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CITICORP TRUSTEE COMPANY LIMITED as Security Trustee
CITIBANK N.A., LONDON BRANCH as Global Coordinator
HSBC CONTINENTAL EUROPE as French Coordinating Bank
HSBC CONTINENTAL EUROPE as ECA Agent
CITIBANK EUROPE PLC, HSBC CONTINENTAL EUROPE, BANCO SANTANDER S.A., BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH, BNP PARIBAS SA, SMBC BANK INTERNATIONAL PLC, SOCIETE GENERALE and UNICREDIT BANK AG as Mandated Lead Arrangers
and
THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 as Lenders
AMENDMENT
AGREEMENT IN CONNECTION WITH THE CREDIT AGREEMENT IN RESPECT OF HULL NO. A35 AT CHANTIERS DE L'ATLANTIQUE S.A.
THIS AMENDMENT AGREEMENT (this Amendment) is dated 21 July 2022 and made BETWEEN:
(1) PALMERAIE FINANCE LIMITED as transferor (the
Existing Borrower);
(2) ROYAL CARIBBEAN CRUISES LTD. as transferee (the New Borrower);
(3) CITIBANK EUROPE PLC, UK BRANCH as facility agent for the other Finance Parties (the Facility Agent);
(4) CITICORP TRUSTEE COMPANY LIMITED as security trustee for itself and the other Finance Parties (the Security Trustee);
(5) CITIBANK N.A. LONDON BRANCH as global coordinator (the Global Coordinator);
(6) HSBC
CONTINENTAL EUROPE (previously known as HSBC France) as French coordinating bank (the French Coordinating Bank);
(7) HSBC CONTINENTAL EUROPE (previously known as HSBC France) as ECA agent (the ECA Agent);
(8) CITIBANK EUROPE PLC, HSBC CONTINENTAL EUROPE (previously known as HSBC France), BANCO SANTANDER S.A., BANCO BILBAO VIZCAYA ARGENTARIA S.A., PARIS BRANCH, BNP PARIBAS SA, SMBC BANK INTERNATIONAL PLC (previously known as Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch), SOCIÉTÉ GÉNÉRALE and UNICREDIT
BANK AG as Mandated Lead Arrangers; and
(9) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders.
WHEREAS:
(A) Reference is made to the facility agreement dated 13 December 2019 (as supplemented, amended and restated from time to time, the Facility Agreement) and made between (1) the Existing Borrower as borrower, (2) the banks and financial institutions named therein as original lenders, (3) the Mandated Lead Arrangers as mandated lead arrangers, (4) the Facility Agent as facility agent, (5) the Security Trustee as security trustee (6) the Global Coordinator as global coordinator, (7) the French Coordinating Bank as French coordinating bank and
(8) the ECA Agent as ECA agent, pursuant to which the Lenders have agreed to make available a loan of up to €1,126,400,000 to the Existing Borrower in connection with the purchase by the Existing Borrower of the Receivable from the Seller pursuant to the Receivable Purchase Agreement.
(B) This Amendment is supplemental to the novation agreement dated 13 December 2019 (as supplemented, amended and restated from time to time, the Novation Agreement) in respect of the financing of the acquisition of the Vessel pursuant to the Facility Agreement and made between, amongst others, (1) the Existing Borrower as the existing borrower, (2) the New Borrower as the new borrower, (3) the banks and financial institutions named therein as original lenders, (4) the Mandated Lead Arrangers as mandated lead arrangers, (5) the Facility Agent as facility agent, (6) the Security Trustee as security trustee, (7) the Global Coordinator as global
coordinator, (8) the French Coordinating Bank as French coordinating bank and (9) HSBC Continental Europe as ECA agent.
(C) The New Borrower has requested (1) pursuant to a consent request letter dated 24 May 2022, that the form of Novated Credit Agreement scheduled to the Novation Agreement (as such Novated Credit Agreement has previously been amended and/or amended and restated from time to time) be amended on the basis referred to in clause 2(a) to reflect certain further amendments to the financial covenants set out in Section 7.2.4 of the form of Novated Credit Agreement and (2) that the Novation Agreement and the form of Novated Credit Agreement be further amended on the basis referred to in clause 2(b) to reflect certain amendments to the Additional Advances to be made available to the New Borrower on the Novation Effective Date.
(D) In connection with the arrangements
referred to in Recital (C) above, the Parties wish to amend the Novation Agreement (including the form of Novated Credit Agreement scheduled to the Novation Agreement) on the basis set out in this Amendment.
Europe\71380312.1UK-#393119123-v4 Page 1
NOW IT IS AGREED as follows:
1 Interpretation and definitions
1.1 Definitions in the Facility Agreement and the Novation Agreement
(a) Unless the context otherwise requires or unless otherwise defined in this Amendment, words and expressions defined in the Novation Agreement or the Facility Agreement shall have the same meanings
when used in this Amendment (including in the recitals).
(b) The principles of construction set out in clause 1.3 of the Novation Agreement shall have effect as if set out in this Amendment.
1.2 Definitions
In this Amendment:
Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.3, and being the date upon which the amendments to the form of Novated Credit Agreement set out in Part A of Schedule 3 shall become effective in accordance with clause 2(a).
ECA Financing has the meaning given to it in the form of Novated Credit Agreement.
Fee
Letter means any letter between any Finance Party and the New Borrower setting out the fees payable in connection with this Amendment.
Further Amendment Effective Date means the date specified as such in the certificate signed by the Facility Agent in accordance with clause 3.3, and being the date upon which the further amendments to the Novation Agreement and the form of Novated Credit Agreement set out in Part B of Schedule 3 shall become effective in accordance with clause 2(b).
Party means each of the parties to this Amendment.
Previous Amendment Agreement means the amendment agreement to the Novation Agreement dated 22 December 2021 entered into between, amongst others, the Existing Borrower, the New Borrower
and the Finance Parties, pursuant to which the form of Novated Credit Agreement scheduled to the Novation Agreement was amended on the basis set out therein.
1.3 Third party rights
Other than BpiFAE in respect of the rights of BpiFAE under the Finance Document and the Loan Documents, unless expressly provided to the contrary in a Finance Document or a Loan Document, no term of this Amendment is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
1.4 Designation
Each of the Parties designates this Amendment as a Loan Document for the purposes of the replacement Novated Credit Agreement and a Finance Document
for the purposes of the Facility Agreement.
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1.5 Security Trustee
Each of the parties acknowledges that the Security Trustee is entering into this Amendment on the irrevocable and unconditional instructions of the Facility Agent and the Security Trustee shall have all of the rights, powers and protections conferred on it under the Finance Documents hereunder.
2 Amendment of the Novation Agreement and the form of Novated Credit Agreement
In consideration of the mutual covenants in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree that:
(a) subject to the satisfaction of the conditions precedent set forth in clause 3.1, the form of the Novated Credit Agreement set out in Schedule 3 of the Novation Agreement shall, with effect from the Amendment Effective Date, be (and it is hereby) amended in accordance with the amendments set out in Part A of Schedule 3; and
(b) subject to the satisfaction of the conditions precedent set forth in clauses 3.1 and 3.2, the Novation Agreement and the form of the Novated Credit Agreement set out in Schedule 3 of the Novation Agreement shall, with effect from the Further Amendment Effective Date, be (and they are hereby) further amended in accordance with the amendments set out in Part B of Schedule 3.
3 Conditions of effectiveness
3.1 The agreement of the
Parties referred to in clauses 2(a) and 2(b) shall be subject to each of the following conditions (other than, in the case of clause 2(b), the conditions set out in clauses 3.1(e), (h) and (k)) being satisfied to the reasonable satisfaction of the Facility Agent:
(a) the Facility Agent shall have received from the New Borrower:
(i) a certificate of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorised to act with respect to this Amendment and as to the truth and completeness of the attached resolutions of its Board of Directors then in full force and effect authorising the execution, delivery and performance of this Amendment, and upon which certificate the Lenders may conclusively rely until the Facility Agent shall have received a further certificate of the Secretary or Assistant Secretary of the New Borrower cancelling
or amending such prior certificate; and
(ii) a Certificate of Good Standing issued by the relevant Liberian authorities in respect of the New Borrower;
(b) the Facility Agent shall have received from the Existing Borrower:
(i) a certificate from an authorised officer of the Existing Borrower, confirming that there have been no changes or amendments to its constitutional documents, certified copies of which were previously delivered to the Facility Agent pursuant to the Facility Agreement, or attaching revised versions in case of any changes or amendments; and
(ii) a copy, certified by an authorised officer of the Existing Borrower, of (A) resolutions of its board of directors approving the transactions contemplated by this Amendment and
authorising a person or persons to execute this Amendment and any notices or other documents to be given pursuant hereto and (B) any power of attorney issued pursuant to such resolutions (which shall be certified as being in full force and effect and not revoked or withdrawn);
(c) the Facility Agent shall have received a duly executed copy of each Fee Letter;
(d) the Facility Agent shall have received evidence that all invoiced expenses of the Facility Agent (including the agreed fees and expenses of counsel to the Facility Agent) required to be paid by the New Borrower pursuant to clause 6 below, and all other documented
UK-#393119123-v4 Page 3
fees
and expenses that the New Borrower has otherwise agreed in writing to pay to the Facility Agent, have been paid or will be paid promptly upon being demanded;
(e) the ECA Agent and the Facility Agent shall have received evidence satisfactory to the ECA Agent and the Facility Agent (acting on the instructions of the Lenders) that BpiFAE has approved the arrangements referred to in clause 2(a);
(f) the Facility Agent shall have received opinions, addressed to the Facility Agent (and capable of being relied upon by each Lender) from:
(i) Watson Farley & Williams LLP, counsel to the New Borrower, as to matters of Liberian law (and being issued in substantially the same form as the corresponding Liberian legal opinion issued in respect of the Previous Amendment Agreement); and
(ii) Norton
Rose Fulbright LLP, counsel to the Facility Agent as to matters of English law (and being issued in substantially the same form as the corresponding English legal opinion issued in respect of the Previous Amendment Agreement),
or, where applicable, a written approval in principle (which can be given by email) by any of the above counsel of the arrangements contemplated by this Amendment and a confirmation that a formal opinion will follow promptly after the Amendment Effective Date;
(g) the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects)) as of the Amendment Effective Date;
(h) no Event of Default shall have occurred
and be continuing or would result from the amendment of the Novation Agreement pursuant to clause 2(a);
(i) the Existing Borrower and the New Borrower shall, as required pursuant to clause 5, have each provided a letter to the Facility Agent which confirms that the relevant process agent has accepted its appointment as process agent in respect of this Amendment;
(j) the Facility Agent shall have received from the Existing Borrower and the New Borrower such documentation and information as any Finance Party may reasonably request through the Facility Agent to comply with "know your customer" or similar identification procedures under all laws and regulations applicable to that Finance Party; and
(k) the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement,
the Seller has consented to the amendments to the Novation Agreement to be made pursuant to clause 2(a).
3.2 The agreement of the Parties referred to in clause 2(b) shall be subject further to each of the following conditions being satisfied to the reasonable satisfaction of the Facility Agent:
(a) the Facility Agent shall have received an amendment to the BpiFAE Insurance Policy in respect of the amendments referred to in clause 2(b), duly signed and issued by BpiFAE in a form and substance satisfactory to the Lenders;
(b) the representations and warranties set out in clause 4 are true and correct in all material respects (except for such representations and warranties that are qualified by materiality or non-existence of a Material Adverse Effect (which shall be accurate in all respects))
as of the Further Amendment Effective Date;
(c) no Event of Default shall have occurred and be continuing or would result from the further amendments to be made pursuant to clause 2(b); and
(d) the Facility Agent shall have received evidence that, as required pursuant to clause 9.6(c) of the Receivable Purchase Agreement, the Seller has consented to the further amendments to the Novation Agreement to be made pursuant to clause 2(b).
3.3 The Facility Agent shall notify the Lenders, the Existing Borrower and the New Borrower of the Amendment Effective Date and the Further Amendment Effective Date, in each case by way of a
UK-#393119123-v4 Page 4
confirmation
in the applicable form set out in Schedule 2 and each such confirmation shall be conclusive and binding.
4 Representations, Warranties and Undertakings
4.1 The Existing Borrower shall be deemed to repeat the representations and warranties in clause 7.1 of the Facility Agreement on the date of this Amendment, the Amendment Effective Date and the Further Amendment Effective Date, in each case, as if made with reference to the facts and circumstances existing on such dates.
4.2 The New Borrower represents and warrants that each of the representations set out in Article VI of the form of the Novated Credit Agreement (other than Section 6.10) set out in Schedule 3 of the Novation Agreement are true and correct as if made at the date of this Amendment, at the Amendment Effective Date and at the Further Amendment Effective Date, in each
case with reference to the facts and circumstances existing on such day, as if references to the Loan Documents include this Amendment and as if the form of Novated Credit Agreement was effective at the time of each such repetition.
4.3 In addition to the representations and warranties referred to in clause 4.2 above, the New Borrower:
(a) represents and warrants to the Facility Agent and each Lender that if and to the extent any of the New Borrower’s Bank Indebtedness (as defined in the form of Novated Credit Agreement) include a net debt to capitalization ratio commitment and/or minimum stockholders’ equity requirement, such net debt to capitalization ratio commitment and/or the minimum stockholders’ equity requirement (and their definitions) are substantially aligned with the Net Debt to Capitalization Ratio and the minimum Stockholders’ Equity requirement (and their definitions)
(each as defined in the form of Novated Credit Agreement) ignoring for this purpose, if applicable, any differences in their definitions which the New Borrower in good faith considers immaterial in giving this representation and any differences arising from the application of differing governing laws applicable to any such Bank Indebtedness;
(b) represents and warrants to the Facility Agent and each Lender that the New Borrower is negotiating amendments to each other ECA Financing which shall, upon entry into of the relevant amendment agreement in respect of that ECA Financing, contain amendments that will be consistent with, and on the same substantive terms as, the amendments set out in Part A of Schedule 3 (and which are to be contained in the form of Novated Credit Agreement (as amended by this Amendment)); and
(c) covenants and undertakes with the Facility Agent that,
in relation to each amendment agreement to the finance documents in respect of each other ECA Financing containing the amendments referred to in paragraph (b) above, it will liaise with counsel to the facility agent under each such other ECA Financing to sign and lodge counterparts of such amendment agreements on the understanding that they will become effective at or around the same time as the Amendment Effective Date or, if and to the extent that the Facility Agent receives evidence satisfactory to it that BpiFAE has permitted this and provided that all such amendment agreements shall take effect no later than 30 July 2022, promptly after the Amendment Effective Date.
5 Incorporation of Terms
The provisions of clauses 13 (Miscellaneous and notices), 14.2 (Submission to jurisdiction)
and 14.3 (Waiver of immunity) of the Novation Agreement shall be incorporated into this Amendment as if set out in full in this Amendment and as if (a) references to each Party are references to each Party to this Amendment and (b) references to ‘this Agreement’ include this Amendment.
6 Fees, Costs and Expenses
6.1 The New Borrower shall pay to the Facility Agent (for its own account and for the account of the Lenders (as applicable)) and each other relevant Finance Party the fees in the amounts and at the times agreed in the Fee Letters.
6.2 The payment of the above fees shall be made free and clear of any deduction, restriction or withholding and in immediately available freely transferable cleared funds to such account(s) as the Facility Agent shall notify the New Borrower of in
advance or, where applicable, in the relevant Fee Letter.
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6.3 The New Borrower agrees to pay on demand, on an after-tax basis, all reasonable out-of-pocket costs and expenses in connection with:
(a) the preparation, execution and delivery of; and
(b) the administration, modification and amendment of,
this Amendment and all other documents to be delivered hereunder or thereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of Norton Rose Fulbright LLP as the legal adviser to the Lenders and the Facility Agent and the Security Trustee.
7 Counterparts
This
Amendment may be executed in any number of counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original but all counterparts shall together constitute one and the same instrument. The Parties acknowledge and agree that they may execute this Amendment and any variation or amendment to the same, by electronic instrument. The Parties agree that the electronic signatures appearing on the document shall have the same effect as handwritten signatures and the use of an electronic signature on this Amendment shall have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this Amendment, and evidencing the Parties’ intention to be bound by the terms and conditions contained herein. For the purposes of using an electronic signature, the Parties authorise each other to conduct the lawful processing of personal data of the signers for
contract performance and their legitimate interests including contract management.
8 Governing Law
This Amendment, and all non-contractual obligations arising in connection with it, shall be governed by and construed in accordance with English law.
The Parties have executed this Amendment the day and year first before written.
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Schedule 1 Lenders
Citibank
Europe plc
HSBC Continental Europe
Banco Santander, S.A.
Banco Bilbao Vizcaya Argentaria, S.A., Paris Branch
BNP Paribas SA
SMBC Bank International plc
Société Générale
Unicredit Bank AG
SFIL
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Schedule 2 Form of Amendment Effective Date and Further Amendment Effective Date confirmation – Hull A35
[Note: optionality to be selected / deleted dependent on whether the confirmation relates to the Amendment Effective Date or the Further Amendment Effective Date.]
We, CITIBANK EUROPE PLC, UK BRANCH, refer to the Amendment Agreement and confirm that all relevant conditions
precedent referred to in clause 3.1 [and clause 3.2] of the Amendment Agreement have been satisfied and, accordingly, the “[Amendment Effective Date][Further Amendment Effective Date]” for the purposes of the Amendment Agreement is [●] 2022.
Facility Agent
Signed by ………………………………………………………………..
For and on behalf of CITIBANK EUROPE PLC, UK BRANCH
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Schedule 3 Amendments to the Novation Agreement and the Form of Novated Credit Agreement
Part A
It
is acknowledged and agreed that, with effect from the Amendment Effective Date, the form of Novated Credit Agreement scheduled to the Novation Agreement shall be amended as follows:
1 the following new definitions shall be inserted into Section 1.1 (Defined Terms) of Article 1 (Definitions and accounting terms) in alphabetical order to read:
““2.875% Converted Debt” means the aggregate amount of debt securities issued by the Borrower pursuant to the 2.875% Convertible Notes Indenture which are, in accordance with the provisions of the said 2.875% Convertible Notes Indenture,
converted, or remain to be converted, into equity securities of the Borrower on the 2.875% Maturity Date.”
““2.875% Convertible Notes Indenture” means that certain Indenture, dated as of October 16, 2020, (as amended, supplemented, extended and/or otherwise modified from time to time) in respect of the $575,000,000 2.875% convertible senior notes due 2023, by and among the Borrower as issuer and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.”
““2.875% Maturity Date” has the meaning given to the
term Maturity Date in the 2.875% Convertible Notes Indentures (and being, as at the date of this Agreement, November 15, 2023).”
““4.25% Converted Debt” means the aggregate amount of debt securities issued by the Borrower pursuant to the 4.25% Convertible Notes Indenture which are, in accordance with the provisions of the said 4.25% Convertible Notes Indenture, converted, or remain to be converted, into equity securities of the Borrower on the 4.25% Maturity Date.”
““4.25% Convertible
Notes Indenture” means that certain Indenture, dated as of June 9, 2020, (as amended, supplemented, extended and/or otherwise modified from time to time) in respect of the $1,150,000,000 4.250% convertible senior notes due 2023, by and among the Borrower as issuer and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee.”
““4.25% Maturity Date” has the meaning given to the term Maturity Date in the 4.25% Convertible Notes Indenture (and being, as at the date of this Agreement, June
15, 2023).”
2 the current definitions of “2023 Converted Debt”, “2023 Convertible Notes Indenture” and “2023 Maturity Date” in Section 1.1 (Defined Terms) of Article 1 (Definitions and accounting terms) shall be deleted in their entirety
3 the definition of "Stockholders' Equity" in Section 1.1 (Defined Terms) of Article 1 (Definitions and accounting terms) shall be deleted in its entirety and replaced as follows to read:
““Stockholders’ Equity” means, as at any date, the
Borrower’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP and which shall, for the purposes of determining the level of Stockholders’ Equity for the purposes of assessing compliance with the financial covenant contained in Section 7.2.4 c.:
1) for the Fiscal Quarter ended March 31, 2023 (or, if later, the last full Fiscal Quarter to end prior to the 4.25% Maturity Date), also include the 2023 4.25% Converted Debt in the amount of $1,150,000,000 as reduced by (i) the value of the 2023 4.25% Converted Debt that the Borrower has elected to settle in cash (rather
than equity) in accordance
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with section 14.02 of the 2023 4.25% Convertible Notes Indenture and (ii) the value of any new equity the Borrower issues in order to settle in equity that 2023 4.25% Converted Debt obligation;
2) for the Fiscal Quarter ended September 30, 2023 (or, if later, the last full Fiscal Quarter to end prior to the 2.875% Maturity Date), also include the 2.875% Converted Debt in the
amount of $575,000,000 as reduced by (i) the value of the 2.875% Converted Debt that the Borrower has elected to settle in cash (rather than equity) in accordance with section 14.02 of the 2.875% Convertible Notes Indenture and (ii) the value of any new equity the Borrower issues in order to settle in equity that 2.875% Converted Debt obligation; and
3) for the avoidance of doubt, when calculating the Stockholders’ Equity for the purposes of determining the Borrower’s compliance with the financial covenant in Section 7.2.4.,c. A. for all periods starting after December 31, 2022September 30, 2022, any outstanding 2023 the outstanding amount of the 4.25% Converted Debt and 2.875% Converted Debt (as applicable) will be accounted for as equity at any time until the 2023 Maturity Date (and, in the case of the 4.25% Converted Debt for the Fiscal Quarter ended March 31, 2023 (or, if later, the last full Fiscal Quarter to end prior to the 4.25% Maturity Date), in accordance with calculations set out in paragraph 1) above
and, in the case of the 2.875% Converted Debt for the Fiscal Quarter ended September 30, 2023 (or, if later, the last full Fiscal Quarter to end prior to the 2.875% Maturity Date), in accordance with calculations set out in paragraph 2)); and accordingly shall be added to Stockholders’ Equity; provided that, on and after (x) from the 2023 4.25% Maturity Date, only such part of the 4.25% 2023 Converted Debt as has actually been converted into equity securities by and (y) the 2023 2.875
% Maturity Date, shall be included in determining the level of Stockholders’ Equity for the purposes of assessing compliance with the financial covenant contained in Section 7.2.4.c only such part of the 2.875% Converted Debt as has actually been converted into equity securities, shall, in each case, be added to Stockholders’ Equity.
provided that:
a) any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Signing 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;
b)
any non-cash write-off to Stockholders’ Equity with respect to the Fiscal Year ended December 31, 2020 shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such write-offs shall be added back to Stockholders’ Equity;
c) any non-cash write-off to Stockholders’ Equity with respect to the Fiscal Year ended December 31, 2021 or December 31, 2022 (excluding any such write-offs to goodwill with respect to either such Fiscal Year) shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such write-off shall be added back to Stockholders’ Equity; provided that the aggregate amount of such write-offs added back to Stockholders’ Equity pursuant
to this clause (c) shall not exceed the greater of (i) 10.0% 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 recently ended Fiscal Quarter and (ii) $3,000,000,000;
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d) any non-cash write-off to such part of the Borrower’s goodwill as existed on the Borrower’s balance sheet as of December 31, 2020 (namely $809,480,000) in respect of the Fiscal Years ended December 31, 2021, December 31, 2022, December
31, 2023 and December 31, 2024, shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such write-offs shall be added back to Stockholders’ Equity; and
e) the impact, as determined in accordance with GAAP, on the computation of Stockholders’ Equity of one-time expenses (including, without limitation, prepayment penalties) related to the refinancing of secured or guaranteed Debt Incurrence in respect of the Fiscal Quarters commencing on and from March 31, 2020 shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such expenses shall be added back to Stockholders’ Equity; and
f) “net
loss attributable to Royal Caribbean Cruises Ltd.” (but excluding any net loss associated with an impairment or write-off added back pursuant to clause (b), clause (c), or clause (d) or clause (e) above), determined in accordance with GAAP as shown in the Borrower’s consolidated statement of comprehensive (loss) income, attributable to the Fiscal Years ending December 31, 2021 and December 31, 2022 shall be added back to Stockholders’ Equity; provided that the aggregate amount added back to Stockholders’ Equity pursuant to clause (c) above and this clause (e)(f) shall not exceed $4,500,000,000,
and provided
further that unless the Borrower, the Facility Agent and the ECA Agent (acting upon the instructions of BpiFAE) have agreed otherwise in writing:
(i) if, by no later than the date (the “Add Back End Date”) falling 30 days after the end of the Fiscal Quarter ending June 30, 2025, BpiFAE has issued its written consent (the “Add Back Transition Consent”) to the arrangements set out below, the aggregate amount of the add backs made pursuant to paragraphs (b) to (e)(f) above shall automatically be reduced successively by 25 per cent of such aggregate amount in the last Fiscal Quarter of each of the four (4) Fiscal Years commencing January 1, 2025 so as to reduce to zero any such add backs by, and in the assessment of, the Fiscal Year ended
December 31, 2028; and
(ii) if BpiFAE has not issued the Add Back Transition Consent by the Add Back End Date, with effect from the Add Back End Date the add backs set out in paragraphs (b) to (e)(f) above shall be removed and accordingly the add backs set out in paragraphs (b) to (e)(f) above shall be reduced to zero for the purposes of, and in the assessment of, the Fiscal Quarter ending September 30, 2025, and any Fiscal Quarter and Fiscal Year occurring thereafter.
For the avoidance of doubt:
(A) no item added back to Stockholders’ Equity pursuant to paragraphs
(b) to (e)(f) above shall be added back pursuant to any other clause, section or paragraph of this Agreement. For the purposes of paragraphs (i) and (ii) above, where BpiFAE issues the Add Back Transition Consent the ECA Agent shall communicate such consent promptly to the other parties to this Agreement; and
(B) for the purposes of this Agreement, and notwithstanding any amendment, supplement or other modification to the 4.25% Convertible Notes Indenture or the 2.875% Convertible Notes
UK-#393119123-v4 Page 11
Indenture
the maximum amount of 4.25% Converted Debt and 2.875% Converted Debt shall, subject to the reductions referred to in paragraphs 1) and 2) above, at no time exceed $1,150,000,000 and $575,000,000 (respectively).”
4 Section 7.2.4. (Financial Condition) of Article VII (Covenants) (but excluding Sections 7.2.4.(A) – (C) inclusive) shall be deleted in its entirety and replaced as follows to read:
"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 the applicable level set forth in the table
below (the “NDCR Table”) opposite such Fiscal Quarter under the below heading “Net Debt to Capitalization Ratio”:
Provided
however that unless the Borrower, the Facility Agent and the ECA Agent (acting upon the instructions of BpiFAE) have agreed otherwise in writing, if BpiFAE has issued its written consent (the “NDCR Adjustment Consent”) to the adjustment of the figures in the NDCR Table as set out below, the figures in the NDCR Table shall automatically be adjusted and replaced with effect from the date of the NDCR Adjustment
Consent so as to read as follows as set out in the table below (the “Further Revised NDCR Table”):
and accordingly with
effect from the date of the NDCR Adjustment Consent the Borrower will instead not permit the Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than the applicable level set forth in the Further Revised NDCR Table. Where BpiFAE issues the NDCR Adjustment Consent the ECA Agent shall communicate such consent promptly to the other parties to this Agreement;
b. the Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter; and
c. if, at any time, the Senior Debt Rating of the Borrower
is less than Investment Grade, as given by both Moody's and S&P, Stockholders' Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 the applicable Starting Threshold plus (ii) 50% of the consolidated net income of the Borrower and its Subsidiaries for the period commencing on January 1, 2007 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 Fiscal Quarters for which the Borrower and its Subsidiaries have a consolidated net loss).
For
the purposes of this paragraph c., “Starting Threshold” shall mean, for the Fiscal Quarter:
In connection with the determination of Stockholders’ Equity for the Fiscal Quarter ended March 31, 2023 or, if later, the last full Fiscal Quarter to end prior to the 4.25% Maturity Date, the Borrower hereby undertakes that it will act in good faith and will provide to the Facility Agent no later than March
25, 2023 or, if later, no later than 6 days prior to the end of the last full Fiscal Quarter to end prior to the 4.25% Maturity Date written confirmation of the actual amount of 4.25% Converted Debt it has elected to settle (i) in equity, (ii) in cash and (iii) in cash generated from equity issued for the purpose of settling the 4.25% Converted Debt obligation in cash, together with copies of all notices of conversion provided to the noteholders pursuant to section 14.02 of the 4.25% Convertible Notes Indenture.
In connection with the determination of Stockholders’ Equity for the Fiscal Quarter ended September 30, 2023 or, if later, the last full Fiscal Quarter to end prior to the 2.875% Maturity Date, the Borrower hereby undertakes that
it will act in good faith and will provide to the Facility Agent no later than September 24, 2023 or, if later, no later than 6 days prior to the end of the last full Fiscal Quarter to end prior to the 2.875% Maturity Date written confirmation of the actual amount of 2.875% Converted Debt it has elected to settle (i) in equity, (ii) in cash and (iii) in cash generated from equity issued for the purpose of settling the 2.875% Converted Debt obligation in cash, together with copies of all notices of conversion provided to the noteholders pursuant to section 14.02 of the 2.875% Convertible Notes Indenture.”
UK-#393119123-v4 Page 14
Part
B
(1) With effect from the Further Amendment Effective Date, the Novation Agreement shall be amended as follows:
(a) the definition of Other Basic Contract Price Increases in clause 1.1 (Definitions) shall be deleted and replaced with the following:
“Other Basic Contract Price Increases means any increase in the Basic Contract Price pursuant to the following Articles of the Building Contract:
I.5.7 and I.5.8 (choice of suppliers), II.1 (in relation to the Non-Exercise Premium as defined in that Article), III.2.3 (speed bonus) and III.6.2 (extra cabins), in the amount provided for in the Building Contract or as reasonably determined by the New Borrower and, in each case, evidenced to the reasonable satisfaction of the Facility Agent, but (for the purpose of calculating the Maximum Loan Amount and the Additional Advance in respect of such items) in an aggregate amount not exceeding €10,500,000.”;
(b) the definition of Weighted Average Rate of Exchange in clause 1.1 (Definitions) shall be deleted and replaced with the following:
“Weighted Average Rate of Exchange means the weighted
average rate of exchange that the New Borrower has agreed, either in the spot or forward currency markets, to pay its counterparties for the purchase of the relevant amounts of euro with Dollars for the payment of the euro amount of the Contract Price (including the portion thereof comprising the Change Orders (including the Change Orders to be financed pursuant to an Additional Advance to be made available to the New Borrower pursuant to clause 5.2(a)(ii)), any Other Basic Contract Price Increases and the Non-Yard Costs) and including in such weighted average calculation (a) the NYC Applicable Rate in relation to the portion of the Contract Price comprising the Non-Yard Costs and (b) the spot rates
for any other euro amounts that have not been hedged by the New Borrower.”; and
(c) clause 5.2(a) (Additional Advances) shall be deleted and replaced with the following:
(i) “(a) an amount of up to:
(ii) (i) 80% of the incurred Non-Yard Costs (of up to €120,000,000) and the Other Basic Contract Price Increases paid or to be paid by the New Borrower under the Building Contract of up to €10,500,000; and
(iii) (ii) 80% of the aggregate amount equal to (A) the total Change Orders payable by the Borrower pursuant to Article V of the Building
Contract in a maximum amount of up to €148,000,000 less (B) the actual Change Order Amount financed pursuant to the Loan made available to the Existing Borrower under the Principal Agreement (and which will therefore form part of the Novated Loan Balance);”
(2) With effect from the Further Amendment Effective Date, the form of Novated Credit Agreement scheduled to the Novation Agreement shall be further amended as follows:
(a) Recital B shall be deleted and replaced with the following:
“(B) The Lenders have agreed to make available to the Borrower, upon the terms and conditions contained herein, a US dollar loan facility calculated on the amount (the “Maximum Loan Amount”) equal to the EUR sum of:
UK-#393119123-v4 Page
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(i) eighty per cent (80%) of the Contract Price (as defined below) of the Purchased Vessel, and including Non-Yard Costs of up to EUR 120,000,000 (the “Maximum Non-Yard Costs Amount”), and the Other Basic Contract Price Increases (as defined below) for the Purchased Vessel of up to EUR 10,500,000, and all of which amounts shall not exceed in aggregate EUR 1,410,500,000;
(ii) eighty per cent (80%) of the change orders of up to EUR 148,000,000 effected in accordance with the Construction Contract; and
(iii) 100%
of the BpiFAE Premium (as defined below),
being an amount no greater than EUR 1,284,204,000 and being made available in the US Dollar Equivalent of that Maximum Loan Amount (as such Dollar amount may be adjusted pursuant to clause 5.3 of the Novation Agreement).”;
(b) Recital C shall be deleted and replaced with the following
“(C) Of the amounts referred to in recital (B)(i) and (ii) above, the Lenders have made certain amounts available to the Original Borrower during the period prior to the Actual Delivery Date pursuant to this Agreement (the liability for which amount has been assumed by the Borrower following the novation of this Agreement pursuant to the Novation Agreement) and, in relation to the amounts referred to in recital (B)(i) and (ii), the balance has been or shall be made available to the Borrower as an
Additional Advance pursuant to the Novation Agreement and this Agreement.”;
(c) The definition of “US Dollar Equivalent” in Section 1.1 (Defined Terms) of Article 1 (Definitions and accounting terms) shall be amended by inserting a reference to “change orders,” before the first reference to Non-Yard Costs; and
(d) Exhibit A - Form of Loan Request shall be deleted in its entirety and replaced by the Loan Request set out in Exhibit A below.
UK-#393119123-v4 Page 16
EXHIBIT A
FORM OF LOAN REQUEST
Citibank
Europe plc, UK Branch as Facility Agent
5th Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square Canary Wharf
London E14 5LB
U.K.
Date: [●]
Attention: [Name] [Title]
HULL NO. A35 – NOTICE OF DRAWDOWN
Gentlemen and Ladies:
This Loan Request is delivered to you pursuant to Section
2.3 of the Hull No. A35 Credit Agreement attached to the novation agreement dated [] 2019 (together with all amendments from time to time made thereto, the “Novation Agreement”), among Royal Caribbean Cruises Ltd. (the “Borrower”), the various other financial institutions from time to time party thereto as Lenders, Citibank Europe plc, UK Branch as facility agent (in such capacity, the “Facility Agent”), Citibank N.A., London Branch as global coordinator, HSBC Continental Europe as ECA agent, Citicorp Trustee Company Limited as security trustee, Citibank Europe plc, HSBC Continental Europe, Banco Santander S.A., Banco Bilbao Vizcaya Argentaria S.A., Paris Branch,
BNP Paribas SA, SMBC Bank International plc, Société Générale and Unicredit Bank AG as mandated lead arrangers and Palmeraie Finance Limited as the existing borrower. Unless otherwise defined herein or the context otherwise requires, terms used herein have the meanings provided in the Novation Agreement or in the form of amended and restated credit agreement (the “Agreement”) attached to it.
The Borrower hereby confirms that the Weighted Average Rate of Exchange is [●] and the Spot Rate of Exchange is [●]. True and complete copies of the counterparty confirmations evidencing the Weighted Average Rate of Exchange are attached (to the extent not previously provided to the Facility Agent pursuant to clause 5.6 of the Novation Agreement).
The Borrower
hereby confirms that the total amount of the Loan is US$[●], comprised of (i) the Total Additional Advances (defined below) being requested hereby and (ii) the Novated Loan Balance assumed by the Borrower pursuant to the provisions of clause 3 of the Novation Agreement and converted into Dollars pursuant to clause 5.1 of the Novation Agreement.
The Borrower hereby requests that further advances in respect of the Loan be made in the principal amount of US$ [] (the “Total Additional Advances”) on [], 20[] (the “Disbursement Date”), which amount (when aggregated with the Novated Loan Balance) does not exceed the Maximum Loan Amount. The said amounts
requested for the Loan are equal to the sum of:
UK-#393119123-v4 Page 17
(A) The aggregate of:
(i) US$[●] (the “NYC Amount”), which is equal to the US Dollar Equivalent of the amount of EUR[●] being 80% of the Non-Yard Costs of EUR [●] (the “Total NYC Allowance”) and being comprised of:
I. US$[[●] EUR * WARE] (the “Paid NYC Portion”), being 80% of [●]% (the “Relevant Percentage”)
of the Total NYC Allowance, such Relevant Percentage representing the percentage of the Total NYC Allowance that the Borrower has paid to the relevant suppliers and installed/provided as of [●] (and being the Paid Non-Yard Costs referred to in the Agreement),
II. US$[[●] EUR * WARE] (the “Unpaid NYC Portion”) being the difference between the NYC Amount and the Paid NYC Portion and being 80% of the Unpaid Non-Yard Costs referred to in the Agreement;
(ii) US$[●], which is equal to the US Dollar Equivalent of the amount of EUR[●], being 80% of the Other Basic Contract Price Increases of EUR[●];
(iii) US$[●], which is equal to the US Dollar Equivalent
of the amount of EUR[●], being 80% of the change orders referred to in recital (B)(ii) of the Agreement of EUR[●];
(iv) US$[●], which is equal to the US Dollar Equivalent of the amount of EUR [●] being equal to 100% of the BpiFAE Premium and being comprised of:
I. US$[●], being the US Dollar BpiFAE Advance Amount payable by the Borrower to BpiFAE; and
II. US$[●], being the US Dollar BpiFAE Balance Amount payable by the Borrower to the Builder; and
plus
(B) US$[●], being the product of (a) the difference obtained from subtracting the Spot Rate of Exchange from the Weighted Average Rate of Exchange and (b) the Novated Loan Balance in
accordance with clause 5.3 of the Novation Agreement.
True and complete copies of the counterparty confirmations evidencing the rates of exchange making up the US Dollar Equivalent under paragraph (A) above are attached (to the extent not previously provided to the Facility Agent pursuant to clause 5.6 of the Novation Agreement). Also attached is the written confirmation of the Builder as to the amount of the incurred Non-Yard Costs and the Other Basic Contract Price Increases paid to the Builder by the Borrower on or prior to delivery of the Purchased Vessel.
The Borrower hereby authorizes and instructs the Facility Agent on its behalf:
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(1) to convert the US Dollar BpiFAE Advance Amount (on the basis set out in Section 2.3(d) of the Agreement) and pay directly to BpiFAE that portion of the EUR amount of the BpiFAE Premium which is payable to BpiFAE on the Disbursement Date;
(2) to [pay the US Dollar BpiFAE Balance Amount][convert the US Dollar BpiFAE Balance Amount (on the basis set out in Section 2.3(e) of the Agreement) and pay the EUR amount] on behalf of the Borrower directly to the Builder to the following account (the “Builder’s Account”) on the Disbursement Date:
[●]
(3) to transfer the [Unpaid NYC Portion]
to the Escrow Account which is subject to a charge in favor of the Security Trustee pursuant to the Escrow Account Security on the Disbursement Date; and
(4) to transfer US$[●], being the Total Additional Advances less (A) the US Dollar BpiFAE Advance Amount, (B) the US Dollar BpiFAE Balance Amount, and (C) the [Unpaid NYC Portion], to the following account on the Disbursement Date:
[●].
The Borrower hereby acknowledges that, pursuant to Section 5.1.5 of the Agreement, each of the delivery of this Loan Request and the acceptance by the Borrower of the proceeds of the borrowing requested hereby constitute a representation and warranty by the Borrower that, on
the date of such borrowing (before and after giving effect thereto and to the application of the proceeds therefrom):
(a) all statements set forth in Article VI of the Agreement (excluding, however, those set forth in Section 6.10) are true and correct in all material respects; and
(b) no Default or Prepayment Event and no event which (with notice or lapse of time or both) would become a Prepayment Event has occurred and is continuing.
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 Facility Agent. Except to the extent, if any, that prior to the time of the borrowing requested hereby the Facility 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.
The Borrower has caused this Loan Request to be executed and delivered, and the certification and warranties contained herein to be made, by its duly Authorized Officer this day of , 20[].
Royal Caribbean Cruises Ltd.
By:
Name:
Title:
UK-#393119123-v4 Page 19
SIGNATORIES
Amendment Agreement in respect of Hull A35
Existing Borrower
SIGNED
by / for and on behalf of PALMERAIE FINANCE LIMITED
if BpiFAE has issued its written consent (the “NDCR Adjustment Consent”) to the adjustment of the figures in the 
with effect from the date of the NDCR Adjustment
Consent so as to read as follows as set out in the table below (the “Further Revised NDCR Table”):
with
effect from the date of the NDCR Adjustment Consent the Borrower will 
instead not permit the Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than the applicable level set forth in the Further Revised NDCR Table
. Where BpiFAE issues the NDCR Adjustment Consent the ECA Agent shall communicate such consent promptly to the other parties to this Agreement;