FORM 6-K
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REPORT OF FOREIGN PRIVATE ISSUER
--------------------------------
PURSUANT TO RULES 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
For the month of March, 2003
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ROYAL CARIBBEAN CRUISES LTD.
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1050 Caribbean Way, Miami, Florida 33132
----------------------------------------
(Address of principal executive offices)
[Indicate by check mark whether the registrant files or will file annual
reports under cover Form 20-F or Form 40-F.]
Form 20-F x Form 40-F
----- -----
[Indicate by check mark whether the registrant by furnishing the
information contained in this Form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.]
Yes No x
----- -----
[If "Yes" is marked indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-_____.]
The following documents are being furnished by Royal Caribbean Cruises Ltd.
pursuant to this Report on Form 6-K:
Document No. 1 Press Release dated March 27, 2003
Document No. 2 Credit Agreement dated as of March 27, 2003 among Royal
Caribbean Cruises Ltd. and various financial institutions
and Citibank, N.A. as Administrative Agent
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ROYAL CARIBBEAN CRUISES LTD.
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(Registrant)
Date: March 27, 2003 By: /s/ MICHAEL J. SMITH
------------------------------------------
Michael J. Smith
Vice President, General Counsel and Secretary
Document No. 1
News From
Royal Caribbean Cruises Ltd.
Corporate Communications Office
1050 Caribbean Way, Miami, Florida 33132-2096
Contact: Lynn Martenstein or Dan Mathewes
(305) 539-6570 or (305) 539-6153
For Immediate Release
ROYAL CARIBBEAN EXECUTES A $500 MILLION
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UNSECURED REVOLVING CREDIT FACILITY
-----------------------------------
MIAMI - (March 27, 2003) - Royal Caribbean Cruises Ltd. (NYSE, OSE: RCL)
announced today that it has executed a $500 million unsecured revolving credit
facility to replace the company's current $1 billion revolving credit facility
which was set to expire in June of this year. Salomon Smith Barney Inc. and
Nordea served as joint lead arrangers and Den norske Bank as documentation agent
for the facility. The facility has a term of five years, bears interest at LIBOR
plus 1.75 percent (subject to certain adjustments) and will be utilized for
general corporate purposes. The financial covenants are substantially the same
as those under the company's existing revolving credit facility. The loan
agreement anticipates that the company may increase the facility's size to a
maximum of $1 billion upon receiving additional commitments.
"While the conflict with Iraq has caused considerable deterioration in financial
market conditions during these negotiations, we are satisfied with the overall
size and structure of our new facility," said Bonnie S. Biumi, acting chief
financial officer of Royal Caribbean Cruises Ltd. "Combined with our other
financial resources, the facility should provide us with sufficient liquidity to
take delivery of the three remaining ships in our 13 ship fleet expansion
program."
Royal Caribbean Cruises Ltd. is a global cruise vacation company that operates
Royal Caribbean International and Celebrity Cruises, with a combined total of 25
ships in service and three under construction or on firm order. The company also
offers unique land-tour vacations in Alaska, Canada and Europe through its
cruise-tour division. Additional information can be found on
www.royalcaribbean.com, www.celebrity.com or www.rclinvestor.com.
Certain statements in this news release are forward-looking statements.
Forward-looking statements do not guarantee future performance and may involve
risks, uncertainties and other factors, which could cause our actual results,
performance or achievements to differ materially from the future results,
performance or achievements expressed or implied in those forward-looking
statements. Such factors include general economic and business conditions,
vacation industry competition, including cruise industry competition, changes in
vacation industry capacity (including cruise capacity), the impact of tax laws
and regulations affecting our business or our principal shareholders, the impact
of changes in other laws and regulations affecting our business, the impact of
pending or threatened litigation, the delivery of scheduled new ships, emergency
ship repairs, incidents involving cruise ships at sea, reduced consumer demand
for cruises as a result of any number of reasons (including armed conflict,
terrorist attacks, geo-political and economic uncertainties or the
unavailability of air service), changes in interest rates or oil prices, weather
and other factors described in further detail in Royal Caribbean's filings with
the Securities and Exchange Commission.
(####)
Document No. 1
EXECUTION COPY
U.S. $500,000,000
CREDIT AGREEMENT,
dated as of March 27, 2003
ROYAL CARIBBEAN CRUISES LTD.,
as the Borrower,
and
SALOMON SMITH BARNEY INC. and NORDEA
as Co-Lead Arrangers
and
CITIBANK, N.A.
as Administrative Agent
and
NORDEA
as Syndication Agent
and
DEN NORSKE BANK ASA
as Documentation Agent
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms ............................................... 1
SECTION 1.2. Use of Defined Terms ........................................ 11
SECTION 1.3. Cross-References ............................................ 11
SECTION 1.4. Accounting and Financial Determinations ..................... 11
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitment Amounts .......................................... 12
SECTION 2.1.1. Commitment of Each Lender ......................... 12
SECTION 2.1.2. Lenders Not Permitted or Required To Make Loans
Under Certain Circumstances .............................. 12
SECTION 2.1.3. Defaulting Lenders ................................ 12
SECTION 2.2. Reduction of Commitments .................................... 12
SECTION 2.2.1. Optional .......................................... 12
SECTION 2.2.2. Mandatory ......................................... 12
SECTION 2.3. Borrowing Procedure ......................................... 13
SECTION 2.4. Election of Interest Periods ................................ 13
SECTION 2.5. Funding ..................................................... 13
SECTION 2.6. Notes ....................................................... 13
SECTION 2.7. Increase in Combined Commitments ............................ 13
i
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments ................................. 15
SECTION 3.2. Interest Provisions ........................................ 15
SECTION 3.2.1. Rates ............................................ 15
SECTION 3.2.2. Post-Maturity Rates .............................. 15
SECTION 3.2.3. Payment Dates .................................... 16
SECTION 3.2.4. Interest Rate Determination; Replacement Reference
Lenders .................................................. 16
SECTION 3.3. Commitment Fees ............................................ 16
SECTION 3.3.1. Payment .......................................... 17
SECTION 3.3.2. Applicable Percentage ............................ 17
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful ................................. 18
SECTION 4.2. Deposits Unavailable ....................................... 18
SECTION 4.3. Increased LIBO Rate Loan Costs, etc ........................ 19
SECTION 4.4. Funding Losses ............................................. 20
SECTION 4.5. Increased Capital Costs .................................... 20
SECTION 4.6. Taxes ...................................................... 21
SECTION 4.7. Reserve Costs .............................................. 23
SECTION 4.8. Replacement Lenders, etc ................................... 23
SECTION 4.9. Payments, Computations, etc ................................ 24
SECTION 4.10. Sharing of Payments ....................................... 25
SECTION 4.11. Setoff .................................................... 25
SECTION 4.12. Use of Proceeds ........................................... 25
ii
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing .......................................... 25
SECTION 5.1.1. Resolutions, etc ................................. 26
SECTION 5.1.2. Delivery of Notes ................................ 26
SECTION 5.1.3. Ownership, etc. of Vessels ....................... 26
SECTION 5.1.4. Opinions of Counsel .............................. 26
SECTION 5.1.5. Closing Fees, Expenses, etc ...................... 27
SECTION 5.2. All Borrowings ............................................. 27
SECTION 5.2.1. Compliance with Warranties, No Default, etc ...... 27
SECTION 5.2.2. Borrowing Request ................................ 27
SECTION 5.3. All Borrowings ............................................. 27
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc. ......................................... 28
SECTION 6.2. Due Authorization, Non-Contravention, etc. ................. 28
SECTION 6.3. Government Approval, Regulation, etc ....................... 28
SECTION 6.4. Compliance with Environmental Laws 28
SECTION 6.5. Validity, etc .............................................. 28
SECTION 6.6. Financial Information ...................................... 29
SECTION 6.7. No Defaults under Material Agreements ...................... 29
SECTION 6.8. No Default, Event of Default or Prepayment Event ........... 29
SECTION 6.9. Litigation ................................................. 29
SECTION 6.10. Vessels ................................................... 29
iii
SECTION 6.11. Subsidiaries .............................................. 30
SECTION 6.12. Obligations rank pari passu ............................... 30
SECTION 6.13. Withholding, etc. ......................................... 30
SECTION 6.14. No Filing, etc. Required .................................. 30
SECTION 6.15. No Immunity ............................................... 30
SECTION 6.16. Pension Plans ............................................. 30
SECTION 6.17. Investment Company Act .................................... 30
SECTION 6.18. Regulation U .............................................. 30
SECTION 6.19. Accuracy of Information ................................... 30
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants ...................................... 31
SECTION 7.1.1. Financial Information, Reports, Notices, etc.............. 31
SECTION 7.1.2. Approvals and Other Consents ............................. 32
SECTION 7.1.3. Compliance with Laws, etc ................................ 32
SECTION 7.1.4. Vessels .................................................. 32
SECTION 7.1.5. Insurance ................................................ 33
SECTION 7.1.6. Books and Records ........................................ 33
SECTION 7.2. Negative Covenants ......................................... 33
SECTION 7.2.1. Business Activities ...................................... 33
SECTION 7.2.2. Indebtedness ............................................. 33
SECTION 7.2.3. Liens .................................................... 33
SECTION 7.2.4. Financial Condition ...................................... 35
SECTION 7.2.5. Investments .............................................. 36
SECTION 7.2.6. Consolidation, Merger, etc ............................... 36
iv
SECTION 7.2.7. Asset Dispositions, etc. ................................. 36
SECTION 7.2.8. Transactions with Affiliates ............................. 37
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default ............................... 37
SECTION 8.1.1. Non-Payment of Obligations ....................... 37
SECTION 8.1.2. Breach of Warranty ............................... 37
SECTION 8.1.3. Non-Performance of Certain Covenants and
Obligations ............................................. 37
SECTION 8.1.4. Default on Other Indebtedness .................... 38
SECTION 8.1.5. Pension Plans .................................... 38
SECTION 8.1.6. Bankruptcy, Insolvency, etc ...................... 38
SECTION 8.1.7. Ownership of Principal Subsidiaries .............. 39
SECTION 8.2. Action if Bankruptcy ............................... 39
SECTION 8.3. Action if Other Event of Default ........................... 39
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events ............................... 40
SECTION 9.1.1. Change in Ownership .............................. 40
SECTION 9.1.2. Change in Board .................................. 40
SECTION 9.1.3. Unenforceability ................................. 40
SECTION 9.1.4. Approvals ........................................ 40
SECTION 9.1.5. Non-Performance of Certain Covenants and
Obligations ............................................. 41
SECTION 9.1.6. Judgments ........................................ 41
SECTION 9.1.7. Condemnation, etc ................................ 41
v
SECTION 9.1.8. Arrest ........................................... 41
SECTION 9.2. Mandatory Prepayment ............................... 41
ARTICLE X
THE AGENTS
SECTION 10.1. Actions ................................................... 41
SECTION 10.2. Funding Reliance, etc ..................................... 42
SECTION 10.3. Exculpation ............................................... 42
SECTION 10.4. Successor ................................................. 43
SECTION 10.5. Loans by the Agents ....................................... 44
SECTION 10.6. Credit Decisions .......................................... 44
SECTION 10.7. Copies, etc ............................................... 44
SECTION 10.8. Agency Fee ................................................ 44
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. ................................. 44
SECTION 11.2. Notices ................................................... 45
SECTION 11.3. Payment of Costs and Expenses ............................. 46
SECTION 11.4. Indemnification ........................................... 47
SECTION 11.5. Survival .................................................. 48
SECTION 11.6. Severability .............................................. 48
SECTION 11.7. Headings .................................................. 48
SECTION 11.8. Execution in Counterparts, Effectiveness, etc ............. 49
SECTION 11.9. Governing Law; Entire Agreement ........................... 49
SECTION 11.10. Successors and Assigns ................................... 49
vi
SECTION 11.11. Sale and Transfer of Loans and Note; Participations in
Loans and Note .................................................. 49
SECTION 11.11.1. Assignments .................................... 49
SECTION 11.11.2. Participations ................................. 51
SECTION 11.12. Other Transactions ....................................... 51
SECTION 11.13. Forum Selection and Consent to Jurisdiction .............. 51
SECTION 11.14. Process Agent ............................................ 52
SECTION 11.15. Judgment ................................................. 52
SECTION 11.16. Waiver of Jury Trial ..................................... 53
SCHEDULE I - Disclosure Schedule
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Interest Period Notice
Exhibit D-1 - Form of Opinion of Michael. J. Smith, Esq.
Exhibit D-2 - Form of Opinion of Watson, Farley & Williams
Exhibit E - Form of Lender Assignment Agreement
Exhibit F - Form of Commitment Increase Agreement
Exhibit G - Form of Added Lender Agreement
Exhibit H - Form of Opinion of Shearman & Sterling
vii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 27, 2003, is among ROYAL CARIBBEAN
CRUISES LTD., a Liberian corporation (the "Borrower"), the various financial
institutions as are or shall become parties hereto (collectively, the "Lenders")
and CITIBANK, N.A. ("Citibank"), as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower desires to obtain Commitments from the Lenders
pursuant to which Loans, in a maximum aggregate principal amount at any one time
outstanding not to exceed $500,000,000 (subject to adjustment as provided
herein), will be made to the Borrower from time to time prior to the Commitment
Termination Date; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower; and
WHEREAS, the proceeds of such Loans will be used for general corporate
purposes, including capital expenditures, of the Borrower and its Subsidiaries
but excluding use for the purpose of financing hostile acquisitions by the
Borrower; NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, when capitalized, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
"Accumulated Other Comprehensive Income (Loss)" means at any date the
Borrower's accumulated other comprehensive income (loss) on such date,
determined in accordance with GAAP. "Added Lender" is defined in Section 2.7.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent, and as shall have accepted such appointment, pursuant to Section 10.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.
1
"Agents" means (a) the Administrative Agent and (b) Nordea and DnB in their
respective capacities as agents under Article X, together with their respective
successors (if any) in such capacity.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Applicable Jurisdiction" means the jurisdiction or jurisdictions under
which the Borrower is organized, domiciled or resident or from which any of its
business activities are conducted or in which any of its properties are located
and which has jurisdiction over the subject matter being addressed.
"Applicable Margin" means, as of any date, the percentage per annum set
forth below opposite the Senior Debt Rating on such date provided by S&P and
Moody's:
Senior Debt Rating Applicable Margin
---------------------------- -----------------------
(S&P) (Moody's)
BBB or higher Baa2 or higher 1.25%
BBB- Baa3 1.50%
BB+ Ba1 1.75%
BB Ba2 2.00%
BB- or lower Ba1 or lower 2.25%
provided that:
(a) if at any time the Senior Debt Rating provided by Moody's differs
from the Senior Debt Rating provided by S&P by one level, the Applicable
Margin shall be the percentage per annum set forth opposite the higher of
such two Senior Debt Ratings;
(b) if at any time the Senior Debt Rating provided by Moody's differs
from the Senior Debt Rating provided by S&P by more than one level, the
Applicable Margin shall be the percentage per annum set forth opposite the
rating one level below the higher of such two Senior Debt Ratings;
(c) if at any time a Senior Debt Rating is provided by one of but not
both Moody's and S&P, the Applicable Margin shall be determined by
reference to the Senior Debt Rating provided by the agency which gives such
rating; and
(d) if at any time no Senior Debt Rating is provided by Moody's and no
Senior Debt Rating is provided by S&P, the Applicable Margin shall be 2.50%
per annum unless (i) within 21 days of being notified by the Administrative
Agent that both Moody's and S&P have ceased to give a Senior Debt Rating,
2
the Borrower has obtained from at least one of such agencies a private
implied rating for its senior debt or (ii) having failed to obtain such
private rating within such 21-day period, the Borrower and the Lenders
shall have agreed within a further 15-day period (during which period the
Borrower and the Agents shall consult in good faith to find an alternative
method of providing an implied rating of the Borrower's senior debt) on an
alternative rating method, which agreed alternative shall apply for the
purposes of this Agreement.
"Applicable Percentage" is defined in Section 3.3.2.
"Approved Appraiser" means any of the following: Barry Rogliano Salles,
Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or
Fearnley AS, Norway.
"Assignee Lender" is defined in Section 11.11.1.
"Authorized Officer" means those officers of the Borrower authorized to act
with respect to the Loan Documents and whose signatures and incumbency shall
have been certified to the Administrative Agent by the Secretary or an Assistant
Secretary of the Borrower.
"Borrower" is defined in the preamble.
"Borrowing" means Loans having the same Interest Period made on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New York
City, London or Frankfurt, and if the applicable Business Day relates to a
Borrowing, Interest Period, prepayment or conversion, in each case with respect
to any Loan bearing interest by reference to the LIBO Rate, on which dealings in
deposits in Dollars are carried on in the London interbank market.
"Capital Lease Obligations" means obligations of the Borrower or any
Subsidiary of the Borrower under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized leases.
"Capitalization" means, as at any date, the sum of (a) Net Debt on such
date, plus (b) Stockholders' Equity on such date.
"Capitalized Lease Liabilities" means the principal portion of all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash Equivalents" means all amounts other than cash that are included in
the "cash and cash equivalents" shown on the Borrower's balance sheet prepared
in accordance with GAAP.
3
"Closing Date" is defined in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's obligation to
make Loans pursuant to Section 2.1.1.
"Commitment Amount" means, on any date, $500,000,000, as such amount shall
be reduced from time to time pursuant to Section 2.2 or increased from time to
time pursuant to Section 2.7. "Commitment Fees" is defined in Section 3.3.
"Commitment Termination Date" means the earliest of:
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is terminated in full or
reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Commitments
shall terminate automatically and without further action.
"Commitment Termination Event" means:
(a) the occurrence of any Default described in clauses (a) through (d)
of Section 8.1.6;
(b) the occurrence and continuance of any Event of Default (other than
as described in clause (a) above) and the giving of notice by the
Administrative Agent, acting at the direction of the Required Lenders, to
the Borrower that the Commitments have been terminated; or
(c) the occurrence and continuance of a Prepayment Event and the
giving of notice by the Administrative Agent, acting at the direction of
the Required Lenders, to the Borrower that the Commitments have been
terminated.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I.
4
"DnB" means Den norske Bank ASA.
"Dollar" and the sign "$" mean lawful money of the United States.
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 11.8.
"Environmental Laws" means all applicable federal, state, local or foreign
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to the protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Existing Debt" means the obligations of the Borrower or its Subsidiaries
in connection with (i) the Lease Agreement, with respect to the vessel LEGEND OF
THE SEAS, dated March 3, 1993 between G.I.E. Cruise Vision One and the Borrower,
(ii) the Lease Agreement, with respect to the vessel SPLENDOUR OF THE SEAS,
dated March 3, 1993 between G.I.E. Cruise Vision Two and the Borrower, (iii) the
Loan Facility Agreement with respect to the vessel CENTURY, dated November 29,
1993 between KfW and Blue Sapphire Marine Inc., (iv) the Loan Facility Agreement
with respect to the vessel GALAXY, dated November 29, 1993 between KfW and Esker
Marine Shipping Inc,(v) the Loan Facility Agreement with respect to the vessel
MERCURY, dated December 12, 1997 between KfW and Seabrook Maritime Inc., (vi)
the Buyer Credit Agreement with respect to the vessel SUMMIT dated March 31,
2001 between Summit Inc., Societe Generale and Credit Agricole Indosuez, (vii)
the Buyer Credit Agreement with respect to the vessel CONSTELLATION dated
December 18, 2001 between Constellation Inc., Societe Generale and Credit
Agricole Indosuez and (viii) the Bareboat Charterparty with respect to the
vessel BRILLIANCE OF THE SEAS dated July 5, 2002 between Halifax Leasing
(September) Limited and RCL (UK) LTD, and the replacement, extension, renewal or
amendment of the foregoing without increase in the amount or change in any
direct or contingent obligor of such obligations.
"Existing Group" means the following Persons: (a) A. Wilhelmsen AS., a
Norwegian corporation ("Wilhelmsen"); (b) Cruise Associates, a Bahamian general
partnership ("Cruise"); and (c) any Affiliate of either or both of Wilhelmsen
and Cruise.
"Existing Principal Subsidiaries" means each Subsidiary of the Borrower
that is a Principal Subsidiary on the date hereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
5
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any annual fiscal reporting period of the
Borrower.
"Fixed Charge Coverage Ratio" means, as of the end of any Fiscal
Quarter, the ratio computed for the period of four consecutive Fiscal
Quarters ending on the close of such Fiscal Quarter of:
(a) net cash from operating activities (determined in accordance with
GAAP) for such period, as shown in the Borrower's consolidated statement of
cash flow for such period, to
(b) the sum of:
(i) dividends actually paid by the Borrower during such period
(including, without limitation, dividends in respect of preferred
stock of the Borrower); plus
(ii) scheduled payments of principal of all debt less New
Financings (determined in accordance with GAAP, but in any event
including Capitalized Lease Liabilities) of the Borrower and its
Subsidiaries for such period.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"Government-related Obligations" means obligations of the Borrower or any
Subsidiary of the Borrower under, or Indebtedness incurred by the Borrower or
any Subsidiary of the Borrower to satisfy obligations under, any governmental
requirement imposed by any Applicable Jurisdiction that must be complied with to
enable the Borrower and its Subsidiaries to continue their business in such
Applicable Jurisdiction, excluding, in any event, any taxes imposed on the
Borrower or any Subsidiary of the Borrower.
"Hedging Instruments" means options, caps, floors, collars, swaps,
forwards, futures and any other agreements, options or instruments substantially
similar thereto or any series or combination thereof used to hedge interest,
foreign currency and commodity exposures.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Increased Commitment Date" is defined in Section 2.7.
6
"Increasing Lenders" is defined in Section 2.7.
"Indebtedness" means, for any Person: (a) obligations created, issued or
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
within 180 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; (e) Capital Lease
Obligations of such Person; (f) Indebtedness of others guaranteed by such
Person; (g) obligations of such Person in respect of surety bonds and similar
obligations; and (h) Hedging Instruments.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interest Payment Date" means any date on which interest is payable with
respect to Loans pursuant to clause (c) of Section 3.2.3.
"Interest Period" means, relative to any Loans, the period beginning on
(and including) the date on which such Loan is made or continued pursuant to
Section 2.3 or 2.4 and shall end on (but exclude) the day which numerically
corresponds to such date one, three, six or twelve months thereafter or longer
(provided that any Interest Period longer than twelve months duration shall be
subject to availability and the agreement of all the Lenders) or, if such month
has no numerically corresponding day, on the last Business Day of such month, in
either case as the Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided that:
(a) the Borrower shall not be permitted (i) to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than 15 different dates or (ii) except to the extent provided in
Section 2.4, to have outstanding more than six one-month Interest Periods
with respect to any Loan in any 12-month period (unless otherwise agreed to
by the Required Lenders);
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration (without limiting
the ability of the Borrower to have more than one Borrowing on the same
date);
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding the first Business Day of such calendar
month); and
7
(d) no Interest Period may end later than the Stated Maturity Date.
"Interest Period Notice" means a certificate duly executed by an Authorized
Officer of the Borrower, substantially in the form of Exhibit C hereto.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel, expense and similar advances to officers and
employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in any other
Person.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit F.
"Lenders" is defined in the preamble.
"Lending Office" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in a Lender
Assignment Agreement or Assumption Agreement or such other office of a Lender as
designated from time to time by notice from such Lender to the Borrower and the
Administrative Agent, whether or not outside the United States, which shall be
making or maintaining Loans of such Lender hereunder.
"LIBO Rate" means, relative to any Interest Period, the rate per annum of
the offered quotation for deposits in Dollars for delivery on the first day of
such Interest Period and for the duration thereof which appears on Telerate Page
3750 at or about 11:00 a.m. (London time) two Business Days before the
commencement of such Interest Period; provided that:
(a) subject to Section 3.2.4, if no such offered quotation appears on
Telerate Page 3750 at the relevant time, the LIBO Rate shall be the rate
per annum certified by the Administrative Agent to be the average of the
rates quoted by the Reference Lenders as the rate at which each of the
Reference Lenders was (or would have been) offered deposits of Dollars by
prime banks in the London interbank eurocurrency market in an amount
approximately equal to the amount of each such Reference Lender's Loan for
the relevant Borrowing and for a period approximately equal to such
Interest Period; and
(b) for the purposes of determining the post-maturity rate of interest
under Section 3.2.2, the LIBO Rate shall be determined by reference to
deposits on an overnight or call basis or for such other period or periods
as the Administrative Agent may determine after consultation with the
Lenders.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" is defined in Section 2.1.1.
8
"Loan Document" means this Agreement and the Notes.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Principal Subsidiaries taken as a whole, (b)
the rights and remedies of the Administrative Agent or any Lender under the Loan
Documents or (c) the ability of the Borrower to perform its Obligations under
the Loan Documents.
"Material Litigation" is defined in Section 6.9.
"Moody's" means Moody's Investors Service, Inc.
"Net Debt" means, at any time, the aggregate outstanding principal amount
of all debt (including, without limitation, the principal portion of all
capitalized leases) of the Borrower and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) less the sum of (without
duplication);
(a) all cash on hand of the Borrower and its Subsidiaries; plus
(b) all Cash Equivalents.
"Net Debt to Capitalization Ratio" means, as at any date, the ratio of (a)
Net Debt on such date to (b) Capitalization on such date.
"New Financings" means proceeds from:
(a) borrowed money (whether by loan or issuance and sale of debt
securities), including drawings under this Agreement, and
(b) the issuance and sale of equity securities.
"Note" means a promissory note of the Borrower payable to any Lender, in
the form of Exhibit A hereto (as such promissory note may be amended, endorsed
or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Borrower to such Lender resulting from outstanding Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the Borrower
arising under or in connection with this Agreement and the Notes.
"Organic Document" means, relative to the Borrower, its certificate of
incorporation and its by-laws.
"Participant" is defined in Section 11.11.2.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is, along with the Borrower, a member of
9
a Controlled Group, may have liability, including any liability by reason of
being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or as set forth in the applicable Lender
Assignment Agreement, as such percentage may be adjusted from time to time
pursuant to Section 2.7 or Section 4.8 or pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 11.11.1.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Prepayment Event" is defined in Section 9.1.
"Principal Subsidiary" means any Subsidiary of the Borrower that owns a
Vessel.
"Quarterly Payment Date" means the last day of each March, June, September,
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"Reference Lenders" means Citibank, DnB and Nordea and includes each
replacement Reference Lender appointed by the Administrative Agent pursuant to
Section 3.2.4. "Required Lenders" means, at any time, Lenders that, in the
aggregate, hold more than 50% of the aggregate unpaid principal amount of the
Loans or, if no such principal amount is then outstanding, Lenders that in the
aggregate have more than 50% of the Commitments.
"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies,
Inc.
"Senior Debt Rating" means, as of any date, (a) the implied senior debt
rating of the Borrower for debt pari passu in right of payment and in right of
collateral security with the Obligations as given by Moody's and S&P or (b) in
the event the Borrower receives an actual unsecured senior debt rating (apart
from an implied rating) from Moody's and/or S&P, such actual rating or ratings,
as the case may be (and in such case the Senior Debt Rating shall not be
determined by reference to any implied senior debt rating from either agency).
"Stated Maturity Date" means the fifth anniversary of the date hereof.
"Stockholders' Equity" means, as at any date, the Borrower's stockholders'
equity on such date, determined in accordance with GAAP, provided that any
non-cash charge to Stockholders' Equity resulting (directly or indirectly) from
a change after the Effective Date in GAAP or in the interpretation thereof shall
be disregarded in the computation of Stockholders' Equity such that the amount
of any reduction thereof resulting from such change shall be added back to
Stockholders' Equity. "
"Subsidiary" means, with respect to any Person, any corporation of which
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
10
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Taxes" is defined in Section 4.6.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Moneyline Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for deposits in Dollars).
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Vessel" means a passenger cruise vessel owned by the Borrower or one of
its Subsidiaries.
"Voting Stock" means shares of capital stock of the Borrower of any class
or classes (however designated) that have by the terms thereof normal voting
power to elect the members of the Board of Directors of the Borrower (other than
voting power upon the occurrence of a stated contingency, such as the failure to
pay dividends).
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall, when capitalized, have such meanings when used in the Disclosure Schedule
and in each Note, Borrowing Request, notice and other communication delivered
from time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared,
in accordance with United States generally accepted accounting principles
("GAAP") consistently applied (or, if not consistently applied, accompanied by
details of the inconsistencies); provided that if, as a result of any change in
GAAP or in the interpretation thereof after the date of the financial statements
referred to in Section 6.6, there is a change in the manner of determining any
of the items referred to herein that are to be determined by reference to GAAP,
and the effect of such change would (in the reasonable opinion of the Agents) be
such as to affect the basis or efficacy of the covenants contained in Section
7.2.4 in ascertaining the financial condition of the Borrower or the
consolidated financial condition of the Borrower and its Subsidiaries, then such
item shall for the purposes of such Sections of this Agreement continue to be
determined in accordance with GAAP relating thereto as GAAP were applied
immediately prior to such change in GAAP or in the interpretation thereof.
11
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitment Amounts. On the terms and subject to the conditions
of this Agreement (including Article V), each Lender severally agrees to make
Loans pursuant to the Commitments described in this Section 2.1.
SECTION 2.1.1. Commitment of Each Lender. From time to time on any Business
Day occurring prior to the Commitment Termination Date, each Lender will make
loans (relative to such Lender, its "Loans") to the Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing requested by the
Borrower to be made on such day. The commitment of each Lender described in this
Section 2.1.1 is herein referred to as its "Commitment". On the terms and
subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Loans.
SECTION 2.1.2. Lenders Not Permitted or Required To Make Loans Under
Certain Circumstances. No Lender shall be permitted or required to make any Loan
if, after giving effect thereto, the aggregate outstanding principal amount of
all Loans
(a) of all Lenders would exceed the Commitment Amount, or
(b) of such Lender would exceed such Lender's Percentage of the Commitment
Amount.
SECTION 2.1.3. Defaulting Lenders. If any Lender shall default in its
obligations under Section 2.1, the Agents shall, at the request of the Borrower,
use reasonable efforts to find a bank or other financial institution acceptable
to the Borrower to replace such Lender on terms acceptable to the Borrower and
to have such bank or other financial institution replace such Lender.
SECTION 2.2. Reduction of Commitments. The Commitment Amount is subject to
reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Borrowing hereunder,
voluntarily reduce the Commitment Amount; provided that all such reductions
shall be made pro rata among the Lenders and shall require at least three
Business Days' prior notice to the Administrative Agent and be permanent,
and any partial reduction of the Commitment Amount shall be in a minimum
amount of $10,000,000 and in a multiple of $1,000,000. The Commitment
Amount may not be reduced below the outstanding principal amount of the
Loans.
SECTION 2.2.2. Mandatory. On and after the Commitment Termination Date, the
Commitment Amount shall be zero.
12
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to the
Administrative Agent on or before 11:00 a.m., New York time, on a Business Day,
the Borrower may from time to time irrevocably request, on not less than two
Business Days' notice, that a Borrowing be made in a minimum amount of
$10,000,000 and a multiple of $1,000,000, or in the unused amount of the
Commitments. On the terms and subject to the conditions of this Agreement, each
Borrowing shall be made on the Business Day specified in such Borrowing Request.
On or before 11:00 a.m., New York time, on the Business Day specified in such
Borrowing Request, each Lender shall, without any set-off or counterclaim,
deposit with the Administrative Agent same day funds in an amount equal to such
Lender's Percentage of the requested Borrowing. Such deposit will be made to an
account which the Administrative Agent shall specify from time to time by notice
to the Lenders. To the extent funds are so received from the Lenders, the
Administrative Agent shall, without any set-off or counterclaim, make such funds
available to the Borrower on the Business Day specified in the I relevant
Borrowing Request by wire transfer of same day funds to the accounts the
Borrower shall have specified in its Borrowing Request. No Lender's obligation
to make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.4. Election of Interest Periods. By delivering an Interest Period
Notice to the Administrative Agent on or before 11:00 a.m., New York time, on a
Business Day, the Borrower may from time to time irrevocably elect, on not less
than two Business Days' notice that all, or any portion in an aggregate minimum
amount of $10,000,000 and a multiple of $1,000,000 (or the remaining amount of
any Borrowing), of Loans be continued as Loans with an Interest Period of one,
three, six or twelve months duration (or a longer duration, subject to
availability and the agreement of all the Lenders); provided that each such
continuation shall be pro rated among the applicable outstanding Loans of all
Lenders. In the absence of delivery of an Interest Period Notice with respect to
any Loan at least two Business Days before the last day of the then current
Interest Period with respect thereto, such Loan shall, on such last day,
automatically be continued as a Loan with an Interest Period of three-months'
duration.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make or continue Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility created by such
Lender) to make or maintain such Loan; provided that such Loan shall nonetheless
be deemed to have been made and to be held by such Lender, and the obligation of
the Borrower to repay such Loan shall nevertheless be to such Lender for the
account of such foreign branch, Affiliate or international banking facility.
SECTION 2.6. Notes. Each Lender's Loans under its Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original Commitment Amount. The
Borrower hereby irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Loans evidenced thereby, provided that the
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower.
SECTION 2.7. Increase in Combined Commitments (a) The Borrower shall have
the right up to six months prior to the Stated Maturity Date, without the
13
consent of the Lenders, by notice to the Administrative Agent, to effectuate
from time to time an increase in the combined Commitments under this Agreement
by adding to this Agreement one or more commercial banks or financial
institutions (who shall, upon completion of the requirements of this Section 2.7
constitute "Lenders" hereunder) (an "Added Lender"), or by allowing one or more
Lenders in their sole discretion to increase their respective Commitments
hereunder (each an "Increasing Lender"), so that such added and increased
Commitments shall equal the increase in the Commitment Amount effectuated
pursuant to this Section 2.7; provided that (i) no added Commitment shall be
less than $10,000,000, (ii) no increase in or added Commitments pursuant to this
Section 2.7 shall result in combined Commitments exceeding $1,000,000,000, and
(iii) no Lender's Commitment shall be increased under this Section 2.7 without
the consent of such Lender. The Borrower shall deliver to the Administrative
Agent on or before the effective date of any increase in the Commitment Amount
each of the following items with respect to each Added Lender and Increasing
Lender:
(i) a written notice of the Borrower's intention to increase the
combined Commitments pursuant to this Section 2.7, which shall specify each
new Lender, if any, the changes in amounts of Commitments that will result,
and such other information as is reasonably requested by the Administrative
Agent;
(ii) documents in the form of Exhibit F or Exhibit G, as applicable,
executed and delivered by each new Lender and each Lender agreeing to
increase its Commitment, pursuant to which it becomes a party hereto or
increases its Commitment, as the case may be; and
(iii) if requested by the applicable Lender, Notes or replacement
Notes, as the case may be, executed and delivered by the Borrower.
(b) Upon receipt of any notice referred to in clause (a)(i) above, the
Administrative Agent shall promptly notify each Lender thereof. Upon
execution and delivery of such documents (the "Increased Commitment Date"),
such new Lender shall constitute a "Lender" hereunder with a Commitment as
specified therein, or such Lender's Commitment shall increase as specified
therein, as the case may be. Immediately upon the effectiveness of the
addition of such Added Lender or the increase in the Commitment of such
Increasing Lender under this Section 2.7 (i) the respective Percentages of
the Lenders shall be deemed modified as appropriate to correspond to such
changed combined Commitments, and (ii) if there are at such time
outstanding any Loans, each Lender whose Percentage has been decreased as a
result of the increase in the combined Commitments shall be deemed to have
assigned, without recourse, to each Added Lender and Increasing Lender such
portion of such Lender's Loans as shall be necessary to effectuate such
adjustment in Percentages. Each Increasing Lender and Added Lender (A)
shall be deemed to have assumed such portion of such Loans and (B) shall
fund to each other Lender on the Increased Commitment Date the amount of
Loans assigned by it to such Lender.
14
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrower shall repay in full
the unpaid principal amount of each Loan upon the Stated Maturity Date. Prior
thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; provided that
(i) any such prepayment shall be made pro rata among all Loans
included in the same Borrowing;
(ii) all such voluntary prepayments shall require at least three
Business Days' (or, if such prepayment is to be made on the last day
of an Interest Period for such Loans, two Business Days') prior
written notice to the Administrative Agent; and
(iii) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $10,000,000 and a multiple of $1,000,000
(or the remaining amount of the Loans being prepaid);
(b) shall, on each date when any reduction in the Commitment Amount
shall become effective, including pursuant to Section 2.2, make a mandatory
prepayment of all Loans equal to the excess, if any, of the aggregate
outstanding principal amount of all Loans over the Commitment Amount as so
reduced; and
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or 8.3 or the mandatory repayment
of any Loans pursuant to Section 9.2, repay all Loans.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Commitment
Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Loans shall accrue interest at a rate per annum
during each Interest Period applicable thereto, equal to the sum of the LIBO
Rate for such Interest Period plus the Applicable Margin. All Loans shall bear
interest from and including the first day of the applicable Interest Period to
(but not including) the last day of such Interest Period at the interest rate
determined as applicable to such Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, but only to
15
the extent permitted by law, interest (after as well as before judgment) on such
amounts for each day during the period of such default at a rate per annum
certified by the Administrative Agent to the Borrower (which certification shall
be conclusive in the absence of manifest error) to be equal to the sum of (a)
the Applicable Margin plus (b) the LIBO Rate plus (c) 2% per annum.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan (but only on the principal so paid or
prepaid);
(c) on the last day of each applicable Interest Period (and, if such
Interest Period shall exceed three months, on each date occurring at
three-month intervals after the commencement of such Interest Period); and
(d) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Interest Rate Determination; Replacement Reference
Lenders. Each Reference Lender agrees to furnish to the Administrative
Agent timely information for the purpose of determining the LIBO Rate in
the event that no offered quotation appears on Telerate Page 3750 and the
LIBO Rate is to be determined by reference to quotations supplied by the
Reference Lenders. If any one or more of the Reference Lenders shall fail
to furnish in a timely manner such information to the Administrative Agent
for any such interest rate, the Administrative Agent shall determine such
interest rate on the basis of the information furnished by the remaining
Reference Lenders (provided, that, if all of the Reference Lenders other
than the Administrative Agent fail to supply the relevant quotations, the
interest rate will be fixed by reference only to the quotation obtained by
the Administrative Agent in its capacity as a Reference Lender). If a
Reference Lender ceases for any reason to be able and willing to act as
such, the Administrative Agent shall, at the direction of the Required
Lenders and after consultation with the Borrower and the Lenders, appoint a
replacement for such Reference Lender reasonably acceptable to the
Borrower, and such replaced Reference Lender shall cease to be a Reference
Lender hereunder. The Administrative Agent shall furnish to the Borrower
and to the Lenders each determination of the LIBO Rate made by reference to
quotations of interest rates furnished by Reference Lenders.
SECTION 3.3. Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fees") on such Lender's Percentage of the average daily unused
portion of the Commitment Amount, for the period (including any portion thereof
when its Commitment is suspended by reason of the Borrower's inability to
satisfy any condition of Article V) commencing on the Effective Date and
continuing through the Commitment Termination Date, as set forth in this Section
3.3.
16
SECTION 3.3.1. Payment.
(a) The Commitment Fees shall be payable by the Borrower in arrears on
each Quarterly Payment Date, commencing with the first such date following
the Effective Date and on the Commitment Termination Date.
(b) Each Commitment Fee shall be in an amount equal to the product of
the Applicable Percentage for Commitment Fees, multiplied by the average
daily unused portion of the Commitment Amount, multiplied by the actual
number of days elapsed since the previous Quarterly Payment Date, divided
by 360. Each payment of Commitment Fee shall be allocated by the
Administrative Agent on the basis of each Lender's Percentage of the unused
portion of the Commitment Amount for the actual number of days elapsed
since the previous Quarterly Payment Date.
SECTION 3.3.2. Applicable Percentage. On any Quarterly Payment Date
(and subject to adjustment as provided below), the Applicable Percentage
shall be the percentage per annum set forth below opposite the Senior Debt
Rating on such date provided by S&P and Moody's:
Senior Debt Rating Applicable Percentage
------------------------------ ----------------------
(S&P) (Moody's)
BBB or higher Baa2 or higher .400%
BBB- Baa3 .500%
BB+ Ba1 .600%
BB Ba2 .700%
BB- or lower Ba1 or lower .800%
provided that:
(a) if at any time the Senior Debt Rating provided by Moody's differs
from the Senior Debt Rating provided by S&P by one level, the Applicable
Percentage shall be the percentage per annum set forth opposite the higher
of such two Senior Debt Ratings;
(b) if at any time the Senior Debt Rating provided by Moody's differs
from the Senior Debt Rating provided by S&P by more than one level, the
Applicable Percentage shall be the percentage per annum set forth opposite
the rating one level below the higher of such two Senior Debt Ratings;
(c) if at any time a Senior Debt Rating is provided by one of but not
both Moody's and S&P, the Applicable Percentage shall be determined by
reference to the Senior Debt Rating provided by the agency which gives such
rating; and
17
(d) if at any time no Senior Debt Rating is provided by Moody's and no
Senior Debt Rating is provided by S&P, the Applicable Percentage shall be
0.900% per annum unless (i) within 21 days of being notified by the
Administrative Agent that both Moody's and S&P have ceased to give a Senior
Debt Rating, the Borrower has obtained from at least one of such agencies a
private implied rating for its senior debt or (ii) having failed to obtain
such private rating within such 21-day period, the Borrower and the Lenders
shall have agreed within a further 15-day period (during which period the
Borrower and the Agents shall consult in good faith to find an alternative
method of providing an implied rating of the Borrower's senior debt) on an
alternative rating method, which agreed alternative shall apply for the
purposes of this Agreement.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any centiral
bank or other governmental authority having jurisdiction over such Lender
asserts that it is unlawful, for such Lender to make, continue or maintain any
Loan bearing interest at a rate based on the LIBO Rate, the obligations of such
Lender to make, continue or maintain any Loans bearing interest at a rate based
on the LIBO Rate shall, upon notice thereof to the Borrower, the Administrative
Agent and each other Lender, forthwith be suspended until the circumstances
causing such suspension no longer exist, provided that such Lender's obligation
to make, continue and maintain Loans hereunder shall be automatically converted
into an obligation to make, continue and maintain Loans bearing interest at a
rate to be negotiated between such Lender and the Borrower that is the
equivalent of the sum of the LIBO Rate for the relevant Interest Period plus the
Applicable Margin or, if such negotiated rate is not agreed upon by the Borrower
and such Lender within fifteen Business Days, a rate equal to the Federal Funds
Rate from time to time in effect plus the Applicable Margin.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that:
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Reference Lenders in their
relevant market; or
(b) by reason of circumstances affecting the Reference Lenders'
relevant market, adequate means do not exist for ascertaining the interest
rate applicable hereunder to LIBO Rate Loans,
then the Administrative Agent shall give notice of such determination
(hereinafter called a "Determination Notice") to the Borrower and each of the
Lenders. The Borrower, the Lenders and the Administrative Agent shall then
negotiate in good faith in order to agree upon a mutually satisfactory interest
rate and interest period (or interest periods) to be substituted for those which
would otherwise have applied under this Agreement. If the Borrower, the Lenders
and the Administrative Agent are unable to agree upon an interest rate (or
rates) and interest period (or interest periods) prior to the date occurring
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fifteen Business Days after the giving of such Determination Notice, the
interest rate to take effect at the end of the Interest Period current at the
date of the Determination Notice shall be equal to the sum of the Applicable
Margin plus the Federal Funds Rate in effect from time to time.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. If a change in any
applicable treaty, law, regulation or regulatory requirement or in the
interpretation thereof or in its application to the Borrower, or if compliance
by any Lender with any applicable direction, request, requirement or guideline
(whether or not having the force of law) of any governmental or other authority
insofar as it may be changed or imposed after the date hereof, shall:
(a) subject any Lender to any taxes, levies, duties, charges, fees,
deductions or withholdings of any nature with respect to its Commitment or
any part thereof imposed, levied, collected, withheld or assessed by any
jurisdiction or any political subdivision or taxing authority thereof
(other than taxation on overall net income and, to the extent such taxes
are described in Section 4.6, withholding taxes); or
(b) change the basis of taxation to any Lender (other than a change in
taxation on the overall net income of such Lender) of payments of principal
or interest or any other payment due or to become due pursuant to this
Agreement; or
(c) impose, modify or deem applicable any reserve or capital adequacy
requirements (other than the reserve costs described in Section 4.7) or
other banking or monetary controls or requirements which affect the manner
in which a Lender shall allocate its capital resources to its obligations
hereunder or require the making of any special deposits against or in
respect of any assets or liabilities of, deposits with or for the account
of, or loans by, any Lender (provided that such Lender shall, unless
prohibited by law, allocate its capital resources to its obligations
hereunder in a manner which is consistent with its present treatment of the
allocation of its capital resources); or
(d) impose on any Lender any other condition affecting its Commitment
or any part thereof,
and the result of any of the foregoing is either (i) to increase the cost to
such Lender of making Loans or maintaining its Commitment or any part thereof,
(ii) to reduce the amount of any payment received by such Lender or its
effective return hereunder or on its capital or (iii) to cause such Lender to
make any payment or to forego any return based on any amount received or
receivable by such Lender hereunder, then and in any such case if such increase
or reduction in the opinion of such Lender materially affects the interests of
such Lender, (A) the Lender concerned shall (through the Administrative Agent)
notify the Borrower of the occurrence of such event and use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office if the making of such a designation would
avoid the effects of such law, regulation or regulatory requirement or any
change therein or in the interpretation thereof and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the
Borrower shall forthwith upon demand pay to the Administrative Agent for the
account of such Lender such amount as is necessary to compensate such Lender for
such additional cost or such reduction and ancillary expenses, including taxes,
incurred as a result of such adjustment. Such notice shall (i) describe in
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reasonable detail the event leading to such additional cost, together with the
approximate date of the effectiveness thereof, (ii) set forth the amount of such
additional cost, (iii) describe the manner in which such amount has been
calculated, (iv) certify that the method used to calculate such amount is the
Lender's standard method of calculating such amount, (v) certify that such
request is consistent with its treatment of other borrowers that are subject to
similar provisions, and (vi) certify that, to the best of its knowledge, such
change in circumstance is of general application to the commercial banking
industry in such Lender's jurisdiction of organization or in the relevant
jurisdiction in which such Lender does business. Failure or delay on the part of
any Lender to demand compensation pursuant to this Section shall not constitute
a waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than three months prior to
the date that such Lender notifies the Borrower of the circumstance giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the circumstance giving rise to
such increased costs or reductions is retroactive, then the three-month period
referred to above shall be extended to include the period of retroactive effect
thereof, but not more than six months prior to the date that such Lender
notifies the Borrower of the circumstance giving rise to such cost or reductions
and of such Lender's intention to claim compensation therefor.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to make, continue or maintain any portion of the
principal amount of any Loan as a LIBO Rate Loan as a result of:
(a) any conversion or repayment or prepayment of the principal amount
of any Loans on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 3.1 or otherwise; or
(b) any Loans not being made in accordance with the Borrowing Request
therefor due to the fault of the Borrower or as a result of any of the
conditions precedent set forth in Article V not being satisfied,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five Business Days of its
receipt thereof, pay directly to such Lender such amount as will reimburse such
Lender for such loss or expense. Such written notice shall include calculations
in reasonable detail setting forth the loss or expense to such Lender.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority increases the amount of capital required to be
maintained by any Lender or any Person controlling such Lender, and the rate of
return on its or such controlling Person's capital as a consequence of its
Commitment or the Loans made by such Lender is reduced to a level below that
which such Lender or such controlling Person would have achieved but for the
occurrence of any such change in circumstance, then, in any such case upon
notice from time to time by such Lender to the Borrower, the Borrower shall
immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
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return. Any such notice shall (i) describe in reasonable detail the capital
adequacy requirements which have been imposed, together with the approximate
date of the effectiveness thereof, (ii) set forth the amount of such lowered
return, (iii) describe the manner in which such amount has been calculated, (iv)
certify that the method used to calculate such amount is such Lender's standard
method of calculating such amount, (v) certify that such request for such
additional amounts is consistent with its treatment of other borrowers that are
subject to similar provisions and (vi) certify that, to the best of its
knowledge, such change in circumstances is of general application to the
commercial banking industry in the jurisdictions in which such Lender does
business. In determining such amount, such Lender may use any method of
averaging and attribution that it shall, subject to the foregoing sentence, deem
applicable. Each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Lending Office if the making of such a designation would avoid such reduction in
such rate of return and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than three months prior to
the date that such Lender notifies the Borrower of the circumstance giving rise
to such reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the circumstance giving rise to such
reductions is retroactive, then the three-month period referred to above shall
be extended to include the period of retroactive effect thereof, but not more
than six months prior to the date that such Lender notifies the Borrower of the
circumstance giving rise to such reductions and of such Lender's intention to
claim compensation therefor.
SECTION 4.6. Taxes. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts of such Lender and franchise taxes imposed in lieu of net
income taxes or receipts, by the jurisdiction under the laws of which such
Lender is organized or any political subdivision thereof or the jurisdiction of
such Lender's Lending Office or any political subdivision thereof or any other
jurisdiction unless such net income taxes are imposed solely as a result of the
Borrower's activities in such other jurisdiction (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then the Borrower will:
(a) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such authority; and
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(c) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
Any Lender claiming any additional amounts payable pursuant to this Section
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to change the jurisdiction of its Lending Office if
the making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental
withholding Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure (so long as such amount did not become payable
as a result of the failure of such Lender to provide timely notice to the
Borrower of the assertion of a liability related to the payment of Taxes). For
purposes of this Section 4.6, a distribution hereunder by the Administrative
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
If any Lender is entitled to any refund, credit, deduction or other
reduction in tax by reason of any payment made by the Borrower in respect of any
tax under this Section 4.6 or by reason of any payment made by the Borrower
pursuant to Section 4.3, such Lender shall use reasonable efforts to obtain such
refund, credit, deduction or other reduction and, promptly after receipt
thereof, will pay to the Borrower such amount (plus any interest received by
such Lender in connection with such refund, credit, deduction or reduction) as
is equal to the net after-tax value to such Lender of such part of such refund,
credit, deduction or reduction as such Lender reasonably determines is allocable
to such tax or such payment (less out-of-pocket expenses incurred by such
Lender), provided that no Lender shall be obligated to disclose to the Borrower
any information regarding its tax affairs or tax computations.
Each Lender (and each Participant) that is organized under the laws of a
jurisdiction other than the United States agrees with the Borrower and the
Administrative Agent that it will (a) provide to the Administrative Agent and
the Borrower an appropriately executed copy of Internal Revenue Service Form
W-8ECI certifying that any payments made to or for the benefit of such Lender or
such Participant are effectively connected with a trade or business in the
United States (or, alternatively, Internal Revenue Service Form W-8BEN, but only
22
if the applicable treaty described in such form provides for a complete
exemption from U.S. federal income tax withholding), or any successor form, on
or prior to the date hereof (or, in the case of any assignee Lender or
Participant, on or prior to the date of the relevant assignment or
participation), and (b) notify the Administrative Agent and the Borrower if the
certifications made on any form provided pursuant to this paragraph are no
longer accurate and true in all material respects. For any period with respect
to which a Lender (or Participant) has failed to provide the Borrower with the
foregoing forms (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required hereunder) such Lender (or Participant) shall not
be entitled to the benefits of this Section 4.6 with respect to Taxes imposed by
reason of such failure.
SECTION 4.7. Reserve Costs. Without in any way limiting the Borrower's
obligations under Section 4.3, the Borrower shall pay to each Lender on the last
day of each Interest Period, so long as the relevant Lending Office of such
Lender is required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the F.R.S. Board, upon notice from such Lender, an additional
amount equal to the product of the following for each Loan for each day during
such Interest Period:
(i) the principal amount of such Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the
rate (expressed as a decimal) at which interest accrues on such Loan for
such Interest Period as provided in this Agreement (less the Applicable
Margin) and the denominator of which is one minus any increase after the
Effective Date in the effective rate (expressed as a decimal) at which such
reserve requirements are imposed on such Lender minus (y) such numerator;
and
(iii) 1/360.
Such notice shall (i) describe in reasonable detail the reserve requirement that
has been imposed, together with the approximate date of the effectiveness
thereof, (ii) set forth the applicable reserve percentage, (iii) certify that
such request is consistent with such Lender's treatment of other borrowers that
are subject to similar provisions and (iv) certify that, to the best of its
knowledge, such requirements are of general application in the commercial
banking industry in the United States.
Each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to avoid the requirement of
maintaining such reserves (including by designating a different Lending Office)
if such efforts would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 4.8. Replacement Lenders, etc. If the Borrower shall be required to
make any payment to any Lender pursuant to Section 4.3, 4.4, 4.5, 4.6 or 4.7,
the Borrower shall be entitled at any time (so long as no Default and no
Prepayment Event shall have occurred and be continuing) within 180 days after
receipt of notice from such Lender of such required payment to (a) terminate
such Lender's Commitment and such Lender's right to receive any Commitment Fee
accruing after such termination and that portion of the Commitment Amount
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represented by such Lender's Commitment (whereupon the Percentages of each other
Lender shall automatically be adjusted to an amount equal to each such Lender's
ratable share of the remaining Commitment Amount), (b) prepay the affected
portion of such Lender's Loans in full, together with accrued interest thereon
through the date of such prepayment (provided that the Borrower shall not prepay
any such Lender pursuant to this clause (b) without replacing such Lender
pursuant to the following clause (c) until a 30-day period shall have elapsed
during which the Borrower and the Agents shall have attempted in good faith to
replace such Lender), and/or (c) replace such Lender with another bank
reasonably acceptable to the Agents, provided that (i) each such assignment
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement and (ii) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower pursuant to
this Section unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Assignee Lenders in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Loans owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement. Each Lender represents and warrants to the Borrower
that, as of the date of this Agreement (or, with respect to any Lender not a
party hereto on the date hereof, on the date that such Lender becomes a party
hereto), there is no existing treaty, law, regulation, regulatory requirement,
interpretation, directive, guideline, decision or request pursuant to which such
Lender would be entitled to request any payments under any of Sections 4.3, 4.4,
4.5, 4.6 and 4.7 to or for account of such Lender.
SECTION 4.9. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes or
any other Loan Document shall be made by the Borrower to the Administrative
Agent for the pro rata account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent shall be made,
without setoff, deduction or counterclaim, not later than 11:00 a.m., New York
time, on the date due, in same day or immediately available funds through the
New York Clearing House Interbank Payments System (or such other funds as may be
customary for the settlement of international banking transactions in Dollars),
to such account as the Administrative Agent shall specify from time to time by
notice to the Borrower. Funds received after that time shall be deemed to have
been received by the Administrative Agent on the next succeeding Business Day.
The Administrative Agent shall promptly (but in any event on the same Business
Day that the same are received or, as contemplated in the immediately preceding
sentence, deemed received) remit in same day funds to each Lender its share, if
any, of such payments received by the Administrative Agent for the account of
such Lender without any setoff, deduction or counterclaim. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days. Whenever any
payment to be made shall otherwise be due on a day which is not a Business Day,
such payment shall (except as otherwise required by clause (c) of the definition
of the term "Interest Period") be made on the next succeeding Business Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
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SECTION 4.10. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
4.3, 4.4, 4.5 4.6 and 4.7) in excess of its pro rata share of payments then or
therewith obtained by all Lenders, such Lender shall purchase from the other
Lenders such participations in Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an amount equal to such selling
Lender's ratable share (according to the proportion of (a) the amount of such
selling Lender's required repayment to the purchasing Lender to (b) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim.
SECTION 4.11. Setoff. Each Lender shall have the right to appropriate and
apply to the payment of the Obligations owing to it any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender; provided that any such appropriation and
application shall be subject to the provisions of Section 4.10. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which such Lender may have.
SECTION 4.12. Use of Proceeds. The Borrower shall apply the proceeds of
each Borrowing in accordance with the fourth recital; without limiting the
foregoing, no proceeds of any Loan will be used to acquire any equity security
of a class which is registered pursuant to Section 12 of the Securities Exchange
Act of 1934 or any "margin stock", as defined in F.R.S. Board Regulation U.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing. The obligations of the Lenders to fund the
initial Borrowing shall be effective on and as of the first date (the "Closing
Date") on which each of the conditions precedent set forth in this Section 5.1
shall have been satisfied.
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SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from the Borrower:
(a) a certificate, dated the Closing Date, of its Secretary or
Assistant Secretary as to the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement and each other
Loan Document and as to the truth and completeness of the attached:
(x) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement and each other Loan Document, and
(y) Organic Documents of the Borrower,
and upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of the Borrower
canceling or amending such prior certificate;and
(b) a Certificate of Good Standing issued by the relevant Liberian
authorities in respect of the Borrower.
SECTION 5.1.2. Delivery of Notes. The Administrative Agent shall have
received, for the account of the respective Lenders, the Notes duly
executed and delivered by the Borrower.
SECTION 5.1.3. Ownership, etc. of Vessels. The Administrative Agent
shall have received the following with respect to each Vessel:
(a) evidence as to the ownership of such Vessel by the Borrower or a
Principal Subsidiary;
(b) disclosure of all recorded Liens on such Vessel;
(c) evidence of the class of such Vessel; and
(d) evidence as to all required insurance being in effect with respect
to such Vessel.
SECTION 5.1.4. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Closing Date and addressed to the Agents
and each Lender, from:
(a) Michael J. Smith, Esq., counsel to the Borrower, substantially in
the form of Exhibit D-1 hereto;
(b) Watson, Farley & Williams, counsel to the Borrower, as to Liberian
Law and New York Law, substantially in the form of Exhibit D-2 hereto;
26
(c) Shearman & Sterling, counsel to the Administrative Agent,
substantially in the form of Exhibit H hereto.
SECTION 5.1.5. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender,
as the case may be, all fees that the Borrower shall have agreed in writing
to pay to the Administrative Agent (whether for its own account or for
account of any of the Lenders) and all invoiced expenses of the
Administrative Agent (including the agreed fees and expenses of counsel to
the Administrative Agent) on or prior to the Closing Date.
SECTION 5.2. All Borrowings. The obligation of each Lender to fund any
Loan on the occasion of any Borrowing (including the initial Borrowing) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc . Both
before and after giving effect to any Borrowing the following statements
shall be true and correct:
(a) the representations and warranties set forth in Article VI
(excluding, however, those contained in Sections 6.10 and 6.13) shall be
true and correct with the same effect as if then made; and
(b) no Default and no Prepayment Event and no event which (with notice
or lapse of time or both) would become a Prepayment Event shall have then
occurred and be continuing.
SECTION 5.2.2. Borrowing Request. The Administrative Agent shall have
received a Borrowing Request for such Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing (both immediately before and
after giving effect to such Borrowing and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and correct.
SECTION 5.3. All Borrowings. For purposes of determining compliance with
the conditions specified in Section 5.1, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Administrative Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice
to the Lenders, designates as the proposed Closing Date, specifying its
objection thereto. The Administrative Agent shall promptly notify the Lenders of
the occurrence of the Closing Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter into this
Agreement and to make Loans hereunder, the Borrower represents and warrants to
the Administrative Agent and each Lender as set forth in this Article VI as of
the Closing Date and, except with respect to the representations and warranties
27
in Section 6.10 and 6.13, as of the date of each Borrowing after the Closing
Date.
SECTION 6.1. Organization, etc. The Borrower and each of the Principal
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of its jurisdiction of incorporation; the Borrower is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its business requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect; and the Borrower has full power and authority, has
taken all corporate action and holds all governmental and creditors' licenses,
permits, consents and other approvals necessary to enter into each Loan Document
and to perform the Obligations.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document, are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not:
(a) contravene the Borrower's Organic Documents;
(b) contravene any law or governmental regulation of any Applicable
Jurisdiction;
(c) contravene any court decree or order binding on the Borrower or
any of its property;
(d) contravene any contractual restriction binding on the Borrower or
any of its property; or
(e) result in, or require the creation or imposition of, any Lien on
any of the Borrower's properties.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Borrower of this Agreement or any other Loan
Document (except for authorizations or approvals not required to be obtained on
or prior to the Closing Date that have been obtained or actions not required to
be taken on or prior to the Closing Date that have been taken). Each of the
Borrower and each Principal Subsidiary holds all governmental licenses, permits
and other approvals required to conduct its business as conducted by it on the
Closing Date, except to the extent the failure to hold any such licenses,
permits or other approvals would not have a Material Adverse Effect.
SECTION 6.4. Compliance with Environmental Laws. The Borrower and each
Principal Subsidiary is in compliance with all applicable Environmental Laws,
except to the extent that the failure to so comply would not have a Material
Adverse Effect.
SECTION 6.5. Validity, etc. This Agreement constitutes, and the Notes will,
on the due execution and delivery thereof, constitute, the legal, valid and
binding obligations of the Borrower enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
28
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
SECTION 6.6. Financial Information. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2001, and the related
consolidated statements of operations and cash flows of the Borrower and its
Subsidiaries, copies of which have been furnished to the Administrative Agent
and each Lender, have been prepared in accordance with GAAP, and present fairly
the consolidated financial condition of the Borrower and its Subsidiaries as at
December 31, 2001 and the results of their operations for the Fiscal Year then
ended. Since December 31, 2001 there has been no material adverse change in the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Principal Subsidiaries taken as a whole.
SECTION 6.7. No Defaults under Material Agreements. Neither the Borrower
nor any Principal Subsidiary is in default (a) under any material agreement by
which it is bound or (b) in respect of any financial commitment or actual or
contingent obligation (including obligations under guarantees), except, in each
case, to the extent that such default would not have a Material Adverse Effect.
SECTION 6.8. No Default, Event of Default or Prepayment Event. No Default,
Event of Default or Prepayment Event has occurred and is continuing.
SECTION 6.9. Litigation. There is no action, suit, litigation,
investigation or proceeding pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Principal Subsidiary, that (i) except as
set forth in filings made by the Borrower with the Securities and Exchange
Commission in the Borrower's reasonable opinion might reasonably be expected to
materially adversely affect the business, operations, condition (financial or
otherwise)or prospects of the Borrower or of the Borrower and the Principal
Subsidiaries (taken as a whole) (collectively, "Material Litigation") or (ii)
purports to affect the legality, validity or enforceability of the Loan
Documents or the consummation of the transactions contemplated hereby.
SECTION 6.10. Vessels. Each Vessel is
(a) legally and beneficially owned by the Borrower or a Principal
Subsidiary,
(b) registered in the name of the Borrower or such Principal
Subsidiary under the flag identified in Item 6.10(b) of the Disclosure
Schedule,
(c) classed as required by Section 7.1.4(b),
(d) free of all recorded Liens, other than Liens permitted by Section
7.2.3,
(e) insured against loss or damage in compliance with Section 7.1.5,
and
(f) chartered exclusively to the Borrower or one of the Borrower's
wholly-owned Subsidiaries.
29
SECTION 6.11. Subsidiaries. The Borrower has no Subsidiaries on the Closing
Date, except those Subsidiaries which are identified in Item 6.11 of the
Disclosure Schedule. All Existing Principal Subsidiaries are designated with an
asterisk in Item 6.11 of the Disclosure Schedule. All Existing Principal
Subsidiaries are direct or indirect wholly-owned Subsidiaries of the Borrower,
except to the extent any such Existing Principal Subsidiary or an interest
therein has been sold in accordance with clause (b) of Section 7.2.7 or such
Existing Principal Subsidiary no longer owns a Vessel.
SECTION 6.12. Obligations rank pari passu. The Obligations rank at least
pari passu in right of payment and in all other respects with all other
unsecured unsubordinated Indebtedness of the Borrower.
SECTION 6.13. Withholding, etc. As of the Closing Date, no payment to be
made by the Borrower under any Loan Document is subject to any withholding or
like tax imposed by any Applicable Jurisdiction.
SECTION 6.14. No Filing, etc. Required. No filing, recording or
registration and no payment of any stamp, registration or similar tax is
necessary under the laws of any Applicable Jurisdiction to ensure the legality,
validity, enforceability, priority or admissibility in evidence of this
Agreement or the other Loan Documents (except for filings, recordings,
registrations or payments not required to be made on or prior to the Closing
Date that have been made).
SECTION 6.15. No Immunity. The Borrower is subject to civil and commercial
law with respect to the Obligations. Neither the Borrower nor any of its
properties or revenues is entitled to any right of immunity in any Applicable
Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before
or after judgment), set-off or execution of a judgment or from any other legal
process or remedy relating to the Obligations (to the extent such suit, court
jurisdiction, judgment, attachment, set-off, execution, legal process or remedy
would otherwise be permitted or exist).
SECTION 6.16. Pension Plans. To the extent that, at any time after the
Effective Date, there are any Pension Plans, no steps will have been taken to
terminate any Pension Plan, and no contribution failure will have occurred with
respect to any Pension Plan, in each case which could (a) give rise to a Lien
under section 302(f) of ERISA and (b) result in the incurrence by the Borrower
or any member of the Controlled Group of any material liability, fine or
penalty.
SECTION 6.17. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 6.18. Regulation U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are
provided in F.R.S. Board Regulation U or any regulations substituted therefor,
as from time to time in effect, are used in this Section with such meanings.
SECTION 6.19. Accuracy of Information. The financial and other information
furnished to the Administrative Agent and the Lenders in writing by or on behalf
of the Borrower by its chief financial officer, treasurer or corporate
30
controller in connection with the negotiation of this Agreement is, to the best
knowledge and belief of the Borrower, true and correct and contains no
misstatement of a fact of a material nature (provided that all projections and
other forward-looking information is based on the Borrower's best good faith
estimates). All financial and other information furnished to the Administrative
Agent and the Lenders in writing by or on behalf of the Borrower by its chief
financial officer, treasurer or corporate controller after the date of this
Agreement shall have been prepared by the Borrower in good faith.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid in full, the Borrower will perform the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to the Administrative
Agent (with sufficient copies for distribution to each Lender) the
following financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, a copy of the Borrower's report on Form 6-K (or any successor
form) as filed by the Borrower with the Securities and Exchange Commission
for such Fiscal Quarter, containing unaudited consolidated financial
statements of the Borrower for such Fiscal Quarter (including a balance
sheet and profit and loss statement) prepared in accordance with GAAP,
subject to normal year-end audit adjustments;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of the Borrower, a copy of the Borrower's annual
report on Form 20-F (or any successor form) as filed by the Borrower with
the Securities and Exchange Commission for such Fiscal Year, containing
audited consolidated financial statements of the Borrower for such Fiscal
Year prepared in accordance with GAAP (including a balance sheet and profit
and loss statement) and audited by PricewaterhouseCoopers LLC or another
firm of independent public accountants of similar standing;
(c) together with each of the statements delivered pursuant to the
foregoing clause (a) or (b), a certificate, executed by the chief financial
officer, the treasurer or the corporate controller of the Borrower,
showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year
(a) compliance with the covenants set forth in Section 7.2.4 (in reasonable
detail and with appropriate calculations and computations in all respects
reasonably satisfactory to the Administrative Agent) and (b) any material
changes to Item 6.11 of the Disclosure Schedule since the Closing Date or
the last such certificate delivered pursuant to this clause (as the case
may be);
(d) as soon as possible after the occurrence of a Default or
Prepayment Event, a statement of the chief financial officer of the
31
Borrower setting forth details of such Default or Prepayment Event (as the
case may be) and the action which the Borrower has taken and proposes to
take with respect thereto;
(e) as soon as the Borrower becomes aware thereof, notice of any
Material Litigation except to the extent that such Material Litigation is
disclosed by the Borrower in filings with the SEC;
(f) as soon as the Borrower becomes aware thereof, notice of any event
which, in its reasonable opinion, might materially adversely affect its
business operations, condition (financial or otherwise) or prospects;
(g) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to all holders of each security issued by
the Borrower, and all registration statements which the Borrower or any of
its Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange; and
(h) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 7.1.2. Approvals and Other Consents. The Borrower will obtain
(or cause to be obtained) all such governmental licenses, authorizations,
consents, permits and approvals as may be required for (a) the Borrower to
perform its obligations under this Agreement and the other Loan Documents
and (b) the operation of each Vessel in compliance with all applicable
laws.
SECTION 7.1.3. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, except (other than as
described in clause (a) below) to the extent that the failure to so comply
would not have a Material Adverse Effect, which compliance shall in any
case include (but not be limited to):
(a) in the case of each of the Borrower and the Principal
Subsidiaries, the maintenance and preservation of its corporate existence
(subject to the provisions of Section 7.2.6);
(b) in the case of the Borrower, maintenance of its qualification as a
foreign corporation in the State of Florida;
(c) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property,
except to the extent being diligently contested in good faith by
appropriate proceedings; and (d) compliance with all applicable
Environmental Laws.
SECTION 7.1.4. Vessels. The Borrower will (or will cause the
applicable Principal Subsidiary to):
32
(a) cause each Vessel to be chartered exclusively to the Borrower or
one of the Borrower's wholly-owned Subsidiaries, provided that the Borrower
or such Subsidiary may charter out any Vessel on a time charter with a
stated duration not in excess of one year; and
(b) cause each Vessel to be kept in such condition as will entitle her
to classification by a classification society of recognized standing.
SECTION 7.1.5. Insurance. The Borrower will, or will cause one or more
of its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to all of the material
properties and operations of the Borrower and each Principal Subsidiary
against such casualties, third-party liabilities and contingencies and in
such amounts as is customary for other businesses of similar size in the
passenger cruise line industry (provided that in no event will the Borrower
or any Subsidiary be required to obtain any business interruption, loss of
hire or delay in delivery insurance) and will, upon request of the
Administrative Agent, furnish to the Administrative Agent (with sufficient
copies for distribution to each Lender) at reasonable intervals a
certificate of a senior officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower and the Subsidiaries
and certifying as to compliance with this Section.
SECTION 7.1.6. Books and Records. The Borrower will, and will cause
each of its Principal Subsidiaries to, keep books and records that
accurately reflect all of its business affairs and transactions and permit
the Administrative Agent and each Lender or any of their respective
representatives, at reasonable times and intervals, to visit each of its
offices, to discuss its financial matters with its officers and to examine
any of its books or other corporate records.
SECTION 7.2. Negative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity
other than those engaged in by the Borrower and its Subsidiaries on the
date hereof and other business activities reasonably related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not permit any of the
Existing Principal Subsidiaries to create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other
than, without duplication, the following:
(a) Indebtedness secured by Liens of the type described in Section
7.2.3; and
(b) Indebtedness owing to the Borrower.
SECTION 7.2.3. Liens . The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
33
(a) Liens on the vessels SPLENDOUR OF THE SEAS, LEGEND OF THE SEAS,
CENTURY, GALAXY, SUMMIT, CONSTELLATION and BRILLIANCE OF THE SEAS existing
as of the Effective Date and securing the Existing Debt (and any Lien on
SPLENDOUR OF THE SEAS, LEGEND OF THE SEAS, CENTURY, GALAXY, SUMMIT,
CONSTELLATION or BRILLIANCE OF THE SEAS securing any refinancing of the
Existing Debt, so long as such Vessel was subject to a Lien securing the
Indebtedness being refinanced immediately prior to such refinancing);
(b) Liens on assets (including, without limitation, shares of capital
stock of corporations and assets owned by any corporation that becomes a
Subsidiary of the Borrower after the Effective Date) acquired after the
Effective Date (whether by purchase, construction or otherwise) by the
Borrower or any of its Subsidiaries (other than (x) an Existing Principal
Subsidiary or (y) any other Principal Subsidiary which, at any time, after
three months after the acquisition of a Vessel, owns a Vessel free of any
mortgage Lien), which Liens were created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such assets, so long as (i)
the acquisition of such assets is not otherwise prohibited by the terms of
this Agreement and (ii) each such Lien is created within three months after
the acquisition of the relevant assets;
(c) in addition to other Liens permitted under this Section 7.2.3,
Liens securing Indebtedness in an aggregate principal amount at any one
time outstanding not exceeding the greater of (x) 3.5% of the total assets
of the Borrower and its Subsidiaries taken as a whole as determined in
accordance with GAAP as at the last day of the most recent ended Fiscal
Quarter or (y) $225,000,000, provided that, with respect to each such item
of Indebtedness, the fair market value of the assets subject to Liens
securing such Indebtedness (determined at the time of the creation of such
Lien) shall not exceed two times the aggregate principal amount of such
Indebtedness (and for purposes of this clause (c), the fair market value of
any assets shall be determined by (i) in the case of any Vessel, by an
Approved Appraiser selected by the Borrower and (ii) in the case of any
other assets, by an officer of the Borrower or by the board of directors of
the Borrower);
(d) Liens on assets acquired after the Effective Date by the Borrower
or any of its Subsidiaries (other than by (x) any Subsidiary that is an
Existing Principal Subsidiary or (y) any other Principal Subsidiary which,
at any time, owns a Vessel free of any mortgage Lien) so long as (i) the
acquisition of such assets is not otherwise prohibited by the terms of this
Agreement and (ii) each of such Liens existed on such assets before the
time of its acquisition and was not created by the Borrower or any of its
Subsidiaries in anticipation thereof;
(e) Liens on any asset of any corporation that becomes a Subsidiary of
the Borrower (other than a corporation that also becomes a Subsidiary of an
Existing Principal Subsidiary) after the Effective Date so long as (i) the
acquisition or creation of such corporation by the Borrower is not
otherwise prohibited by the terms of this Agreement and (ii) such Liens are
in existence at the time such corporation becomes a Subsidiary of the
Borrower and were not created by the Borrower or any of its Subsidiaries in
anticipation thereof;
34
(f) Liens securing Government-related Obligations;
(g) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings;
(h) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings;
(i) Liens incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits;
(j) Liens for current crew's wages and salvage;
(k) Liens arising by operation of law as the result of the furnishing
of necessaries for any Vessel so long as the same are discharged in the
ordinary course of business or are being diligently contested in good faith
by appropriate proceedings; and
(l) Liens on Vessels that:
(i) secure obligations covered (or reasonably expected to be
covered) by insurance;
(ii) were incurred in the course of or incidental to trading such
Vessel in connection with repairs or other work to such Vessel; or
(iii) were incurred in connection with work to such Vessel that
is required to be performed pursuant to applicable law, rule,
regulation or order;
provided that, in each case described in this clause (l), such
Liens are either (x) discharged in the ordinary course of
business or (y) being diligently contested in good faith by
appropriate proceedings.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
(a) Net Debt to Capitalization Ratio, as at the end of any Fiscal
Quarter, to be greater than 0.625 to 1.
(b) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at
the last day of any Fiscal Quarter.
(c) Stockholders' Equity to be less than, as at the last day of
any Fiscal Quarter, the sum of (i) $3,000,000,000, excluding
Accumulated Other Comprehensive Income (Loss) plus (ii) 50% of the
consolidated net income of the Borrower and its Subsidiaries for the
period commencing on January 1, 2003 and ending on the last day of the
Fiscal Quarter most recently ended (treated for these purposes as a
single accounting period, but in any event excluding any
35
Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated
net loss).
SECTION 7.2.5. Investments. The Borrower will not permit any of the
Principal Subsidiaries to make, incur, assume or suffer to exist any
Investment in any other Person.
SECTION 7.2.6. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase
or otherwise acquire all or substantially all of the assets of any Person
except:
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Subsidiary, and the
assets or stock of any Subsidiary may be purchased or otherwise acquired by
the Borrower or any other Subsidiary; and
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrower or any of its Subsidiaries
may merge into any other Person, or any other Person may merge into the
Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries
may purchase or otherwise acquire all or substantially all of the assets of
any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders' Equity of the
Borrower and its Subsidiaries is at least equal to 90% of such
Stockholders' Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the
Borrower is not the surviving corporation, the surviving corporation
shall have assumed in a writing, delivered to the Administrative
Agent, all of the Borrower's obligations hereunder and under the other
Loan Documents.
SECTION 7.2.7. Asset Dispositions, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, contribute or
otherwise convey, or grant options, warrants or other rights with respect
to, any material asset (including accounts receivable and capital stock of
Principal Subsidiaries) to any Person, except:
(a) sales of assets (including, without limitation, Vessels) so long
as:
(i) the aggregate net book value of all such assets sold during
each 12-month period commencing on the Closing Date, and each
anniversary of the Closing Date, does not exceed an amount equal to
the greater of (x) 7.5% of Stockholders' Equity as at the end of the
last Fiscal Quarter, and (y) $250,000,000, provided however, that in
no event shall the aggregate net book value of fixed assets disposed
over the life of the Agreement exceed 25% of Stockholders' Equity as
at the end of the most recently completed fiscal quarter; and
36
(ii) the Borrower or Subsidiary selling such asset receives
consideration therefor at least equal to the fair market value thereof
(as determined in good faith by (x) in the case of any Vessel, the
board of directors of the Borrower and (y) in the case of any other
asset, an officer of the Borrower or its board of directors);
(b) sales of capital stock of any Principal Subsidiary of the Borrower
so long as a sale of all of the assets of such Subsidiary would be
permitted under the foregoing clause (a);
(c) sales of capital stock of any Subsidiary other than a Principal
Subsidiary; and
(d) sales of other assets in the ordinary course of business.
SECTION 7.2.8. Transactions with Affiliates. The Borrower will not,
and will not permit any of the Principal Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of
its Affiliates (other than arrangements or contracts among the Borrower and
its wholly-owned Subsidiaries) unless such arrangement or contract is on an
arms'-length basis, provided that, to the extent that the aggregate fair
value of the goods furnished or to be furnished or the services performed
or to be performed under all such contracts or arrangements in any one
Fiscal Year does not exceed $10,000,000, such contracts or arrangements
shall not be subject to this Section 7.2.8.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default
in the payment when due of any principal of or interest on any Loan, any
Commitment Fee or the agency fee provided for in Section 10.8, provided
that, in the case of any default in the payment of any interest on any Loan
or of any Commitment Fee, such default shall continue unremedied for a
period of at least two Business Days after notice thereof shall have been
given to the Borrower by any Lender; and provided further that, in the case
of any default in the payment of such agency fee, such default shall
continue unremedied for a period of at least ten days after notice thereof
shall have been given to the Borrower by the Administrative Agent.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower made or deemed to be made hereunder (including any
certificates delivered pursuant to Article V) is or shall be incorrect when
made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any
other agreement contained herein or in any other Loan Document (other than
the covenants set forth in Section 7.2.4) and such default shall continue
unremedied for a period of five days after notice thereof shall have been
given to the
37
Borrower by the Administrative Agent or any Lender (or, if (a) such default is
capable of being remedied within 30 days (commencing on the first day following
such five-day period) and (b) the Borrower is actively seeking to remedy the
same during such period, such default shall continue unremedied for at least 35
days after such notice to the Borrower).
SECTION 8.1.4. Default on Other Indebtedness. The Borrower or any of
its Principal Subsidiaries shall fail to pay any Indebtedness that is
outstanding in a principal amount of at least $50,000,000 (or the
equivalent in other currencies) in the aggregate (but excluding
Indebtedness hereunder) when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument evidencing, securing or relating to any such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to cause or permit the holder or holders of such Indebtedness
to cause such Indebtedness to become due and payable prior to its scheduled
maturity; or any such Indebtedness shall be declared to be due and payable
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption or by voluntary agreement), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness is required to be made, in each case prior to the scheduled
maturity thereof. For purposes of determining Indebtedness for any Hedging
Instrument, the principal amount of the obligations under any such
instrument at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or any Principal Subsidiary
would be required to pay if such instrument were terminated at such time.
SECTION 8.1.5. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $50,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA
and, in each case, such event shall continue unremedied for a period of five
Business Days after notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender (or, if (a) such default is capable of being
remedied within 15 days (commencing on the first day of such five-Business-Day
period) and (b) the Borrower is actively seeking to remedy the same during such
period, such default shall continue unremedied for at least 15 days).
SECTION 8.1.6. Bankruptcy, Insolvency, etc. The Borrower or any of the
Principal Subsidiaries (or any of its other Subsidiaries to the extent that
the relevant event described below would have a Material Adverse Effect)
shall:
38
(a) become insolvent or generally fail to pay, or admit in writing its
inability to pay, its debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for it or any of its
property, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for it or for a substantial part of its
property, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 30 days, provided that the Borrower hereby
expressly authorizes the Administrative Agent and each Lender to appear in
any court conducting any relevant proceeding during such 30-day period to
preserve, protect and defend their respective rights under the Loan
Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any of such Subsidiaries, and, if
any such case or proceeding is not commenced by the Borrower or such
Subsidiary, such case or proceeding shall be consented to or acquiesced in
by the Borrower or such Subsidiary or shall result in the entry of an order
for relief or shall remain for 30 days undismissed, provided that the
Borrower hereby expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any such case or proceeding during
such 30-day period to preserve, protect and defend their respective rights
under the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION 8.1.7. Ownership of Principal Subsidiaries. Except as a result
of a disposition permitted pursuant to clauses (a) or (b) of Section 7.2.7,
the Borrower shall cease to own beneficially and of record all of the
capital stock of each Existing Principal Subsidiary.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.6 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.6 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower declare all
of the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other Obligations
39
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1. Listing of Prepayment Events. Each of the following events or
occurrences described in this Section 9.1 shall constitute a "Prepayment Event".
SECTION 9.1.1. Change in Ownership. Any Person other than a member of
the Existing Group (a "New Shareholder") shall acquire (whether through
legal or beneficial ownership of capital stock, by contract or otherwise),
directly or indirectly, effective control over more than 30% of the Voting
Stock and:
(a) the members of the Existing Group have (whether through legal or
beneficial ownership of capital stock, by contract or otherwise) in the
aggregate, directly or indirectly, effective control over fewer shares of
Voting Stock than does such New Shareholder; and
(b) the members of the Existing Group do not collectively have
(whether through legal or beneficial ownership of capital stock, by
contract or otherwise) the right to elect, or to designate for election, at
least a majority of the Board of Directors of the Borrower.
SECTION 9.1.2. Change in Board. During any period of 24 consecutive
months, a majority of the Board of Directors of the Borrower shall no
longer be composed of individuals:
(a) who were members of said Board on the first day of such period; or
(b) whose election or nomination to said Board was approved by a vote
of at least two-thirds of the members of said Board who were members of
said Board on the first day of such period; or
(c) whose election or nomination to said Board was approved by a vote
of at least two-thirds of the members of said Board referred to in the
foregoing clauses (a) and (b).
SECTION 9.1.3. Unenforceability. Any Loan Document shall cease to be
the legally valid, binding and enforceable obligation of the Borrower (in
each case, other than with respect to provisions of any Loan Document (i)
identified as unenforceable in the form of the opinion of the Borrower's
counsel set forth as Exhibit D-1 or (ii) that a court of competent
jurisdiction has determined are not material) and such event shall continue
unremedied for 15 days after notice thereof has been given to the Borrower
by any Lender.
SECTION 9.1.4. Approvals. Any material license, consent,
authorization, registration or approval at any time necessary to enable the
Borrower or any
40
Principal Subsidiary to conduct its business shall be revoked, withdrawn or
otherwise cease to be in full force and effect, unless the same would not have a
Material Adverse Effect.
SECTION 9.1.5. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of
the covenants set forth in Section 7.2.4.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of
money in excess of $25,000,000 shall be rendered against the Borrower or
any of the Principal Subsidiaries by a court of competent jurisdiction and
the Borrower or such Principal Subsidiary shall have failed to satisfy such
judgment and either:
(a) enforcement proceedings in respect of any material assets of the
Borrower or such Principal Subsidiary shall have been commenced by any
creditor upon such judgment or order and shall not have been stayed or
enjoined within five Business Days after the commencement of such
enforcement proceedings; or
(b) there shall be any period of 10 consecutive Business Days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Condemnation, etc. Any Vessel or Vessels shall be
condemned or otherwise taken under color of law and the same shall continue
unremedied for at least 20 days, unless such condemnation or other taking
would not have a Material Adverse Effect.
SECTION 9.1.8. Arrest. Any Vessel or Vessels shall be arrested and the
same shall continue unremedied for at least 20 days, unless such arrest
would not have a Material Adverse Effect.
SECTION 9.2. Mandatory Prepayment. If any Prepayment Event shall occur and
be continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower (a) require the Borrower to prepay in
full on the date of such notice all principal of and interest on the Loans and
all other Obligations (and, in such event, the Borrower agrees to so pay the
full unpaid amount of each Loan and all accrued and unpaid interest thereon and
all other Obligations) and (b) terminate the Commitments (if not theretofore
terminated).
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints Citibank, and insofar as
the other Agents have duties under this Agreement, each other Agent, as its
agent under and for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes the Administrative Agent to act on behalf of
such Lender under this Agreement, the Notes and each other Loan Document and, in
the absence of other written instructions from the Required Lenders received
from time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
41
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers
as may be reasonably incidental thereto. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the Administrative
Agent, pro rata according to such Lender's Percentage, from and against any and
all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel) that be incurred by or
asserted or awarded against, the Administrative Agent in any way relating to or
arising out of this Agreement, the Notes and any other Loan Document or any
action taken or omitted by the Administrative Agent under this Agreement, the
Notes or any other Loan Document; provided that no Lender shall be liable for
the payment of any portion of such claims, damages, losses, liabilities and
expenses which have resulted from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including reasonable counsel fees) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any such
indemnified costs, this Section applies whether any such investigation,
litigation or proceeding is brought by the Administrative Agent, any Lender or a
third party. The Administrative Agent shall not be required to take any action
hereunder, under the Notes or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement, the Notes or any other Loan
Document, unless it is expressly required to do so under this Agreement or is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 10.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrower to the date such
amount is repaid to the Administrative Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence. Without limitation of the generality of the
foregoing, the Administrative Agent (i) may treat the payee of any Note a the
holder thereof until the Administrative Agent receives and accepts a Lender
42
Assignment Agreement entered into by the Lender that is the payee of such Note,
as assignor, and an Assignee Lender as provided in Section 11.11.1; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it and in accordance
with the advice of such counsel, accountants or experts; (iii) makes no warranty
or representation to any Lender and shall not be responsible to any Lender for
any statements, warranties or representations (whether written or oral) made in
or in connection with this Agreement; (iv) shall not have any duty to ascertain
or to inquire as to the performance, observance or satisfaction of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
the existence at any time of any Default or Prepayment Event or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by action upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 10.4. Successor Any Agent may resign as such at any time upon at
least 30 days' prior notice to the Borrower and all Lenders, provided that any
such resignation shall not become effective until a successor Agent for such
resigning Agent has been appointed as provided in this Section 10.4 and such
successor Agent has accepted such appointment (provided that no successor Agent
shall be appointed for any Agent, other than the Administrative Agent, if after
giving effect to such Agent's resignation there would still be two Agents). If
any Agent at any time shall resign, the Required Lenders shall, subject to the
immediately preceding proviso and subject to the consent of the Borrower (such
consent not to be unreasonably withheld), appoint another Lender as a successor
to such Agent which shall thereupon become such Agent's successor hereunder
(provided that, in the case of a resignation of the Administrative Agent, the
Required Lenders shall, subject to the consent of the Borrower unless an Event
or Default or a Prepayment Event shall have occurred and be continuing (such
consent not to be unreasonably withheld) offer to each of the other Agents in
turn, in the order of their respective Commitment Amounts, the right to become
successor Administrative Agent). If no successor Agent for any resigning Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the resigning Agent's giving notice of
resignation, then the resigning Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be one of the Lenders or, in the case of a
resigning Administrative Agent, a commercial banking institution having a
combined capital and surplus of at least $500,000,000 (or the equivalent in
other currencies), subject, in each case, to the consent of the Borrower (such
consent not to be unreasonably withheld). Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall be entitled to receive from the resigning
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the resigning
Administrative Agent, and the resigning Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any resigning
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of:
43
(a) this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative Agent under
this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit. If a Lender acting as an Agent assigns its Loans to one of its
Affiliates, such Agent may, subject to the consent of the Borrower (such
consent not to be unreasonably withheld) assign its rights and obligations
as Agent to such Affiliate.
SECTION 10.5. Loans by the Agents. Each Agent shall have the same rights
and powers with respect to (x) the Loans made by it or any of its Affiliates,
and (y) the Notes held by it or any of its Affiliates as any other Lender and
may exercise the same as if it were not an Agent. Each Agent and its Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
such Agent were not an Agent hereunder and without any duty to account therefor
to the Lenders. No Agent shall have any duty to disclose information obtained or
received by it or any of its Affiliates relating to the Borrower or its
Subsidiaries to the extent such information was obtained or received in any
capacity other than as an Agent.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent, each other Agent and each other
Lender, and based on such Lender's review of the financial information of the
Borrower, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that it will,
independently of the Administrative Agent, each other Agent and each other
Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as
to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 10.8. Agency Fee. The Borrower agrees to pay to the Administrative
Agent for its own account an annual agency fee in an amount, and at such times,
heretofore agreed to in writing between the Borrower and the Administrative
Agent.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
44
by the Borrower and the Required Lenders; provided that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 11.1, change the definition of "Required
Lenders", increase the Commitment of any Lender (other than pursuant to
Section 2.7), reduce any fees described in Article III or extend the
Commitment Termination Date shall be made without the consent of each
Lender;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan (or reduce
the principal amount of or rate of interest on any Loan) shall be made
without the consent of each Lender; or
(d) affect adversely the interests, rights or obligations of the
Administrative Agent in its capacity as such shall be made without consent
of the Administrative Agent.
No failure or delay on the part of the Administrative Agent or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Borrower in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Administrative Agent or any Lender
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 11.2. Notices. (a) All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address, or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or Assumption Agreement or at such
other address, or facsimile number as may be designated by such party in a
notice to the other parties; provided that notices, information, documents and
other materials that the Borrower is required to deliver hereunder may be
delivered to the Administrative Agent and the Lenders as specified in Section
11.2(b). Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received.
(b) So long as Citibank is the Administrative Agent, the Borrower may
provide to the Administrative Agent all information, documents and other
materials that it furnishes to the Administrative Agent hereunder or any other
Loan Document (and any guaranties, security agreements and other agreements
relating thereto), including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other
materials, but excluding any such communication that (i) relates to a request
for a new, or a conversion of an existing Borrowing or other extension of credit
(including any election of an interest rate or interest period relating
thereto), (ii) relates to the payment of any principal or other amount due
hereunder or any other Loan Document prior to the scheduled date therefor, (iii)
provides notice of any Default or Event of Default or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of the
Agreement and/or any Borrowing or other extension of credit hereunder (all such
non-excluded communications being referred to herein collectively as
"Communications"), by transmitting the Communications in an electronic/soft
45
medium in a format acceptable to the Administrative Agent to
oploanswebadmin@ssmb.com; provided that any Communication requested pursuant to
Section 7.1.1(h) shall be in a format acceptable to the Borrower and the
Administrative Agent.
(1) The Borrower agrees that the Administrative Agent may make
such items included in the Communications as the Borrower may
specifically agree available to the Lenders by posting such notices on
"e-Disclosure" (the "Platform"), the Administrative Agent's internet
delivery system that is part of SSB Direct, Global Fixed Income's
primary web portal. Although the primary web portal is secured with a
dual firewall and a User ID/Password Authorization System and the
Platform is secured through a single user per deal authorization
method whereby each user may access the Platform only on a
deal-by-deal basis, the Borrower acknowledges that (i) the
distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as
is" and "as available" and (iii) neither the Administrative Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness
of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party
rights or freedom from viruses or other code defects, is made by the
Administrative Agent or any of its Affiliates in connection with the
Platform.
(2) The Administrative Agent agrees that the receipt of
Communications by the Administrative Agent at its e-mail address set
forth above shall constitute effective delivery of such Communications
to the Administrative Agent for purposes hereunder and any other Loan
Document (and any guaranties, security agreements and other agreements
relating thereto).
(c) Each Lender agrees that notice to it (as provided in the next sentence)
(a "Notice") specifying that any Communications have been posted to the Platform
shall constitute effective delivery of such Communications to such Lender for
purposes of this Agreement. Each Lender agrees (i) to notify the Administrative
Agent in writing (including by electronic communication) of such Lender's e-mail
address to which a Notice may be sent by electronic transmission on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Administrative Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with the preparation, execution and delivery
of, and any amendments, waivers, consents, supplements or other modifications
to, this Agreement or any other Loan Document. The Borrower further agrees to
46
pay, and to save the Administrative Agent and the Lenders harmless from all
liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of this Agreement, the borrowings hereunder, or the
issuance of the Notes or any other Loan Documents. The Borrower also agrees to
reimburse the Administrative Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
legal expenses) incurred by the Administrative Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out", whether
or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies and holds harmless each Administrative Agent and
each Lender and each of their respective Affiliates and their respective
officers, advisors, directors and employees (collectively, the "Indemnified
Parties") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and disbursements of
counsel), joint or several, that may be incurred by or asserted or awarded
against any Indemnified Party (including, without limitation, in connection with
any investigation, litigation or proceeding or the preparation of a defense in
connection therewith), in each case arising out of or in connection with or by
reason of this Agreement, the Notes or the other Loan Documents or the
transactions contemplated hereby or any actual or proposed use of the proceeds
of the Loans (collectively, the "Indemnified Liabilities"), except to the extent
such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this paragraph applies, such indemnity shall be effective whether
or not such investigation, litigation or proceeding is brought by the Borrower,
any of its directors, security holders or creditors, an Indemnified Party or any
other person or an Indemnified Party is otherwise a party thereto. Each
Indemnified Party shall (a) furnish the Borrower with prompt notice of any
action, suit or other claim covered by this Section 11.4, (b) at the Borrower's
request, permit the Borrower to assume control of the defense of any such claim,
other than regulatory, supervisory or similar investigations, provided that (i)
the Borrower acknowledges in writing its obligations to indemnify the
Indemnified Party in accordance with the terms herein in connection with such
claims, (ii) the Borrower shall keep the Indemnified Party fully informed with
respect to the conduct of the defense of such claim, (iii) the Borrower shall
consult in good faith with the Indemnified Party (from time to time and before
taking any material decision) about the conduct of the defense of such claim,
(iv) the Borrower shall conduct the defense of such claim properly and
diligently taking into account its own interests and those of the Indemnified
Party , (v) the Borrower shall employ counsel reasonably acceptable to the
Indemnified Party and at the Borrower's expense, and (vi) the Borrower shall not
enter into a settlement with respect to such claim unless either (A) such
settlement involves only the payment of a monetary sum, does not include any
performance by or an admission of liability or responsibility on the part of the
Indemnified Party, and contains a provision unconditionally releasing the
Indemnified Party and each other indemnified party from, and holding all such
persons harmless, against, all liability in respect of claims by any releasing
party or (B) the Indemnified Party provides written consent to such settlement
(such consent not to be unreasonably withheld or delayed). Notwithstanding the
47
Borrower's election to assume the defense of such action, the Indemnified Party
shall have the right to employ separate counsel and to participate in the
defense of such action and the Borrower shall bear the fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the Borrower to
represent the Indemnified Party would present such counsel with a conflict of
interest arising out of such counsel's involvement in any claim unrelated to the
claim that is the subject of the indemnity hereunder , (ii) the actual or
potential defendants in, or targets of, any such action include both the
Borrower and the Indemnified Party, and the Indemnified Party shall have
concluded that there may be legal defenses available to it which are different
from or additional to those available to the Borrower and determined that it is
necessary to employ separate counsel in order to pursue such defenses (in which
case the Borrower shall not have the right to assume the defense of such action
on the Indemnified Party's behalf), (iii) the Borrower shall not have employed
counsel reasonably acceptable to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the institution of
such action, or (iv) the Borrower authorizes the Indemnified Party to employ
separate counsel at the Borrower's expense, (c) not agree to any settlement or
compromise of any such action, suit or claim without the Borrower's prior
consent and (d) shall cooperate fully in the Borrower's defense of any such
action, suit or other claim (provided, that the Borrower shall reimburse such
Indemnified Party for its reasonable out-of-pocket expenses incurred pursuant
hereto). The Borrower acknowledges that none of the Indemnified Parties shall
have any liability (whether direct or indirect, in contract, tort or otherwise)
to the Borrower or any of its security holders or creditors for or in connection
with the transactions contemplated hereby, except to the extent such liability
is determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted primarily from such Indemnified Party's gross
negligence or willful misconduct. In no event, however, shall any Indemnified
Party be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings). If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrower under Sections 4.3,
4.4, 4.5, 4.6, 4.7, 11.3 and 11.4, and the obligations of the Lenders under
Section 10.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
48
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower and each Lender (or
notice thereof satisfactory to the Administrative Agent and the Borrower) shall
have been received by the Administrative Agent and the Borrower (or, in the case
of any Lender, receipt of signature pages transmitted by facsimile) and notice
thereof shall have been given by the Administrative Agent to the Borrower and
each Lender.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT AND THE NOTES
SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the other Loan
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided that:
(a) except to the extent permitted under Section 7.2.6, the Borrower
may not assign or transfer its rights or obligations hereunder without the
prior written consent of the Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Note; Participations in Loans
and Note. Each Lender may assign, or sell participations in, its Loans and
Commitment to one or more other Persons in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender,
(i) with the written consents of the Borrower and the Administrative Agent
(which consents shall not be unreasonably delayed or withheld and which consent,
in the case of the Borrower, shall be deemed to have been given in the absence
of a written notice delivered by the Borrower to the Administrative Agent, on or
before the fifth Business Day after receipt by the Borrower of such Lender's
request for consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) may at any time assign and delegate to one or
more commercial banks or other financial institutions;
(ii) with notice to the Borrower and the Administrative Agent, but without
the consent of the Borrower or the Administrative Agent, may assign and delegate
(A) to any Lender, (B) to any of its Affiliates or (C) following the occurrence
and during the continuance of an Event of Default or a Prepayment Event; and
(iii) may (without notice to the Borrower, the Administrative Agent or any
other Lender and without payment of any fee) assign and pledge all or any
portion of its Loans and Note to any Federal Reserve Bank as collateral security
49
pursuant to Regulation A of the F.R.S. Board and any Operating Circular issued
by such Federal Reserve Bank;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans and
Commitment (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and Commitment) in a
minimum aggregate amount of $25,000,000 (or, if less, all of such Lender's Loans
and Commitment); provided that the Borrower and the Administrative Agent shall
be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until:
(a) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Borrower and the
Administrative Agent by such Lender and such Assignee Lender;
(b) Such Assignee Lender shall have executed and delivered to the
Borrower and the Administrative Agent a Lender Assignment Agreement,
accepted by the Administrative Agent; and
(c) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it, shall be released from its obligations
hereunder and under the other Loan Documents, other than any obligations arising
prior to the effective date of such assignment. In no event shall the Borrower
be required to pay to any Assignee Lender at the time of the relevant assignment
any amount under Sections 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the
amount which it would have been required to pay had no such assignment been
made. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) a new Note evidencing such Assignee Lender's
assigned Loans and Commitment and, if the assignor Lender has retained Loans and
a Commitment hereunder, a replacement Note in the principal amount of the Loans
and Commitment retained by the assignor Lender hereunder (such Note to be in
exchange for, but not in payment of, that Note then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Note. The
assignor Lender shall mark the predecessor Note "exchanged" and deliver it to
the Borrower concurrently with the delivery by the Borrower of the new Note(s).
Such assignor Lender or such Assignee Lender must also pay a processing fee to
the Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $2,000 (and shall also reimburse the Administrative Agent for any
50
reasonable out-of-pocket costs, including reasonable attorneys' fees and
expenses, incurred in connection with the assignment).
SECTION 11.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other financial institutions (each of such commercial
banks and other financial institutions being herein called a "Participant")
participating interests in any of its Loans, its Commitment, or other interests
of such Lender hereunder; provided that:
(a) no participation contemplated in this Section 11.11 shall relieve
such Lender from its Commitment or its other obligations hereunder;
(b) such Lender shall remain solely responsible for the performance of
its Commitment and such other obligations;
(c) the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other Loan
Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, shall be entitled to require such Lender to take or refrain from
taking any action hereunder or under any other Loan Document, except that
such Lender may agree with any Participant that such Lender will not,
without such Participant's consent, take any actions of the type described
in clause (b) or (c) of Section 11.1; and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6 and 4.7 that is greater than the amount which
it would have been required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6 and clause (h) of 7.1.1, shall be considered a
Lender.
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude
the Administrative Agent or any Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
SUPREME COURT OF THE STATE OF NEW YORK FOR THE COUNTY OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH
SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
51
WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY
RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Process Agent. If at any time the Borrower ceases to have a
place of business in the United States, the Borrower shall appoint an agent for
service of process (reasonably satisfactory to the Administrative Agent) located
in New York City and shall furnish to the Administrative Agent evidence that
such agent shall have accepted such appointment for a period of time ending no
earlier than one year after the Commitment Termination Date.
SECTION 11.15. Judgment. (a) If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at Citibank's principal office in
London at 11:00 A.M. (London time) on the second Business Day preceding that on
which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it in any
currency (the "Primary Currency") to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Administrative Agent (as the case may be), of any sum adjudged to
be so due in such other currency, such Lender or the Administrative Agent (as
the case may be) may in accordance with normal banking procedures purchase the
applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the applicable Primary Currency so purchased exceeds such sum due to any
Lender or the Administrative Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Administrative Agent (as the case may be)
agrees to remit to the Borrower such excess.
52
SECTION 11.16. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH OTHER PARTY ENTERING INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT.
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ROYAL CARIBBEAN CRUISES LTD.
By /s/BONNIE S. BIUMI
--------------------------------
Name: Bonnie S. Biumi
Title:Acting Chief Financial Officer,
Treasurer & Assistant Secretary
Address: 1050 Caribbean Way
Miami, Florida 33132
Facsimile No.: (305) 539-0562
Attention: Treasurer
With a copy to: General Counsel
CITIBANK, N.A.,
as Administrative Agent
By /s/CHARLES R. DELAMATER
--------------------------------
Name: Charles R. Delamater
Title:Managing Director
Senior Credit Officer
54
Commitment Lenders:
$105,000,000.00 CITIBANK, N.A.,
as Administrative Agent and Lender
By /s/CHARLES R. DELAMATER
--------------------------------
Name: Charles R. Delamater
Title:Managing Director
Senior Credit Officer
Address: 388 Greenwich Street, 23rd Floor
New York, New York 10013
Facsimile No.: (212) 816-5429
Attention: Charles Delamater
$105,000,000.00 NORDEA, acting through Nordea Bank
Finland plc, New York Branch
By /s/HANS CHR. KJELSRUD
--------------------------------
Name: Hans Chr. Kjelsrud
Title:Senior Vice President
By /s/ALISON BAS
--------------------------------
Name: Alison Bas
Title:Vice President
Address: 437 Madison Ave, 21st Floor
New York, NY 10022
Facsimile No.: (212) 421-4420
Attention: Hans Chr. Kjelsrud
55
$105,000,000.00 DEN NORSKE BANK, NEW YORK BRANCH
By /s/SANJV NAYAR
--------------------------------
Name: Sanjv Nayar
Title:First Vice President
By /s/BARBARA GRONQUIST
--------------------------------
Name: Barbara Gronquist
Title:Senior Vice President
Address: 200 Park Avenue
New York, New York 10166
Facsimile No.: (212) 681-4123
Attention: Helene Vales
$100,000,000.00 KREDITANSTALT FR WIEDERAUFBAU
By /s/UIBELETSEH /s/HARTKE
--------------------------------
Name: Uibeletseh Hartke
Title:IVP VP
Address: Palmengartenstrasse 5-9
D-60325 Frankfurt am Main,Germany
Facsimile No.: +49-69-7431-3768
Attention:
56
$75,000,000.00 HAMBURGISCHE LANDESBANK
By /s/UTA URBANIAK
--------------------------------
Name: Uta Urbaniak
Title:Vice President
By /s/STEFANIE RADTKE
--------------------------------
Name: Stefanie Radtke
Title:Vice President
Address: Gerhamt-Hauptmann - Plaza 50
D-20095 Hamburg, Germany
Facsimile No.: +49-40-3333-3048
Attention: Uta Urbaniak
$10,000,000.00 COMMERCEBANK, N.A.
By /s/ALAN HILLS
--------------------------------
Name: Alan Hills
Title:Vice President
Address: 1000 South Powerline Road
Pompano Beach, FL 33069
Facsimile No.: (954) 971-7713
Attention: Alan Hills
57
SCHEDULE I
DISCLOSURE SCHEDULE
Item 6.10(b): Vessels
Vessel Owner Flag
------ ------ -------
Sovereign of the Seas Sovereign of the Seas Shipping Inc. Norwegian
Nordic Empress Nordic Empress Shipping Inc. Bahamian
Monarch of the Seas Monarch of the Seas Inc. Norwegian
Majesty of the Seas Majesty of the Seas Inc. Norwegian
Grandeur of the Seas Grandeur of the Seas Inc. Bahamian
Rhapsody of the Seas Rhapsody of the Seas Inc. Norwegian
Enchantment of the Seas Enchantment of the Seas Inc. Norwegian
Vision of the Seas Vision of the Seas Inc. Bahamian
Voyager of the Seas Voyager of the Seas Inc. Bahamian
Horizon Fantasia Cruising Inc. Bahamian
Zenith Zenith Shipping Corp. Bahamian
Century Blue Sapphire Marine Inc. Bahamian
Galaxy Esker Marine Shipping Inc. Bahamian
Mercury Seabrook Maritime Inc. Bahamian
Millennium Millennium Inc. Bahamian
Explorer of the Seas Explorer of the Seas Inc. Bahamian
Infinity Infinity Inc. Bahamian
Radiance of the Seas Radiance of the Seas Inc. Bahamian
Summit Summit Inc. Bahamian
Adventure of the Seas Adventure of the Seas Inc. Bahamian
Navigator of the Seas Navigator of the Seas Inc. Bahamian
Constellation Constellation Inc. Bahamian
Item 6.11: Subsidiaries
Name of Subsidiary Jurisdiction of Organization
------------------- -----------------------------
Song of Norway Inc. Liberia
Nordic Prince Inc. Liberia
Sun Viking Inc. Liberia
Song of America Inc. Liberia
Sovereign of the Seas Shipping Inc.* Liberia
Viking Serenade Inc. Liberia
Nordic Empress Shipping Inc.* Liberia
Majesty of the Seas Inc.* Liberia
Monarch of the Seas Inc.* Liberia
Admiral Management Inc. Liberia
GG Operations Inc. Delaware
Island For Science Inc. Indiana
Royal Caribbean Management Inc. Liberia
Labadee Investments Ltd. Cayman Islands
Societe Labadee Nord, S.A. Haiti
Royal Caribbean Cruise Line A/S Norway
Name of Subsidiary Jurisdiction of Organization
------------------ ----------------------------
Royal Caribbean Merchandise Inc. Florida
Eastern Steamship Lines Inc. Liberia
Grandeur of the Seas Inc.* Liberia
Enchantment of the Seas Inc.* Liberia
Rhapsody of the Seas Inc.* Liberia
Vision of the Seas Inc.* Liberia
Voyager of the Seas Inc.* Liberia
Explorer of the Seas Inc.* Liberia
Royal Celebrity Tours Inc. Delaware
White Sand Inc. Liberia
Radiance of the Seas Inc.* Liberia
Adventure of the Seas Inc. Liberia
RCL (UK) Ltd. U.K.
Navigator of the Seas Inc. * Liberia
Northwest Adventures Inc. Delaware
Beverage Cruise Sales Inc. Texas
Celebrity Cruise Lines Inc. Cayman Islands
Celebrity Cruises Holdings Inc. Liberia
Cruise Mar Shipping Holdings Ltd. Liberia
Seabrook Maritime Inc. * Liberia
Esker Marine Shipping Inc. * Liberia
Blue Sapphire Marine Inc. * Liberia
Fantasia Cruising Inc. * Liberia
Cruise Mar Investment Inc. Liberia
Universal Cruise Holdings Limited British Virgin Islands
Celebrity Cruises Inc. Liberia
Fourth Transoceanic Shipping Company Limited Liberia
Zenith Shipping Corporation * Liberia
Mediterranean Blue Sea Holdings Ltd. Liberia
Celebrity Cruises (Management) Inc. Liberia
Celebrity Cruises (Hellas) Ltd. Greece
Celebrity Cruises (UK) Ltd. U.K.
Atlantic Maritime Recruitment Inc. Liberia
Millennium Inc.* Liberia
Infinity Inc.* Liberia
Summit Inc.* Liberia
Constellation Inc. * Liberia
Fifth Transoceanic Shipping Company Limited Liberia
Ajax Navigation Corporation Liberia
Serenity Management Inc. Liberia
* Shipholding companies
EXHIBIT A
FORM OF NOTE
$-------------- - -------- ---, ------
FOR VALUE RECEIVED, the undersigned, Royal Caribbean Cruises Ltd., a
Liberian corporation (the "Borrower"), promises to pay to the order of
___________________________________ (the "Lender") on __________, ____ the
principal sum of _______________________________________ DOLLARS ($__________)
or, if less, the aggregate unpaid principal amount of all Loans shown on the
schedule attached hereto (and any continuation thereof) made by the Lender
pursuant to that certain Credit Agreement, dated as of March 27, 2003 (together
with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, CITIBANK,
N.A., as Administrative Agent, and the various financial institutions (including
the Lender) as are, or shall from time to time become, parties thereto.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement. Payments of
both principal and interest are to be made in lawful money of the United States
of America in same day or immediately available funds to the account designated
by the Administrative Agent pursuant to the Credit Agreement.
This Note is a Note referred to in, and evidences Indebtedness incurred
under, the Credit Agreement, to which reference is made for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
All Loans made by the Lender to the Borrower under the Credit Agreement and
all payments of principal hereof by the Borrower to the Lender shall be recorded
by the Lender and endorsed on the Schedule attached hereto (and any continuation
thereof); provided that the failure by the Lender to set forth such Loans,
payments and other information on such Schedule shall not in any manner affect
the obligation of the Borrower to repay such Loans in accordance with the terms
thereof.
A-1
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor. THIS NOTE
HAS BEEN DELIVERED IN THE STATE OF NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ROYAL CARIBBEAN CRUISES LTD.
By:
Name:
Title:
2
SCHEDULE TO EXHIBIT A
LOANS AND PRINCIPAL PAYMENTS
Amount of Unpaid
Amount of Interest Principal Principal Notation
Date Loan Made Period Repaid Balance Total Made By
----- ---------- --------- ---------- --------- ------ ----------
3
EXHIBIT B
BORROWING REQUEST
Citibank, N.A.
Two Penns Way
New Castle, DE 19720
Attention: Bank Loan Syndications
ROYAL CARIBBEAN CRUISES LTD.
----------------------------
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of the
Credit Agreement, dated as of March 27, 2003 (together with all amendments, if
any, from time to time made thereto, the "Credit Agreement"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), certain
financial institutions and Citibank, N.A., as Administrative Agent (the
"Administrative Agent"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that a Loan be made in the aggregate principal
amount of $_____ on ___________, 200__ having an Interest Period of __________
months.
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrower that, on the date of
such Loans (before and after giving effect thereto and to the application of the
proceeds therefrom), all statements set forth in Section 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing requested
hereby any matter certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the Administrative Agent.
Except to the extent, if any, that prior to the time of the Borrowing requested
hereby the Administrative Agent shall receive written notice to the contrary
from the Borrower, each matter certified to herein shall be deemed once again to
be certified as true and correct at the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following persons at the financial institutions indicated respectively:
B-1
Person to be Paid
Amount to be -------------------------- Name, Address, etc.
Transferred Name Account No. of Transferee Lender
----------- ----- ----------- --------------------
$---------- ---------- ----------- --------------------
--------------------
Attention:---------
$---------- ---------- ----------- --------------------
--------------------
Attention:---------
Balance of The Borrower ----------- --------------------
such proceeds --------------------
Attention:
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ---- day of ----------, 200-.
ROYAL CARIBBEAN CRUISES LTD.
By: --------------------------------
Name:
Title:
B-2
EXHIBIT C
INTEREST PERIOD NOTICE
Citibank, N.A.
Two Penns Way
New Castle, DE 19720
Attention: Bank Loan Syndications
ROYAL CARIBBEAN CRUISES LTD.
----------------------------
Gentlemen and Ladies:
This Interest Period Notice is delivered to you pursuant to Section 2.4 of
the Credit Agreement, dated as of March 27, 2003 (together with all amendments,
if any, from time to time made thereto, the "Credit Agreement"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), certain
financial institutions and Citibank, N.A., as Administrative Agent (the
"Administrative Agent"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on , 200 ,
(1) $------------- of the presently outstanding principal amount of
the Loans originally made on -------------,--------- [and $--------------
of the presently outstanding principal amount of the Loans originally made
on ------------------,------------],
(2) be continued as Loans having an Interest Period of ------ months.
The Borrower has caused this Interest Period Notice to be executed and
delivered by its Authorized officer this ------------ day of ---------, 200-.
ROYAL CARIBBEAN CRUISES LTD.
By: --------------------------------
Name:
Title:
C-1
EXHIBIT D-1
[Form of Opinion of Counsel to the Borrower]
------------------, 2003
To the Lenders party to the
Credit Agreement referred to
below and to Citibank, N.A.,
as Administrative Agent
Gentlemen:
I am the General Counsel of Royal Caribbean Cruises Ltd. ("RCCL") and have
acted in that capacity in connection with the Credit Agreement dated as of March
27, 2003 (the "Credit Agreement") between RCCL, the Lenders referred to therein
and Citibank, N.A., as Administrative Agent.
In connection with the opinions expressed herein, I have examined originals
or copies certified or otherwise identified to my satisfaction of such
agreements, documents, certificates, and other statements of such governmental
officials and corporate officers and other representatives of the corporations
referred to herein and other papers as I have deemed relevant and necessary as a
basis for such opinions. In making such examinations I have assumed the
genuineness of all signatures and the conformity with the originals of all
documents submitted to me as copies. As to facts material to my opinion, I have
relied on the representations, warranties and statements made in or pursuant to
the Credit Agreement and the other documents referred to herein and upon
certificates of public officials and certificates and other written or oral
statements of officers and other representatives of the corporations named
herein.
Unless otherwise defined herein, the capitalized terms used herein shall
have the meanings assigned to them in the Credit Agreement.
Based on the foregoing and subject to the qualifications and exceptions
expressed herein, it is my opinion that:
(i) no registration or other official action in the State of Florida
is required in order to render the Credit Agreement or any of the other
Loan Documents enforceable against RCCL;
(ii) to the extent that their respective incomes are excludable from
United States Income Taxation pursuant to Section 883 of the Internal
Revenue Code, none of RCCL and its Principal Subsidiaries is, or under
current law will be, taxable on its income under the Revenue Code of the
State of Florida. In addition, RCCL is not required, as a matter of the law
of the State of Florida, to withhold income tax with respect to any
interest or principal payments it is or may be required to make under the
Loan Documents;
D-1-1
(iii) To the best of my knowledge, the execution, delivery and
performance by RCCL of the Credit Agreement and the other Loan Documents,
and the consummation of the transactions contemplated thereby do not
contravene any contractual or legal restriction contained in any
indentures, loan or credit agreements, leases, guarantees, mortgages,
security agreements, bonds, notes and other agreements or instruments, or
any orders, writs, judgments, awards, injunctions and decrees, that affect
or purport to affect RCCL's right to borrow money or RCCL's obligations
under the Credit Agreement or any of the other Loan Documents; and
(iv) To the best of my knowledge, there are no pending or overtly
threatened actions or proceedings against RCCL or any of its Subsidiaries
before any court, governmental agency or arbitrator that purport to affect
the legality, validity, binding effect or enforceability of the Credit
Agreement or any of the other Loan Documents or the consummation of the
transactions contemplated thereby or that are likely to have a materially
adverse effect upon the financial condition or operations of RCCL or any of
its Subsidiaries.
The opinions expressed above are subject to the following further
qualifications: (i) the effect on the enforceability of the Loan Documents or
insolvency, bankruptcy, moratorium, or reorganization laws or other similar laws
affecting generally the enforcement of creditors' rights, (ii) general equity
principles, (iii) the possibility that certain provisions of the agreements may
not be specifically enforceable, (iv) no opinion is expressed herein as to the
choice of law provisions contained in the Agreements, (v) no opinion is
expressed herein as to the necessity of any of the Lenders to be qualified to do
business in the State of Florida or to make any filings in connection therewith
and (vi) no opinion is expressed herein as to laws other than the laws of the
State of Florida.
This opinion is solely for the benefit of the Lenders and the
Administrative Agent and is not to be relied on by any other person.
Very truly yours,
D-1-2
EXHIBIT D-2
[Form of Opinion of Liberian and New York Counsel to the Borrower]
-----------------, 2003
To the Lenders party to the
Credit Agreement referred to
below and to Citibank, N.A.,
as Administrative Agent
Gentlemen:
We have acted as legal counsel on matters of Liberian law and New York law
to Royal Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), in
connection with (a) a Credit Agreement dated as of March 27, 2003 (the "Credit
Agreement") and made between (1) the Borrower, (2) the Lenders (as defined
therein) as several lenders, and (3) Citibank, N.A. (the "Administrative Agent")
in respect of a revolving credit facility in the maximum aggregate amount of
$500,000,000, and (b) the Notes referred to in the Credit Agreement
(collectively, together with the Credit Agreement, the "Documents"). Terms
defined in the Credit Agreement shall have the same meaning when used herein.
With reference to the Documents you have asked for our opinion on the
matters set forth below. In rendering this opinion we have examined executed
copies of the Documents. We have also examined originals or photostatic copies
or certified copies of all such agreements and other instruments, certificates
by public officials and certificates of officers of the Borrower as are relevant
and necessary and relevant corporate authorities of the Borrower. We have
assumed with your approval, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity with the
original documents of all documents submitted to us as copies, the power,
authority and legal right of the parties to the Documents other than the
Borrower to enter into and perform their respective obligations under each of
the Documents, and the due authorization of the execution of the Documents by
all parties thereto other than the Borrower.
As to questions of fact material to this opinion, we have, when relevant
facts were not independently established, relied upon certificates of public
officials and of officers or representatives of the Borrower.
We are attorneys admitted to practice in the State of New York and do not
purport to be experts in the laws of any other jurisdiction. Insofar as our
opinion relates to the law of the Republic of Liberia, we have relied on
opinions of counsel in Liberia rendered in transactions which we consider to
afford a satisfactory basis for such opinion, and upon our independent
examinations of the Liberian Corporation Act of 1948 (Chapter 1 of Title 4 of
the Liberian Code of Laws of 1956, effective March 1, 1958 as amended to July,
1973), the Liberian Business Corporation Act of 1976 (Part 1 of Title V of the
Liberian Code of Laws (Revised) of 1976, effective January 2, 1977) and the
D-2-1
Liberian Maritime Law (Chapter 3 of Title 21 of the Liberian Code of Laws as
amended) as contained in pamphlets delivered to us by The Liberian International
Ship & Corporate Registry, LLC (who have today advised us that to the best of
their knowledge such laws remain in effect on the date hereof) and our knowledge
and interpretation of analogous laws in the United States. We express no opinion
as to the laws of any other jurisdiction. In rendering our opinion as to the
valid existence in good standing of the Borrower, we have relied on Certificates
of Good Standing issued by order of the Minister of Foreign Affairs of the
Republic of Liberia on March __, 2003.
Based upon and subject to the foregoing and having regard to the legal
considerations which we deem relevant, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing under the
aforementioned Business Corporation Act and in good standing under the law
of the Republic of Liberia and has full power to enter into and perform its
obligations under the Documents;
2. The Borrower has full right, power and authority to enter into, execute and
deliver the Documents and to perform each and all of the matters and things
provided for therein;
3. Each of the Documents has been executed and delivered by a duly authorized
signatory of the Borrower and constitutes the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with its terms;
4. Neither the execution of, nor the performance of its obligations under, any
of the Documents by the Borrower will contravene any existing applicable
law, regulation or restrictions of the Republic of Liberia or the State of
New York and no consents or approvals of, or exemptions by, any Liberian or
New York governmental or public bodies and authorities are required in
connection with the execution and delivery by the Borrower of the
Documents;
5. Neither the execution nor delivery of any of the Documents, nor the
transactions contemplated therein, nor compliance with the terms and
conditions thereof, will contravene any provisions of Liberian or New York
law or regulation or violate any provisions of the Articles of
Incorporation or the Bylaws of the Borrower;
6. It is not necessary to file, record or register any of the Documents or any
instrument relating thereto or effect any other official action in any
public office or elsewhere in the Republic of Liberia or the State of New
York to render any such document enforceable against the Borrower;
7. Assuming that no more than 25% of the total combined voting power and no
more than 25% of the total value of the outstanding equity stock of the
Borrower is owned, directly or indirectly, by persons resident in Liberia
and that the Borrower does not engage in Liberia in the pursuit of gain or
profit with a degree of continuity or regularity, the Borrower is not
required or entitled under any existing applicable law or regulation of the
Republic of Liberia to make any withholding or deduction in respect of any
D-2-2
tax or otherwise from any payment which it is or may be required to make
under any of the Documents;
8. Assuming none of the Documents having been executed in Liberia, no stamp or
registration or similar taxes or charges are payable in the Republic of
Liberia in respect of any of the Documents or the enforcement thereof in
the Courts of Liberia other than (i) customary court fees payable in
litigation in the Courts of Liberia and (ii) nominal documentary stamp
taxes if the Documents are ever submitted to a Liberian court;
9. Assuming that the shares of the Borrower and the Principal Subsidiaries are
not owned, directly or indirectly, by the Republic of Liberia or any other
sovereign under Liberian law, neither the Borrower nor any of the Principal
Subsidiaries nor the property or assets of any of them (including in the
case of the Principal Subsidiaries any of the Vessels and their earnings
and insurances and requisition compensation) is immune from the institution
of legal proceedings or the obtaining or execution of a judgment in the
Republic of Liberia; and
10. Under Liberian law the choice by the Borrower of the law of the State of
New York to govern the Credit Agreement and the Notes is a valid choice of
law and the irrevocable submission thereunder by the Borrower to the
jurisdiction of the Supreme Court of the State of New York for the County
of New York and for the United States District Court for the Southern
District of New York is a valid submission to such courts. In the event a
judgment of such courts against the Borrower was obtained after service of
process in the mariner specified in the Credit Agreement, the same would be
enforced by the courts of the Republic of Liberia without further review on
the merits unless: (i) the judgment was obtained by fraud; or (ii) the
judgment was given in a manner contrary to natural justice or the judgment
was given in a manner contrary to the public policy of the Republic of
Liberia; or (iii) the judgment was in a case in which the defendant did not
appear or in which an authorized person did not appear in such defendant's
behalf; or (iv) the judgment was not for a specific ascertained sum of
money; or (v) the judgment was not final and conclusive in accordance with
the laws of the jurisdiction in which the judgment was obtained.
We qualify our opinion to the extent that (i) the enforceability of the
rights and remedies provided for in the Documents (a) may be limited by
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting generally the enforcement of creditors' rights and (b) is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), including application by a
court of competent jurisdiction of principles of good faith, fair dealing,
commercial reasonableness, materiality, unconscionability and conflict with
public policy or similar principles, and (ii) while there is nothing in the law
of the Republic of Liberia that prohibits a Liberian corporation from submitting
to the jurisdiction of a forum other than Liberia, the enforceability of such
submission to jurisdiction provisions is not dependent upon Liberian law and
such provisions may not be enforceable under the law of a particular
jurisdiction.
D-2-3
A copy of this opinion letter may be delivered by any of you to any Person that
becomes a Lender in accordance with the provisions of the Credit Agreement. Any
such Lender may rely on the opinion expressed above as if this opinion letter
were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly disclaim any
responsibility to advise you or any other Lender who is permitted to rely on the
opinion expressed herein as specified in the next preceding paragraph of any
development or circumstance of any kind including any change of law or fact that
may occur after the date of this opinion letter even though such development,
circumstance or change may affect the legal analysis, a legal conclusion or any
other matter set forth in or relating to this opinion letter. Accordingly, any
Lender relying on this opinion letter at any time should seek advice of its
counsel as to the proper application of this opinion letter at such time.
Very truly yours,
D-2-4
EXHIBIT E
LENDER ASSIGNMENT AGREEMENT
To: Royal Caribbean Cruises, Ltd.
To: Citibank, N.A.,
as the Administrative Agent
ROYAL CARIBBEAN CRUISES LTD.
Gentlemen and Ladies:
We refer to clause (b) of Section 11.11.1 of the Credit Agreement, dated as
of March 27, 2003 (together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit Agreement"), among Royal
Caribbean Cruises, Ltd., a Liberian corporation (the "Borrower"), the various
financial institutions (the "Lenders") as are, or shall from time to time
become, parties thereto, and Citibank, N.A., as administrative agent (the
"Administrative Agent") for the Lenders. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
This agreement is delivered to you pursuant to clause (b) of Section
11.11.1 of the Credit Agreement and also constitutes notice to each of you,
pursuant to clause (a) of Section 11.11.1 of the Credit Agreement, of the
assignment and delegation to __________ (the "Assignee") of __% of the Loans and
Commitment of __________ (the "Assignor") outstanding under the Credit Agreement
on the date hereof. After giving effect to the foregoing assignment and
delegation, the Assignor's and the Assignee's Percentages for the purposes of
the Credit Agreement are set forth opposite such Person's name on the signature
pages hereof.
[Add paragraph dealing with accrued interest and fees with respect to Loans
assigned.]
The Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with copies
of the documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans thereunder. The Assignee further
confirms and agrees that in becoming a Lender and in making its Commitment and
Loans under the Credit Agreement, such actions have and will be made without
recourse to, or representation or warranty by the Administrative Agent.
Except as otherwise provided in the Credit Agreement, effective as of the
date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a party to the Credit
Agreement, have all the rights and obligations of a "Lender" under the
Credit Agreement and the other Loan Documents as if it were an original
signatory thereto to the extent specified in the second paragraph hereof;
E-1
(ii) agrees to be bound by the terms and conditions set forth in the
Credit Agreement and the other Loan Documents as if it were an original
signatory thereto; and
(b) the Assignor shall be released from its obligations under the Credit
Agreement and the other Loan Documents to the extent specified in the second
paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor] [Assignee]
will pay to the Administrative Agent the processing fee referred to in Section
11.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitment and requests the
Administrative Agent to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback)
Lending Office:
Telephone:
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by last paragraph of
Section 4.6 (if so required) of the Credit Agreement no later than the date of
acceptance hereof by the Administrative Agent.
E-2
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
Adjusted Percentage [ASSIGNOR]
-------------------
Commitment
and
Loans: ------%
By:-----------------------------
Title:
Adjusted Percentage [ASSIGNOR]
-------------------
Commitment
and
Loans: ------%
By:-----------------------------
Title:
Accepted and Acknowledged this
---- day of --------, ------.
CITIBANK, N.A.,
as Administrative Agent
By: ------------------------
Title:
E-3
EXHIBIT F
FORM OF COMMITMENT INCREASE AGREEMENT
Date: --------------------
Citibank, N.A.,
as Administrative Agent
[add address]
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 27, 2003 (as amended,
restated, modified, supplemented or renewed from time to time, the "Credit
Agreement") among Royal Caribbean Cruises Ltd. (the "Borrower"), the Lenders
referred to therein, and Citibank, N.A., as administrative agent (in such
capacity, the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein as therein defined.
This Commitment Increase Agreement is made and delivered pursuant to
Section 2.7 of the Credit Agreement.
Subject to the terms and conditions of Section 2.7 of the Credit Agreement,
------------------------------- (the "Increasing Lender") will increase its
Commitment to an amount equal to $-----------, on the Increased Commitment Date
applicable to it. The Increasing Lender hereby confirms and agrees that with
effect on and after such Increased Commitment Date, the Commitment of the
Increasing Lender shall be increased to the amount set forth above, and the
Increasing Lender shall have all of the rights and be obligated to perform all
of the obligations of a Lender under the Credit Agreement with a Commitment in
the amount set forth above.
Effective on the Increased Commitment Date applicable to it, the Increasing
Lender (i) accepts and assumes from the assigning Lenders, without recourse,
such assignment of Loans as shall be necessary to effectuate the adjustments in
the Percentages of the Lenders contemplated by Section 2.7 of the Credit
Agreement, and (ii) to the extent there are Outstanding Loans, agrees to fund on
such Increased Commitment Date such assumed amounts of Loans to the
Administrative Agent for the account of the assigning Lenders in accordance with
the provisions of the Credit Agreement, in the amount notified to the Increasing
Lender by the Administrative Agent.
This Commitment Increase Agreement shall constitute a Loan Document under
the Credit Agreement.
F-1
THIS COMMITMENT INCREASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, NOTWITHSTANDING ITS EXECUTION
OUTSIDE SUCH STATE.
IN WITNESS WHEREOF, the Increasing Lender has caused this Commitment
Increase Agreement to be duly executed and delivered in -------------,
-------------, by its proper and duly authorized officer as of the day and year
first above written.
[INCREASING BANK]
By:-------------------------------
Title:
CONSENTED TO as of ------------:
ROYAL CARIBBEAN CRUISES LTD.
By:----------------------------
Title:
ACKNOWLEDGED as of ------------:
CITIBANK, N.A.,
as Administrative Agent
By:----------------------------
Title:
H-2
EXHIBIT G
FORM OF ADDED LENDER AGREEMENT
Date: -------------------
Citibank, N.A.
as Administrative Agent
[add address]
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 27, 2003 (as amended,
restated, modified, supplemented or renewed from time to time, the "Credit
Agreement") among Royal Caribbean Cruises Ltd. (the "Borrower"), the Lenders
referred to therein, and Citibank, N.A., as administrative agent (in such
capacity, the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein as therein defined.
This Added Lender Agreement is made and delivered pursuant to Section 2.7
of the Credit Agreement.
Subject to the terms and conditions of Section 2.7 of the Credit Agreement,
------------------------ (the "Added Lender") will become a party to the Credit
Agreement as a Lender, with a Commitment equal to $-----------, on the Increased
Commitment Date applicable to it. The Added Lender hereby confirms and agrees
that with effect on and after such Increased Commitment Date, the Added Lender
shall be and become a party to the Credit Agreement as a Lender and have all of
the rights and be obligated to perform all of the obligations of a Lender
thereunder with a Commitment in the amount set forth above.
Effective on the Increased Commitment Date applicable to it, the Added
Lender (i) accepts and assumes from the assigning Lenders, without recourse,
such assignment of Loans as shall be necessary to effectuate the adjustments in
the Percentages of the Lenders contemplated by Section 2.7 of the Credit
Agreement, and (ii) agrees to fund on such Increased Commitment Date such
assumed amounts of Loans to the Administrative Agent for the account of the
assigning Lenders in accordance with the provisions of the Credit Agreement, in
the amount notified to the Added Lender by the Administrative Agent.
H-3
The following administrative details apply to the Added Lender:
(A) Lending Office(s):
-----------------
Lender name: ---------------------------------------------------
Address: ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Attention: ---------------------------------------------------
Telephone: ( )---------------------------------------------
Facsimile: ( )---------------------------------------------
Lender name: ---------------------------------------------------
Address: ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Attention: ---------------------------------------------------
Telephone: ( )---------------------------------------------
Facsimile: ( )---------------------------------------------
(B) Notice Address:
---------------
Lender name: ---------------------------------------------------
Address: ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Attention: ---------------------------------------------------
Telephone: ( )---------------------------------------------
Facsimile: ( )---------------------------------------------
(C) Payment Instructions:
---------------------
Account Number: ---------------------------------------------------
At: ---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Reference: ---------------------------------------------------
Attention: ---------------------------------------------------
This Added Lender Agreement shall constitute a Loan Document under the
Credit Agreement.
H-4
THIS ADDED LENDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, NOTWITHSTANDING ITS EXECUTION
OUTSIDE SUCH STATE.
IN WITNESS WHEREOF, the Added Lender has caused this Added Lender Agreement
to be duly executed and delivered in ---------------, ------------, by its
proper and duly authorized officer as of the day and year first above written.
[ADDED LENDER]
By:---------------------------------
Title:
ONSENTED TO as of --------:
ROYAL CARIBBEAN CRUISES LTD.
By:------------------------
Title:
ACKNOWLEDGED as of -------:
CITIBANK, N.A.,
as Administrative Agent
By:-----------------------
Title:
H-5
EXHIBIT H
[Form of opinion of Shearman & Sterling]
----------------, 2003
To the Initial Lenders party to the
Credit Agreement referred to
below and to Citibank, N.A.,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as Administrative
Agent, in connection with the preparation, execution and delivery of the Credit
Agreement dated as of ___________, 2003 (the "Credit Agreement"), among Royal
Caribbean Cruises Ltd., a Liberian corporation (the "Borrower"), and each of you
(each a "Lender"). Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, we have examined a counterpart of the Credit Agreement
executed by the Borrower, the Notes executed by the Borrower and delivered on
the date hereof (for purposes of this opinion letter, the "Notes") and, to the
extent relevant to our opinion expressed below, the other documents delivered by
the Borrower pursuant to Section 5.1 of the Credit Agreement.
In our examination of the Credit Agreement, the Notes and such other documents,
we have assumed, without independent investigation (a) the due execution and
delivery of the Credit Agreement by all parties thereto and of the Notes by the
Borrower, (b) the genuineness of all signatures, (c) the authenticity of the
originals of the documents submitted to us and (d) the conformity to originals
of any documents submitted to us as copies.
In addition, we have assumed, without independent investigation, that (i) the
Borrower is duly organized and validly existing under the laws of the
jurisdiction of its organization and has full power and authority (corporate and
otherwise) to execute, deliver and perform the Credit Agreement and the Notes
and (ii) the execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes have been duly authorized by all necessary action
(corporate or otherwise) and do not (A) contravene the certificate of
incorporation, bylaws or other constituent documents of the Borrower, (B)
conflict with or result in the breach of any document or instrument binding on
the Borrower or (C) violate or require any governmental or regulatory
authorization or other action under any law, rule or regulation applicable to
the Borrower other than New York law or United States federal law applicable to
borrowers generally or, assuming the correctness of the Borrower's statements
made as representations and warranties in Section 6.3 of the Credit Agreement,
applicable to the Borrower. We have also assumed that the Credit Agreement is
the legal, valid and binding obligation of each Lender, enforceable against such
Lender in accordance with its terms.
H-6
Based upon the foregoing examination and assumptions and upon such other
investigation as we have deemed necessary and subject to the qualifications set
forth below, we are of the opinion that the Credit Agreement and each of the
Notes are the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
Our opinion above is subject to the following qualifications:
(i) Our opinion above is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar law affecting creditors' rights generally.
(ii) Our opinion above is also subject to the effect of general principles
of equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(iii)We express no opinion as to the enforceability of the indemnification
provisions set forth in Section 11.4 of the Credit Agreement to the
extent enforcement thereof is contrary to public policy regarding the
exculpation of criminal violations, intentional harm and acts of
willful or gross negligence or recklessness.
(iv) We also express no opinion as to the enforceability of the provisions
of Section 11.15 of the Credit Agreement (concerning currency
conversion for judgments, and judgments in a currency other than that
of the primary currency).
(v) Our opinion above is limited to the law of the State of New York and
the federal law of the United States of America and we do not express
any opinion herein concerning any other law. Without limiting the
generality of the foregoing, we express no opinion as to the effect of
the law of a jurisdiction other than the State of New York wherein any
Lender may be located or wherein enforcement of the Credit Agreement
or any of the Notes may be sought that limits the rates of interest
legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to any Person that
becomes a Lender in accordance with the provisions of the Credit Agreement. Any
such Lender may rely on the opinion expressed above as if this opinion letter
were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly disclaim any
responsibility to advise you or any other Lender who is permitted to rely on the
opinion expressed herein as specified in the next preceding paragraph of any
development or circumstance of any kind including any change of law or fact that
may occur after the date of this opinion letter even though such development,
circumstance or change may affect the legal analysis, a legal conclusion or any
other matter set forth in or relating to this opinion letter. Accordingly, any
Lender relying on this opinion letter at any time should seek advice of its
counsel as to the proper application of this opinion letter at such time.
H-7
Very truly yours,
WEH:SLH
H-8