EXHIBIT 10.2
XXXXXX BANK PLC
CHRISTIANIA BANK OG KREDITKASSE ASA
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
(as lenders)
- and -
XXXXXX BANK PLC
(as agent)
- and -
CROWN CRUISES OF PANAMA, INC.
(as borrower)
- and -
XXXXXX BANK PLC
(as trustee)
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LOAN AGREEMENT
RE USD45,000,000 REVOLVING FACILITY
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Xxxxxxxx Xxxxx & Temperley
Xxxxx Xxxxx
0 Xxxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Ref: GFS/242921
INDEX OF CONTENTS
CLAUSE SUBJECT PAGE
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1. Purpose and Definitions..................................................1
2. The Lenders' Commitment..................................................9
3. Availability............................................................10
4. Interest................................................................11
5. Repayment...............................................................13
6. Compulsory Prepayment...................................................13
7. Commitment, Arrangement and Agency Fees.................................14
8. Indemnity...............................................................15
9. Payments................................................................18
10. Application of Moneys...................................................19
11. Default.................................................................22
12. Security................................................................25
13. Representations and Warranties..........................................26
14. Covenants...............................................................28
15. Set-off and Sharing of Payments.........................................33
16. Assignment and Participation............................................34
17. Miscellaneous...........................................................36
18. Notices.................................................................36
19. Proper Law and Jurisdiction.............................................37
Schedule A : Conditions Precedent...........................................38
Schedule B : Financial Ratios...............................................42
Signature Pages.............................................................43
Appendix I : Form of Utilization Notice.....................................45
Appendix II : Form of Compliance Certificate................................46
THIS AGREEMENT is made the 24th day of January, 2000
BETWEEN:-
(1) THE LENDERS (as hereinafter defined);
(2) THE AGENT (as hereinafter defined);
(3) THE BORROWER (as hereinafter defined); and
(4) THE TRUSTEE (as hereinafter defined).
IT IS HEREBY AGREED as follows:-
1. PURPOSE AND DEFINITIONS
1.1 This agreement contains the terms and conditions upon which the
Lenders, with the Agent acting as their agent, will make available to
the Borrower a secured revolving loan facility of up to but not
exceeding forty five million United States Dollars (USD45,000,000) at
any one time.
1.2 In this agreement the following words and expressions shall have the
following meanings:-
"AGENT"
means Xxxxxx Bank Plc, a company incorporated under the laws of Finland
acting through its London branch having its principal place of business
at 00 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX in its capacity as agent for
the Lenders pursuant to the Deed of Agency and Trust;
"BORROWED MONEY"
means Indebtedness incurred in respect of (i) money borrowed or raised,
(ii) any bond, note, loan stock, debenture or similar instrument, (iii)
acceptance or documentary credit facilities, (iv) deferred payments for
assets or services acquired other than for provisions, bunkers, spare
parts or services acquired in the ordinary course of, and incidental
to, the operation of the Vessel, (v) rental payments under and any
amounts payable on termination of leases (whether in respect of ships,
land, machinery,
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equipment or otherwise) entered into primarily as a method of raising
finance or of financing the acquisition of the asset leased, (vi)
guarantees, bonds, stand-by letters of credit or other instruments
issued in connection with the performance of contracts and (vii)
guarantees or other assurances against financial loss in respect of
Indebtedness of any person, firm or company falling within any of (i)
to (vi) above;
"BORROWER"
means Crown Cruises of Panama, Inc., a company incorporated under the
laws of Panama with its registered office at x/x Xxxxxxx Xxxxx & Xxxxx,
Xxxxxx Xxxxx Xx. 00, Xxxxxxx Xxxxxxxx Xxxx & Calle Xx. 00, Xxxx 0, 00 &
00, Xxxxxx, Xxxxxxxx of Panama;
"BRIDGE LOAN FACILITY"
means the loan of six million seven hundred and twenty thousand United
States Dollars (USD6,720,000) made available by the Lenders to the
Borrower under the Bridge Loan Facility Agreement;
"BRIDGE LOAN FACILITY AGREEMENT"
means the agreement of even date herewith made between the parties
hereto in respect of the Bridge Loan Facility;
"BRIDGE LOAN SECURITIES"
means the securities provided or to be provided to the Agent pursuant
to the Bridge Loan Facility Agreement as security for the Bridge Loan
Facility;
"BUSINESS DAY"
means any day on which banks and foreign exchange markets in Helsinki,
Oslo, London and New York are open for the transaction of business of
the nature contemplated in this agreement;
"CHARTER"
means the space charter in respect of the Vessel made or to be made
between the Borrower as owner and the Charterer as charterer;
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"CHARTERER"
means Crown Cruises Limited, a company incorporated under the laws of
Bermuda with its registered office at c/o Francis & Forest, Xxxxxx
Xxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx;
"CONTRIBUTIONS"
means the proportions of the Loan (and, where the context so requires,
any relevant part thereof) set out opposite the names of the Lenders on
the signature pages of this agreement and "Contribution" means any one
of them;
"DEED OF AGENCY AND TRUST"
means the deed of even date herewith made between the Agent, the
Trustee and the Lenders whereby the Agent is appointed agent for the
Lenders in respect of this agreement and the Trustee declares a trust
in respect of the other Security Documents;
"DRAWDOWN DATE"
means the date on which the relevant Drawing is advanced pursuant to
clause 3 hereof;
"DRAWING"
means any one amount advanced or to be advanced in accordance with a
notice in respect thereof given pursuant to clause 3.1(C) hereof and
"Drawings" means more than one of them;
"EARNINGS ACCOUNT"
means the account in the name of the Borrower at the Agent's New York
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000;
"EARNINGS ASSIGNMENT"
means the assignment executed pursuant to clause 12.1(C) hereof;
"ENCUMBRANCE"
means any mortgage, charge, pledge, lien, assignment, hypothecation,
title retention, preferential right or trust arrangement and any other
security agreement or arrangement;
"ESL"
means EFF-Shipping Limited, a company incorporated under the laws of
the Cayman Islands with its registered office at the offices of Huntlaw
Corporate Services Ltd.,
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The Huntlaw Building, P.O. Box 1350, Xxxxxx Town, Grand Cayman, Cayman
Islands;
"EVENT OF DEFAULT"
means any of the events or circumstances specified in clause 11.1
hereof;
"GAAP"
means accounting principles generally accepted in the United States of
America and consistently applied;
"GUARANTOR"
means Commodore Holdings Limited, a company incorporated under the laws
of Bermuda with its registered office at c/o Francis & Forest, Xxxxxx
Xxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx;
"INDEBTEDNESS"
means any obligation for the payment or repayment of money, whether as
principal or as surety and whether present or future, actual or
contingent;
"INSURANCE ASSIGNMENT"
means the assignment executed pursuant to clause 12.1(B) hereof;
"INTEREST PERIOD"
means any period determined in accordance with the provisions of clause
4.1 hereof for the calculation of interest on the Loan or any relevant
part thereof;
"LENDERS"
means the banks and financial institutions whose names and lending
offices appear under and who have signed under the heading "The
Lenders" on the signature pages of this agreement and "Lender" means
any one of them;
"LOAN"
means up to but not exceeding the Maximum Sum or, where the context so
requires, the aggregate amount of any Drawing(s) from time to time
unrepaid and outstanding;
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"MANAGEMENT AGREEMENT"
means the agreement for the management of the Vessel made or to be made
between the Borrower and the Manager;
"MANAGER"
means New Commodore Cruise Lines Limited, a company incorporated under
the laws of Bermuda with its registered office at c/o Francis & Forest,
Xxxxxx Xxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx;
"MARGIN"
means one and three quarters per cent (1.75%) per annum;
"MAXIMUM SUM"
means the lesser from time to time of:-
(i) forty five million United States Dollars (USD45,000,000) which
sum shall be automatically reduced by the following amounts on
the following dates:-
REDUCTION DATE
USD on the final day of each of the seventh to
416,667 the twenty fourth months inclusive after
the first Drawdown Date
USD on the final day of each of the twenty
312,500 fifth to the seventy second months
inclusive after the first Drawdown Date
USD on the Termination Date
22,499,994
and which sum may be further reduced (in inverse order to the
above reductions) by the Borrower pursuant to clause 3.1(H)
hereof;
(ii) sixty five per cent (65%) of the market value of the Vessel
(assessed in accordance with clause 11.1(L) hereof) plus the
value of any additional security provided to (and still held
by) the Lender pursuant to clause 11.1(L) hereof; and
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(iii) (from and after a Total Loss or sale of the Vessel) zero
United States Dollars (USD0.00);
"MOA"
means the agreement for the sale and purchase of the Vessel made or to
be made between the Seller and the Borrower;
"MORTGAGE"
means the first Panamanian naval mortgage over the Vessel executed
pursuant to clause 12.1(A) hereof;
"PERMITTED LIENS"
means liens for current crews' wages and salvage and liens incurred in
the ordinary course of trading the Vessel up to an aggregate amount at
any time not exceeding five per cent (5%) of the charter-free sale
value of the Vessel (such market value to be conclusively determined as
the average of the latest three (3) valuations obtained by the Agent as
provided in clause 8.2 hereof);
"REFERENCE BANKS"
means the Lenders;
"SECURITY DOCUMENTS"
means the Deed of Agency and Trust and the documents executed pursuant
to clause 12.1 hereof and any other document or documents from time to
time providing and/or evidencing and/or constituting security in
respect of the Loan;
"SECURITY PARTIES"
means the Borrower, the Guarantor and the Manager and any other party
to any of the Security Documents from time to time (other than the
Seller, ESL, the Lenders, the Agent and the Trustee) and "Security
Party" means any one of them;
"SELLER"
means Crown Dynasty Inc., a company incorporated under the laws of
Panama with its registered office at Vallarino, Vallarino & Xxxxxx -
Xxxxxxxx, 20th Floor, Banco Continental Building, Xxxxx 00 x Xxxxxxxx
Xx Xx Xxxxxxx, Xxxxxx Xxxx, Xxxxxx;
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"SELLER'S CREDIT"
means the seller's credit in the sum of twenty four million four
hundred and eighty thousand United States Dollars (USD24,480,000)
procured by the Seller for the Borrower from ESL pursuant to the MOA
and made available to the Borrower by ESL under the Seller's Credit
Agreement;
"SELLER'S CREDIT AGREEMENT"
means the agreement made or to be made between ESL and the Borrower in
respect of the Seller's Credit;
"SELLER'S CREDIT SECURITIES"
means the securities provided or to be provided to ESL pursuant to the
Seller's Credit Agreement as security for the Seller's Credit;
"SUB-CHARTER"
means the space sub-charter of the Vessel made or to be made between
the Charterer as disponent owner and the Sub-Charterer as charterer on
back to back terms with the Charter;
"SUB-CHARTERER"
means Xxxxxxxx and Xxxxxx, Inc. doing business as Apple Vacations, a
company incorporated under the laws of Pennsylvania with its registered
office at 0 Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000,
X.X.X.;
"SUBJECT DOCUMENTS"
means this agreement, the Security Documents, the MOA, the Charter, the
Sub-Charter, the Management Agreement, the Bridge Loan Facility
Agreement, the Bridge Loan Securities, the Seller's Credit Agreement,
the Seller's Credit Securities and any and all documents executed
pursuant to any one or more of these documents;
"TERMINATION DATE"
means the earlier of the date falling seventy two (72) months after the
first Drawdown Date and the date (if any) when the loan facility made
available hereunder is cancelled in accordance with the provisions of
this agreement;
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"TOTAL LOSS"
means:-
(i) actual or constructive or compromised or agreed or arranged
total loss of the Vessel; or
(ii) requisition for title or other compulsory acquisition of the
Vessel otherwise than by requisition for hire; or
(iii) capture, seizure, arrest, detention or confiscation of the
Vessel by any government or by persons acting or purporting to
act on behalf of any government unless the Vessel is released
and restored to the Borrower from such capture, seizure,
arrest or detention within thirty (30) days after the
occurrence thereof;
"TRUSTEE"
means Xxxxxx Bank Plc, a company incorporated under the laws of Finland
acting through its London branch having its principal place of business
at 00 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX in its capacity as trustee
pursuant to the Deed of Agency and Trust;
"UNITED STATES DOLLARS" and "USD"
mean the lawful currency of the United States of America; and
"VESSEL"
means the motor vessel named "Crown Dynasty" now registered under
Panamanian flag in the ownership of the Seller which is to remain
registered under Panamanian flag in the ownership of the Borrower
pursuant to the MOA.
1.3 References to any document shall be construed to mean that document as
amended and/or varied and/or supplemented from time to time with the
agreement of the relevant parties and (where such consent is required
by the terms of this agreement or the relevant document) with the
consent of the Agent and/or the Lenders and/or the Trustee.
1.4 Clause headings are inserted for convenience of reference only and
shall be ignored in
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the interpretation of this agreement.
2. THE LENDERS' COMMITMENT
2.1 In reliance upon the representations and warranties contained in clause
13 hereof and in the Security Documents and subject to the terms and
conditions of this agreement the Lenders will make the Loan available
to the Borrower for the purpose of financing (in part) the purchase of
the Vessel by the Borrower pursuant to the MOA.
2.2 Each of the Lenders shall advance its Contribution to each Drawing.
2.3 The liability of each of the Lenders hereunder is several and none of
the Lenders shall be responsible for any failure by any other Lender to
meet its obligations hereunder nor shall any such failure relieve the
Borrower or any other Lender of all or any of its respective
obligations hereunder. If any Lender shall fail to advance its
Contribution in circumstances where the Agent has already advanced the
Loan or any relevant part thereof to the Borrower then the Borrower
shall forthwith upon the demand of the Agent repay to the Agent an
amount equal to any such Contribution together with any interest
accrued thereon. The Agent shall not be obliged to advance the Loan or
any part thereof to the Borrower other than such Contribution(s) as the
Agent has received from the Lenders.
3. AVAILABILITY
3.1 On and as from the date hereof the Borrower shall be entitled to draw
upon the Loan provided always that:-
(A) all items specified in schedule A hereto have been received by
the Agent and are in form and substance satisfactory to the
Agent;
(B) no Event of Default and no event which with the giving of
notice and/or lapse of time would constitute an Event of
Default has occurred;
(C) the Agent has received a written notice from the Borrower in
the form set out in appendix I hereto indicating the
Borrower's intention to draw upon the Loan not less than four
(4) Business Days prior to the date of relevant Drawing (in
the case of the first Drawing) and not less than three (3)
Business Days prior to the date of relevant Drawing (in the
case of each subsequent Drawing);
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(D) the first Drawing shall be used for the purchase described in
clause 2.1 hereof;
(E) no Drawing shall amount to less than one million United States
Dollars (USD1,000,000) and no Drawing shall increase the Loan
to a sum in excess of the Maximum Sum;
(F) no Drawing shall be made if another Drawing remains unrepaid
and outstanding unless the full amount of the new Drawing is
to be applied immediately in or towards repayment of that
other Drawing;
(G) to the extent that the outstanding amount of the Loan is
reduced by virtue of a repayment or prepayment made by the
Borrower to the Agent to a level below the Maximum Sum the
Borrower shall again be entitled to make Drawings subject
always to the other provisions of this clause 3.1;
(H) the Borrower shall be entitled in whole or in part to cancel
the loan facility made available under this agreement with
effect from the final day of the then current
Interest Period by giving the Lender not less than five (5)
days written notice to that effect, provided that any part
cancellation shall be in an amount of not less than one
million United States Dollars (USD1,000,000) and shall take
effect as a reduction in the Maximum Sum in accordance with
subclause (i) of the definition thereof but in inverse order
to the reductions provided in that subclause; and
(I) the first Drawing must be made no later than 31 January 2000
and no Drawing shall be made after the Termination Date.
3.2 The Lenders may in their absolute discretion allow any Drawing to be
made notwithstanding that the Agent has not received all the items
specified in schedule A hereto and in this event the Borrower hereby
covenants to procure the delivery of all the missing items to the Agent
within thirty (30) days after the Drawdown Date of the relevant
Drawing.
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4. INTEREST
4.1 The Borrower shall pay interest on the Loan from the first Drawdown
Date for each successive Interest Period which shall, subject to
clauses 4.3 and 6.2 hereof, be one (1) month provided always that:-
(A) if the relevant funds are not available to the Lenders for any
Interest Period the Agent shall be entitled to determine
conclusively the length of that Interest Period;
(B) if an Interest Period will expire after the due date for
repayment of any Drawing remaining unrepaid and outstanding
that Interest Period shall be shortened to expire on that due
date; and
(C) if an Interest Period would otherwise expire on a day which is
not a Business Day that Interest Period shall be extended to
expire on the next succeeding Business Day unless that next
succeeding Business Day falls within a fresh month in which
event that Interest Period shall be shortened to expire on the
immediately preceding Business Day.
4.2 Subject to clauses 4.3 and 6.2 hereof the Borrower shall pay interest
on the Loan or any relevant part thereof for each Interest Period at
the rate certified conclusively (save for manifest error) by the Agent
to be the aggregate of the Margin and the rate per cent per annum for
that Interest Period quoted by Telerate Screen 3750 (rounded up to the
nearest one sixteenth of one per cent)(or, if the Telerate system is
not working, by Reuters Page ISDA (rounded up to the nearest one
sixteenth of one per cent) or, if neither the Telerate system nor the
Reuters system is working, the average rate per cent per annum (rounded
up to the nearest one sixteenth of one per cent) at which deposits of
amounts of United States Dollars equivalent to or comparable with the
Loan or relevant part thereof are offered to the Reference Banks (or
two of them if one is unable to quote a rate) for that Interest Period
in the London Inter-bank Market at or about 11.00 a.m. (London time)
two (2) Business Days (in London only) prior to the commencement of
that Interest Period. Such interest shall accrue and be payable on the
actual number of days elapsed, shall be calculated on the basis of a
year of three hundred and sixty (360) days and shall be paid on the
final day of that Interest Period and (if that Interest Period is
longer than one (1) month) at one (1) monthly intervals.
4.3 In the event of default by the Borrower in the payment of any sum
whatsoever due
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under this agreement (including interest) the Borrower shall pay
interest on that sum from the due date until payment (after as well as
before judgement) at a rate certified conclusively (save for manifest
error) by the Agent to be three and a half per cent (3.5 %) per annum
over the average cost to the Lenders (rounded up to the nearest one
sixteenth of one per cent) of funding their respective Contributions to
that sum for such periods as the Agent in its absolute discretion may
think fit on the Business Day succeeding that on which it became aware
of the default and for so long as that sum remains unpaid that rate
shall be re-calculated on the same basis. Such interest shall accrue
and be payable on each day elapsing, shall be calculated on the basis
of a year of three hundred and sixty (360) days and shall be paid on
the demand of the Agent. In default of payment such interest shall be
compounded.
4.4 The Agent shall as soon as reasonably practicable notify the Borrower
of each rate of interest payable on the Loan or any relevant part
thereof under this clause 4.
5. REPAYMENT
5.1 Subject to clauses 6 and 11.1 hereof the Borrower shall repay each
Drawing one (1) month after the Drawdown Date in respect thereof.
6. COMPULSORY PREPAYMENT
6.1 If for any reason whatsoever beyond the control of any one or more of
the Lenders it shall become unlawful or impossible for such one or more
of the Lenders to maintain or give effect to all or part of its or
their obligations as contemplated by this agreement and evidence
substantiating that unlawfulness or impossibility has been produced by
such one or more of the Lenders to the Agent then:-
(A) the obligation of such one or more of the Lenders to advance
funds under clause 2.2 hereof and to participate in the Loan
or the relevant part thereof shall cease;
(B) the Borrower shall forthwith upon the demand of the Agent
repay to the Agent for the benefit of such one or more of the
Lenders the amount of its or their Contribution(s) to the Loan
or the relevant part thereof together with interest
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accrued thereon and any sums due to such one or more of the
Lenders by virtue of that repayment under clause 8.5 hereof;
and
(C) the Maximum Sum shall be reduced by the amount of the
Contribution(s) of such one or more of the Lenders to the
Loan.
6.2 If the Agent shall:-
(A) determine in good faith that by reason of circumstances
affecting the London Inter-Bank Market generally adequate and
reasonable means do not exist for ascertaining the rate of
interest payable on the Loan or any relevant part thereof for
any Interest Period in accordance with clause 4.2 hereof; or
(B) receive notice from any one or more of the Lenders that it
would not be practicable or possible for such one or more of
the Lenders to fund or continue to fund its or their
Contribution(s) to the Loan or any relevant part thereof in
the London Inter-Bank Market,
then the Agent shall inform the Borrower in writing to that effect and
unless the Lenders and the Borrower shall agree acceptable alterations
to the terms of this agreement (on the basis of an alternative source
of funds available to the relevant Lenders) then:-
(i) the obligation of the relevant Lenders to advance
funds under clause 2.2 hereof and to participate in
the Loan or the relevant part thereof shall cease;
(ii) the Agent shall give notice to the Borrower
terminating the participation of the relevant Lenders
in the Loan or the relevant part thereof whereafter
the amount of its or their Contribution(s) to the
Loan or the relevant part thereof together with
interest accrued thereon shall become repayable by
the Borrower within thirty (30) days thereafter; and
(iii) the Maximum Sum shall be reduced by the amount of the
Contribution(s) of the relevant Lenders to the Loan.
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7. COMMITMENT, ARRANGEMENT AND AGENCY FEES
7.1 The Borrower shall pay to the Agent for the benefit of the Lenders a
commitment fee of zero point seven five per cent (0.75%) per annum on
the undrawn amount of the Maximum Sum from the date hereof to the
Termination Date. Such commitment fee shall accrue and be payable on
each day elapsing and shall be paid at one (1) monthly intervals after
the date hereof.
7.2 The Borrower shall pay to the Agent for the benefit of the Lenders on
the date hereof an arrangement fee of four hundred and fifty thousand
United States Dollars (USD450,000), which fee the Borrower hereby
accepts has been fully earned on the date hereof.
7.3 The Borrower shall pay to the Agent for the benefit of the Agent an
agency fee of five thousand United States Dollars (USD5,000) per annum.
Such agency fee shall accrue and be payable on each day elapsing after
the first Drawdown Date and shall be paid in advance on the first
Drawdown Date and at twelve (12) monthly intervals thereafter.
8. INDEMNITY
8.1 If any change in law or regulation or in the interpretation thereof or
if compliance by any one or more of the Lenders with any direction
request or requirement (whether or not having the force of law) of any
central bank or other authority shall:-
(A) subject any one or more of the Lenders to any tax with respect
to the Loan or any part thereof (other than tax on overall net
income);
(B) change the basis of taxation to any one or more of the Lenders
of payments of principal or interest or any other payment due
or to become due hereunder;
(C) impose or modify any reserve, liquidity or capital adequacy
requirements or require the making of any special deposits
affecting any one or more of the Lenders; or
(D) impose on any one or more of the Lenders any other condition
affecting the Loan or any part thereof whether or not any
Drawing has been advanced
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and the result is either to increase the cost to any one or more of the
Lenders of making or maintaining or committing to make its or their
Contribution(s) to the Loan or any part thereof or to reduce the amount
of any payment received by any one or more of the Lenders hereunder or
to reduce the rate of return which any one or more of the Lenders would
have been able to obtain on its or their overall capital but for
entering into and/or performing this agreement and evidence
substantiating the situation has been produced by such one or more of
the Lenders to the Agent then:-
(i) the Agent shall use its best efforts promptly to
notify the Borrower in writing of the situation;
(ii) the Borrower shall pay to the Agent forthwith upon
the demand of the Agent such amount as will
compensate such one or more of the Lenders for such
additional cost or such reduction and a certificate
of the additional amount or amounts so required
submitted by the Agent to the Borrower shall save for
manifest error be conclusive evidence thereof; and
(iii) any such demand may be made by the Agent at any time
before or after repayment of the Loan.
8.2 All legal fees and other reasonable costs and expenses whatsoever
(including without limitation the costs of obtaining, not more than
twice in each period of twelve (12) months after the date hereof,
valuations of the Vessel from three (3) independent shipbrokers
acceptable to the Agent) incurred by the Agent and/or the Trustee
and/or any one or more of the Lenders in connection with any one or
more of this agreement, the Security Documents and any other documents
executed pursuant hereto or thereto shall be paid by the Borrower
forthwith upon demand by the Agent on a full indemnity basis whether or
not any Drawing is advanced.
8.3 The Borrower shall pay forthwith upon demand by the Agent all stamp,
registration and other duties (including any such duties payable by the
Agent and/or the Trustee and/or any one or more of the Lenders) imposed
by any authority in respect of any one or more of this agreement, the
Security Documents and any other documents executed pursuant hereto or
thereto or otherwise in connection with the Loan.
8.4 Without prejudice to the rights of the Agent and/or the Trustee and/or
the Lenders
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under or pursuant to clause 11 hereof the Borrower shall indemnify the
Agent and/or the Trustee and/or any one or more of the Lenders fully
forthwith upon demand by the Agent for any and all losses damages
and/or expenses whatsoever incurred by the Agent and/or the Trustee
and/or such one or more of the Lenders:-
(A) as a result of any Drawing not being advanced for any reason
whatsoever in accordance with a notice given pursuant to
clause 3.1(C) hereof (provided that no Lender whose default
has caused that Drawing not to be advanced may claim any
indemnity under this clause 8.4(A));
(B) as a result of an Event of Default;
(C) in perfecting, protecting the value of or enforcing any of its
or their rights or securities under any one or more of this
agreement, the Security Documents and any other documents
executed pursuant hereto or thereto or in attempting so to do;
or
(D) as a result of any payment hereunder, whether pursuant to a
judgment or otherwise, being made, obtained or enforced in a
currency other than United States Dollars.
8.5 In the event that the whole or part of any Drawing is repaid or prepaid
otherwise than on the final day of an Interest Period in respect
thereof the Borrower shall (A) indemnify any one or more of the Lenders
fully forthwith upon demand by the Agent for any and all losses damages
and/or expenses incurred by such one or more of the Lenders in
liquidating or reemploying fixed deposits acquired from third parties
to maintain its or their Contribution(s) to that Drawing or the
relevant part thereof (as the case may be) until the expiry of the then
current Interest Period in respect thereof and (B) pay to any one or
more of the Lenders forthwith on demand any sums due to such one or
more of the Lenders as a result of that repayment or prepayment under
clause 8.6 hereof.
8.6 The Borrower shall indemnify any one or more of the Lenders fully
forthwith upon demand by the Agent for all losses, premiums, penalties,
costs and expenses whatsoever incurred by such one or more of the
Lenders in connection howsoever with any interest rate "swap", "cap" or
other transaction entered into or to be entered
- 17 -
into or arranged by such one or more of the Lenders at the request or
on behalf of the Borrower at any time and from time to time with any
counterparty a direct or indirect commercial purpose of which is to
limit or offset the exposure of the Borrower to future increases of
floating interest rates in connection howsoever with this agreement.
8.7 The indemnities contained in this clause 8 shall apply irrespective of
any indulgence granted to the Borrower or any other party from time to
time and shall continue in full force and effect notwithstanding any
payment in favour of the Agent and/or the Trustee and/or any one or
more of the Lenders and any amount due from the Borrower under this
clause 8 will be due as a separate debt and shall not be affected by
judgment being obtained for any other sums due under any one or more of
this agreement, the Security Documents and any other documents executed
pursuant hereto or thereto.
9. PAYMENTS
9.1 All payments by the Borrower hereunder shall be made to the Agent's
account with such bank or banks as the Agent shall nominate from time
to time.
9.2 Subject to the sub-clauses of this clause 9.2 all payments by the
Borrower hereunder shall be made in full without set-off or
counterclaim and free and clear of and without deduction or withholding
for or on account of any tax of any jurisdiction.
(A) If the Borrower is required by law to make any deduction or
withholding from any payment hereunder for or on account of
tax, it shall do so and the sum due from the Borrower in
respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction
or withholding, the Agent receives and each relevant party
retains (free of any liability in respect of any such
deduction or withholding) a net sum equal to the sum it would
have received and retained had no deduction or withholding
been required to be made.
(B) If at any time the Borrower is required by law to make any
deduction or withholding from any sum payable by it hereunder
(or if thereafter there is any change in the rates at which or
the manner in which such deductions or withholdings are
calculated) the Borrower shall promptly and fully notify the
Agent accordingly.
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(C) If the Borrower makes any payment hereunder in respect of
which it is required by law to make any deduction or
withholding it shall pay the full amount to be deducted or
withheld to the relevant taxation or other authority within
the time allowed for such payment under applicable law and
shall deliver to the Agent within thirty (30) days after it
has made such payment to the applicable authority the
appropriate receipt or certificate issued by such authority or
the Borrower as the case may be evidencing the payment to such
authority of all amounts so required to be deducted or
withheld from such payment.
9.3 If any sum becomes due for payment hereunder on a day which is not a
Business Day the due date for payment shall be extended to the next
succeeding Business Day unless that next succeeding Business Day falls
within a fresh month in which event the due date for payment shall be
brought forward to the immediately preceding Business Day. Any interest
payable shall be adjusted accordingly.
9.4 All payments hereunder shall be made in United States Dollars not later
than 11.00 a.m. (New York time) on the due dates therefor in such funds
as may be customary for the same day settlement of international
banking transactions in United States Dollars in New York City provided
that payments in respect of costs and expenses shall be made in the
currencies in which the same are incurred.
9.5 The Agent shall open and maintain on its books a control account in the
name of the Borrower showing the advance of each Drawing and the
computation and payment of interest and all other sums due hereunder.
The Borrower's obligations to repay each Drawing and to pay interest
thereon and to pay all other sums due hereunder shall be evidenced by
the entries from time to time made in the control account opened and
maintained under this clause 9.5 which entries will be conclusive and
binding in the absence of manifest error.
10. APPLICATION OF MONEYS
10.1 All moneys assigned to the Agent and/or the Trustee and/or the Lenders
under the Earnings Assignment shall be paid to the Earnings Account.
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10.2 Subject to clause 10.4 hereof all moneys paid to the Earnings Account
shall be applied by the Agent as follows:-
(A) first in payment of any and all sums whatsoever due and
payable to the Agent and/or the Trustee and/or any one or more
of the Lenders hereunder (such sums to be paid in such order
as the Agent may in its sole discretion elect);
(B) second in retention in the Earnings Account of amounts
equivalent in aggregate to the amount of interest next falling
due to be paid hereunder;
(C) third in payment of the costs (if any) incurred by the
Borrower in the normal day to day business of operating the
Vessel;
(D) fourth in accordance with the relevant provisions of the
Bridge Loan Facility Agreement; and
(E) fifth in retention of any credit balance in the Earnings
Account
Provided That:-
(i) sums retained in the Earnings Account pursuant to
clauses 10.2(B) and (E) hereof shall be held on
deposit at rates of interest normally paid by the
Agent to customers for deposits of like amount and
maturity and any interest accruing thereon shall be
credited to the Earnings Account at monthly intervals;
(ii) sums retained in the Earnings Account pursuant to
clause 10.2(B) hereof shall be applied by the Agent in
or towards payment of interest due hereunder on the
due dates for payment thereof; and
(iii) nothing herein contained shall be deemed to affect the
absolute obligation of the Borrower to pay interest on
and to repay each Drawing as provided in clauses 4 and
5 hereof.
10.3 Subject to clause 10.4 hereof all moneys payable to the Agent and/or
the Trustee and/or the Lenders under the Insurance Assignment and any
other moneys payable to the Agent and/or the Trustee and/or the Lenders
by any one or more of the Security Parties under any one or more of
this agreement, the Security Documents and any
- 20 -
other documents executed pursuant hereto or thereto the application of
which is not specifically provided for by another clause hereof shall
be paid to the Agent's account with such bank or banks as the Agent may
nominate from time to time and shall be applied by the Agent as
follows:-
(A) all moneys received from a Total Loss or sale of the Vessel
shall be applied as follows:-
(i) first in accordance with clause 10.2(A) hereof;
(ii) second in repayment of the Loan, in payment of
accrued interest thereon and in payment of any sums
due to any one or more of the Lenders by virtue of
that repayment under clause 8.5 hereof;
(iii) third in accordance with the relevant provisions of
the Bridge Loan Facility Agreement; and
(iv) fourth in payment of any credit balance to the
Borrower or to whomsoever may be entitled thereto;
and
(B) all moneys not covered by clause 10.3(A) hereof shall be applied as
follows:-
(i) first in accordance with clause 10.2(A) hereof;
(ii) second (in respect only of moneys received by virtue
of the Insurance Assignment) in reimbursement to the
Borrower for such of the costs (if any) incurred by
the Borrower in effecting the repair of the damage in
respect of which those moneys are received as the
Agent shall approve (such approval not to be
unreasonably withheld) and in payment to the Earnings
Account of all moneys received in respect of loss of
hire insurances (if any);
(iii) third in repayment of the Loan, in payment of accrued
interest thereon and in payment of any sums due to any
one or more of the Lenders by virtue of that repayment
under clause 8.5 hereof;
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(iv) fourth in accordance with the relevant provisions of
the Bridge Loan Facility Agreement; and
(v) fifth in payment of any credit balance to the
Borrower or to whomsoever may be entitled thereto.
10.4 From and after the giving of notice by the Agent to the Borrower
pursuant to clause 11.1 hereof all moneys whatsoever received or
recovered by the Agent or the Trustee or any one or more of the Lenders
from any one or more of the Security Parties under any one or more of
this agreement, the Security Documents and any other documents executed
pursuant hereto or thereto or from any other party under any one or
more of the Mortgage, the Earnings Assignment and the Insurance
Assignment and all moneys from time to time standing to the credit of
the Earnings Account shall be paid to the Agent's account with such
bank or banks as the Agent may nominate from time to time and shall be
applied by the Agent as follows:-
(A) first in accordance with clause 10.2(A) hereof, subject to any
right the Agent or the Trustee or any one or more of the
Lenders may have to delay any such application in order to
maximise its or their claim;
(B) second in accordance with the relevant provisions of the
Bridge Loan Facility Agreement; and
(C) third in payment of any credit balance to the Borrower or to
whomsoever may be entitled thereto.
11. DEFAULT
11.1 The Agent may by notice in writing to the Borrower declare the loan
facility made available hereunder to be cancelled and the Loan to be
immediately repayable with accrued interest thereon (plus any sums due
to any one or more of the Lenders by virtue of that repayment under
clause 8.5 hereof) and any security held by the Agent or the Trustee or
any one or more of the Lenders shall become immediately enforceable if
any of the following events occurs:-
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(A) failure by the Borrower to pay promptly on the due date
therefor any sum whatsoever due for payment by it under this
agreement;
(B) any one or more of the Security Parties and ESL making default
in the observance or performance of any other obligation
covenant or undertaking contained in any one or more of this
agreement, the Security Documents and any other documents
executed pursuant hereto or thereto and (if the same is in the
opinion of the Agent capable of remedy) the continuation of
that default unremedied for a period of fifteen (15) days;
(C) any of the representations and warranties made or deemed to
have been made in any one or more of this agreement, the
Security Documents and any other documents executed pursuant
hereto or thereto being inaccurate or misleading when made or
becoming inaccurate or misleading at any time hereafter were
the same to be repeated in relation to the facts subsisting at
that time (whether or not any such repetition actually
occurs);
(D) any event of default occurring under any one or more of the
Security Documents;
(E) the fulfilment of any one or more of the obligations covenants
and undertakings contained in any one or more of this
agreement, the Security Documents and any other documents
executed pursuant hereto or thereto or the exercise of any of
the rights vested in the Agent and/or the Trustee and/or any
one or more of the Lenders hereunder or thereunder becoming
either unlawful under any applicable law or unauthorised by
any authority having jurisdiction or otherwise impossible;
(F) a bona fide petition being presented or an order being made or
an effective resolution being passed for the commencement of
any proceedings for the liquidation winding-up or
re-organisation of any one or more of the Security Parties
except for the purpose of and followed by an amalgamation or
reconstruction the terms of which shall have been previously
approved in writing by the Agent;
(G) a distress or execution being levied or enforced upon or sued
out against any part of the assets of any one or more of the
Security Parties which in the Agent's opinion would have a
material adverse effect on any one or more of
- 23 -
the Security Parties and not being satisfied removed or
discharged within fourteen (14) days;
(H) the holder of any Encumbrance taking possession of or a
liquidator, administrator, receiver, administrative receiver,
trustee or similar officer being appointed in respect of the
whole or a substantial part of the assets of any one or more
of the Security Parties;
(I) any one or more of the Security Parties being unable or
admitting its inability to pay its or their lawful debts as
they mature or convening a meeting of or preparing to enter
into any arrangement or composition with or making a general
assignment for the benefit of its or their creditors or being
adjudicated bankrupt or insolvent;
(J) any other Borrowed Money of any one or more of the Security
Parties becoming due or becoming capable of being declared due
prior to its stated date of maturity by reason of default on
the part of any one or more of the Security Parties;
(K) any one or more of the Security Parties ceasing to carry on or
suspending or threatening to cease to carry on or to suspend
its or their business or a substantial part of the assets or
business of any one or more of the Security Parties being
seized confiscated or expropriated;
(L) the market value of the Vessel (such market value to be
conclusively determined as the average of the latest three (3)
valuations obtained by the Agent as provided in clause 8.2
hereof) at any time falling below one hundred and fifty five
per cent (155%) of the amount of the Loan then outstanding and
the Borrower failing either to prepay the relevant part of the
Loan or to provide additional security acceptable to the Agent
within fourteen (14) days after receiving written notice from
the Agent to that effect;
(M) a Total Loss occurring and either (i) the Agent not being
satisfied at any time in its absolute discretion that the
Total Loss is adequately covered by insurance and that the
relevant insurance proceeds will be paid to the Agent or
- 24 -
(ii) any insurance claim in respect thereof being rejected by
the underwriters at any time or (iii) the Agent failing to
receive the insurance proceeds in respect thereof within one
hundred and eighty (180) days thereafter;
(N) any one or more of the Subject Documents being repudiated or
terminated without the prior written consent of the Agent;
(O) a material adverse change occurring in the business, assets or
financial condition of any one or more of the Security Parties
which may reasonably be considered to affect its or their
ability to comply with all or any of its or their respective
obligations under any one or more of the Subject Documents; or
(P) an event of default occurring under the Bridge Loan Facility
Agreement or the Seller's Credit Agreement.
12. SECURITY
12.1 As security for the Loan, interest thereon and all other sums due and
to become due hereunder the Borrower shall provide the Agent with the
following documents in form and substance satisfactory to the Agent
which documents shall be executed in favour of the Trustee and be held
by the Trustee on trust for the Agent, the Trustee and the Lenders and
their respective successors, assignees and transferees on the terms of
the Deed of Agency and Trust:-
(A) duly registered first Panamanian naval mortgage over the
Vessel duly executed by the Borrower;
(B) first priority assignment duly executed by the Borrower of all
insurances whatsoever in respect of the Vessel and loss of its
earnings and all compensation in respect of the requisition
for title or other compulsory acquisition of the Vessel (with
the exception of requisition hire);
(C) first priority assignment duly executed by the Borrower of the
benefit of all earnings whatsoever of the Vessel (including
requisition hire);
(D) guarantee and indemnity duly executed by the Guarantor;
(E) first priority charge over all the authorised and issued
shares in the Borrower
- 25 -
duly executed by the Guarantor;
(F) tripartite agreement duly executed by (i) the Agent, the
Trustee and the Lenders, (ii) Neptun Maritime Oyj and ESL and
(iii) the Borrower and the Guarantor coordinating the
interests of ESL under the Seller's Credit Agreement and the
Seller's Credit Securities with those of the Agent and/or the
Trustee and/or the Lenders under this agreement and the other
Security Documents; and
(G) letter of subordination duly executed by the Manager
subordinating its interests under the Management Agreement to
those of the Agent and/or the Trustee and/or the Lenders under
this agreement.
13. REPRESENTATIONS AND WARRANTIES
13.1 The Borrower hereby represents and warrants that:-
(A) each of the Security Parties is a duly incorporated company
validly existing and in good standing under the laws of its
country of incorporation and all the shares in the Borrower
are beneficially owned by the Guarantor;
(B) each of the Security Parties has full power and authority to
execute deliver and perform such of the Subject Documents to
which it is a party;
(C) each of the Security Parties has taken all necessary corporate
or other action required to authorise the execution delivery
and performance of such of the Subject Documents to which it
is a party;
(D) all consents licences approvals or authorisations whatsoever
required to make the Subject Documents legal valid enforceable
and admissible in evidence have been obtained and are in full
force and effect;
(E) from and after execution and delivery thereof each of the
Subject Documents will constitute legal valid and binding
obligations of the parties thereto (other than the Agent, the
Trustee and the Lenders) enforceable in accordance with
- 26 -
its terms and will not contravene any applicable law or
regulation or any contractual constitutional or other
restriction binding on any of the parties thereto (other than
the Agent, the Trustee and the Lenders);
(F) as at the date hereof no material litigation or administrative
proceedings of or before any board of arbitration, Court or
Governmental authority or agency is pending or (to the
Borrower's knowledge) threatened the result of which would or
might be to have a material adverse effect on the business
assets or financial condition of any one or more of the
Security Parties;
(G) the copies of any of the Subject Documents delivered or to be
delivered to the Agent hereunder constitute the full agreement
between the parties thereto with respect to the subject matter
thereof and none of the parties thereto is in default
thereunder;
(H) all historic financial information and other documentation
submitted to the Agent by or on behalf of the Borrower in
connection herewith is accurate and correct in all material
respects and not misleading;
(I) the claims of the Agent and/or the Trustee and/or the Lenders
against the Borrower under this agreement will rank at least
pari passu with the claims of all unsecured creditors of the
Borrower other than claims of such creditors to the extent
that they are statutorily preferred;
(J) each Security Party and its business and assets (including,
without limitation, all computer systems, all systems and
equipment containing embedded microchips (including leased
systems and equipment) and any other systems, equipment or
parts of the business or assets whatsoever of that Security
Party whose proper functioning or operation is capable of
being affected by the incorrect processing, storing,
calculation or recognition of dates, together with all
software and data in connection with any of the foregoing)
shall at all times comply with the requirements of Year 2000
Conformity as defined in "A DEFINITION OF YEAR 2000 CONFORMITY
REQUIREMENTS" issued by the British Standards Institution (BSI
DISC PD2000-1:1998) or such later reviewed, revised or amended
version thereof as may be published by the British Standards
Institution from time to time (in which case the later version
shall be the relevant one for the purposes of this clause);
and
- 27 -
(K) no Event of Default has occurred or is continuing and no event
which with the giving of notice and/or lapse of time would
constitute an Event of Default has occurred or is continuing.
14. COVENANTS
14.1 The Borrower hereby covenants that from the date hereof until the
Borrower has no remaining obligations, actual or contingent, under this
agreement:-
(A) the Borrower will file all requisite tax returns and will pay
all tax as shown to be due and payable on such returns or any
of the assessments made against it (other than those being
contested in good faith);
(B) the Borrower will carry on and conduct its business in a
proper and efficient manner and will duly pay all outgoings as
and when they fall due and in particular without limiting the
generality of the foregoing will duly observe and perform all
the terms and conditions of any contract of employment of the
Vessel to be observed and performed by it;
(C) the Borrower will prepare or cause to be prepared, in
accordance with GAAP, annual audited accounts for the Borrower
and unaudited quarterly accounts for the Borrower; the
Borrower will furnish the Agent with copies of the audited
annual accounts no later than ninety five (95) days after the
end of each financial year and copies of the unaudited
quarterly accounts no later than fifty (50) days after the end
of each financial quarter; the audited annual accounts shall
include profit and loss accounts and balance sheets certified
and audited by an accountant acceptable to the Agent which
shall include Xxxxx Xxxxxxxx L.L.P.;
(D) the Borrower will provide the Agent in a form acceptable to
the Agent no later than ten (10) days after the end of each
month monthly management information (including traffic
statistics, cash flows, booking reports and outstanding trade
debt) in respect of the Borrower;
(E) the Borrower shall procure that the Earnings Account is opened
and
- 28 -
maintained at the bank specified in the definition thereof in
clause 1.2 hereof and shall not keep any accounts with any
bank other than the Agent unless otherwise agreed specifically
with the Agent;
(F) the Borrower shall promptly furnish to the Agent all such
accounts and financial information concerning any one or more
of the Security Parties and the Vessel as the Agent may from
time to time reasonably require including without limiting the
generality of the foregoing cash flow analyses, budgets and
details of the operating costs of the Vessel;
(G) the Vessel, its earnings and the interests of the Agent and/or
the Trustee and/or the Lenders as mortgagees of the Vessel
shall be insured with such underwriters insurance offices and
clubs for such amounts for such risks in such form and upon
such conditions as are satisfactory to the Agent from time to
time provided that the amount of each of the marine and war
risks insurances shall not in any event be less than the
greater from time to time of (i) the market value of the
Vessel and (ii) one hundred and twenty per cent (120%) of the
aggregate amount of the Loan, the Bridge Loan Facility and the
Seller's Credit then outstanding;
(H) the Borrower will not without the prior written consent of the
Agent:-
(i) create or allow to subsist any Encumbrance over any
of its assets or any part thereof save for Permitted
Liens and those created by any of the Security
Documents;
(ii) incur any liability in respect of Borrowed Money
except for unsecured Borrowed Money subordinated to
the Loan hereunder;
(iii) make loans or advances to others (except for loans or
advances made in the ordinary course of business in
connection with the chartering and/or operation
and/or repair of the Vessel);
(iv) except in connection with the chartering and/or
operation and/or repair of the Vessel incur any other
liability to a third party which in the opinion of
the Agent is of a substantial nature;
(v) consolidate with any other company or merge into any
company;
- 29 -
(vi) engage in any business other than the ownership
operation chartering and management of the Vessel;
(vii) guarantee endorse or otherwise become or remain
liable in respect of the obligations of any person
firm or corporation;
(viii) pay any dividends or other distributions or issue any
new shares or transfer any shares;
(ix) sell or otherwise dispose of the Vessel or any share
therein or any other asset (the Agent's consent not
to be unreasonably withheld);
(x) make or allow any alteration to or waiver of the
terms of any one or more of the Subject Documents;
(xi) appoint any manager of the Vessel other than the
Manager;
(xii) change the class, flag or employment of the Vessel as
a passenger cruise ship; or
(xiii) make any acquisitions or investments other than the
regular dry-docking and maintenance of the Vessel
(the Agent's consent not to be unreasonably
withheld);
(I) the Borrower will procure that the amount standing to the
credit of the Earnings Account shall not at any time fall
below two million United States Dollars (USD2,000,000);
(J) for so long as any sums remain actually or contingently
outstanding under or pursuant to this agreement or any of the
Security Documents the Borrower shall not repay the Seller's
Credit more quickly than by fifty eight (58) monthly
instalments commencing fifteen (15) months after the first
Drawdown Date, the first amounting to six hundred and twelve
thousand United States Dollars (USD612,000), the second to the
fifty seventh each amounting to two hundred and four thousand
United States Dollars (USD204,000) and the final
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instalment amounting to the balance of the Seller's Credit;
(K) from and after the occurrence of an Event of Default the
Borrower shall not, after receiving written notice from the
Agent to that effect, make any payment of principal or
interest in respect of the Seller's Credit for so long as that
Event of Default is continuing;
(L) the Borrower shall procure that its Debt Service Coverage
Ratio (calculated as set out below, with the first such
calculation being made twelve (12) months after the first
Drawdown Date and the subsequent calculations being made at
three (3) monthly intervals thereafter) shall not be less than
the ratio specified in item 1 in schedule B hereto (for the
period of twelve (12) months after the first Drawdown Date)
and the ratio specified in item 2 in schedule B hereto (for
any period thereafter) and for this purpose the Debt Service
Coverage Ratio shall be calculated in accordance with the
following formula:-
EBITDA
-------------------
Financial Expenses
where
"EBITDA" means, for the previous period of twelve (12) months,
the aggregate of:
(i) Net Income (but excluding gains and losses from the
sale of assets or reserves relating thereto and items
classified as extraordinary or non-recurring) from the
Borrower's operations for such period and for this
purpose Net Income means the consolidated net income
of the Borrower as determined in accordance with GAAP;
and
(ii) the aggregate amounts deducted in determining Net
Income for such period in respect of depreciation,
amortisation, taxes, deferred income and interest
expense of the Borrower; and
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"Financial Expenses" means, for the previous period of twelve
(12) months, the sum of:
(i) the aggregate principal payable or paid during such
period on any Borrowed Money of the Borrower (other
than the scheduled principal repayment in respect of
the Bridge Loan Facility and principal repayments
under this agreement to the extent that they were
redrawn during the same period);
(ii) aggregate interest expense (including, without
limitation, capitalised interest accrued during such
period) of the Borrower for such period; and
(iii) all rent and any capital lease obligations or
operating lease obligations by which the Borrower is
bound which are payable or paid during such period as
calculated in accordance with GAAP and derived from
the then latest accounts of the Borrower;
(M) not later than six (6) months prior to the due date for full
repayment of the Bridge Loan Facility the Borrower shall
demonstrate to the Lenders' satisfaction that sufficient cash
or committed facilities are available to enable the Borrower
to repay the Bridge Loan Facility in full on the due date
therefor;
(N) the Borrower shall provide the Agent with compliance
certificates in relation to the relevant financial covenants
contained in this agreement in the form set out in appendix II
hereto on or before the first Drawdown Date and at three (3)
monthly intervals after the first Drawdown Date and, for the
avoidance of doubt, the covenant in clause 14.1(L) hereof
shall not be deemed to be a 'relevant financial covenant' for
the purposes of this clause 14.1(N) until the date falling
twelve (12) months after the first Drawdown Date;
(O) the Borrower will promptly inform the Agent if any Event of
Default or any event which with the giving of notice and/or
lapse of time would constitute an Event of Default occurs or
if any event occurs which may materially adversely affect its
ability to perform any of its obligations under any one or
more of this agreement, the Security Documents and any other
documents executed pursuant hereto or thereto; and
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(P) the Borrower will from time to time at the request of the
Agent execute and deliver to the Agent or procure the
execution and delivery to the Agent of all such documents as
the Agent shall deem desirable in its absolute discretion for
giving full effect to this agreement and for perfecting,
protecting the value of or enforcing any rights or securities
granted to the Agent and/or the Trustee and/or the Lenders
under any one or more of this agreement, the Security
Documents and any other documents executed pursuant hereto or
thereto.
15. SET-OFF AND SHARING OF PAYMENTS
15.1 The Agent, the Trustee and each of the Lenders are hereby authorised to
combine any and all accounts held by the Borrower with any of them at
any of their respective offices and to apply (without any prior notice)
any credit balance to which the Borrower is then beneficially entitled
on any such account (whether or not that credit balance is then due to
the Borrower) in or towards satisfaction of any sums then due and
payable by the Borrower hereunder. For that purpose the Agent, the
Trustee and each of the Lenders are hereby authorised to use all or
part of that credit balance to buy such other currency or currencies as
may be required to enable any of them to effect that application. The
Agent, the Trustee and the Lenders shall not be obliged to exercise any
of their rights under this clause, which shall be without prejudice and
in addition to any right of set off, combination of accounts, lien or
other rights to which any of them at any time otherwise is entitled
(whether by operation of law, contract or otherwise).
15.2 If pursuant to clause 15.1 hereof or otherwise any Lender shall at any
time receive appropriate or otherwise obtain from any one or more of
the Security Parties any payment on account of principal interest or
other sums due from the Borrower hereunder (which are not due solely to
that Lender under the terms of this agreement) in a greater proportion
than its Contribution then that Lender shall remit via the Agent to
such of the other Lenders as have received a smaller proportion of that
payment than their Contributions such sums as shall ensure that each
Lender receives a proportion of that payment corresponding to its
Contribution and each such remittance shall be treated for the purposes
of this agreement as having been made to the receiving Lender by the
Borrower instead of the Lender by whom such remittance was made
Provided Always That if at any time thereafter that payment is required
by a
- 33 -
court of competent jurisdiction to be returned to the Borrower or any
third party each of the Lenders shall return the relevant percentage
thereof.
16. ASSIGNMENT AND PARTICIPATION
16.1 This agreement shall be binding upon and inure to the benefit of the
Agent, the Trustee, the Lenders and each of them and the Borrower and
their respective successors and assigns.
16.2 The Borrower may not assign its rights or obligations hereunder without
the prior written consent of the Agent.
16.3 Each of the Lenders may at any time with the prior written consent of
the Agent and the Borrower (such consents not to be unreasonably
withheld and no such consent to be required at all from the Borrower if
an Event of Default has occurred and is subsisting) assign transfer or
grant participations in all or part of its Contribution to the Loan or
any part thereof and its rights and obligations hereunder to any other
bank or financial institution and for this purpose:-
(A) no such consents shall be required from the Agent or the
Borrower if the other bank or financial institution is either
another of the Lenders or a subsidiary company, holding
company or sister company of the relevant Lender;
(B) the Agent, the Trustee and the relevant Lender shall be at
liberty to disclose on a confidential basis to any such
assignee transferee or grantee (or to any potential such
assignee transferee or grantee) all such information
concerning any one or more of the Security Parties, the Vessel
and the Subject Documents as the Agent, the Trustee and the
relevant Lender may deem appropriate; and
(C) the Borrower shall upon demand by the Agent and at the expense
of the relevant Lender execute and deliver to the Agent all
such documents and do all such acts and things as the Agent
may deem necessary or desirable in its absolute discretion for
giving full effect to any such assignment transfer or
participation.
16.4 The Agent and/or the Trustee may at any time signify its or their
intention to resign by giving written notice to the Borrower and the
Lenders provided that such resignation shall not take effect until a
successor Agent and/or Trustee (as the case may be) has
- 34 -
been appointed and has accepted that appointment. After the giving of
such notice, a successor Agent and/or Trustee shall be appointed in
accordance with the relevant provisions of the Deed of Agency and Trust
and the Lenders shall procure that the successor Agent and/or Trustee
shall give to the Borrower written notice of its acceptance of
appointment. Upon its appointment as Agent and/or Trustee, such
successor Agent and/or Trustee shall succeed to and become vested with
all the rights powers and privileges and duties of the retiring Agent
and/or Trustee, and the retiring Agent and/or Trustee shall be
discharged from its duties and obligations under this agreement.
17. MISCELLANEOUS
17.1 Time shall be of the essence of this agreement but no failure or delay
on the part of the Agent or the Trustee or any one or more of the
Lenders to exercise any power or right hereunder shall operate as a
waiver of such power or right nor shall any single or partial exercise
of any power or right hereunder preclude any other or further exercise
thereof or the exercise of any other power or right hereunder. The
powers and rights provided to the Agent or the Trustee or any one or
more of the Lenders in this agreement are cumulative and shall not
exclude any powers or rights provided to the Agent or the Trustee or
any one or more of the Lenders by law.
17.2 In the event of any of the provisions contained in any one or more of
this agreement, the Security Documents and any other documents executed
pursuant hereto or thereto being invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of
the remaining provisions herein or therein contained shall not in any
way be affected or impaired thereby.
17.3 Neither the Agent nor the Trustee nor any of the Lenders shall be
liable for any failure to meet its obligations hereunder resulting from
any cause whatsoever beyond its control.
18. NOTICES
18.1 Any notice or other correspondence in connection herewith required to
be sent or given by the Borrower to the Agent or the Trustee or any one
or more of the Lenders
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shall be sent to the Agent in the English language at 00 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX (telex no. 290562 facsimile no. x00 000 000
7001) or to such other address or addresses as may from time to time be
notified by the Agent to the Borrower for such purpose.
18.2 Any notice or other correspondence in connection herewith required to
be sent or given by the Agent or the Trustee or any one or more of the
Lenders to the Borrower shall be sent to the Borrower in the English
language at c/o Commodore Holdings Limited, 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000-X, Xxxxxxxxx, Xx 00000, U.S.A., Attention: Chief Financial
Officer (facsimile no. x000 000 0000) with copies to Xxxxxxxx L
Deutsch, P.A., Broad and Xxxxxx, Miami Center - Suite 3000, 000 X.
Xxxxxxxx Xxxxxxxxx, Xxxxx, Xx 00000, X.X.X. (facsimile no. +305 373
9443) or to such other address or addresses as the Borrower may from
time to time notify to the Agent in writing and shall be deemed to have
been validly given and received on the date of dispatch if sent by
telex and five (5) days after having been posted if sent by prepaid
first class or airmail post.
19. PROPER LAW AND JURISDICTION
19.1 This agreement shall be governed by and construed in accordance with
the Laws of England and for the exclusive benefit of the Agent, the
Trustee and the Lenders the Borrower hereby irrevocably submits to the
jurisdiction of the High Courts of Justice in England. Such submission
shall not limit the right of the Agent, the Trustee and the Lenders to
commence any proceedings relating to this agreement (in addition or
alternatively) in any other jurisdiction which the Agent deems fit. The
Borrower hereby irrevocably authorises and appoints Consult Marine of
00 Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxx X0 0XX as its agent
in England for the acceptance of service of legal proceedings on it
hereunder.
- 36 -
IN WITNESS whereof the parties hereto have executed this agreement the day and
year first above written.
THE LENDERS
XXXXXX BANK PLC *
Lending Office:-
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
-------------------------------------
CHRISTIANIA BANK OG KREDITKASSE ASA *
Lending Office:-
Xxxxxxxxxxxxxxx 00
0000 Xxxx
Xxxxxx
By: /s/ Ulv X. Xxxxxxx
-------------------------------------
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) *
Lending Office:-
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
THE AGENT
XXXXXX BANK PLC
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
-------------------------------------
- 37 -
THE BORROWER
CROWN CRUISES OF PANAMA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
THE TRUSTEE
XXXXXX BANK PLC
By: /s/ Xxxxxxx Xxxxxx Xxxxxx
-------------------------------------
All in the presence of:-
