deducted in
determining Consolidated Net Income for such
period in respect of depreciation,
amortisation, deferred income tax expense
and any other non-cash charges for such
period and Consolidated Interest Expense;
11.4.6 "CONSOLIDATED INTEREST EXPENSE" means, for any
relevant period, the consolidated interest expense
(excluding capitalised interest accrued and not
payable during such period) of the NCLC Group for
such period;
11.4.7 "CONSOLIDATED NET INCOME" means, for any relevant
period, the consolidated net income (or loss) of the
NCLC Group for such period as determined in
accordance with US GAAP;
11.4.8 "INTANGIBLE ASSETS" means, at any date of
determination, the amounts (to the extent reflected
in determining at such date consolidated
stockholders' equity of the NCLC Group) determined in
accordance with US GAAP of:
(a) all shareholdings other than any
shareholdings of shares which are publicly
quoted and which are not subject to any
restrictions on sale or other disposition
thereof;
(b) treasury stock (to the extent not deducted
in the determination of consolidated
stockholders' equity of the NCLC Group); and
(c) all unamortised debt discount and expenses,
unamortised deferred charges, goodwill,
patents, trademarks, service marks, trade
names, copyrights, organisational or
development expenses and other intangible
items,
all as calculated in accordance with US GAAP and
derived from the then latest unaudited and
consolidated accounts of the NCLC Group delivered to
the Paying Agent in the case of the first three (3)
quarters of each financial year and the then latest
Accounts delivered to the Paying Agent in the case of
the final quarter of each financial year;
24
11.4.9 "LIM FAMILY" means:
(a) Tan Sri Lim Goh Tong;
(b) his spouse;
(c) his direct lineal descendants;
(d) the personal estate of any of the above
persons; and
(e) any trust created for the benefit of one or
more of the above persons and their estates;
11.4.10 "NCLC GROUP" means, for the purposes of this Clause
11, the Guarantor, its Subsidiaries and any other
entity which is required to be consolidated in the
Guarantor's accounts in accordance with US GAAP;
11.4.11 "TANGIBLE ASSETS" means, at any date of
determination, the total assets of the NCLC Group (as
stated in the then latest unaudited and consolidated
accounts of the Guarantor delivered to the Paying
Agent) less the Intangible Assets of the NCLC Group
at such date;
11.4.12 "TANGIBLE NET WORTH" means, at any date of
determination, the consolidated stockholders' equity
of the NCLC Group at such date determined in
accordance with US GAAP less:
(a) Intangible Assets of the NCLC Group; and
(b) (to the extent included) any amount set
aside for taxation, deferred taxation or (to
the extent that the full amount receivable
in respect of any bad debts is shown in the
balance sheet as an asset of the NCLC Group)
bad debts,
at such date all as calculated in accordance with US
GAAP and derived from the then latest unaudited and
consolidated accounts of the NCLC Group delivered to
the Paying Agent in the case of the first three (3)
quarters of each financial year and the then latest
Accounts delivered to the Paying Agent in the case of
the final quarter of each financial year;
25
11.4.13 "THIRD PARTY" means any person or group of persons
acting in concert (as the expression "ACTING IN
CONCERT" is defined in the City Code on Take-overs
and Mergers) who or which is not a member of the Lim
Family;
11.4.14 "TOTAL CAPITALISATION" means, as at any relevant
date, Total Funded Debt plus Tangible Net Worth as at
such date;
11.4.15 "TOTAL FUNDED DEBT" means, as at any relevant date:
(a) Indebtedness for Borrowed Money of the NCLC
Group; and
(b) the amount of any Indebtedness for Borrowed
Money of any person which is not a member of
the NCLC Group but which is guaranteed by a
member of the NCLC Group as at such date;
11.4.16 "TOTAL NET FUNDED DEBT" means, as at any relevant
date, the Total Funded Debt less an amount equal to
any Cash Balance as at such date in excess of fifty
million Dollars (USD50,000,000).
11.5 Save as specified in Clause 11.1.2, the ratios referred to in
Clause 11.1 will be measured on a quarterly basis by reference
to the consolidated accounts of the NCLC Group.
12 DISCHARGE
Subject to Clause 4.3, following the irrevocable repayment or payment
to the Paying Agent on behalf of the Beneficiaries of all the
Outstanding Indebtedness the Security Agent will at the Guarantor's
request return this Deed to the Guarantor and shall, at the request and
cost of the Guarantor, transfer to the Guarantor such rights as the
Security Agent may at such time have in the security for the
Outstanding Indebtedness and to the proceeds of any such rights or
security.
13 ASSIGNMENT AND TRANSFER
13.1 This Deed shall be binding upon and enure to the benefit of
the Guarantor, the Security Agent and each of their respective
successors and assigns.
13.2 The Guarantor shall not be entitled to assign or transfer all
or any part of its rights, benefits or obligations under this
Deed.
26
13.3 Each Lender may assign or transfer its respective rights
hereunder to any person (including any other Lending Branch)
to whom the rights, or the rights and obligations, of that
Lender under the Loan Agreement are wholly or partially
assigned or transferred in accordance with the Loan Agreement.
13.4 Any Lender may disclose to any actual or potential assignee or
Transferee or to any person who may otherwise enter or propose
to enter into contractual relations with such Lender in
relation to the Loan Agreement and this Deed any information
about the Obligors and the NCLC Group as such Lender shall
reasonably consider necessary for the purposes of inviting
expressions of interest from other banks or financial
institutions subject always to the relevant Lender procuring
the execution by the potential assignee or Transferee or any
other person as aforesaid of a Confidentiality Undertaking.
13.5 A person (including any body of persons) who is not a party to
this Deed has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Deed but this
does not affect any right or remedy of a third party which
exists or is available apart from that Act.
14 MISCELLANEOUS PROVISIONS
14.1 No failure to exercise and no delay in exercising on the part
of the Security Agent or any of the other Beneficiaries any
right or remedy under this Deed or under any other of the
Security Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise
of any other right or remedy. No waiver by the Security Agent
or any of the other Beneficiaries shall be effective unless it
is in writing.
14.2 The rights and remedies of the Security Agent and each of the
other Beneficiaries provided herein and in the other Security
Documents are cumulative and not exclusive of any rights or
remedies provided by law.
14.3 If any provision of this Deed is prohibited or unenforceable
in any jurisdiction, such prohibition or unenforceability
shall not invalidate the remaining provisions hereof or affect
the validity or enforceability of such provision in any other
jurisdiction.
27
14.4 Time is of the essence in respect of all of the obligations of
the Guarantor under this Deed.
15 WAIVER OF IMMUNITY
The Guarantor irrevocably and unconditionally:
15.1 waives any right of immunity which it or its assets now has or
may hereafter acquire in relation to any legal proceedings
(including, but without limitation, actions in rem and/or in
personam) brought against it or its assets by the Security
Agent in relation to this Deed; and
15.2 consents generally in respect of any such proceedings to the
giving of any relief including, without limitation, the issue
of any process in connection with such proceedings and the
making, enforcement or execution against any property
whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such
proceedings.
16 NOTICES
16.1 Each notice, demand or other communication to be made under
this Deed shall be made in writing which, unless otherwise
stated, includes telex or telefax.
16.2 Any notice, demand or other communication to be made or
delivered by the Security Agent or the Paying Agent to the
Guarantor pursuant to this Deed shall (unless the Guarantor
has by fifteen (15) days' written notice to the Paying Agent
specified another address) be made or delivered to the
Guarantor at 7665 Corporation Center Drive, Miami, Florida
33126, United States of America marked for the attention of Mr
Lamarr Cooler (telefax no. +1 305 436 4117) and the Legal
Department (telefax no. +1 305 436 4140) with a copy to the
Guarantor at 25th Floor, Wisma Genting, Jalan Sultan Ismail,
50250 Kuala Lumpur, Malaysia marked for the attention of Mr
Gerard Lim (telefax no. +60 (0)3 2161 3621) and shall be
deemed to have been made or delivered (in the case of telefax)
when transmission of such telefax communication has been
completed or (in the case of any letter) when delivered to the
aforesaid address or (as the case may be) five (5) days after
being deposited in the post first class postage prepaid in an
envelope addressed to it at that address. Any notice, demand
or other communication to be made or delivered by the
Guarantor to the Paying Agent
28
pursuant to this Deed shall (unless the Paying Agent has by
fifteen (15) days' written notice to the Guarantor specified
another address) be made or delivered to the Paying Agent at
its office for the time being which is at present at Stranden
21, NO-0021 Oslo, Norway (telefax no. +47 22 482020) and shall
be deemed to have been made or delivered (in the case of
telefax) when transmission of such telefax communication has
been completed or (in the case of any letter) when delivered
to the aforesaid address or (as the case may be) five (5) days
after being deposited in the post first class postage prepaid
in an envelope addressed to it at that address.
16.3 Each notice, demand or other communication made or delivered
by one (1) party to the other pursuant to this Deed shall be
in the English language or accompanied by a certified English
translation.
17 GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
18 JURISDICTION
18.1 For the exclusive benefit of the Security Agent, the Guarantor
agrees that any legal action or proceeding arising out of this
Deed may be brought in the High Court of Justice in England
and irrevocably submits to the jurisdiction of that court. The
submission by the Guarantor to such jurisdiction shall not
limit the right of the Security Agent to commence any
proceedings arising out of this Deed in whatsoever
jurisdiction it may choose, nor shall the commencement of any
such legal action or proceeding in one (1) jurisdiction
preclude the Security Agent from beginning any further or
other such legal action or proceeding in the same or any other
jurisdiction.
18.2 The Guarantor appoints in the case of the courts of England
the Process Agent to receive, for and on its behalf, service
of process in England of any legal proceedings with respect to
this Deed.
29
IN WITNESS whereof this Deed of Guarantee and Indemnity has been executed by the
parties hereto on the day first written above.
SIGNED SEALED and DELIVERED as a DEED )
by PAUL TURNER ) P A TURNER
for and on behalf of )
NCL CORPORATION LTD. )
in the presence of: R CHEUNG )
REGINA CHEUNG
TRAINEE SOLICITOR
STEPHENSON HARWOOD
ONE, ST. PAUL'S CHURCHYARD
LONDON EC4M 8SH
SIGNED SEALED and DELIVERED as a DEED )
by )
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION LIMITED )
in the presence of: )
30
SIGNED SEALED and DELIVERED as a DEED )
by )
for and on behalf of )
NCL CORPORATION LTD. )
in the presence of:
SIGNED SEALED and DELIVERED as a DEED )
By DONNY LAM HUNG KI ) DONNY LAM HUNG KI
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION LIMITED )
in the presence of: HELEN MOK LAI SIM HELEN MOK LAI SIM
31
SCHEDULE 1
QUARTERLY STATEMENT OF FINANCIAL COVENANTS
TO: DNB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
ATTN: Mr Jon Flovik
We refer to clause 11 of the guarantee dated 2004 (as amended, varied and/
or supplemented from time to time) (the "GUARANTEE") issued by us in your
favour. Terms defined in the Guarantee, whether by reference to the Loan
Agreement (as therein defined) or otherwise, shall have the same meanings
herein.
We hereby certify the amounts set out in the attached schedule as at the last
day of the financial quarter ending 20[ ] for NCL Corporation Ltd. (the
"GUARANTOR") and its subsidiaries on a consolidated basis. We also hereby
certify that the Guarantor is in compliance with all the financial covenants set
out in clauses 11.1 and 11.3 of the Guarantee.
NCL CORPORATION LTD.
- ----------------------------------
BY: [ ]
Chief Financial Officer
DATED: 20[ ]
32
SCHEDULE
STATEMENT OF FINANCIAL COVENANTS AS OF [ ] 20[ ] (IN USD'000)
Clause (Of
Guarantee) as of [O] Required Covenants
11.1(A) CASH BALANCE A A>USD50,000,000
11.1(B) CONSOLIDATED EBITDA: B >1.2 for 2004
>1.25:1 thereafter
CONSOLIDATED DEBT SERVICE C
11.1(C) TOTAL NET FUNDED DEBT: D <0.7 up to 31 December 2006
<0.65:1 thereafter
TOTAL CAPITALISATION E
CONSOLIDATED EBITDA
Consolidated Net Income (loss) x
Deduct: (Gain)/Loss on sale of assets or reserves x
Add: Consolidated Interest Expense x
Amortisation of intangible assets x
Depreciation of tangible assets x
Deferred income tax expense x
Other non-recurring charge (gain) x
X B
---------------
CONSOLIDATED DEBT SERVICE
Add: Principal paid/payable (excluding balloon payments,
voluntary prepayments/repayments on sale/total loss of
an NCLC Fleet vessel) x
Consolidated Interest Expense x
Distributions x
Rent under capitalised leases x
X C
---------------
CASH BALANCE X A
---------------
TOTAL FUNDED DEBT
Add: Indebtedness for Borrowed Money x
Guarantees of non-NCLC Group members' obligations X
---------------
X
Deduct: Unencumbered and otherwise unrestricted cash in excess (X)
---------------
of USD50,000,000
TOTAL NET FUNDED DEBT (X) D
---------------
</Table>
33
TOTAL CAPITALISATION
Add: Total Funded Debt x
Consolidated stockholders' equity x
Deduct: Intangible Assets (X)
Provision for taxation, deferred taxation, bad debts (X)
-------------
TANGIBLE NET WORTH x
-------------
TOTAL CAPITALISATION x E
-------------
For and on behalf of NCL CORPORATION LTD.
- ------------------------------
[ ]
I, [ ], the officer primarily responsible for the financial management of the
NCLC Group, hereby declare that, to the best of knowledge and belief, the above
Statement of Financial Covenants as of [ ] 20[ ], in my opinion, is true and
correct.
- ------------------------------
[ ]
Chief Financial Officer
NCL CORPORATION LTD.
Dated: 20[ ]
34
SCHEDULE 2
LETTER OF INSTRUCTION
TO: DNB NOR BANK ASA
Stranden 21
NO-0021 Oslo
Norway
ATTN: Mrs Solveig Nuland Knoff
(the "PAYING AGENT")
23 APRIL 2004
Dear Sirs
DEED OF GUARANTEE AND INDEMNITY DATED 23 APRIL 2004
(THE "GUARANTEE")
We refer to the Guarantee executed by us in favour of The Hongkong and Shanghai
Banking Corporation Limited (the "SECURITY AGENT"), as agent on behalf of the
Beneficiaries (as hereinafter defined), as security for the obligations of
Norwegian Sun Limited as borrower (the "BORROWER") under the loan agreement
dated 9 July 2003 and as amended and restated by a first supplemental agreement
(the "LOAN AGREEMENT") made by and between (among others) (1) the Borrower (2)
the banks and financial institutions therein referred to as lenders (the
"LENDERS") (3) the Paying Agent as agent for the Lenders and (4) the Security
Agent as agent for the Lenders.
Unless the context requires otherwise, words and expressions used herein shall
have the same agreement meanings as ascribed to them in the Loan Agreement.
We refer to:
1. clause 13.3 of the Guarantee which provides that each Lender may assign
or transfer its respective rights under the Guarantee to any person to
whom the rights, or the rights and obligations, of that Lender under
the Loan Agreement are wholly or partially assigned or transferred in
accordance with the Loan Agreement; and
2. clause 18.5 of the Loan Agreement whereby the rights, benefits and/or
obligations of any Lender thereunder may be transferred by means of a
Transfer Certificate.
35
In consideration of the Lenders agreeing at our request to continue to make the
Loan available to the Borrower in accordance with the terms of the Loan
Agreement, we hereby irrevocably and unconditionally authorise and instruct the
Paying Agent forthwith to execute on our behalf each Transfer Certificate
delivered to the Paying Agent pursuant to clause 18.5 of the Loan Agreement
without the Paying Agent being under any obligation to take any further
instructions from us or to give any prior notice to us before doing so.
This letter shall be governed by, and construed in accordance with, English law.
Yours faithfully
P.A. TURNER
- -------------------------------
NCL CORPORATION LTD.
By: PAUL TURNER
Title: ATTORNEY-IN-FACT
36