CREDIT AGREEMENT, dated as of May 7, 2009

 

NYDOCS03/880756.14

 

TABLE OF CONTENTS

PAGE

 

ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1.	Defined Terms	1
SECTION 1.2.	Use of Defined Terms	13
SECTION 1.3.	Cross-References	13
SECTION 1.4.	Accounting and Financial Determinations	14
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES
SECTION 2.1.	Commitments	14
SECTION 2.2.	Reduction of Commitment Amount	15
SECTION 2.3.	Borrowing Procedure	16
SECTION 2.4.	Funding	16
SECTION 2.5.	Evidence of Debt	16
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1.	Repayments and Prepayments	17
SECTION 3.2.	Interest Provisions	18
SECTION 3.3.	Commitment Fees	19
SECTION 3.4.	Finnvera Guarantee Premiums	20
SECTION 3.5.	Residual Risk Guarantee Premiums	21
SECTION 3.6.	Residual Risk Guarantee Cash Collateral	21
SECTION 3.7.	Temporary Repayment	23

 

 

ARTICLE IV
CERTAIN APPLICABLE FLOATING RATE AND OTHER PROVISIONS
SECTION 4.1.	Applicable Floating Rate Lending Unlawful	23
SECTION 4.2.	Deposits Unavailable	23
SECTION 4.3.	Increased Floating Rate Loan Costs, etc.	24
SECTION 4.4.	Funding Losses	26
SECTION 4.5.	Increased Capital Costs	26
SECTION 4.6.	Taxes	27
SECTION 4.7.	Reserve Costs	29
SECTION 4.8.	Replacement Lenders, etc.	30
SECTION 4.9.	Payments, Computations, etc.	31
SECTION 4.10.	Sharing of Payments	31
SECTION 4.11.	Setoff	32
SECTION 4.12.	Use of Proceeds	32
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1.	Effectiveness	32
SECTION 5.2.	The Loans	33
SECTION 5.3.	The Borrowing	35
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1.	Organization, etc.	36
SECTION 6.2.	Due Authorization, Non-Contravention, etc.	36
SECTION 6.3.	Government Approval, Regulation, etc.	36
SECTION 6.4.	Compliance with Environmental Laws	36

 

 

SECTION 6.5.	Validity, etc.	37
SECTION 6.6.	Financial Information	37
SECTION 6.7.	No Default or Prepayment Event	37
SECTION 6.8.	Litigation	37
SECTION 6.9.	Vessels	37
SECTION 6.10.	Subsidiaries	38
SECTION 6.11.	Obligations rank pari passu	38
SECTION 6.12.	Withholding, etc.	38
SECTION 6.13.	No Filing, etc. Required	38
SECTION 6.14.	No Immunity	38
SECTION 6.15.	Pension Plans	38
SECTION 6.16.	Investment Company Act	39
SECTION 6.17.	Regulation U	39
SECTION 6.18.	Accuracy of Information	39
ARTICLE VII
COVENANTS
SECTION 7.1.	Affirmative Covenants	39
SECTION 7.2.	Negative Covenants	43
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1.	Listing of Events of Default	49
SECTION 8.2.	Action if Bankruptcy	51
SECTION 8.3.	Action if Other Event of Default	51

 

ARTICLE IX
PREPAYMENT EVENTS
SECTION 9.1.	Listing of Prepayment Events	51
SECTION 9.2.	Mandatory Prepayment	54
ARTICLE X
GUARANTEE
SECTION 10.1.	Guarantee	54
SECTION 10.2.	Guarantee Absolute	54
SECTION 10.3.	Waivers and Acknowledgments	55
SECTION 10.4.	Subrogation	56
SECTION 10.5.	Subordination	57
SECTION 10.6.	Continuing Guarantee; Assignments	58
ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1.	Actions	58
SECTION 11.2.	Funding Reliance, etc.	59
SECTION 11.3.	Exculpation	59
SECTION 11.4.	Successor	60
SECTION 11.5.	Loans by the Administrative Agent	61
SECTION 11.6.	Credit Decisions	61
SECTION 11.7.	Copies, etc.	61
SECTION 11.8.	Agency Fee	62
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1.	Waivers, Amendments, etc.	62

 

 

SECTION 12.2.	Notices	62
SECTION 12.3.	Payment of Costs and Expenses	64
SECTION 12.4.	Indemnification	64
SECTION 12.5.	Survival	65
SECTION 12.6.	Severability	66
SECTION 12.7.	Headings	66
SECTION 12.8.	Execution in Counterparts, Effectiveness, etc.	66
SECTION 12.9.	Governing Law	66
SECTION 12.10.	Successors and Assigns	66
SECTION 12.11.	Sale and Transfer of Loans; Participations in Loans	66
SECTION 12.12.	Other Transactions	69
SECTION 12.13.	Forum Selection and Consent to Jurisdiction	69
SECTION 12.14.	Process Agent	69
SECTION 12.15.	Judgment	69
SECTION 12.16.	Waiver of Jury Trial	70

 

 

SCHEDULES

 

SCHEDULE I

-

Disclosure Schedule

 

SCHEDULE II

-

Repayment Schedule

 

EXHIBITS

 

Exhibit A

-

Form of Note

 

Exhibit B

-

Form of Borrowing Request

 

Exhibit C

-

Form of Opinion of Bradley Stein, Esq.

 

Exhibit D

-

Form of Opinion of Watson, Farley & Williams (New York) LLP

 

Exhibit E

-

Form of Lender Assignment Agreement

 

Exhibit F-1

-

Form of Opinion of Hannes Snellman

 

Exhibit F-2

-

Form of Opinion of Hannes Snellman

 

Exhibit G

-

Form of Pledge Agreement

 

Exhibit H

-

Form of Opinion of Norton Rose LLP

 

Exhibit I

-

Form of Closing Date Opinion of Bradley Stein, Esq.

 

Exhibit J

-

Form of Closing Date Opinion of Watson, Farley & Williams

 

(New York) LLP

 

 

CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of May 7, 2009, is among OASIS OF THE SEAS INC., a Liberian corporation, (the “ Borrower ”), ROYAL CARIBBEAN CRUISES LTD., a Liberian corporation (the “ Guarantor ”), the various financial institutions as are or shall become parties hereto (collectively, the “ Lenders ”) and BNP PARIBAS (“ BNPP ”), as administrative agent (in such capacity, the “ Administrative Agent ”) for the Lenders.

W I T N E S S E T H:

WHEREAS, the Borrower desires to obtain Commitments from the Lenders pursuant to which Loans, in a maximum aggregate principal amount not to exceed $1,050,000,000 (subject to adjustment and partial redenomination into Euro as provided herein), will be made to the Borrower on the Closing Date;

WHEREAS, the Guarantor is willing to guarantee the Borrower’s obligations hereunder pursuant to Section 10.1 hereof (the “ Guarantee ”);

WHEREAS, the Lenders are willing, on the terms and subject to the conditions hereinafter set forth (including Article V ), to extend such Commitments and make such Loans to the Borrower; and

WHEREAS, the proceeds of such Loans will be used to finance up to 80% of the contract price (including change orders) of the passenger cruise ship to be named “Oasis of the Seas” with the Builder’s Hull No. #1363 (the “ Purchased Vessel ”) built by STX Finland Cruise Oy (formerly known as Aker Yards Oy), Turku, Finland (the “ Builder ”);

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall, when capitalized, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):

“ Accumulated Other Comprehensive Income (Loss) ” means at any date the Guarantor’s accumulated other comprehensive income (loss) on such date, determined in accordance with GAAP.

“ Administrative Agent ” is defined in the preamble and includes each other Person as shall have subsequently been appointed as the successor Administrative Agent, and as shall have accepted such appointment, pursuant to Section 11.4 .

“ Affiliate ” of any Person means any other Person which, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to

 

 

direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“ Agreement ” means, on any date, this Credit Agreement as originally in effect on the Effective Date and as thereafter from time to time amended, supplemented, amended and restated, or otherwise modified and in effect on such date.

“ Applicable Floating Rate ” means, with respect to Loans denominated in Euro, the EURIBO Rate, and with respect to Loans denominated in Dollars, the LIBO Rate.

“ Applicable Jurisdiction ” means the jurisdiction or jurisdictions under which the Borrower or the Guarantor, as applicable, is organized, domiciled or resident or from which any of its business activities are conducted or in which any of its properties are located and which has jurisdiction over the subject matter being addressed.

“ Applicable Margin ” means, as of any date (i) in respect of the Tranche B Loans denominated in Dollars, 3.00% per annum and (ii) in respect of the Tranche B Loans denominated in Euro, 2.25% per annum.

“ Applicable Premium Rate ” means, as of any date of payment of premiums on the Finnvera Guarantee by the Borrower, the percentage per annum set forth below opposite the Senior Debt Rating on such date provided by S&P and Moody’s:

 

Senior Debt Rating		Applicable Premium Rate	Applicable Premium Rate
(S&P)	(Moody’s)	(if unsecured)	(if secured)
BBB or higher	Baa2 or higher	0.77%	0.34%
BBB-	Baa3	1.01%	0.34%
BB+	Ba1	1.48%	0.89%
BB	Ba2	1.96%	1.07%
BB-	Ba3	2.49%	1.37%
B+ or lower	B1 or lower	2.97%	2.14%

 

“ Approved Appraiser ” means any of the following: Barry Rogliano Salles, Paris, H Clarkson & Co. Ltd., London, R.S. Platou Shipbrokers, Norway, or Fearnley AS, Norway.

“ Assignee Lender ” is defined in Section 12.11.1 .

“ Authorized Officer ” means those officers of the Borrower or the Guarantor, as applicable, authorized to act with respect to the Loan Documents to which it is a party and whose signatures and incumbency shall have been certified to the Administrative Agent by the Secretary or an Assistant Secretary of the Borrower or the Guarantor.

“ Bankruptcy Law ” means any proceeding of the type referred to in Section 8.1.6 or Title 7, 11, 13 or 15 of the U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

 

“ BNPP ” is defined in the preamble.

“ Borrower ” is defined in the preamble.

“ Borrowing ” means Tranche A Loans or Tranche B Loans made on the same Business Day and in the same currency pursuant to the Borrowing Request in accordance with Section 2.3 .

“ Borrowing Request ” means a loan request and certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of Exhibit B hereto.

“ Breakage Costs ” means the amount (if any) by which (i) the sum of the present value, discounted at the Reinvestment Rate, of each interest payment that each Tranche A Lender would have received on its share of any amount of Tranche A Loans that are prepaid for the period from the date of receipt of any such prepayment until the Stated Maturity Date, had the principal amount of such prepayment been repaid in accordance with the repayment schedule as set forth in Schedule II exceeds (ii) the present value, discounted at the Reinvestment Rate, of the amount that such Tranche A Lender would be able to obtain by investing an amount equal to the aggregate principal amount of such prepayment in an instrument guaranteed by Finnvera plc or the Republic of Finland for a period from the date of such prepayment and until the Stated Maturity Date. In the event that the Borrower does not draw down the Tranche A Loans or a part thereof due to cancellation or reduction of the Commitment or otherwise, the Tranche A Loans shall be deemed to have been made on November 2, 2009, or if the Commitment is cancelled, reduced or terminated after such date, the date that is 5 Business Days after the date of such cancellation, reduction, or termination, and, for purposes of determining the period for which any present value calculation shall be made, shall be deemed to have been prepaid on the earlier of (x) the date on which the Borrower shall have notified the Tranche A Lenders of the cancellation or reduction of the Commitment and (y) the date on which the Commitment shall have been terminated pursuant to the terms of this Agreement in amount equal to the amount of such reduction, cancellation or termination, as applicable, of the Commitment (it being understood that such deemed date of prepayment will be a date earlier than the deemed date of funding of the Tranche A Loans for these purposes).

“ Builder ” is defined in the fourth recital.

“ Business Day ” means any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York City or Paris or London or Helsinki, and if the applicable Business Day relates to the Borrowing, an Interest Period, prepayment or conversion, on which dealings are carried on in the London interbank market and banks are open for business in London and on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.

“ Capital Lease Obligations ” means obligations of any Person or any Subsidiary of such Person under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases.

“ Capitalization ” means, as at any date, the sum of (a) Net Debt on such date, plus (b) Stockholders’ Equity on such date.

 

“ Capitalized Lease Liabilities ” means the principal portion of all monetary obligations of the Guarantor or any of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would be classified as capitalized leases, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

“ Cash Equivalents ” means all amounts other than cash that are included in the “cash and cash equivalents” shown on the Guarantor’s balance sheet prepared in accordance with GAAP.

“ Closing Date ” means the date of the funding of the Loans in accordance with Section 2.3 , provided that if the Loans are reborrowed pursuant to Section 3.7 then the Closing Date shall be the date of such reborrowing, which date, in each case, shall not be later than February 15, 2010 (or such later date as may be necessary due to ice conditions for the Borrower to take delivery of the Vessel, but no later than April 15, 2010).

“ Code ” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

“ Commitment ” means, relative to any Lender, such Lender’s obligation to make a Tranche A Loan or a Tranche B Loan in a specified currency pursuant to Section 2.1.1 .

“ Commitment Amount ” means the sum of the Tranche A Commitment Amount and the Tranche B Commitment Amount.

“ Commitment Fees ” is defined in Section 3.3 .

“ Communications ” is defined in Section 12.2(b) .

“ Controlled Group ” means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with the Guarantor, are treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.

“ Default ” means any Event of Default or any condition, occurrence or event which, after notice or lapse of time or both, would constitute an Event of Default.

“ Deposit Account ” is defined in Section 3.6(a) .

“ Determination Notice ” is defined in Section 4.2 .

“ Disclosure Schedule ” means the Disclosure Schedule attached hereto as Schedule I .

“ Dollar ” and the sign “ $ ” mean lawful money of the United States.

“ Effective Date ” is defined in Section 5.1 .

“ Eligible Assignee ” means (i) Finnvera, (ii) any reinsurer of Finnvera but only to the extent guarantee payments have been made under the Finnvera Guarantee and reimbursed by such reinsurer and (iii) any financial institution acceptable to Finnvera. A financial institution

 

shall be deemed acceptable to Finnvera in the event such financial institution (1) is rated at least BBB- by S&P or Baa3 by Moody’s or, if rated by both S&P and Moody’s, at least BBB- by S&P and Baa3 by Moody’s and (2) is located in a high income OECD member country (as defined from time to time by the World Bank) and there is, and such institution is subject to, sufficient public supervision in its home country.

“ Environmental Laws ” means all applicable federal, state, local or foreign statutes, laws, ordinances, codes, rules and regulations (including consent decrees and administrative orders) relating to the protection of the environment.

“ Equivalent ” (i) in Dollars of Euro on any date, means 1.3172 Dollars for each Euro and (ii) in Euro of Dollars on any date, means Euro 0.759186152 for each Dollar.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.

“ Euro ” means the lawful currency of the European Union as constituted by the Treaty of Rome which established the European Community, as such treaty may be amended from time to time and as referred to in the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

“ EURIBO Rate ” means, relative to any Interest Period for a Loan denominated in Euro, the rate per annum of the offered quotation for deposits in Euro for delivery on the first day of such Interest Period and for the duration thereof which is equal to the Screen Rate at or about 11:00 a.m. (London time) two Business Days before the commencement of such Interest Period, provided that:

(a)       subject to Section 3.2.5 , if there is no Screen Rate with respect to Euro at the relevant time, the EURIBO Rate shall be the rate per annum certified by the Administrative Agent to be the average of the rates quoted by the Reference Lenders as the rate at which each of the Reference Lenders was (or would have been) offered deposits of Euro by prime banks in the London interbank eurocurrency market in an amount approximately equal to the amount of such Loan and for a period approximately equal to such Interest Period; and

(b)       for the purposes of determining the post-maturity rate of interest under Section 3.2.3 , the EURIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Administrative Agent may determine after consultation with the Lenders.

“ Event of Default ” is defined in Section 8.1 .

“ Existing Debt ” means the obligations of the Guarantor or its Subsidiaries in connection with the Bareboat Charterparty with respect to the vessel BRILLIANCE OF THE SEAS dated July 5, 2002 between Halifax Leasing (September) Limited and RCL (UK) LTD, and the

 

replacement, extension, renewal or amendment of the foregoing without increase in the amount or change in any direct or contingent obligor of such obligations.

“ Existing Group ” means the following Persons: (a) A. Wilhelmsen AS., a Norwegian corporation (“ Wilhelmsen ”); (b) Cruise Associates, a Bahamian general partnership (“ Cruise ”); and (c) any Affiliate of either or both of Wilhelmsen and Cruise.

“ Existing Principal Subsidiaries ” means each Subsidiary of the Guarantor that is a Principal Subsidiary on the Effective Date.

“ FEC ” means Finnish Export Credit Ltd., which is a Finnish ultimately state-owned limited liability company.

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Finnvera ” means Finnvera plc, a Finnish limited liability company established by law and operating as the official export credit agency in Finland.

“ Finnvera Commitment Letter ” means the amended and restated commitment letter for Buyer Credit Guarantee BC 169-05, dated April 8, 2009 among Finnvera and the Guarantor.

“ Finnvera Guarantee ” means the Buyer Credit Guarantee Agreement BC 169-05, entered into on May 7, 2009, between Finnvera and the Administrative Agent, as amended from time to time in accordance with the terms hereof and thereof.

“ Fiscal Quarter ” means any quarter of a Fiscal Year.

“ Fiscal Year ” means, with respect to any Person, any annual fiscal reporting period of such Person.

“ Fixed Charge Coverage Ratio ” means, as of the end of any Fiscal Quarter, the ratio computed for the period of four consecutive Fiscal Quarters ending on the close of such Fiscal Quarter of:

(a)       net cash from operating activities (determined in accordance with GAAP) for such period, as shown in the Guarantor’s consolidated statement of cash flow for such period, to

(b)

the sum of:

 

(i)        dividends actually paid by the Guarantor during such period (including, without limitation, dividends in respect of preferred stock of the Guarantor); plus

(ii)       scheduled payments of principal of all debt less New Financings (determined in accordance with GAAP, but in any event including Capitalized Lease Liabilities) of the Guarantor and its Subsidiaries for such period.

“ Fixed Rate ” means 5.41% per annum.

“ Floating Rate ”, with respect to any Tranche B Loan, means interest equal to the sum of the Applicable Floating Rate plus the Floating Rate Applicable Margin.

“ Floating Rate Applicable Margin ” means either the rate of interest set forth in clause (i) or (ii) of the definition of “Applicable Margin”, as applicable.

“ F.R.S. Board ” means the Board of Governors of the Federal Reserve System or any successor thereto.

“ GAAP ” is defined in Section 1.4 .

“ Government-related Obligations ” means obligations of any Person or any Subsidiary of such Person under, or Indebtedness incurred by such Person or any Subsidiary of such Person to satisfy obligations under, any governmental requirement imposed by any Applicable Jurisdiction that must be complied with to enable such Person and its Subsidiaries to continue their business in such Applicable Jurisdiction, excluding , in any event, any taxes imposed on such Person or any Subsidiary of such Person.

“ Guarantee ” is defined in the second recital.

“ Guaranteed Obligations ” is defined in Section 10.1 .

“ Guarantor ” is defined in the preamble.

“ Hedging Instruments ” means options, caps, floors, collars, swaps, forwards, futures and any other agreements, options or instruments substantially similar thereto or any series or combination thereof used to hedge interest, foreign currency and commodity exposures.

“ herein ”, “ hereof ”, “ hereto ”, “ hereunder ” and similar terms contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular Section, paragraph or provision of this Agreement or such other Loan Document.

“ Indebtedness ” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of

 

business so long as such trade accounts payable are payable within 180 days of the date the respective goods are delivered or the respective services are rendered; (c) Indebtedness of others secured by a Lien on the property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such Person; (e) Capital Lease Obligations of such Person; (f) Indebtedness of others guaranteed by such Person; (g) obligations of such Person in respect of surety bonds and similar obligations; and (h) Hedging Instruments.

“ Indemnified Liabilities ” is defined in Section 12.4 .

“ Indemnified Parties ” is defined in Section 12.4 .

“ Interest Payment Date ” means any date on which interest is payable with respect to Loans pursuant to clause (c) of Section 3.2.4 .

“ Interest Period ” means, relative to any Loans, the period beginning on (and including) the date on which such Loan is made pursuant to Section 2.3 and shall end on (but exclude) the day which numerically corresponds to such date six months thereafter or, if such month has no numerically corresponding day, on the last Business Day of such month; provided that if such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of a calendar month, in which case such Interest Period shall end on the Business Day next preceding the first Business Day of such calendar month).

“ Investment ” means, relative to any Person,

(a)       any loan or advance made by such Person to any other Person (excluding commission, travel, expense and similar advances to officers and employees made in the ordinary course of business); and

(b)

any ownership or similar interest held by such Person in any other Person.

“ Lender Assignment Agreement ” means a Lender Assignment Agreement substantially in the form of Exhibit E .

“ Lenders ” is defined in the preamble .

“ Lenders’ Commitment Letter ” means the commitment letter dated as of April 9, 2009 among Nordea Bank Finland plc, New York Branch, Nordea Bank Finland plc, acting through its Helsinki office, Skandinaviska Enskilda Banken AB (publ), BNPP and the Guarantor.

“ Lending Office ” means, relative to any Lender, the office of such Lender designated as such below its signature hereto or designated in a Lender Assignment Agreement or such other office of a Lender as designated from time to time by notice from such Lender to the Borrower and the Administrative Agent, whether or not outside the United States, which shall be making or maintaining the Loan of such Lender hereunder.

 

“ LIBO Rate ” means, relative to any Interest Period for a Loan denominated in Dollars, the rate per annum of the offered quotation for deposits in Dollars for delivery on the first day of such Interest Period and for the duration thereof which is equal to the Screen Rate at or about 11:00 a.m. (London time) two Business Days before the commencement of such Interest Period; provided that:

(c)       subject to Section 3.2.5 , if there is no Screen Rate at the relevant time, the LIBO Rate shall be the rate per annum certified by the Administrative Agent to be the average of the rates quoted by the Reference Lenders as the rate at which each of the Reference Lenders was (or would have been) offered deposits of Dollars by prime banks in the London interbank eurocurrency market in an amount approximately equal to the amount of such Loan and for a period approximately equal to such Interest Period; and

(d) for the purposes of determining the post-maturity rate of interest under Section 3.2.3 , the LIBO Rate shall be determined by reference to deposits on an overnight or call basis or for such other period or periods as the Administrative Agent may determine after consultation with the Lenders.

“ Lien ” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property to secure payment of a debt or performance of an obligation or other priority or preferential arrangement of any kind or nature whatsoever.

“ Loan ” is defined in Section 2.1.1 .

“ Loan Documents ” means this Agreement, the Notes, if any, the Finnvera Guarantee, the Residual Risk Guarantee and the Pledge Agreement.

“ Loan Party ” means each of the Borrower and the Guarantor.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations or financial condition of the Guarantor and its Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent or any Lender under or in connection with the Loan Documents or (c) the ability of any Loan Party to perform its payment Obligations under the Loan Documents to which it is a party.

“ Material Litigation ” is defined in Section 6.8 .

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Net Debt ” means, at any time, the aggregate outstanding principal amount of all debt (including, without limitation, the principal portion of all capitalized leases) of the Guarantor and its Subsidiaries (determined on a consolidated basis in accordance with GAAP) less the sum of (without duplication);

(a)

all cash on hand of the Guarantor and its Subsidiaries; plus

 

(b)

all Cash Equivalents.

“ Net Debt to Capitalization Ratio ” means, as at any date, the ratio of (a) Net Debt on such date to (b) Capitalization on such date.

“ New Financings ” means proceeds from:

(a)       borrowed money (whether by loan or issuance and sale of debt securities), including drawings under this Agreement and under the Credit Agreement dated as of March 27, 2003, as amended and restated as of June 29, 2007 and as may be further amended and restated or otherwise amended, among the Guarantor, the lenders parties thereto and Citibank, N.A., as administrative agent; and

(b)

the issuance and sale of equity securities.

“ Note ” means a promissory note of the Borrower payable to any Lender, delivered pursuant to a request made under Section 2.5 in substantially the form of Exhibit A hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the outstanding Loan made by such Lender, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.

“ Obligations ” means all obligations (monetary or otherwise) of the Loan Parties arising under or in connection with this Agreement, the Notes and the other Loan Documents.

“ Organic Document ” means, relative to any Person, its certificate of incorporation and its by-laws or similar organizational documents.

“ Participant ” is defined in Section 12.11.2 .

“ Pension Plan ” means a “pension plan”, as such term is defined in section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the Guarantor or any corporation, trade or business that is, along with the Guarantor, a member of a Controlled Group, may have liability, including any liability by reason of being deemed to be a contributing sponsor under section 4069 of ERISA.

“ Person ” means any natural person, corporation, partnership, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.

“ Pledge Agreement ” means a pledge agreement substantially in the form of Exhibit G-1 .

“ Platform ” is defined in Section 12.2(b)(1) .

“ Post-Petition Interest ” is defined in Section 10.5 .

“ Prepayment Event ” is defined in Section 9.1 .

“ Principal Subsidiary ” means any Subsidiary of the Guarantor that owns a Vessel.

“ Primary Currency ” is defined in Section 12.15 .

 

“ Purchased Vessel ” is defined in the fourth recital.

“ Reference Lenders ” means BNPP, London Office, Nordea Bank Finland plc, London Branch and Skandinaviska Enskilda Banken AB (publ), Stockholm Office, and includes each replacement Reference Lender appointed by the Administrative Agent pursuant to Section 3.2.5 .

“ Reinvestment Rate ” means a rate equal to the sum of (x) the estimated funding cost in Dollars for the Republic of Finland for an amount equal to the aggregate amount of Tranche A Loans that are prepaid for the period from the date of receipt of any such prepayment to the Stated Maturity Date, as derived by the Finnish State Treasury and (y) 0.90%.

“ Required Lenders ” means, at any time, Lenders that, in the aggregate, hold at least 66 2/3% of the aggregate unpaid principal amount (based on the Equivalent in Dollars with respect to any portion of the Loans that are denominated in Euro) of the Loans or, if no such principal amount is then outstanding, Lenders that in the aggregate hold at least 66 2/3% of the Commitments (based on the Equivalent in Dollars with respect to any portion of the Loans that are denominated in Euro).

“ Residual Risk Guarantee ” means a guarantee, governed by Finnish law, of the Residual Risk Guarantee Amount, accrued and unpaid interest in respect of the Tranche A Loans (including default interest) and the costs to Finnvera of enforcing its rights under the Loan Documents, made by the Tranche B Lenders severally, and ratably according to their respective Tranche B Commitment Amounts (determined using the Equivalent in Dollars of any portion of the Tranche B Commitment Amount that is denominated in Euro) in favor of Finnvera.

“ Residual Risk Guarantee Amount ” means, as of any date, 5% of the aggregate principal amount of the Tranche A Loans outstanding on such date.

“ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

“ Screen Rate ” means the percentage rate per annum for the relevant period which appears, in the case of a LIBO Rate, on the LIBOR01 Page and, in the case of a EURIBO Rate, on the EURIBOR01 Page, in each case, of the Reuters Monitor Money Rates Service.

“ Secondary Currency ” is defined in Section 12.15 .

“ Senior Debt Rating ” means, as of any date, (a) the implied senior debt rating of the Guarantor for its long term senior unsecured, non-credit enhanced debt as given by Moody’s and S&P or (b) in the event the Guarantor receives an actual unsecured senior debt rating (apart from an implied rating) from Moody’s and/or S&P, such actual rating or ratings, as the case may be (and in such case the Senior Debt Rating shall not be determined by reference to any implied senior debt rating from either agency). Each change in the Senior Debt Rating shall be effective as of the date of such change. For purposes of the foregoing:

(a) if at any time the Senior Debt Rating provided by Moody’s differs from the Senior Debt Rating provided by S&P by one level, the Applicable Premium Rate shall be the percentage per annum set forth opposite the higher of such two Senior Debt Ratings;

 

(b) if at any time the Senior Debt Rating provided by Moody’s differs from the Senior Debt Rating provided by S&P by more than one level, the Applicable Premium Rate shall be the percentage per annum set forth opposite the rating one level below the higher of such two Senior Debt Ratings;

(c) if at any time a Senior Debt Rating is provided by one of but not both Moody’s and S&P, the Applicable Premium Rate shall be determined by reference to the Senior Debt Rating provided by the agency which gives such rating; and

(d) if at any time no Senior Debt Rating is provided by Moody’s and no Senior Debt Rating is provided by S&P, the Applicable Premium Rate shall be the percentage per annum set forth opposite the Senior Debt Ratings of B+ or lower and B1 or lower unless (i) within 21 days of being notified by the Administrative Agent that both Moody’s and S&P have ceased to give a Senior Debt Rating, the Guarantor has obtained from at least one of such agencies a private implied rating for its senior debt or (ii) having failed to obtain such private rating within such 21-day period, the Guarantor and Finnvera shall have agreed within a further 15-day period (during which period the Guarantor and Finnvera shall consult in good faith to find an alternative method of providing an implied rating of the Guarantor’s senior debt) on an alternative rating method, which agreed alternative shall be notified to the Administrative Agent and apply for the purposes of this Agreement.

“ Senior Indebtedness ” is defined in Section 10.5 .

“ Stated Maturity Date ” means the twelfth anniversary of the Closing Date.

“ Stockholders’ Equity ” means, as at any date, the Guarantor’s stockholders’ equity on such date, excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP, provided that any non-cash charge to Stockholders’ Equity resulting (directly or indirectly) from a change after the Effective Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Stockholders’ Equity such that the amount of any reduction thereof resulting from such change shall be added back to Stockholders’ Equity.

“ Subordinated Obligations ” is defined in Section 10.5 .

“ Subsidiary ” means, with respect to any Person, any corporation of which more than 50% of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person.

“ Supplemental Agreement ” means the Supplemental Agreement, dated as of the date hereof, among the Tranche A Lenders, the Administrative Agent and FEC.

“ Taxes ” is defined in Section 4.6 .

 

“ Tranche A Commitment ” means, with respect to any Tranche A Lender, the amount set forth opposite such Lender’s name on the signature pages hereto as such amount may be reduced from time to time in accordance with the terms of this Agreement.

“ Tranche A Commitment Amount ” means, on any date, $420,000,000 as such amount shall be reduced from time to time pursuant to Section 2.2 .

“ Tranche A Lenders ” means the Lenders identified as Tranche A Lenders on the signature pages hereof and their respective successors and permitted assigns.

“ Tranche A Loan ” is defined in Section 2.1.1 .

“ Tranche B Commitment ” means, with respect to any Tranche B Lender, the amount set forth opposite such Lender’s name on the signature pages hereto as such amount may be reduced from time to time in accordance with the terms of this Agreement.

“ Tranche B Commitment Amount ” means, on any date, the sum of $420,000,000 and Euro 159,429,092 (it being understood that the Commitments of Nordea Bank Finland plc, New York Branch, and Skandinaviska Enskilda Banken AB (publ) are denominated in Dollars and the Commitment of BNPP is denominated in Euro) as such amounts shall be reduced from time to time pursuant to Section 2.2 .

“ Tranche B Lenders ” means the Lenders identified as Tranche B Lenders on the signature pages hereof and their respective successors and permitted assigns.

“ Tranche B Loan ” is defined in Section 2.1.1 .

“ United States ” or “ U.S. ” means the United States of America, its fifty States and the District of Columbia.

“ Vessel ” means a passenger cruise vessel owned by the Guarantor or one of its Subsidiaries.

“ Voting Stock ” means shares of capital stock of the Guarantor of any class or classes (however designated) that have by the terms thereof normal voting power to elect the members of the Board of Directors of the Guarantor (other than voting power upon the occurrence of a stated contingency, such as the failure to pay dividends).

SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall, when capitalized, have such meanings when used in the Disclosure Schedule and in each Note, Borrowing Request, notice and other communication delivered from time to time in connection with this Agreement or the other Loan Documents.

SECTION 1.3. Cross-References. Unless otherwise specified, references in this Agreement and in each other Loan Document to any Article or Section are references to such Article or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise specified, references in any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.

 

SECTION 1.4. Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used herein or in any Note shall be interpreted, all accounting determinations and computations hereunder or thereunder (including under Section 7.2.4 ) shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with United States generally accepted accounting principles (" GAAP ") consistently applied (or, if not consistently applied, accompanied by details of the inconsistencies); provided that if, as a result of any change in GAAP or in the interpretation thereof after the date of the financial statements referred to in Section 6.6 , there is a change in the manner of determining any of the items referred to herein that are to be determined by reference to GAAP, and the effect of such change would (in the reasonable opinion of the Guarantor or the Administrative Agent) be such as to affect the basis or efficacy of the covenants contained in Section 7.2.4 in ascertaining the financial condition of the Guarantor or the consolidated financial condition of the Guarantor and its Subsidiaries and the Guarantor notifies the Administrative Agent that the Guarantor requests an amendment to any provision hereof to eliminate such change occurring after the date hereof in GAAP or the application thereof on the operation of such provision (or if the Administrative Agent notifies the Guarantor that the Required Lenders request an amendment to any provision hereof for such purpose), then such item shall for the purposes of such Sections of this Agreement continue to be determined in accordance with GAAP relating thereto as GAAP were applied immediately prior to such change in GAAP or in the interpretation thereof until such notice shall have been withdrawn or such provision amended in accordance herewith.

ARTICLE II

 

COMMITMENTS, BORROWING PROCEDURES

SECTION 2.1. Commitments. On the terms and subject to the conditions of this Agreement (including Article V), each Lender severally agrees to make a Loan pursuant to the Commitments described in this Section 2.1 .

SECTION 2.1.1. Commitment of Each Lender . On the Closing Date each Tranche A Lender will make a loan (relative to such Lender, its “ Tranche A Loan ”) to the Borrower equal to such Lender’s Tranche A Commitment. On the Closing Date, each Tranche B Lender will make a loan (relative to such Lender, its “ Tranche B Loan ”, the Tranche A Loans and the Tranche B Loans are, collectively, the “ Loans ”) to the Borrower equal to such Lender’s Tranche B Commitment. Subject to Section 3.7 , any amount of the Loans that is prepaid or repaid may not be reborrowed.

SECTION 2.1.2. [Intentionally omitted.]

SECTION 2.1.3. Finnvera Guarantee .

(a) Separate Agreement . Each Loan Party agrees and acknowledges that the Finnvera Guarantee is a separate arrangement from this Agreement and no Loan Party shall have any right or recourse against any Lender or the Administrative Agent in respect of or arising by reason of any payment made by Finnvera to any Lender or the Administrative Agent pursuant to the Finnvera Guarantee.

 

(b) Obligations . Each Loan Party acknowledges that its liability to pay in full any sum under this Agreement is totally independent from and in no way conditional upon performance by the Builder of its obligations under the construction contract for the Purchased Vessel or under any agreement related thereto and shall not be affected in any way by any claim which such Loan Party may have or may consider that it has against the Builder.

(c) Authorization to Act on Instructions . Each Loan Party agrees that the Administrative Agent may act on the instructions of Finnvera in relation to this Agreement; provided that such instructions shall otherwise be in accordance with, and as contemplated by, this Agreement and the Administrative Agent shall remain responsible for such actions to the extent contemplated by Article XI and Section 12.4 .

(d) No Claims against the Administrative Agent . Each Loan Party agrees that in case of any payment to the Lenders or the Administrative Agent pursuant to the Finnvera Guarantee, Finnvera shall, in addition to any other rights which it may have under the Finnvera Guarantee or otherwise, have full rights of subrogation against the Loan Parties and no Loan Party shall have any claims whatsoever in respect of any loss, damage or expense suffered or incurred by it against the Administrative Agent as a result of such payment by Finnvera.

(e) Amendments to Finnvera Guarantee . The Administrative Agent agrees that it shall not agree to any amendment, waiver or other modification of the Finnvera Guarantee unless the Required Lenders (which, for this purpose, shall include the Tranche A Lenders) have approved such action in writing and that, so long as the Loans have not been accelerated in accordance with Article VIII or required to be prepaid in accordance with Article IX, the Administrative Agent shall not agree to any amendment, waiver or other modification of the Finnvera Guarantee unless each Loan Party has approved such action in writing, provided that even if the Loans have been accelerated in accordance with Article VIII or required to be prepaid in accordance with Article IX, no amendment, waiver or other modification of the Finnvera Guarantee may, directly or indirectly, adversely affect the Borrower unless the Borrower has approved such action in writing.

SECTION 2.2. Reduction of Commitment Amount. The Commitment Amount is subject to reduction from time to time pursuant to this Section 2.2 .

SECTION 2.2.1. Optional . Subject to Section 4.4 , the Borrower may, from time to time on any Business Day occurring prior to the Closing Date, voluntarily reduce the Commitment Amount; provided that all such reductions shall be made pro rata among the Lenders (determined using the Equivalent in Dollars of any portion of the Commitment Amount that is denominated in Euro) and shall require at least three Business Days’ prior notice to the Administrative Agent and be permanent, and any partial reduction of the Commitment Amount shall be in a minimum amount of $10,000,000 and in a multiple of $1,000,000 (or, in the case of any portion of the Commitment Amount that is denominated in Euro, the Equivalent in Dollars).

SECTION 2.2.2. Mandatory . On and after the Closing Date, after giving effect to the Borrowing made on such date, the Commitment Amount shall be zero (but subject to reinstatement in accordance with Section 3.7 ).

 

SECTION 2.3. Borrowing Procedure. By delivering the Borrowing Request to the Administrative Agent on or before 9:00 a.m., New York time, on a Business Day, the Borrower may irrevocably request, on not less than three Business Days’ notice, that the Borrowing be made. The Administrative Agent shall without delay inform the Lenders of the upcoming Borrowing. On the terms and subject to the conditions of this Agreement, the Borrowing shall be made on the Business Day specified in the Borrowing Request. On or before 11:00 a.m., New York time, on the Business Day specified in the Borrowing Request, each Lender shall, without any set-off or counterclaim, deposit with the Administrative Agent same day funds in an amount equal to such Lender’s Commitment. Such deposit will be made to an account which the Administrative Agent shall specify from time to time by notice to the Lenders. To the extent funds are so received from the Lenders, the Administrative Agent shall, without any set-off or counterclaim, promptly make such funds available, in accordance with the terms of the Finnvera Guarantee, to the Borrower (or to the order of the Borrower) on the Business Day specified in the Borrowing Request by wire transfer of same day funds to the accounts the Borrower shall have specified, in accordance with the terms of the Finnvera Guarantee, in its Borrowing Request . No Lender’s obligation to make a Loan shall be affected by any other Lender’s failure to make a Loan.

SECTION 2.4. Funding. Each Lender may, if it so elects, fulfill its obligation to make or continue its Loan hereunder by causing one of its foreign branches or Affiliates (or an international banking facility created by such Lender) to make or maintain such Loan; provided that such Loan shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay such Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or international banking facility.

SECTION 2.5. Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Loans. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that a Note is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loan owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Note payable to the order of such Lender in a principal amount equal to the greater of the Commitment of, or the principal amount of the Loan owing to, such Lender.

(b)       The Administrative Agent, acting for this purpose as agent for the Borrower, shall maintain a register (the “ Register ”) which shall include recordation of (i) the date and amount of the Borrowing made hereunder, (ii) the terms of each Lender Assignment Agreement delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender’s share thereof.

(c)       Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in

 

the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.

ARTICLE III

 

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

SECTION 3.1. Repayments and Prepayments. The Borrower shall repay the Loans in twenty-four equal semi-annual installments on the last day of each Interest Period, as set forth on Schedule II hereto.

In addition, the Borrower

(a) may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of the Loans; provided that

(i)        any such prepayment shall be made pro rata among all Loans (determined using the Equivalent in Dollars of any portion of the Loans that are denominated in Euro) and applied in forward order of maturity, inverse order of maturity or ratably among all remaining installments, as the Borrower shall designate to the Administrative Agent; provided that at any time, the Borrower may prepay in full the Tranche B Loans (without prepaying any Tranche A Loans) so long as such Tranche B Loans have been substantially contemporaneously refinanced with loans made by one or more Lenders or one or more Eligible Assignees that become party to this Agreement as Lenders by execution of and delivery to the Borrower and the Administrative Agent of (x) counterparts of this Agreement or (y) an assignment in accordance with Section 12.11.1 (any such loans being “Tranche B Loans” and having the identical terms as the Tranche B Loans so prepaid, other than the rate of interest and tenor applicable to such loans, which rate of interest and tenor shall be as agreed between the Borrower and such financial institution, except that in no event shall the final maturity of such loans be later than the twelfth anniversary of the Closing Date);

(ii)       all such voluntary prepayments shall require at least five Business Days (or, if such prepayment is to be made on the last day of an Interest Period for the Loans, three Business Days) prior written notice to the Administrative Agent; and

(iii)      all such voluntary partial prepayments shall be in an aggregate minimum amount of $10,000,000 and a multiple of $1,000,000 (or, in the case of the portion of the Loan denominated in Euro, the Equivalent in Euro) (or the remaining amount of the Loans being prepaid); and

(b) shall, on the last day of the Interest Period on or about the sixth anniversary of the Closing Date, repay all or a portion of the Loans made by any Tranche B Lender that

has given notice not less than the date which is six months plus five (5) Business Days prior to such anniversary date to the Administrative Agent and the Borrower of its election to be repaid on such date, specifying the amount of such Loans that are required to be repaid (it being understood and agreed that each Tranche B Lender may elect to give such notice in its sole discretion); provided that no such Loan (or portion thereof) shall be required to be repaid pursuant to this Section 3.1(b) to the extent (x) such Loan (or portion thereof) has been assigned in accordance with Section 4.8 or (y) such Lender has agreed subsequently in writing not to be so repaid, in each case, prior to such anniversary date.

(c) shall, immediately upon any acceleration of the Stated Maturity Date of the Loans pursuant to Section 8.2 or 8.3 or the mandatory repayment of the Loans pursuant to Section 9.2 , repay all Loans.

Each prepayment or repayment of any Loans made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4 and shall be accompanied by accrued interest.

SECTION 3.2. Interest Provisions. Interest on the outstanding principal amount of Loans shall accrue and be payable in accordance with this Section 3.2 .

SECTION 3.2.1. Rates Payable by the Borrower . (a) The Borrower shall pay interest on the Tranche A Loans at a rate per annum during each Interest Period equal to the Fixed Rate.

(b)       The Borrower shall pay interest on the Tranche B Loans at a rate per annum during each Interest Period equal to the sum of the Applicable Floating Rate for such Interest Period plus the Floating Rate Applicable Margin.

(c)       All Loans shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Loan.

(d)       All interest hereunder shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

SECTION 3.2.2. Rates Payable to the Lenders . (a) Upon receipt of the applicable funds from the Borrower, the Administrative Agent shall pay interest on the Tranche A Loans to the Tranche A Lenders at a rate per annum as set forth in Section 3.2.1(a) .

(b)       Upon receipt of the applicable funds from the Borrower, the Administrative Agent shall pay interest on the Tranche B Loans to the Tranche B Lenders at a rate per annum as set forth in Section 3.2.1(b) in the currency of their respective Tranche B Commitment Amounts.

SECTION 3.2.3. Post-Maturity Rates . After the date any principal amount of any Loan is due and payable (whether on the maturity, upon acceleration or otherwise), or after any

 

other monetary Obligation of the Borrower shall have become due and payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well as before judgment) on such amounts for each day during the period of such default at a rate per annum certified by the Administrative Agent to the Borrower (which certification shall be conclusive in the absence of manifest error) to be equal to the sum of (a) the rate of interest applicable to Loans at such time pursuant to Section 3.2.1 above plus (b) 2% per annum.

SECTION 3.2.4. Payment Dates . Interest accrued on each Loan shall be payable, without duplication:

(a)

on the Stated Maturity Date therefor;

(b) on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Loan (but only on the principal so paid or prepaid);

(c)

on the last day of each Interest Period; and

(d) on that portion of any Loans the Stated Maturity Date of which is accelerated pursuant to Section 8.2 or Section 8.3 , immediately upon such acceleration.

Interest accrued on Loans or other monetary Obligations of the Borrower arising under this Agreement or any Note after the date such amount is due and payable (whether on maturity, upon acceleration or otherwise) shall be payable upon demand of the Administrative Agent.

SECTION 3.2.5. Interest Rate Determination; Replacement Reference Lenders . Each Reference Lender agrees to furnish to the Administrative Agent timely information for the purpose of determining the Applicable Floating Rate in the event that no offered quotation appears on the relevant page of the Reuters Monitor Money Rates Service and the Applicable Floating Rate is to be determined by reference to quotations supplied by the Reference Lenders. If any one or more of the Reference Lenders shall fail to furnish in a timely manner such information to the Administrative Agent for any such interest rate, the Administrative Agent shall determine such interest rate on the basis of the information furnished by the remaining Reference Lenders ( provided , that, if all of the Reference Lenders other than the Administrative Agent fail to supply the relevant quotations, the interest rate will be fixed by reference only to the quotation obtained by the Administrative Agent in its capacity as a Reference Lender). If a Reference Lender ceases for any reason to be able and willing to act as such, the Administrative Agent shall, at the direction of the Required Lenders and after consultation with the Borrower and the Lenders, appoint a replacement for such Reference Lender reasonably acceptable to the Borrower, and such replaced Reference Lender shall cease to be a Reference Lender hereunder. The Administrative Agent shall furnish to the Borrower and to the Lenders each determination of the Applicable Floating Rate made by reference to quotations of interest rates furnished by Reference Lenders.

SECTION 3.2.6. [Intentionally omitted.]

SECTION 3.3. Commitment Fees. The Borrower agrees to pay to the Administrative Agent for the account of and as agent for each Lender a commitment fee (the “ Commitment Fees ”) for the period commencing on the Effective Date and continuing through the Closing

 

Date, as set forth in this Section 3.3 . The Commitment Fees payable to the Tranche A Lenders shall be payable by the Borrower on the Closing Date and shall be in an amount equal to the product of 0.10% per annum, multiplied by the daily unused portion of the Tranche A Commitment Amount, multiplied by the actual number of days elapsed from the Effective Date to the initial Closing Date (and if the Loans are prepaid and reborrowed pursuant to Section 3.7 , from the date of such prepayment to the subsequent Closing Date), divided by 360. The Commitment Fees payable to the Tranche B Lenders that have committed to Loans denominated in Dollars shall be payable by the Borrower on the Closing Date and shall be in an amount equal to the product of 1.50% multiplied by the daily unused portion of the Tranche B Commitment Amount that is committed to be denominated in Dollars, multiplied by the actual number of days elapsed from the Effective Date to the initial Closing Date (and if the Loans are prepaid and reborrowed pursuant to Section 3.7 , from the date of such prepayment to the subsequent Closing Date), divided by 360. Payment of the Commitment Fee to the Tranche B Lenders that have committed to Loans denominated in Dollars shall be allocated by the Administrative Agent on the basis of each Lender’s ratable share of the unused portion of the Tranche B Commitment Amount that is committed to be denominated in Dollars for the actual number of days elapsed. The Commitment Fees payable to the Tranche B Lenders that have committed to Loans denominated in Euro shall be payable by the Borrower on the Closing Date and shall be in an amount equal to the product of 1.125% multiplied by the daily unused portion of the Tranche B Commitment Amount that is committed to be denominated in Euro, multiplied by the actual number of days elapsed from the Effective Date to the initial Closing Date (and if the Loans are prepaid and reborrowed pursuant to Section 3.7 , from the date of such prepayment to the subsequent Closing Date), divided by 360.

SECTION 3.4. Finnvera Guarantee Premiums. The premiums on the Finnvera Guarantee shall accrue and be payable in accordance with this Section 3.4 .

(a)       The Borrower shall pay to the Administrative Agent, for the account of and as agent for Finnvera, semi-annually in advance on the twentieth (20 ^th ) Business Day preceding the first day of each Interest Period for each Tranche A Loan an amount equal to the product of the Applicable Premium Rate as of the immediately preceding Business Day and the outstanding principal amount of the Tranche A Loans to be outstanding for such Interest Period in the currency of such Tranche A Loans, after giving effect to any repayment scheduled to be paid after such date but prior to the first day of such Interest Period, multiplied by the actual number of days in such Interest Period (or, if the Tranche A Loans are prepaid pursuant to Section 3.7 and subsequently reborrowed, in the case of a premium paid on the subsequent Closing Date, the actual number of days in such Interest Period less the number of days from but excluding the date of prepayment of the Tranche A Loans to and including the last day of the first Interest Period commencing on the initial Closing Date), divided by 360, in the currency of such Tranche A Loans. The Administrative Agent shall pay the premium on the Finnvera Guarantee received from the Borrower to Finnvera semi-annually in advance on the Business Day immediately preceding the first day of each Interest Period for such Loans.

(b)       The Borrower shall pay to the Administrative Agent, for the account of and as agent for Finnvera, semi-annually in advance on the twentieth (20 ^th ) Business Day preceding the first day of each Interest Period for each Tranche B Loan an amount equal to the product of the Applicable Premium Rate as of the immediately preceding Business

 

Day and the outstanding principal amount of the Tranche B Loans to be outstanding for such Interest Period in the currency of such Tranche B Loans, after giving effect to any repayment scheduled to be paid after such date but prior to the first day of such Interest Period, multiplied by the actual number of days in such Interest Period (or, if the Tranche B Loans are prepaid pursuant to Section 3.7 and subsequently reborrowed, in the case of a premium paid on the subsequent Closing Date, the actual number of days in such Interest Period less the number of days from but excluding the date of prepayment of the Tranche B Loans to and including the last day of the first Interest Period commencing on the initial Closing Date), divided by 360, in the currency of such Tranche B Loans. The Administrative Agent shall pay the premium on the Finnvera Guarantee received from the Borrower to Finnvera semi-annually in advance on the Business Day immediately preceding the first day of each Interest Period for such Loans.

(c)       At the direction of the Borrower, premiums on the Finnvera Guarantee received by the Administrative Agent pursuant to this Section 3.4 shall be placed by the Administrative Agent on demand or fixed rate deposit, as directed by the Borrower, as soon as possible after receipt thereof and interest shall accrue thereon at the London Interbank Bid Rate until such time as the Administrative Agent pays such premiums to Finnvera. The Administrative Agent shall release interest earned pursuant to the immediately preceding sentence to the Borrower on the first day of each Interest Period.

SECTION 3.5. Residual Risk Guarantee Premiums. The premiums on the Residual Risk Guarantee shall accrue and be payable in accordance with this Section 3.5 . The Borrower shall pay to the Administrative Agent for the ratable account of and as agent for the Tranche B Lenders semi-annually in arrears in Dollars on the last day of each Interest Period for each Tranche A Loan an amount equal to the product of 0.45% per annum and the daily outstanding principal amount of the Tranche A Loan, multiplied by the actual number of days elapsed, divided by 360, provided that, if any Tranche B Lender has elected to have all or a portion of its Tranche B Loans repaid in accordance with Section 3.1(b) and the Borrower has provided cash collateral to such Tranche B Lender as provided in Section 3.6 , the premium for the Residual Risk Guarantee payable by the Borrower shall, on and after the date on which any Tranche B Loans are repaid in accordance with Section 3.1(b), be reduced by an amount equal to the product of (x) the premium on the Residual Risk Guarantee calculated without giving effect to this proviso and (y) a fraction the numerator of which is the principal amount of Tranche B Loans so repaid and the denominator of which is the aggregate principal amount of Tranche B Loans outstanding on the sixth (6 ^th ) anniversary of the Closing Date. The Administrative Agent shall pay the premium on the Residual Risk Guarantee received from the Borrower to the Tranche B Lenders semi-annually in arrears on the last day of each Interest Period for such Loans.

SECTION 3.6. Residual Risk Guarantee Cash Collateral. (a) If any Tranche B Lender shall elect, in accordance with Section 3.1(b) , to require all or a portion of the Loans made by it to be repaid (and such Tranche B Lender’s obligations under the Residual Risk Guarantee have not been assigned to a replacement Lender acceptable to Finnvera or such Tranche B Lender is no longer liable under the Residual Risk Guarantee), such Lender may make demand upon the Borrower, and forthwith upon such demand the Borrower will, on or prior to the date of such repayment and at the option of the Borrower, either (a) pledge to such Lender in same day funds at such Lender’s office designated in such demand, for deposit in an interest bearing cash

 

collateral account to be established in the name of the Borrower and maintained by such Lender, over which such Lender shall have sole dominion and control, upon terms as may be satisfactory to such Lender (a “ Deposit Account ”), an amount equal to such Lender’s pro rata portion of the outstanding principal amount of the Residual Risk Guarantee Amount or (b) make such other arrangements in respect of such portion of the Residual Risk Guarantee Amount as shall be acceptable to such Lender in its sole discretion (which may include a letter of credit issued by a bank acceptable to such Lender in an amount and available to be drawn on terms acceptable to such Lender).

(b) Upon payment under the Residual Risk Guarantee by a Lender whose Loans have been prepaid, in whole or in part, under Section 3.1(b), such Lender may, to the extent such amount has not otherwise been reimbursed or paid by the Loan Parties, apply funds on deposit in a Deposit Account to the extent permitted by applicable law or draw on any letter of credit supplied in lieu thereof to reimburse itself for payments made under the Residual Risk Guarantee. To the extent that the outstanding principal amount of the Residual Risk Guarantee Amount attributable to a Lender is reduced from time to time (by scheduled amortization, optional prepayment or otherwise), amounts on deposit in the Deposit Account(s) of such Lender (or the amount available to be drawn under any letter of credit supplied in lieu thereof) shall be reduced to an amount equal to the outstanding principal amount of the Residual Risk Guarantee Amount attributable to such Lender after giving effect to such reduction and such excess shall promptly, but not later than five (5) Business Days after such reduction, be paid to the Borrower. After the Residual Risk Guarantee shall have expired or been fully drawn upon and all other payment obligations of the Borrower hereunder and under the Notes shall have been paid in full, the balance, if any, in any Deposit Account shall be promptly returned to the Borrower (or the amount available to be drawn under any letter of credit supplied in lieu thereof shall be reduced to zero).

(c) Dollar-denominated funds held in a Deposit Account may be invested and reinvested at the direction of the Borrower in (i) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof or readily marketable obligations unconditionally guaranteed by the full faith and credit of the government of the United States, (ii) insured certificates of deposit of, or time deposits with, any commercial bank that is a member of the Federal Reserve System and which issues (or parent of which issues) commercial paper rated as described in clause (iii), is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1 billion or (iii) commercial paper in an aggregate amount of no more than $2,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any State of the United States, rated at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P. Euro-denominated funds held in a Deposit Account may be invested and reinvested at the direction of the Borrower in (i) readily marketable direct obligations of the government of any OECD member country or any agency or instrumentality thereof or readily marketable obligations unconditionally guaranteed by the full faith and credit of the government of OECD member country, (ii) insured certificates of deposit of, or time deposits with, any commercial bank that is organized under the laws of OECD member country and has combined capital and surplus of at least €1 billion or (iii) commercial

 

paper in an aggregate amount of no more than €2,000,000 per issuer outstanding at any time, issued by any corporation organized under the laws of any OECD member country, rated at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P. Such Lender shall, from time to time upon the request of the Borrower, promptly release any earnings from such investments to the Borrower.

SECTION 3.7. Temporary Repayment. If the proceeds of the Loans have not been utilized to pay for delivery of the Purchased Vessel within 15 days after the Closing Date and have been deposited in accordance with Section 4.12 , the Borrower may, by notice to the Administrative Agent in accordance with Section 3.1(a)(ii) and specifying that such prepayment may be reborrowed under this Agreement, prepay all of the Loans together with accrued interest thereon. If the Purchased Vessel is delivered prior to February 15, 2010 (or such later date as may be necessary due to ice conditions for the Borrower to take delivery of the Purchased Vessel, but no later than April 15, 2010), the Borrower shall be permitted to submit one additional Borrowing Request to reborrow the Loans previously prepaid under this Section and the date of funding of such reborrowed Loans shall be the Closing Date hereunder.  Prepayment of the Loans made pursuant to this Section shall be without premium or penalty, except as may be required by Section 4.4 .

ARTICLE IV

 

CERTAIN APPLICABLE FLOATING RATE AND OTHER PROVISIONS

SECTION 4.1. Applicable Floating Rate Lending Unlawful. If the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other governmental authority having jurisdiction over such Lender asserts that it is unlawful, for such Lender to make, continue or maintain any Loan bearing interest at a rate based on the Applicable Floating Rate, the obligations of such Lender to make, continue or maintain any Loan bearing interest at a rate based on the Applicable Floating Rate shall, upon notice thereof to the Borrower, the Administrative Agent and each other Lender, forthwith be suspended until the circumstances causing such suspension no longer exist, provided that such Lender’s obligation to make, continue and maintain its Loan hereunder shall be automatically converted into an obligation to make, continue and maintain a Loan bearing interest at a rate to be negotiated between such Lender and the Borrower that is the equivalent of the sum of the Applicable Floating Rate for the relevant Interest Period plus the Floating Rate Applicable Margin or, if such negotiated rate is not agreed upon by the Borrower and such Lender within fifteen Business Days, in the case of Loans denominated in Dollars, a rate equal to the Floating Rate Applicable Margin plus the greater of (w) the rate publicly announced by BNPP’s New York office as its “prime rate” and (x) Federal Funds Rate from time to time in effect plus 0.50% per annum and, in the case of Loans denominated in Euro, a rate equal to the Floating Rate Applicable Margin plus the greater of (y) the average of the rates publicly announced by Skandinaviska Enskilda Banken AB’s and Nordea Bank’s head offices as their “prime rates” for loans in Euro and (z) the Central European Bank’s rate for the Main Refinancing Operations (MRO) in effect plus 0.50% per annum.

SECTION 4.2. Deposits Unavailable. If, with respect to the Tranche B Loans:

 

(a) the Administrative Agent shall have determined that deposits in the relevant amount, denominated in the relevant currency and for the relevant Interest Period are not available to the Reference Lenders in their relevant market;

(b) the Administrative Agent shall have determined that by reason of circumstances affecting the Reference Lenders’ relevant market, adequate means do not exist for ascertaining the interest rate applicable hereunder to Floating Rate Loans denominated in Dollars and/or Euro; or

(c) before the close of business in London on the date of determination of the Applicable Floating Rate for the relevant Interest Period or period, Lenders holding a majority of the aggregate unpaid principal amount of Loans (based on the Equivalent in Dollars with respect to any portion of the Loans that are denominated in Euro) determine that the cost to them of obtaining matching deposits in the relevant interbank market for the relevant currency in respect of any Loan would be in excess of the Applicable Floating Rate;

then the Administrative Agent shall give notice of such determination (hereinafter called a “ Determination Notice ”) to the Borrower and each of the Lenders. The Borrower, the Lenders and the Administrative Agent shall enter into negotiations in good faith in order to agree upon a mutually satisfactory interest rate (or rates) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower, the Lenders and the Administrative Agent are unable to agree upon an interest rate (or rates) prior to the date occurring fifteen Business Days after the giving of such Determination Notice, the interest rate (or rates) payable to the Lenders to take effect at the end of the Interest Period current at the date of the Determination Notice shall be equal to, in the case of Loans denominated in Dollars, the Floating Rate Applicable Margin plus the greater of (w) the rate publicly announced by BNPP’s New York office as its “prime rate” and (x) Federal Funds Rate from time to time in effect plus 0.50% per annum and, in the case of Loans denominated in Euro, the Floating Rate Applicable Margin plus the greater of (y) the average of the rates publicly announced by Skandinaviska Enskilda Banken AB’s and Nordea Bank’s head offices as their “prime rates” for loans in Euro and (z) the Central European Bank’s rate for the Main Refinancing Operations (MRO) in effect plus 0.50% per annum.

SECTION 4.3. Increased Floating Rate Loan Costs, etc. If a change in any applicable treaty, law, regulation or regulatory requirement or in the interpretation thereof or in its application to the Borrower, or if compliance by any Lender with any applicable direction, request, requirement or guideline (whether or not having the force of law) of any governmental or other authority including, without limitation, any agency of the European Union or similar monetary or multinational authority insofar as it may be changed or imposed after the date hereof, shall:

(a) subject any Lender to any taxes, levies, duties, charges, fees, deductions or withholdings of any nature with respect to its Commitment or any part thereof imposed, levied, collected, withheld or assessed by any jurisdiction or any political subdivision or taxing authority thereof (other than taxation on overall net income and, to the extent such taxes are described in Section 4.6 , withholding taxes); or

 

(b) change the basis of taxation to any Lender (other than a change in taxation on the overall net income of such Lender) of payments of principal or interest or any other payment due or to become due pursuant to this Agreement; or

(c) impose, modify or deem applicable any reserve or capital adequacy requirements (other than the reserve costs described in Section 4.7 ) or other banking or monetary controls or requirements which affect the manner in which a Lender shall allocate its capital resources to its obligations hereunder or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender ( provided that such Lender shall, unless prohibited by law, allocate its capital resources to its obligations hereunder in a manner which is consistent with its present treatment of the allocation of its capital resources); or

(d)

impose on any Lender any other condition affecting its Commitment,

and the result of any of the foregoing is either (i) to increase the cost to such Lender of making its Loan or maintaining its Commitment or any part thereof, (ii) to reduce the amount of any payment received by such Lender or its effective return hereunder or on its capital or (iii) to cause such Lender to make any payment or to forego any return based on any amount received or receivable by such Lender hereunder, then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender, (A) the Lender concerned shall (through the Administrative Agent) notify the Borrower of the occurrence of such event and use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid the effects of such law, regulation or regulatory requirement or any change therein or in the interpretation thereof and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (B) the Borrower shall forthwith upon demand pay to the Administrative Agent for the account of and as agent for such Lender such amount as is necessary to compensate such Lender for such additional cost or such reduction and ancillary expenses, including taxes, incurred as a result of such adjustment. Such notice shall (i) describe in reasonable detail the event leading to such additional cost, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such additional cost, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is the Lender’s standard method of calculating such amount, (v) certify that such request is consistent with its treatment of other borrowers that are subject to similar provisions, and (vi) certify that, to the best of its knowledge, such change in circumstance is of general application to the commercial banking industry in such Lender’s jurisdiction of organization or in the relevant jurisdiction in which such Lender does business. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such increased costs or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such cost or reductions and of such Lender’s intention to claim compensation therefor.

 

SECTION 4.4. Funding Losses. (a) In the event any Lender shall incur any loss or expense by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Loan as a Floating Rate Loan as a result of:

(i)        any conversion or repayment or prepayment of the principal amount of any Loans on a date other than the scheduled last day of an Interest Period, whether pursuant to Section 3.1 , Section 3.7 or otherwise; or

(ii)       any Loans not being made in accordance with the Borrowing Request therefor due to the fault of the Borrower or as a result of any of the conditions precedent set forth in Article V not being satisfied,

then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative Agent), the Borrower shall, within five Business Days of its receipt thereof, pay directly to such Lender such amount as will reimburse such Lender for such loss or expense. Such written notice shall include calculations in reasonable detail setting forth the loss or expense to such Lender.

(b) In the event any Lender shall incur any Breakage Costs by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Loan as a Fixed Rate Loan as a result of:

(i)        any conversion or repayment or prepayment of the principal amount of any Loans on a date other than a scheduled repayment date as set forth in Schedule II hereto, whether pursuant to Section 3.1 , Section 3.7 or otherwise;

(ii)       any reduction of the Tranche A Commitment Amount pursuant to Section 2.2.1 ;

(iii)      the Tranche A Loans not being made on or prior to February 15, 2010 (or such later date as may be necessary due to ice conditions for the Borrower to take delivery of the Vessel, but no later than April 15, 2010); or

(iv)      any Loans not being made in accordance with the Borrowing Request therefore due to the fault of the Borrower or as a result of any of the conditions precedent set forth in Article V not being satisfied,

then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative Agent), the Borrower shall, within five Business Days of its receipt thereof, pay directly to such Lender such Breakage Costs.  Such written notice shall include calculations in reasonable detail setting forth the Breakage Costs to such Lender.

SECTION 4.5. Increased Capital Costs. If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority increases the amount of capital required to be maintained by any Lender or any Person controlling such Lender, and the rate of return on its or

 

such controlling Person’s capital as a consequence of its Commitment or the Loan made by such Lender is reduced to a level below that which such Lender or such controlling Person would have achieved but for the occurrence of any such change in circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall immediately pay directly to such Lender additional amounts sufficient to compensate such Lender or such controlling Person for such reduction in rate of return. Any such notice shall (i) describe in reasonable detail the capital adequacy requirements which have been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the amount of such lowered return, (iii) describe the manner in which such amount has been calculated, (iv) certify that the method used to calculate such amount is such Lender’s standard method of calculating such amount, (v) certify that such request for such additional amounts is consistent with its treatment of other borrowers that are subject to similar provisions and (vi) certify that, to the best of its knowledge, such change in circumstances is of general application to the commercial banking industry in the jurisdictions in which such Lender does business. In determining such amount, such Lender may use any method of averaging and attribution that it shall, subject to the foregoing sentence, deem applicable. Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Lending Office if the making of such a designation would avoid such reduction in such rate of return and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than three months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstance giving rise to such reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactive effect thereof, but not more than six months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such reductions and of such Lender’s intention to claim compensation therefor.

SECTION 4.6. Taxes. All payments by any Loan Party of principal of, and interest on, the Loans and all other amounts payable hereunder or under the Finnvera Commitment Letter shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by Finnvera’s or any Lender’s net income or receipts of Finnvera or such Lender and franchise taxes imposed in lieu of net income taxes or receipts by the jurisdiction under the laws of which Finnvera or such Lender is organized or any political subdivision thereof or the jurisdiction of such Lender’s Lending Office or any political subdivision thereof or any other jurisdiction unless such net income taxes are imposed solely as a result of such Loan Party’s activities in such other jurisdiction (such non-excluded items being called “ Taxes ”). In the event that any withholding or deduction from any payment to be made by any Loan Party hereunder or under the Finnvera Commitment Letter is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then such Loan Party will:

(a) pay directly to the relevant authority the full amount required to be so withheld or deducted;

 

(b) promptly forward to the Administrative Agent an official receipt or other documentation satisfactory to the Administrative Agent evidencing such payment to such authority; and

(c) pay to the Administrative Agent for the account of and as agent for Finnvera or the Lenders, as the case may be, such additional amount or amounts as is necessary to ensure that the net amount actually received (including any Taxes on such additional amounts) by Finnvera or each Lender will equal the full amount Finnvera or such Lender would have received had no such withholding or deduction been required.

Moreover, if any Taxes are directly asserted against the Administrative Agent, Finnvera or any Lender with respect to any payment received or paid by the Administrative Agent, Finnvera or such Lender hereunder, under the Finnvera Commitment Letter or under or in connection with any other Loan Document, the Administrative Agent, Finnvera or such Lender may pay such Taxes and the applicable Loan Party will promptly pay such additional amounts (including any penalties, interest or expenses) as is necessary in order that the net amount received by such Person after the payment of such Taxes (including any Taxes on such additional amounts) shall equal the amount such Person would have received had no such Taxes been asserted.

Any Person claiming any additional amounts payable pursuant to this Section agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Person, be otherwise disadvantageous to such Person.

If any Loan Party fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent, for the account of Finnvera or the respective Lenders, the required receipts or other required documentary evidence, such Loan Party shall indemnify Finnvera and the Lenders for any incremental withholding Taxes, interest or penalties or expenses that may become payable by Finnvera or any Lender as a result of any such failure (except to the extent that such amount becomes payable as a result of the failure of Finnvera or such Lender to provide timely notice to such Loan Party of the assertion of a liability related to the payment of Taxes). For purposes of this Section 4.6 , a distribution hereunder by the Administrative Agent or any Lender to or for the account of Finnvera or any Lender shall be deemed a payment by the applicable Loan Party.

If any Lender is entitled to any refund, credit, deduction or other reduction in Tax by reason of any payment made by any Loan Party in respect of any Tax under this Section 4.6 or by reason of any payment made by the Borrower pursuant to Section 4.3 , such Lender shall use reasonable efforts to obtain such refund, credit, deduction or other reduction and, promptly after receipt thereof (and, in the case of any such credit, utilization thereof), will pay to the applicable Loan Party such amount (plus any interest received by such Lender in connection with such refund, credit, deduction or reduction) as is equal to the net after-tax value to such Lender of such part of such refund, credit, deduction or reduction as such Lender reasonably determines is allocable to such tax or such payment, less out-of-pocket expenses incurred by such Lender, provided that no Lender shall be obligated to disclose to any Loan Party any information regarding its tax affairs or tax computations.

 

Each Lender (and each Participant) that is organized under the laws of a jurisdiction other than the United States agrees with the Guarantor and the Administrative Agent that it will (a) provide to the Administrative Agent and the Guarantor an appropriately executed copy of Internal Revenue Service Form W-8ECI certifying that any payments made to or for the benefit of such Lender or such Participant are effectively connected with a trade or business in the United States (or, alternatively, Internal Revenue Service Form W-8BEN, but only if the applicable treaty described in such form provides for a complete exemption from U.S. federal income tax withholding), or any successor form, on or prior to the date hereof (or, in the case of any assignee Lender or Participant, on or prior to the date of the relevant assignment or participation), and (b) notify the Administrative Agent and the Guarantor if the certifications made on any form provided pursuant to this paragraph are no longer accurate and true in all material respects. For any period with respect to which a Lender (or Participant) has failed to provide the Guarantor with the foregoing forms (other than if such failure is due to a change in law occurring after the date on which a form originally was required to be provided or if such form otherwise is not required hereunder) such Lender (or Participant) shall not be entitled to the benefits of this Section 4.6 with respect to Taxes imposed by reason of such failure.

If Finnvera should be come subrogated to the rights of any Lender under this Agreement then, for the purposes of the two paragraphs immediately preceding, the term “Lender “ shall be deemed to include Finnvera.

No Loan Party shall have an obligation under this Section 4.6 to pay any indemnity or gross-up amount to Finnvera, any Lender or the Administrative Agent to the extent that such Loan Party has paid an amount with respect to that Tax to any party pursuant to any other provision of any Loan Document, the Finnvera Commitment Letter or the Lenders’ Commitment Letter.

SECTION 4.7. Reserve Costs. Without in any way limiting the Borrower’s obligations under Section 4.3 , the Borrower shall pay to each Lender on the last day of each Interest Period, so long as the relevant Lending Office of such Lender is required to maintain reserves against “Eurocurrency liabilities” under Regulation D of the F.R.S. Board, upon notice from such Lender, an additional amount equal to the product of the following for each Loan for each day during such Interest Period:

(i)        the principal amount of such Loan outstanding on such day; and

(ii)       the remainder of (x) a fraction the numerator of which is the rate (expressed as a decimal) at which interest accrues on such Loan for such Interest Period as provided in this Agreement (less the Floating Rate Applicable Margin) and the denominator of which is one minus any increase after the Effective Date in the effective rate (expressed as a decimal) at which such reserve requirements are imposed on such Lender minus (y) such numerator; and

(iii)

1/360.

Such notice shall (i) describe in reasonable detail the reserve requirement that has been imposed, together with the approximate date of the effectiveness thereof, (ii) set forth the applicable reserve percentage, (iii) certify that such request is consistent with such Lender’s treatment of

other borrowers that are subject to similar provisions and (iv) certify that, to the best of its knowledge, such requirements are of general application in the commercial banking industry in the United States.

Each Lender agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to avoid the requirement of maintaining such reserves (including by designating a different Lending Office) if such efforts would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.

SECTION 4.8. Replacement Lenders, etc. If any Loan Party shall be required to make any payment to any Lender pursuant to Section 3.1(b) , 4.3 , 4.5 , 4.6 or 4.7 , or if the Borrower shall elect to prepay the Loans pursuant to the proviso in Section 3.1(a)(i) , the Borrower shall be entitled at any time (so long as no Default and no Prepayment Event shall have occurred and be continuing) within 180 days after receipt of notice from such Lender of such required payment to (a) terminate such Lender’s Commitment and such Lender’s right to receive any Commitment Fee accruing after such termination and that portion of the Commitment Amount represented by such Lender’s Commitment, (b) prepay the affected portion of such Lender’s Loan in full, together with accrued interest thereon through the date of such prepayment and any amounts due in connection with such prepayment pursuant to Section 4.4 ( provided that, except in the case of any payment to a Lender pursuant to Section 3.1(b) , the Borrower shall not prepay any such Lender pursuant to this clause (b) without replacing such Lender pursuant to the following clause (c) until a 30-day period shall have elapsed during which the Borrower and the Administrative Agent shall have attempted in good faith to replace such Lender), and/or (c) replace such Lender with another Lender or an Eligible Assignee either (x) by, if an Eligible Assignee is not a Lender, becoming a party to this Agreement as a Lender by execution of and delivery to the Borrower and the Administrative Agent of counterparts of this Agreement, and such Lender or Eligible Assignee refinancing any Loans prepaid pursuant to clause (b) above with loans made by such Lender or Eligible Assignee (any such loans being “Tranche B Loans” and having the identical terms as the Tranche B Loans so prepaid, other than the rate of interest applicable to and the tenor of such loans, which rate of interest and tenor shall be as agreed between the Borrower and such financial institution, except that in no event shall the final maturity of such loans be later than the twelfth anniversary of the Closing Date), or (y) pursuant to an assignment in accordance with Section 12.11.1 , provided that (i) each such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement and, unless cash collateralized in accordance with Section 3.6 , the Residual Risk Guarantee, or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement and (ii) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section unless and until such Lender shall have received one or more payments from either the Borrower or one or more Assignee Lenders in an aggregate amount at least equal to the outstanding principal amount of the Loan owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement. Each Lender represents and warrants to the Borrower that, as of the date of this Agreement (or, with respect to any Lender not a party hereto on the date hereof, on the date that such Lender becomes a party hereto), there is no existing treaty, law, regulation, regulatory requirement, interpretation, directive, guideline, decision or request pursuant to which such Lender would be entitled to

 

request any payments under any of Sections 4.3 , 4.5 , 4.6 and 4.7 to or for account of such Lender.

SECTION 4.9. Payments, Computations, etc. Unless otherwise expressly provided, all payments by the Borrower pursuant to this Agreement or the Notes shall be made by the Borrower to the Administrative Agent for the pro rata account (determined using the Equivalent in Dollars of any portion of the Loans that are denominated in Euro) of and as agent for the Lenders entitled to receive such payment. All such payments required to be made to the Administrative Agent shall be made, without setoff, deduction or counterclaim, not later than 12:00 noon, London time, in the case of payments made in Euro, and 11:00 a.m. New York time, in the case of payments made in Dollars, on the date due, in same day or immediately available funds through the New York Clearing House Interbank Payments System (or such other funds as may be customary for the settlement of international banking transactions in Dollars or Euro, as applicable), to such account as the Administrative Agent shall specify from time to time by notice to the Borrower. Funds received after that time shall be deemed to have been received by the Administrative Agent on the next succeeding Business Day. The Administrative Agent shall promptly (but in any event on the same Business Day that the same are received or, as contemplated in the immediately preceding sentence, deemed received) remit in same day funds to each Lender its share, if any, of such payments received by the Administrative Agent for the account of such Lender without any setoff, deduction or counterclaim. All interest and fees in respect of Loans denominated in Dollars shall be paid in Dollars and all interest and fees in respect of Loans denominated in Euro shall be payable in Euro, and in each case shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period for which such interest or fee is payable over a year comprised of 360 days. Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day (unless the next succeeding Business Day is the first Business Day of a calendar month, in which case such payment shall be made on the Business Day preceding the first Business Day of such calendar month) and such extension of time shall be included in computing interest and fees, if any, in connection with such payment.

SECTION 4.10. Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Sections 4.3 , 4.4 , 4.5 , 4.6 , 4.7 and 12.11 and except as otherwise provided in Sections 3.1(a) and 3.1(b) to the extent such Sections permit prepayment of Loans on a non-ratable basis) in excess of its pro rata share of payments then or therewith obtained by all Lenders, such Lender shall purchase from the other Lenders such participations in Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably (determined using the Equivalent in Dollars of any portion of the Loans that are denominated in Euro) with each of them; provided that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such recovery together with an amount equal to such selling Lender’s ratable share (according to the proportion of (a) the amount of such selling Lender’s required repayment to the purchasing Lender to (b) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of

 

the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 4.11 ) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.

SECTION 4.11. Setoff. Upon the occurrence and during continuance of an Event of Default or Prepayment Event, each Lender shall have, to the extent permitted by applicable law, the right to appropriate and apply to the payment of the Obligations owing to it any and all balances, credits, deposits, accounts or moneys of any Loan Party then or thereafter maintained with such Lender; provided that any such appropriation and application shall be subject to the provisions of Section 4.10 . Each Lender agrees promptly to notify the applicable Loan Party and the Administrative Agent after any such setoff and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff under applicable law or otherwise) which such Lender may have.

SECTION 4.12. Use of Proceeds. The Borrower shall apply the proceeds of the Borrowing in accordance with the fourth recital and, prior to such application, such proceeds that are denominated in Dollars shall be converted into Euro and held in an account of the Borrower; without limiting the foregoing, no proceeds of any Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any “margin stock”, as defined in F.R.S. Board Regulation U. Unless security has previously been provided to the Lenders pursuant to and in accordance with Section 5.2.4 hereof, if the proceeds of the Loans have not been paid to the Builder or its order or to the Administrative Agent in prepayment of the Loans under Sections 3.1(a) or 3.7 by 9:59 p.m. (London time) on the second Business Day after the Closing Date, such proceeds shall be pledged by the Borrower as collateral pursuant to the Pledge Agreement, such pledge to be effective on and after such time. On or prior to the date that is 15 days after the Closing Date, the Borrower shall notify the Administrative Agent whether the proceeds of the Loans are to be returned to the Administrative Agent as prepayment in accordance with Section 3.7 or to be held as cash collateral until the earlier of (i) disbursement to the Builder and (ii) prepayment of the Loans pursuant to Section 3.1(a) or 9.2 .

ARTICLE V

 

CONDITIONS TO BORROWING

SECTION 5.1. Effectiveness. The obligations of the Lenders to fund the Borrowing shall be effective on and as of the first date, on or before May 15, 2009 (the “ Effective Date ”), on which each of the conditions precedent set forth in this Section 5.1 shall have been satisfied.

SECTION 5.1.1. Resolutions, etc . The Administrative Agent shall have received from each Loan Party:

 

(a) a certificate, dated the Effective Date, of its Secretary or Assistant Secretary as to the incumbency and signatures of those of its officers authorized to act with respect to this Agreement and each other Loan Document to which it is a party and as to the truth and completeness of the attached:

(x) resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement and each other Loan Document to which it is a party, and

(y) Organic Documents of such Loan Party,

and upon which certificate each Lender may conclusively rely until it shall have received a further certificate of the Secretary of such Loan Party canceling or amending such prior certificate;

(b) Certificates of Good Standing issued by the relevant Liberian authorities in respect of each Loan Party; and

(c) evidence that the Borrower or the Guarantor has paid not less than 20% of the purchase price of the Purchased Vessel.

SECTION 5.1.2. [Intentionally omitted.]

SECTION 5.1.3. Opinions of Counsel . The Administrative Agent shall have received opinions, dated the Effective Date and addressed to the Administrative Agent and each Lender, from:

(a) Bradley Stein, Esq., counsel to each Loan Party, substantially in the form of Exhibit C hereto;

(b) Watson, Farley & Williams (New York) LLP, counsel to each Loan Party, as to Liberian Law and New York Law, substantially in the form of Exhibit D hereto; and

(c) Hannes Snellman, counsel to the Administrative Agent, as to Finnish Law, substantially in the form of Exhibits F-1 and F-2 hereto.

SECTION 5.1.4. Fees, Expenses, etc . The Administrative Agent shall have received for its own account, or for the account of each Lender, as the case may be, all fees that the Borrower or Guarantor shall have agreed in writing to pay to the Administrative Agent (whether for its own account or for the account of any of the Lenders) or the FEC and all invoiced expenses of the Administrative Agent (including the agreed fees and expenses of counsel to the Administrative Agent) on or prior to the Effective Date.

SECTION 5.1.5. Assignment of Tranche A Loan . The full Tranche A Commitment Amount shall have been duly assigned and transferred to, and assumed by, FEC pursuant to a duly executed Lender Assignment Agreement, dated as of the Effective Date, among the Tranche A Lenders, the Administrative Agent, FEC and the Loan Parties, and the duly executed Supplemental Agreement.

SECTION 5.1.6. Finnvera Guarantee . (a) The Finnvera Guarantee shall have been duly authorized, executed and delivered to the Administrative Agent.

(b) The Administrative Agent shall have received a duly executed assignment of all rights and benefits of any payments to be made by Finnvera under the Finnvera Guarantee in respect of the Tranche A Loans to each Tranche A Lender, acknowledged by Finnvera, in each case in form and substance reasonably satisfactory to each Tranche A Lender.

SECTION 5.2. The Loans. The obligation of each Lender to fund any Loan on the Closing Date shall be subject to the satisfaction of each of the conditions precedent set forth in this Section 5.2 .

SECTION 5.2.1. Compliance with Warranties, No Default, etc . Both before and after giving effect to such Borrowing the following statements shall be true and correct:

(a) the representations and warranties set forth in Article VI (excluding, however, those contained in Sections 6.9 , 6.10 and 6.12 ) shall be true and correct with the same effect as if then made; and

(b)

no Default and no Prepayment Event shall have occurred and be continuing.

SECTION 5.2.2. Borrowing Request . The Administrative Agent shall have received a Borrowing Request for such Borrowing. Each of the delivery of a Borrowing Request and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by each Loan Party that on the date of such Borrowing (both immediately before and after giving effect to such Borrowing and the application of the proceeds thereof) the statements made in Section 5.2.1 are true and correct.

SECTION 5.2.3. Finnvera Guarantee . (a) All premiums, fees and invoiced expenses due and payable prior to the effectiveness of the Finnvera Guarantee shall have been paid by the Borrower or the Guarantor.

(b)

The Finnvera Guarantee shall be effective.

SECTION 5.2.4. Ratings Condition . The Loans shall not be disbursed on an unsecured basis unless, at the time of disbursement, the Guarantor’s Senior Debt Ratings are BB- or higher by S&P and Ba3 or higher by Moody’s (the " Ratings Condition "). If the Ratings Condition shall not be satisfied on the Closing Date, the Loans shall not be disbursed unless secured, at the option of the Borrower, either (i) by the Purchased Vessel and the insurance proceeds relating to the Purchased Vessel or (ii) by the proceeds of the Loans disbursed hereunder, in each case in accordance with the terms and conditions of the Finnvera Guarantee.

SECTION 5.2.5. Timing of Disbursement . The Administrative Agent shall have received from the Borrower evidence that the Closing Date is not earlier than two Business Days prior to the scheduled date of delivery, nor later than the actual date of delivery, of the Purchased Vessel to the Borrower.

SECTION 5.2.6. Pledge Agreement . The Pledge Agreement shall have been duly executed and delivered to the Administrative Agent.

SECTION 5.2.7. Closing Fees, Expenses, etc . The Administrative Agent shall have received for its own account, or for the account of each Lender, as the case may be, all fees that the Borrower or Guarantor shall have agreed in writing to pay to the Administrative Agent (whether for its own account or for the account of any of the Lenders) or the FEC and all invoiced expenses of the Administrative Agent (including the agreed fees and expenses of counsel to the Administrative Agent) on or prior to the Closing Date.

SECTION 5.2.8. Opinions of Counsel . The Administrative Agent shall have received opinions dated as of the Closing Date and addressed to the Administrative Agent and each Lender:

(a) from Norton Rose LLP, counsel to the Administrative Agent, as to English law, substantially in the form of Exhibit H hereto;

(b) from Bradley Stein, Esq., counsel to the Borrower, substantially in the form of Exhibit I hereto;

(c) from Watson, Farley & Williams (New York) LLP, counsel to the Borrower, as to Liberian Law, substantially in the form of Exhibit J hereto; and

(d) if security is required to be delivered to the Administrative Agent pursuant to Section 5.2.4 , from counsels reasonably acceptable to the Administrative Agent or Finnvera (as specified in the Finnvera Guarantee) as to such matters relating to the security as the Administrative Agent or Finnvera (as specified in the Finnvera Guarantee) may reasonably request.

SECTION 5.2.9. Delivery of Notes . The Administrative Agent shall have received, for the account of the respective Lenders that have made a request under Section 2.5 prior to the Closing Date, Notes duly executed and delivered by the Borrower.

SECTION 5.3. The Borrowing. For purposes of determining compliance with the conditions specified in Section 5.1 , each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto. The Administrative Agent shall promptly notify Finnvera and the Lenders of the occurrence of the Effective Date.

ARTICLE VI

 

REPRESENTATIONS AND WARRANTIES

To induce the Lenders and the Administrative Agent to enter into this Agreement and to make Loans hereunder, each Loan Party represents and warrants to the Administrative Agent and

each Lender as set forth in this Article VI as of the Effective Date and, except with respect to the representations and warranties in Section 6.9 , 6.10 and 6.12 , as of the Closing Date.

SECTION 6.1. Organization, etc. Each Loan Party and each of the Principal Subsidiaries is a corporation validly organized and existing and in good standing under the laws of its jurisdiction of incorporation; each Loan Party is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the nature of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; and each Loan Party has full power and authority, has taken all corporate action and holds all governmental and creditors’ licenses, permits, consents and other approvals necessary to enter into each Loan Document to which it is a party and to perform its Obligations.

SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution, delivery and performance by each Loan Party of this Agreement and each other Loan Document to which it is a party, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not:

(a)

contravene such Loan Party‘s Organic Documents;

(b) contravene any law or governmental regulation of any Applicable Jurisdiction except as would not reasonably be expected to result in a Material Adverse Effect;

(c) contravene any court decree or order binding on such Loan Party or any of its property except as would not reasonably be expected to result in a Material Adverse Effect;

(d) contravene any contractual restriction binding on such Loan Party or any of its property except as would not reasonably be expected to result in a Material Adverse Effect; or

(e) result in, or require the creation or imposition of, any Lien on any of the properties of such Loan Party except as would not reasonably be expected to result in a Material Adverse Effect.

SECTION 6.3. Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document to which it is a party (except for authorizations or approvals not required to be obtained on or prior to the Effective Date that have been obtained or actions not required to be taken on or prior to the Effective Date that have been taken). Each Loan Party and each Principal Subsidiary holds all governmental licenses, permits and other approvals required to conduct its business as conducted by it on the Effective Date, except to the extent the failure to hold any such licenses, permits or other approvals would not have a Material Adverse Effect.

SECTION 6.4. Compliance with Environmental Laws. Each Loan Party and each Principal Subsidiary is in compliance with all applicable Environmental Laws, except to the extent that the failure to so comply would not have a Material Adverse Effect.

 

SECTION 6.5. Validity, etc. This Agreement constitutes, and each of the other Loan Documents will, on the due execution and delivery thereof, constitute, the legal, valid and binding obligations of each Loan Party party thereto, enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general equitable principles.

SECTION 6.6. Financial Information. The consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2008, and the related consolidated statements of operations and cash flows of the Guarantor and its Subsidiaries, copies of which have been furnished to the Administrative Agent and each Lender, have been prepared in accordance with GAAP, and present fairly in all material respects the consolidated financial condition of the Guarantor and its Subsidiaries as at December 31, 2008 and the results of their operations for the Fiscal Year then ended. Since December 31, 2008 there has been no material adverse change in the business, operations or financial condition of the Guarantor and its Subsidiaries taken as a whole.

SECTION 6.7. No Default or Prepayment Event. No Default or Prepayment Event has occurred and is continuing.

SECTION 6.8. Litigation. There is no action, suit, litigation, investigation or proceeding pending or, to the knowledge of any Loan Party, threatened against any Loan Party or any Principal Subsidiary, that (i) except as set forth in filings made by the Guarantor with the Securities and Exchange Commission, in the Guarantor's reasonable opinion might reasonably be expected to materially adversely affect the business, operations or financial condition of the Guarantor and its Subsidiaries (taken as a whole) (collectively, " Material Litigation ") or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.

SECTION 6.9. Vessels.

SECTION 6.9.1. The Guarantor represents and warrants that each Vessel (other than the Purchased Vessel) is

(a)

legally and beneficially owned by the Guarantor or a Principal Subsidiary,

(b) registered in the name of the Guarantor or such Principal Subsidiary under the flag identified in Item 6.9(b) of the Disclosure Schedule,

(c)

classed as required by Section 7.1.4.A(b) ,

 

(d)

free of all Liens, other than Liens permitted by Section 7.2.3.A ,

 

(e)

insured against loss or damage in compliance with Section 7.1.5 , and

(f)  chartered exclusively to or operated exclusively by the Guarantor or one of the Guarantor’s wholly-owned Subsidiaries, except as otherwise permitted pursuant to Section 7.1.4.A .

SECTION 6.9.2. The Borrower represents and warrants that immediately following the delivery of the Purchased Vessel to the Borrower the Purchased Vessel will be:

(a)

legally and beneficially owned by the Borrower,

(b) registered in the name of the Borrower under the Bahamian or Maltese flag or such other flag as the parties may mutually agree,

(c)

classified as required by Section 7.1.4.A(b) ,

 

(d)

free of all Liens, other than Liens permitted pursuant to Section 7.2.3.B ,

 

(e)

insured against loss or damage in compliance with Section 7.1.5 , and

(f)  exclusively operated by or chartered to the Guarantor or one of the Guarantor's wholly-owned Subsidiaries.

SECTION 6.10. Subsidiaries. The Guarantor has no Subsidiaries on the Effective Date, except those Subsidiaries which are identified in Item 6.10 of the Disclosure Schedule. All Existing Principal Subsidiaries are designated with an asterisk in Item 6.10 of the Disclosure Schedule. All Existing Principal Subsidiaries are direct or indirect wholly-owned Subsidiaries of the Guarantor, except to the extent any such Existing Principal Subsidiary or an interest therein has been sold in accordance with clause (b) of Section 7.2.7 or such Existing Principal Subsidiary no longer owns a Vessel.

SECTION 6.11. Obligations rank pari passu. The Obligations of each Loan Party rank at least pari passu in right of payment and in all other respects with all other unsecured unsubordinated Indebtedness of such Loan Party.

SECTION 6.12. Withholding, etc. As of the Effective Date, no payment to be made by any Loan Party under any Loan Document to which it is a party is subject to any withholding or like tax imposed by any Applicable Jurisdiction.

SECTION 6.13. No Filing, etc. Required. No filing, recording or registration and no payment of any stamp, registration or similar tax is necessary under the laws of any Applicable Jurisdiction to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement or the Notes (except for filings, recordings, registrations or payments not required to be made on or prior to the Effective Date that have been made).

SECTION 6.14. No Immunity. Each Loan Party is subject to civil and commercial law with respect to its Obligations. Neither any Loan Party nor any of its properties or revenues is entitled to any right of immunity in any Applicable Jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to its Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).

SECTION 6.15. Pension Plans. To the extent that, at any time after the Effective Date, there are any Pension Plans, no steps will have been taken to terminate any Pension Plan, and no

 

contribution failure will have occurred with respect to any Pension Plan, in each case which could (a) give rise to a Lien under section 302(f) of ERISA and (b) result in the incurrence by the Guarantor or any member of the Controlled Group of any material liability, fine or penalty.

SECTION 6.16. Investment Company Act. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.

SECTION 6.17. Regulation U. No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Loans will be used for a purpose which violates, or would be inconsistent with, F.R.S. Board Regulation U. Terms for which meanings are provided in F.R.S. Board Regulation U or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.

SECTION 6.18. Accuracy of Information. The financial and other information (other than financial projections or other forward looking information) furnished to the Administrative Agent and the Lenders in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with the negotiation of this Agreement is, when taken as a whole, to the best knowledge and belief of the Guarantor, true and correct and contains no misstatement of a fact of a material nature. All financial projections, if any, that have been furnished to the Administrative Agent and the Lenders in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller in connection with this Agreement have been or will be prepared in good faith based upon assumptions believed by the Guarantor to be reasonable at the time made (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Guarantor’s control, and that no assurance can be given that the projections will be realized). All financial and other information furnished to the Administrative Agent and the Lenders in writing by or on behalf of the Guarantor by its chief financial officer, treasurer or corporate controller after the date of this Agreement shall have been prepared by the Guarantor in good faith.

ARTICLE VII

 

COVENANTS

SECTION 7.1. Affirmative Covenants. Each Loan Party agrees with the Administrative Agent and each Lender that, until all Commitments have terminated and all Obligations have been paid in full, such Loan Party will perform its obligations set forth in this Section 7.1 .

SECTION 7.1.1. Financial Information, Reports, Notices, etc .

SECTION 7.1.1.A. The Borrower will furnish, or will cause to be furnished, to the Administrative Agent (with sufficient copies for distribution to each Lender and Finnvera, as the case may be) the following financial statements, reports, notices and information:

(a) not later than 120 days after the end of each Fiscal Year its unaudited financial statements for each of its Fiscal Years. Each set of financial statements delivered pursuant to this Section 7.1.1.A(a) shall be in accordance with GAAP and certified as to

 

their correctness in all material respects by the chief financial officer or the treasurer of the Borrower;

(b) as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Borrower setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Borrower has taken and proposes to take with respect thereto;

(c) as soon as the Borrower becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect its business, operations or financial condition;

(d) as soon as the Borrower becomes aware thereof, notice of any suspension or revocation of the Purchased Vessel’s classification; and

(e) such other information respecting the condition or operations, financial or otherwise, of the Borrower as any Lender through the Administrative Agent may from time to time reasonably request.

SECTION 7.1.1.B. The Guarantor will furnish, or will cause to be furnished, to the Administrative Agent (with sufficient copies for distribution to each Lender and Finnvera, as the case may be) the following financial statements, reports, notices and information:

(a) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Guarantor, a copy of the Guarantor’s report on Form 10-Q (or any successor form) as filed by the Guarantor with the Securities and Exchange Commission for such Fiscal Quarter, containing unaudited consolidated financial statements of the Guarantor for such Fiscal Quarter (including a balance sheet and profit and loss statement) prepared in accordance with GAAP, subject to normal year-end audit adjustments;

(b) as soon as available and in any event within 120 days after the end of each Fiscal Year of the Guarantor, a copy of the Guarantor’s annual report on Form 10-K (or any successor form) as filed by the Guarantor with the Securities and Exchange Commission for such Fiscal Year, containing audited consolidated financial statements of the Guarantor for such Fiscal Year prepared in accordance with GAAP (including a balance sheet and profit and loss statement) and audited by PricewaterhouseCoopers LLC or another firm of independent public accountants of similar standing;

(c) together with each of the statements delivered pursuant to the foregoing clause (a) or (b), a certificate, executed by the chief financial officer, the treasurer or the corporate controller of the Guarantor, showing, as of the last day of the relevant Fiscal Quarter or Fiscal Year compliance with the covenants set forth in Section 7.2.4 (in reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Administrative Agent);

 

(d) as soon as possible after the occurrence of a Default or Prepayment Event, a statement of the chief financial officer of the Guarantor setting forth details of such Default or Prepayment Event (as the case may be) and the action which the Guarantor has taken and proposes to take with respect thereto;

(e) as soon as the Guarantor becomes aware thereof, notice of any Material Litigation except to the extent that such Material Litigation is disclosed by the Guarantor in filings with the SEC;

(f)  as soon as the Guarantor becomes aware thereof, notice of any event which, in its reasonable opinion, would be expected to materially adversely affect the business, operations or financial condition of the Guarantor and its Subsidiaries taken as a whole;

(g) promptly after the sending or filing thereof, copies of all reports which the Guarantor sends to all holders of each security issued by the Guarantor, and all registration statements which the Guarantor or any of its Subsidiaries files with the Securities and Exchange Commission or any national securities exchange;

(h) within seven days after the delivery of the Purchased Vessel, (i) evidence as to the ownership of such Vessel by the Borrower, which evidence shall include a copy of the Protocol of Delivery and Acceptance, signed by the Builder and the Borrower, and the registration of the Purchased Vessel in the relevant ship’s register, in the name of the Borrower as shipowner, the (ii) disclosure of all Liens on such Vessel, other than Liens permitted by Section 7.2.3.B, (iii) evidence of the class of such Vessel; and (iv) evidence as to all required insurance being in effect with respect to such Vessel;

(i)  as soon as the Guarantor becomes aware thereof, notice of any suspension or revocation of the Purchased Vessel’s classification; and

(j)  such other information (x) respecting the condition or operations, financial or otherwise, of the Guarantor or any of its Subsidiaries, (y) respecting the transactions and documents related to the Purchased Vessel or the delivery of the Purchased Vessel or (z) as may be required to enable the Administrative Agent to obtain the full benefit of the Finnvera Guarantee, as any Lender or Finnvera, in either case through the Administrative Agent, may from time to time reasonably request;

provided , however , that information required to furnished to the Administrative Agent under subsections (a), (b) and (g) of this Section 7.1.1.B shall be deemed furnished to the Administrative Agent when available free of charge on the Guarantor’s website at http://www.rclinvestor.com or the website of the U.S. Securities and Exchange Commission at http://www.sec.gov .

SECTION 7.1.2. Approvals and Other Consents . Each Loan Party will obtain (or cause to be obtained) all such governmental licenses, authorizations, consents, permits and approvals as may be required for (a) such Loan Party to perform its obligations under this Agreement and the other Loan Documents to which it is a party and (b) except to the extent that failure to obtain (or cause to be obtained) such governmental licenses, authorizations, consents,

 

permits and approvals would not be expected to have a Material Adverse Effect, the operation of each Vessel in compliance with all applicable laws.

SECTION 7.1.3. Compliance with Laws, etc . Each Loan Party will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except (other than as described in clause (a) below) to the extent that the failure to so comply would not have a Material Adverse Effect, which compliance shall in any case include (but not be limited to):

(a) in the case of each of such Loan Party and the Principal Subsidiaries, the maintenance and preservation of its corporate existence (subject to the provisions of Section 7.2.6 );

(b) in the case of the Guarantor, maintenance of its qualification as a foreign corporation in the State of Florida;

(c) the payment, before the same become delinquent, of all taxes, assessments and governmental charges imposed upon it or upon its property, except to the extent being diligently contested in good faith by appropriate proceedings; and

(d)

compliance with all applicable Environmental Laws.

SECTION 7.1.4. Vessels .

SECTION 7.1.4.A. The Guarantor will (or will cause the applicable Principal Subsidiary to):

(a) cause each Vessel to be chartered exclusively to or operated exclusively by the Guarantor or one of the Guarantor’s wholly-owned Subsidiaries, provided that the Guarantor or such Subsidiary may charter out (i) any Vessels representing not more than 25% of the berths of all Vessels to entities other than the Guarantor and the Guarantor’s wholly-owned Subsidiaries and (ii) any Vessel for a time charter not to exceed one year in duration; and

(b) cause each Vessel to be kept in such condition as will entitle her to classification by a classification society of recognized standing.

SECTION 7.1.4.B. The Borrower will cause the Purchased Vessel to be exclusively operated by or chartered to the Guarantor or one of the Guarantor’s wholly-owned Subsidiaries, provided that the Guarantor or such wholly-owned Subsidiary may charter out the Purchased Vessel on a time charter with a stated duration not in excess of one year.

SECTION 7.1.5. Insurance . The Guarantor will, or will cause one or more of its Subsidiaries to, maintain or cause to be maintained with responsible insurance companies insurance with respect to all of the material properties and operations of each Loan Party and each Principal Subsidiary against such casualties, third-party liabilities and contingencies and in such amounts as is customary for other businesses of similar size in the passenger cruise line industry ( provided that in no event will the Guarantor or any Subsidiary be required to obtain any business interruption, loss of hire or delay in delivery insurance) and will, upon request of the

 

Administrative Agent, furnish to the Administrative Agent (with sufficient copies for distribution to each Lender) at reasonable intervals a certificate of a senior officer of the Guarantor setting forth the nature and extent of all insurance maintained by the Guarantor and the Subsidiaries and certifying as to compliance with this Section.

SECTION 7.1.6. Books and Records . The Guarantor will, and will cause each of its Principal Subsidiaries (including the Borrower) to, keep books and records that accurately reflect all of its business affairs and transactions and permit the Administrative Agent and each Lender or any of their respective representatives, at reasonable times and intervals, to visit each of its offices, to discuss its financial matters with its officers and to examine any of its books or other corporate records.

SECTION 7.2. Negative Covenants. Each Loan Party agrees with the Administrative Agent and each Lender that, until all Commitments have terminated and all Obligations have been paid and performed in full, such Loan Party will perform its obligations applicable to it set forth in this Section 7.2 .

SECTION 7.2.1. Business Activities .

SECTION 7.2.1.A. The Guarantor will not, and will not permit any of its Subsidiaries to, engage in any business activity other than those engaged in by the Guarantor and its Subsidiaries on the date hereof and other business activities reasonably related thereto.

SECTION 7.2.1.B. The Borrower will not engage in any business activity other than the ownership, operation and chartering of the Purchased Vessel and other business activities reasonably related thereto.

SECTION 7.2.2. Indebtedness .

SECTION 7.2.2.A. The Guarantor will not permit any of the Existing Principal Subsidiaries to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:

(a)

Indebtedness secured by Liens of the type described in Section 7.2.3.A ;

(b) Indebtedness owing to the Guarantor or a wholly owned direct or indirect Subsidiary of the Guarantor;

(c) Indebtedness incurred to finance, refinance or refund the cost (including the cost of construction) of assets acquired after the Closing Date;

(d) Indebtedness in an aggregate principal amount not to exceed the amount specified therefor in Section 7.2.3.A(c) at any time outstanding; and

(e)

any Existing Debt.

SECTION 7.2.2.B. The Borrower will not create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:

 

(a) Indebtedness under this Agreement and the Notes and Indebtedness secured by Liens of the type described in Section 7.2.3.B ;

(b) Indebtedness owing to the Guarantor or a wholly owned direct or indirect Subsidiary of the Guarantor; and

(c) Indebtedness in an aggregate outstanding amount not to exceed $25,000,000 at any time.

SECTION 7.2.3. Liens .

SECTION 7.2.3.A. The Guarantor will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:

(a) Liens on the vessel BRILLIANCE OF THE SEAS existing as of the Effective Date and securing the Existing Debt (and any Lien on BRILLIANCE OF THE SEAS securing any refinancing of the Existing Debt, so long as such Vessel was subject to a Lien securing the Indebtedness being refinanced immediately prior to such refinancing);

(b) Liens on assets (including, without limitation, shares of capital stock of corporations and assets owned by any corporation that becomes a Subsidiary of the Guarantor after the Effective Date) acquired after the Effective Date (whether by purchase, construction or otherwise) by the Guarantor or any of its Subsidiaries (other than (x) an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, after three months after the acquisition of a Vessel, owns a Vessel free of any mortgage Lien), which Liens were created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such assets, so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each such Lien is created within three months after the acquisition of the relevant assets;

(c) in addition to other Liens permitted under this Section 7.2.3.A , Liens securing Indebtedness in an aggregate principal amount, together with (but without duplication of) Indebtedness permitted under Section 7.2.2.A(d) , at any one time outstanding not exceeding the greater of (determined at the time of creation of such Lien or the incurrence by any Existing Principal Subsidiary of such indebtedness, as applicable) (x) 3.5% of the total assets of the Guarantor and its Subsidiaries taken as a whole as determined in accordance with GAAP as at the last day of the most recent ended Fiscal Quarter or (y) $225,000,000, provided that, with respect to each such item of Indebtedness, the fair market value of the assets subject to Liens securing such Indebtedness (determined at the time of the creation of such Lien) shall not exceed two times the aggregate principal amount of such Indebtedness (and for purposes of this clause (c), the fair market value of any assets shall be determined by (i) in the case of any Vessel, by an Approved Appraiser selected by the Guarantor and (ii) in the case of any other assets, by an officer of the Guarantor or by the board of directors of the Guarantor);

 

(d) Liens on assets acquired after the Effective Date by the Guarantor or any of its Subsidiaries (other than by (x) any Subsidiary that is an Existing Principal Subsidiary or (y) any other Principal Subsidiary which, at any time, owns a Vessel free of any mortgage Lien) so long as (i) the acquisition of such assets is not otherwise prohibited by the terms of this Agreement and (ii) each of such Liens existed on such assets before the time of its acquisition and was not created by the Guarantor or any of its Subsidiaries in anticipation thereof;

(e) Liens on any asset of any corporation that becomes a Subsidiary of the Guarantor (other than a corporation that also becomes a Subsidiary of an Existing Principal Subsidiary) after the Effective Date so long as (i) the acquisition or creation of such corporation by the Guarantor is not otherwise prohibited by the terms of this Agreement and (ii) such Liens are in existence at the time such corporation becomes a Subsidiary of the Guarantor and were not created by the Guarantor or any of its Subsidiaries in anticipation thereof;

(f)  Liens securing Government-related Obligations of the Guarantor or its Subsidiaries;

(g) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;

(h) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;

(i)  Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;

(j)

Liens for current crew’s wages and salvage;

(k) Liens arising by operation of law as the result of the furnishing of necessaries for any Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings; and

(l)

Liens on Vessels that:

(i)        secure obligations covered (or reasonably expected to be covered) by insurance;

(ii)       were incurred in the course of or incidental to trading such Vessel in connection with repairs or other work to such Vessel; or

(iii)      were incurred in connection with work to such Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;

 

provided that, in each case described in this clause (l) , such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings.

SECTION 7.2.3.B. The Borrower will not create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets, whether now owned or hereafter acquired, except:

(a)

Liens securing Government-related Obligations of the Borrower;

(b) Liens for taxes, assessments or other governmental charges or levies not at the time delinquent or thereafter payable without penalty or being diligently contested in good faith by appropriate proceedings;

(c) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not overdue or being diligently contested in good faith by appropriate proceedings;

(d) Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance or other forms of governmental insurance or benefits;

(e)

Liens for current crew's wages and salvage;

(f)  Liens arising by operation of law as the result of the furnishing of necessaries for the Purchased Vessel so long as the same are discharged in the ordinary course of business or are being diligently contested in good faith by appropriate proceedings;

(g)

Liens on the Purchased Vessel that:

(i)        secure obligations covered (or reasonably expected to be covered) by insurance;

(ii)       were incurred in the course of or incidental to trading the Purchased Vessel in connection with repairs or other work to the Purchased Vessel; or

(iii)      were incurred in connection with work to the Purchased Vessel that is required to be performed pursuant to applicable law, rule, regulation or order;

provided that, in each case described in this clause (g), such Liens are either (x) discharged in the ordinary course of business or (y) being diligently contested in good faith by appropriate proceedings; and

(h) Liens securing obligations in an aggregate outstanding amount not to exceed $25,000,000 at any time.

SECTION 7.2.4. Financial Condition . The Guarantor will not permit:

 

(a) Net Debt to Capitalization Ratio, as at the end of any Fiscal Quarter, to be greater than 0.625 to 1.

(b) Fixed Charge Coverage Ratio to be less than 1.25 to 1 as at the last day of any Fiscal Quarter.

(c) Stockholders’ Equity to be less than, as at the last day of any Fiscal Quarter, the sum of (i) $4,150,000,000 plus (ii) 50% of the consolidated net income of the Guarantor 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 Guarantor and its Subsidiaries have a consolidated net loss).

SECTION 7.2.5. Investments .

SECTION 7.2.5.A. The Guarantor will not permit any of the Principal Subsidiaries to make, incur, assume or suffer to exist any Investment in any other Person other than

(a) the Guarantor or any direct or indirect wholly owned Subsidiary of the Guarantor; and

(b) other Investments by the Principal Subsidiaries in an aggregate amount not to exceed $25,000,000 at any time outstanding.

SECTION 7.2.5.B. The Borrower will not make, incur, assume or suffer to exist any Investment in any other Person other than:

(a) Investments in the Guarantor or any direct or indirect wholly-owned Subsidiary of the Guarantor and

(b) Investments in an aggregate amount not to exceed $25,000,000 at any time outstanding.

SECTION 7.2.6. Consolidation, Merger, etc .

SECTION 7.2.6.A. The Guarantor will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person except:

(a) any such Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, the Guarantor or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Guarantor or any other Subsidiary; and

(b) so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Guarantor or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Guarantor or any such Subsidiary, or the

 

Guarantor or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:

(i)        after giving effect thereto, the Stockholders’ Equity of the Guarantor and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and

(ii)       in the case of a merger involving the Guarantor where the Guarantor is not the surviving corporation, the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Guarantor’s obligations hereunder and under the other Loan Documents to which it is a party.

SECTION 7.2.6.B. The Borrower will not liquidate or dissolve, consolidate with, or merge into or with, any other corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person without the prior written consent (not to be unreasonably withheld) of the Required Lenders and Finnvera.

SECTION 7.2.7. Asset Dispositions, etc . The Guarantor will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, any material asset (including accounts receivable and capital stock of Principal Subsidiaries) to any Person, except:

(a)

sales of assets (including, without limitation, Vessels) so long as:

(i)        the aggregate net book value of all such assets sold during each 12-month period commencing on the Effective Date, and each anniversary of the Effective Date, does not exceed an amount equal to the greater of (x) 7.5% of Stockholders’ Equity as at the end of the last Fiscal Quarter, and (y) $250,000,000, provided however , that in no event shall the aggregate net book value of fixed assets disposed over the life of the Agreement (determined as of the date of any such sale) exceed 25% of Stockholders’ Equity as at the end of the most recently completed fiscal quarter; and

(ii)       to the extent any asset has a fair market value in excess of $25,000,000 the Guarantor or Subsidiary selling such asset receives consideration therefor at least equal to the fair market value thereof (as determined in good faith by (x) in the case of any Vessel, the board of directors of the Guarantor and (y) in the case of any other asset, an officer of the Guarantor or its board of directors);

(b) sales of capital stock