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[NOTIFY] 72731,737
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended February 29, 1996
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to ________________
Commission file number 1-9610
CARNIVAL CORPORATION
(Exact name of registrant as specified in its charter)
Republic of Panama 59-1562976
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3655 N.W. 87th Avenue, Miami, Florida 33178-2428
(Address of principal executive offices)
(zip code)
(305) 599-2600
(Registrants telephone number, including area code)
None.
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No__
Indicate the number of shares outstanding of each of the issuers classes of
common stock, as of April 8, 1996.
Class A Common Stock, $.01 par value: 229,965,560 shares
Class B Common Stock, $.01 par value: 54,957,142 shares
CARNIVAL CORPORATION
I N D E X
AGREEMENT
DATED APRIL 1, 1996
$300,000,000
REVOLVING CREDIT FACILITY
FOR
CARNIVAL CORPORATION
ARRANGED BY
NATIONSBANC CAPITAL MARKETS, INC.
London
THIS AGREEMENT is dated April 1, 1996 between:-
(1) CARNIVAL CORPORATION a company incorporated in The Republic of
Panama (the "Company");
(2) NATIONSBANC CAPITAL MARKETS, INC. as arranger (in this
capacity the "Arranger");
(3) NATIONSBANK, N.A. as the underwriting bank in respect of the
Committed Facility referred to below and a bid option bank;
(4) NATIONSBANK, N.A., London Branch as Swingline Bank (in this
capacity, the "Swingline Bank"); and
(5) NATIONSBANK, N.A., London Branch as facility agent (in this
capacity the "Facility Agent"), and bid option agent (in this
capacity the "Bid Option Agent").
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 Definitions
In this Agreement:-
"Acquisition"
means the acquisition, by the Group, of up to 29.6% of the
Shares.
"Additional Borrower"
means a member of the Group which becomes a Borrower in
accordance with Clause 27.5 (Additional Borrowers).
"Advance"
means a Committed Advance or an Uncommitted Advance.
"Affiliate"
means a Subsidiary or a Holding Company (as defined in
Section 736 of the Companies Act 1985) of a person and any other
Subsidiary of that Holding Company.
"Affiliated Bank"
means a Bank which is an Affiliate of another Bank.
"Agent"
means the Facility Agent or the Bid Option Agent.
"Bank"
means a Committed Bank, a Bid Option Bank or the Swingline Bank.
"Bid Option Bank"
means, subject to Clauses 27.2(h) (Transfers by Banks) and
27.4(c) (Changes in the Bid Option Banks and Bid Option Agent):-
(a) NationsBank, N.A.; or
(b) a bank or financial institution which becomes a Bid Option
Bank pursuant to the Novation Certificate effecting
Syndication or under Clause 27.4 (Changes in the Bid Option
Banks and Bid Option Agent),
in each case in its capacity as a participant in the Uncommitted
Advance Facility.
"Bid Option Bank Accession Agreement"
has the meaning given to it in Clause 27.4 (Changes in the Bid
Option Banks and Bid Option Agent).
"Borrower"
means the Company or an Additional Borrower.
"Borrower Accession Agreement"
means a letter substantially in the form of Part III of
Schedule 4 with such amendments as the Facility Agent may
approve or reasonably require.
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks
are open for business in London, New York and (in relation to
a transaction involving an Optional Currency other than
Sterling) the principal financial centre of the country of that
Optional Currency.
"Capital Lease"
means, in the case of any member of the Group, any lease of any
property (whether real, personal or mixed) by the member of the
Group as lessee that, according to GAAP either:
(a) would be required to be classified and accounted for as a
capital lease on a balance sheet of that member of the
Group (in the case of members of the Group other than those
incorporated in the United Kingdom) or as a finance lease
(in the case of members of the Group incorporated in the
United Kingdom); or
(b) would otherwise be required to be disclosed as such in a
note to that balance sheet,
in each case, according to GAAP, but excluding any such lease
of which a member of the Group is the lessor.
"Code"
means the Internal Revenue Code of 1986 of the United States of
America, as amended from time to time and the regulations
promulgated and rulings issued under it.
"Commitment"
means:
(a) in relation to a Committed Bank:
(i) if it is a Committed Bank on the date of this
Agreement, the amount in Dollars set opposite its name
in Part I of Schedule 1; and
(ii) if it becomes a Committed Bank after the date of
this Agreement, the amount of Commitment acquired by it
under Clause 27 (Changes to Parties); and
(b) in relation to a Bank which is not a Committed Bank:
(i) the amount in Dollars set opposite the name of its
Affiliated Bank (if any) in Part I of Schedule 1 which
is a Committed Bank on the date of this Agreement; and
(ii) if its Affiliated Bank becomes a Committed Bank
after the date of this Agreement, the amount of
Commitment acquired by it under Clause 27 (Changes to
Parties),
in each case, to the extent not cancelled, reduced or
transferred under this Agreement.
"Committed Advance"
means an advance made or to be made by a Committed Bank under
the Committed Advance Facility.
"Committed Advance Facility"
means the facility referred to in Clause 2.1(a) (Facilities).
"Committed Bank"
means, NationsBank, N.A. in its capacity as the underwriting
bank under the Committed Advance Facility and each other bank
or financial institution which agrees to become a lender under
the Committed Advance Facility in accordance with Clause 27.2
(Transfers by Banks).
"Consolidated Cash Flow"
means net cash flow from operations of the Restricted Group, as
shown in the consolidated statements of cash flows of the
Restricted Group, determined in accordance with GAAP.
"Default"
means an Event of Default or an event which, with the giving of
notice or lapse of time period specified in Clause 20 (Events
of Default), would constitute an Event of Default.
"Designated Term"
has the meaning given to it in Clause 10.4 (Default interest).
"Dollars", "US$" and "$"
means the lawful currency for the time being of the United
States of America.
"ERISA"
means the Employee Retirement Income Security Act of 1974 of the
United States of America, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate"
means with respect to any person, any trade or business (whether
or not incorporated) which is a member of a group of which such
person is a member and which is under common control with such
person within the meaning of Section 414 of the Code, as amended
from time to time, and the regulations promulgated and rulings
issued thereunder.
"Enactment of the Finance Bill"
means the passing into law of the Finance Bill.
"Event of Default"
means an event specified as such in Clause 20.1 (Events of
Default).
"Facility"
means any of the facilities referred to in Clause 2.1
(Facilities).
"Facility Agent's Spot Rate of Exchange"
means the Facility Agent's spot rate of exchange for the
purchase of the relevant Optional Currency in the London foreign
exchange market with Dollars at or about 11.00 a.m. on a
particular day.
"Facility Fee"
means the fee referred to in Clause 22.1 (Facility Fee).
"Facility Office"
means the office(s) notified by a Bank to the Facility Agent:-
(a) on or before the date it becomes a Bank; or
(b) by not less than 5 Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Fee Letter"
means the letter dated 22nd February, 1996 between the Arranger,
NationsBank, N.A. and the Company setting out the amount of
various fees referred to in Clause 22 (Fees).
"Final Maturity Date"
means the date falling five years after the date of this
Agreement.
"Finance Bill"
means the United Kingdom Finance Bill published on 4th January,
1996 and references to the position before and after the
Enactment of the Finance Bill are based on the assumption that
the Finance Bill will be enacted in a form substantially similar
to its form as at the date of this Agreement.
"Finance Document"
means this Agreement, the Fee Letter, a Novation Certificate,
a Borrower Accession Agreement or any other document designated
as such by the Facility Agent and the Company.
"Finance Party"
means the Arranger, a Bank or an Agent.
"GAAP"
means:
(a) in the case of the Company, the Restricted Group and the
Group on a consolidated basis, at any time, generally
accepted accounting principles in the United States of
America at that time; and
(b) in respect of any Borrower incorporated in the United
Kingdom, on an individual basis, generally accepted
accounting principles and practices in the United Kingdom
consistently applied.
"Group"
means the Company and its Subsidiaries.
"HAL"
means HAL Antillen N.V., a Company incorporated in the
Netherlands Antilles.
"HAL Subsidiaries"
means the Subsidiaries of HAL as at the date of this Agreement.
"Indebtedness"
means:
(a) any liability of a member of the Group:
(i) for borrowed money and debit balances at banks; or
(ii) under any reimbursement obligation related to a
letter of credit or bid or performance bond facility;
or
(iii) evidenced by a bond, note, debenture or other
evidence of indebtedness (including evidence of a
purchase money obligation):
(A) representing extensions of credit given in
connection with the acquisition of any business,
property, service or asset of any kind,
(B) including, without limitation, any liability under
any commodity, interest rate or currency exchange
hedge or swap agreement (other than a trade
payable or other current liability arising in the
ordinary course of business); or
(iv) for obligations with respect to:
(A) an operating lease; or
(B) a lease of real or personal property that is or
would be classified and accounted for as a Capital
Lease;
(b) any liability of others either for any lease, dividend or
letter of credit, or for any obligation described in
paragraph (a) that:
(i) a member of the Group has guaranteed or that is
otherwise its legal liability (whether contingent or
otherwise or direct or indirect, but excluding
endorsements of negotiable instruments for deposit or
collection in the ordinary course of business); or
(ii) is secured by any Security Interest on any
property or asset owned or held by a member of the
Group, regardless of whether the obligation secured
thereby shall have been assumed by or is a personal
liability of that person; and
(c) any amendment, supplement, modification, deferral, renewal,
extension or refunding of any liability of the types
referred to in paragraphs (a) and (b), above.
"Insufficiency"
means, with respect to any Plan, the amount, if any, by which
the present value of the vested benefits under such Plan exceeds
the fair market value of the assets of such Plan allocable to
such benefits.
"Kloster"
means Kloster Cruise Limited, a company incorporated under the
laws of the Islands of Bermuda.
"LIBOR"
means:
(a) in relation to an Advance or an overdue amount, the rate
per annum of the offered quotation for deposits in the
currency of that Advance or overdue amount for a period
comparable to its Term or Designated Term appearing on
Telerate Page 3740 or 3750 (as appropriate) or any
equivalent successor to such page or other page as
appropriate on the Telerate Service or such other service
as may, from time to time, display the British Bankers'
Association Interest Settlement Rates for deposits in the
relevant currency (as agreed between the Company and the
Facility Agent) (the "Telerate Screen"); or
(b) in relation to a Swingline Advance with a Term of 7, 14 or
21 days, the arithmetic mean (rounded upward to the nearest
four decimal places) of the rates per annum of the offered
quotations for deposits in the currency of that Swingline
Advance for a period comparable to its Term appearing on
the Reuters Screen LIBO or LIBP page, or any equivalent
successor to such page or other page as appropriate (as
agreed between the Company and the Swingline Bank) (the
"Reuters Screen"); or
(c) in relation to a Swingline Advance with a Term of a period
other than 7, 14 or 21 days, the rate quoted by the
Swingline Bank to leading banks in the London interbank
market for the offering of deposits in the currency of that
Swingline Advance for a period comparable to its Term; or
(d) (if no relevant rate appears on the Telerate Screen or (as
the case may be) the Reuters Screen for the purposes of
paragraph (a) or (b) above):
(i) in the case of an Advance or an overdue amount, the
arithmetic mean (rounded upward to four decimal places)
of the rates, as supplied to the Facility Agent at its
request, quoted by the Reference Banks to leading banks
in the London interbank market for the offering of
deposits in the currency of that Advance or overdue
amount; or
(ii) in the case of a Swingline Advance, the rate
referred to in paragraph (c) above,
(in each case) at or about 11.00 a.m. on the applicable Rate
Fixing Day.
"Majority Committed Banks"
means, at any time, Committed Banks whose Commitments:-
(a) then aggregate more than 51 per cent. of the Total
Commitments; or
(b) if the Total Commitments have been reduced to zero,
aggregated more than 51 per cent. of the Total Commitments
immediately before the reduction.
"Margin"
means:-
(a) for a Committed Advance or a Swingline Advance, the
applicable rate per annum determined in accordance with
Clause 10.3 (Determination of applicable Margin and
Facility Fee); or
(b) for an Uncommitted Advance, the margin (positive, negative
or zero) per annum bid by the relevant Bid Option Bank for
the making of that Uncommitted Advance.
"Margin Period"
has the meaning given to it in Clause 10.3 (Determination of
applicable Margin and Facility Fee).
"Maturity Date"
means the last day of the Term of an Advance or a Swingline
Advance.
"MLA Cost"
means the cost imputed to the Swingline Bank making a Swingline
Advance in Sterling of compliance with the Mandatory Liquid
Assets requirements of the Bank of England during the Term of
that Swingline Advance, determined in accordance with
Schedule 7.
"Moody's"
means Moody's Investors Service or any successor thereto.
"Multiemployer Plan"
means a "multiemployer plan" as defined in Section 4001(a)(3)
of ERISA to which a person or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any
of the preceding three plan years made or accrued an obligation
to make contributions.
"Multiple Employer Plan"
means an employee benefit plan, other than a Multiemployer Plan,
subject to Title IV of ERISA to which a person or any ERISA
Affiliate and more than one employer other than such person or
ERISA Affiliate, is making or accruing an obligation to make
contributions or, if any such plan has been terminated, to which
the person or any ERISA Affiliate made or accrued an obligation
to make contributions during any of the five plan years
preceding the date of termination of such plan.
"Net Worth"
means, at a particular date, all amounts which would, in
accordance with GAAP, be included in shareholders' equity on a
consolidated balance sheet of the Group or the Restricted Group
as at such date.
"Non Windstar Group"
means the Group excluding the Windstar Group.
"Novation Certificate"
means:
(a) a duly completed certificate substantially in the form of
Part I of Schedule 4; or
(b) (in the case of a novation effecting Syndication) an
agreement substantially in the form of Schedule 6, duly
executed by the parties thereto with such amendments as the
Company and the Agent may agree.
"Obligor"
means the Company (in its capacity as guarantor under this
Agreement) or any Borrower.
"Option"
means:
(a) any right to buy or sell specific property in exchange for
an agreed sum;
(b) any right to receive funds, the amount of which is
determined by reference to the value of capital stock or
the purchase price thereof;
(c) any right of the type or kind referred to as a "phantom
stock right" in the United States of America; and
(d) any other right commonly known or referred to as an option.
"Optional Currency"
means Sterling or any other readily available and freely
transferable currency other than Dollars agreed by the Company
and the Banks.
"Original Accounts"
means:
(a) in the case of the Company each of:
(i) the consolidated annual audited balance sheet of the
Company as at 30th November, 1995; and
(ii) the related statements of operations and
statements of cash flows of the Company and its
Subsidiaries for the financial year then ended; and
(b) in the case of each Borrower other than the Company, its
most recent audited financial statements (if any) as at the
date that it becomes a Party.
"Original Dollar Amount"
means:-
(a) the principal amount of a Utilisation, Advance or Swingline
Advance denominated in Dollars; or
(b) the principal amount of a Utilisation, Advance or Swingline
Advance denominated in an Optional Currency, translated
into Dollars on the basis of the Facility Agent's Spot Rate
of Exchange on the date of receipt by the relevant Agent of
the Request for that Utilisation, Advance or Swingline
Advance.
"Party"
means a party to this Agreement.
"PBGC"
means the Pension Benefit Guaranty Corporation of the United
States of America or any entity or entities succeeding to all
of its functions under ERISA.
"Plan"
means, at any time, any employee pension benefit plan maintained
by any person, any of its Subsidiaries or any ERISA Affiliate
of any of them which employee pension benefit plan is covered
by Title IV of ERISA or is subject to the minimum funding
standards of the Code.
"Prescribed Time"
means the time set opposite the number of a sub-Clause or
paragraph of Clauses 5 (The Committed Advance Facility) and 6
(The Uncommitted Advance Facility) under the heading "Time" in
Schedule 5.
"Qualifying Bank"
means an institution which is:
(a) for the time being a financial institution recognised by
the United Kingdom Inland Revenue as carrying on through
its Facility Office a bona fide banking business in the
United Kingdom for the purposes of Section 349(3) of the
Income and Corporation Taxes Act 1988 ("ICTA") (as in force
at the date of this Agreement) or, after the Enactment of
the Finance Bill, a bank as defined in ICTA for the purpose
of S.349 of ICTA and which brings into account as a trading
receipt of that business any amount payable or paid to it
under this Agreement; or
(b) a financial institution lending through any other branch,
affiliate or agency if, at the time such financial
institution becomes a Party, the financial institution or
affiliate (as the case may be) is a resident in a country
with which the U.K. has an appropriate double taxation
treaty pursuant to which and in respect of which the U.K.
Inspector of Foreign Dividends has confirmed to the Company
that that financial institution or affiliate (as the case
may be) is entitled to receive principal, interest and fees
under this Agreement from the Borrowers without withholding
of U.K. income tax.
"Rate Fixing Day"
means:
(a) the Utilisation Date for a Swingline Advance denominated in
Sterling; or
(b) the second Business Day before the Utilisation Date for a
Swingline Advance denominated in Dollars or for any
Advance.
"Reference Banks"
means, subject to Clause 27.6 (Reference Banks), the principal
London offices of NationsBank N.A., London Branch, and two other
Banks selected by the Company and the Agent following
Syndication.
"Request"
means a request made by a Borrower to utilise a Facility,
substantially in the form of Schedule 3.
"Requested Amount"
means the amount of the Utilisation or Swingline Advance
requested in a Request.
"Reset Date"
has the meaning given to it in Clause 10.3 (Determination of
applicable Margin and Facility Fee).
"Restricted Group"
means the Group excluding the Specified Subsidiaries.
"Rollover Advance"
means in relation to any particular date, one or more
Utilisations (each a "new Utilisation"):
(a) whose Utilisation Date is the same as the Maturity Date of
one or more existing Utilisations (each an "existing
Utilisation");
(b) where:
(i) the aggregate Original Dollar Amounts of those new
Utilisations is equal to or less than,
(ii) the aggregate principal amount of those existing
Utilisations (if not in Dollars, translated into
Dollars on the basis of the Facility Agent's Spot Rate
of Exchange on the date of receipt by the Facility
Agent of the Request for the relevant new
Utilisation(s));
and
(c) all of the proceeds of which are used to refinance all or
part of the existing Utilisations referred to above.
"Security Interest"
means any lien, charge, easement, claim, mortgage, Option,
pledge, right of first refusal, right of security interest,
servitude, transfer restriction or other encumbrance or any
restriction or limitation of any kind (including, without
limitation, any adverse claim to title, conditional sale or
other title retention agreement, any lease in the nature thereof
and any agreement to give any security interest).
"Shares"
means all of the ordinary voting shares and preference shares
of Airtours Plc in issue on the date of this Agreement or to be
issued in connection with the Company's acquisition of a 29.6%
interest in Airtours Plc.
"Solvent"
means with respect to any member of the Group (other than a
member of the Group the material part of whose Indebtedness is
guaranteed by the Company) on a particular date, that on such
date:
(a) the fair market value of the assets of that member of the
Group is greater than the total amount of its liabilities
(including the present or expected value of contingent
liabilities);
(b) the present fair saleable value of the assets of that
member of the Group is greater than the amount that will be
required to pay its probable liabilities in respect of its
debts as they become absolute and matured;
(c) that member of the Group is able to realise upon its assets
and pay its debts and other liabilities, including
contingent obligations as they mature;
(d) that member of the Group does not have unreasonably small
capital; and
(e) that member of the Group does not intend to or believe it
will incur debts beyond its ability to pay as they mature.
"Specified Subsidiary"
means Kloster and each of its Subsidiaries.
"S&P"
means Standard & Poor's Corporation or any successor thereto.
"Subsidiary"
means, with respect to any person, any corporation, association,
partnership or other business entity of which a majority of the
voting power entitled to vote in the election of directors,
managers or trustees thereof is at the time owned, directly or
indirectly, by such person or by one or more other Subsidiaries
of such person, or by such person and one or more of its other
Subsidiaries, or a combination thereof.
"Swap"
means any interest rate, commodity or currency swap or other
similar transaction entered into by any member of the Group,
whether or not entered into for the purpose of hedging any
exposure or liability of that or any other member of the Group.
"Swingline Advance"
means an advance made or to be made by the Swingline Bank under
the Swingline Facility.
"Swingline Commitment"
means, in the case of the Swingline Bank, subject to Clause 27.2
(Transfers by Banks), the amount in Dollars set opposite its
name in Part II of Schedule 1 to the extent not cancelled,
reduced or transferred under this Agreement.
"Swingline Facility"
means the facility referred to in Clause 2.1(c) (Facilities).
"Syndication"
means the initial syndication by the Arranger and the subsequent
transfer by the Bank originally party to this Agreement of a
portion of the Total Commitments to banks and financial
institutions which are not original Parties.
"Syndication Date"
means the date upon which those banks and financial institutions
which accept an invitation to participate in the Total
Commitments pursuant to Syndication (or substantially all of
them) become Banks.
"Tangible Net Worth"
means, in respect of the Company, at any time:
(a) the sum, to the extent shown on its balance sheet, of:
(i) the amount of issued and outstanding share capital, but
less the cost of treasury shares; plus
(ii) the amount of surplus and retained earnings,
less
(b) intangible assets as determined in accordance with GAAP.
"Term"
means the period selected by a Borrower in a Request for which
the relevant Advance, Swingline Advance or Utilisation is to be
outstanding.
"Termination Event"
means:
(a) a "reportable event", as such term is described in
Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30 day notice to the PBGC), or
an event described in Section 4068(f) of ERISA; or
(b) the withdrawal of the Company or any ERISA Affiliate from
a Multiple Employer Plan during a plan year in which it was
a "substantial employer", as such term is defined in
Section 4001(a)(2) of ERISA, or the incurrence of liability
by the Company or any ERISA Affiliate under Section 4064 of
ERISA upon the termination of a Multiple Employer Plan; or
(c) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under
Section 4041A of ERISA; or
(d) the institution of proceedings to terminate a Plan by the
PBGC under Section 4042 of ERISA; or
(e) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
"Total Capital"
means the sum of the Total Debt and Tangible Net Worth of the
Restricted Group, but excluding therefrom any Indebtedness or
amounts due or received under any Swap.
"Total Commitments"
means the aggregate for the time being of the Commitments, being
$300,000,000 at the date of this Agreement.
"Total Debt"
means, at a particular date, the sum of:
(a) all amounts which would, in accordance with GAAP,
constitute short term debt and long term debt of the
Restricted Group as of such date; and
(b) the amount of any Indebtedness outstanding on such date and
not included in the amounts specified in paragraph (a),
singly or in the aggregate, in excess of Fifty Million
Dollars ($50,000,000), of any person other than members of
the Restricted Group, which Indebtedness:
(i) has been and remains guaranteed on such date by or is
otherwise the legal liability of a member of the
Restricted Group (whether contingent or otherwise or
direct or indirect, but excluding endorsements of
negotiable instruments for deposit or collection in the
ordinary course of business); or
(ii) is secured by any Security Interest on any
property or asset owned or held by a member of the
Restricted Group, regardless of whether the obligation
secured thereby shall have been assumed or is a
personal liability of a member of the Restricted Group
except that the foregoing shall not be interpreted to include
any Indebtedness under any Swap.
"Uncommitted Advance"
means an advance made or to be made by a Bid Option Bank under
the Uncommitted Advance Facility.
"Uncommitted Advance Facility"
means the facility referred to in Clause 2.1(b) (Facilities).
"Utilisation"
means all the Advances made or to be made following the giving
by a Borrower of a Request for those Advances.
"Utilisation Date"
means the date for the making of the relevant Advance, Swingline
Advance or Utilisation.
"Windstar Group"
means Windstar Sail Cruises Ltd and its Subsidiaries.
"Withdrawal Liability"
shall have the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a
reference to:-
(i) "assets" includes properties, revenues and rights of every
description;
an "authorisation" includes an authorisation, consent,
approval, resolution, licence, exemption, filing,
registration and notarisation;
a "month" is a reference to a period starting on one day in
a calendar month and ending on the numerically
corresponding day in the next calendar month, except that,
if there is no numerically corresponding day in the month
in which that period ends, that period shall end on the
last Business Day in that calendar month;
a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law but if in relation to any Bank or Party, is
one with which banks or companies engaged in a similar
business to that Party would customarily comply) of any
governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ii) a provision of a law is a reference to that provision
as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or
a schedule to this Agreement;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document is a reference to
that Finance Document or that other document as amended,
novated or supplemented; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
1.3 Financial definitions
In this Agreement:
(a) accounting terms used in the definitions of "Total Debt",
"Total Capital", "Consolidated Cash Flow", "Capital Lease"
and "Tangible Net Worth" in Clause 1.1 (Definitions) and
accounting terms which are otherwise undefined are to be
calculated in accordance with GAAP consistently applied;
and
(b) (save as otherwise provided in this Agreement) any amount
denominated in a currency other than Dollars is to be taken
into account at its Dollar equivalent calculated on the
basis of the Facility Agent's Spot Rate of Exchange on the
day the relevant amount falls to be calculated.
2. THE FACILITIES
2.1 Facilities
The Banks grant to the Borrowers the following facilities:-
(a) a committed multicurrency advance facility under which the
Committed Banks shall, when requested by a Borrower, make
to that Borrower Committed Advances;
(b) an uncommitted multicurrency advance facility under which
a Borrower may invite offers from the Bid Option Banks to
make to that Borrower Uncommitted Advances; and
(c) in the case of the Swingline Bank, a committed swingline
advance facility under which the Swingline Bank shall, when
requested by a Borrower, make to that Borrower Swingline
Advances in Dollars or in Sterling in an aggregate Original
Dollar Amount not exceeding, at any time, the Swingline
Commitment,
in each case subject to the terms of this Agreement.
2.2 Overall facility limits
(a) The aggregate Original Dollar Amount of all outstanding
Utilisations shall not at any time exceed the Total Commitments
at that time.
(b) The aggregate Original Dollar Amount of all outstanding
Swingline Advances shall not at any time exceed the Swingline
Commitment at that time.
2.3 Limits applicable to the Committed Advance Facility and the
Swingline Facility
(a) The Committed Banks are not obliged to make Advances if the
aggregate principal amount of those Advances would cause the
aggregate of the applicable outstandings of all the Committed
Banks to exceed the Total Commitments during the Term of those
Advances.
(b) For the purpose of this Clause 2.3, the "applicable
outstandings" of a Committed Bank on any Utilisation Date is the
aggregate Original Dollar Amount of:
(i) all Advances made by that Bank (both in its capacity as a
Committed Bank and a Bid Option Bank) and its Affiliated
Bank which would be outstanding on that Utilisation Date,
if:-
(A) all outstanding Utilisations having Maturity Dates
which fall on or before that Utilisation Date are
repaid;
(B) all Utilisations of the Committed Advance Facility to
be made on or before that Utilisation Date and in
respect of which a Request has been received by the
Facility Agent are made; and
(C) all Utilisations of the Uncommitted Advance Facility to
be made on or before that Utilisation Date and in
respect of which a Borrower has accepted offers from
the relevant Banks are made; and
(ii) (A) in the case of a Committed Bank which is also the
Swingline Bank, all of the Swingline Advances made by
it which would be outstanding on that Utilisation Date,
if:
(1) all Swingline Advances having Maturity Dates
falling on or before that Utilisation Date are
repaid; and
(2) all Swingline Advances to be borrowed on or before
that Utilisation Date and in respect of which a
Request has been received by the Swingline Bank
are made;
but, for the purposes of this sub-paragraph (A), the
Swingline Bank's applicable outstandings shall be
deemed reduced by an amount equal to the applicable
outstandings of the other Committed Banks referred to
in sub-paragraph (B) below;
(B) in the case of each other Committed Bank, its
proportionate liability in respect of all outstanding
Swingline Advances (after taking into account the
adjustments in sub-paragraphs (A)(1) and (2) above)
under Clause 5.7 (Committed Banks' guarantee of
Swingline Facility).
(c) If a Utilisation under the Committed Advance Facility would
otherwise cause the applicable outstandings of the Committed
Banks to exceed the Total Commitments, then the Requested Amount
of that Utilisation shall be reduced to the extent necessary to
ensure that after that Utilisation is made, the applicable
outstandings will not exceed the Total Commitments during the
term of the Advances comprised in that Utilisation.
(d) The Swingline Bank is not obliged to make a Swingline Advance
if the principal amount of that Swingline Advance would cause
the aggregate of the applicable outstandings (as defined in
paragraph (b) above, but excluding sub-paragraph (b)(ii)(B)) to
exceed the Total Commitments during the Term of that Swingline
Advance.
2.4 Number of Requests and Utilisations
No Request may specify a Utilisation Date which is within 5
Business Days of another Utilisation Date, although up to 5
Utilisations or Swingline Advances may be made on the same day.
Subject to the above, any number of Requests may be delivered
on the same day and/or specifying the same Utilisation Date,
whether or not the currencies and Terms requested are similar.
2.5 Nature of a Finance Party's rights and obligations
(a) The obligations of a Finance Party under the Finance Documents
are several. Failure of a Finance Party to carry out those
obligations does not relieve any other Party of its obligations
under the Finance Documents. No Finance Party is responsible
for the obligations of any other Finance Party under the Finance
Documents.
(b) The rights of a Finance Party under the Finance Documents are
divided rights. A Finance Party may, except as otherwise stated
in the Finance Documents, separately enforce those rights.
3. PURPOSE
(a) Each Borrower shall apply each Utilisation and each Swingline
Advance made to it towards its general corporate purposes
including funding the Acquisition.
(b) Without affecting the obligations of any Obligor in any way, no
Finance Party is bound to monitor or verify the application of
the proceeds of any Utilisation or Swingline Advance.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of each Finance Party to any Obligor under this
Agreement are subject to the condition precedent that the
Facility Agent has notified the Company and the Banks that it
has received or waived all of the documents set out in Part I
of Schedule 2 in form and substance satisfactory to the Facility
Agent.
4.2 Further conditions precedent
The obligations of each Bank to participate in a Utilisation and
of the Swingline Bank to make Swingline Advances are subject to
the further conditions precedent that:-
(a) on both the date of the Request and the Utilisation Date
for that Utilisation or Swingline Advance:-
(i) the representations and warranties in Clause 18
(Representations and warranties) to be repeated on
those dates are correct in all material respects and
will be correct in all material respects immediately
after the Utilisation or the making of that Swingline
Advance; and
(ii) (A) in the case of a Rollover Utilisation, no
Event of Default; or
(B) in the case of a Utilisation other than a Rollover
Utilisation and of a Swingline Advance, no Default
in each case, is outstanding or might result from the
Utilisation; and
(b) the Utilisation or Swingline Advance would not cause
Clause 2.2 (Overall facility limit) to be contravened.
5. THE COMMITTED ADVANCE FACILITY
5.1 Receipt of Requests
A Borrower may utilise the Committed Advance Facility if the
Facility Agent receives, not later than the Prescribed Time, a
duly completed Request.
5.2 Completion of Requests
A Request will not be regarded as having been duly completed
unless:-
(a) the Utilisation Date is a Business Day;
(b) only one currency is specified and the Requested Amount is
(subject to Clause 2.3 (Limits applicable to the Committed
Advance Facility and the Swingline Facility)):-
(i) if the currency is Dollars, a minimum of U.S.$5,000,000
and an integral multiple of U.S.$1,000,000; or
(ii) if the currency is Sterling, a minimum of
L3,000,000 and an integral multiple of L500,000; or
(iii) if the currency is an Optional Currency other than
Sterling, a minimum and integral multiple of the
amounts agreed between the Company and the Facility
Agent before the delivery of that Request; or
(iv) such other amount as the Facility Agent and the
Company may agree;
(c) only one Term is specified which:-
(i) does not overrun the Final Maturity Date; and
(ii) is a period of an approved duration or an optional
duration;
(d) the payment instructions comply with Clause 12 (Payments);
and
(e) the then current rating applicable to the Company's long
term debt by S&P and/or Moody's is stated.
In this Clause:-
"approved duration" means a period of 1, 2, 3 or 6 months; and
"optional duration" means any other period up to 12 months
approved by the Facility Agent on the instructions of the
Committed Banks.
5.3 Amount of each Committed Bank's Advance
The amount of a Committed Bank's Advance will be the proportion
of the Requested Amount (as reduced, if necessary, in accordance
with Clause 2.3 (Limits applicable to the Committed Advance
Facility and the Swingline Facility)) which its Commitment bears
to the Total Commitments on the date of receipt of the relevant
Request.
5.4 Notification of the Committed Banks
The Facility Agent shall, not later than the Prescribed Time,
notify each Committed Bank of the details of the requested
Advances and the amount of its Advance.
5.5 Payment of Proceeds
Subject to the terms of this Agreement, each Committed Bank
shall make its Advance available to the Facility Agent for the
Borrower on the relevant Utilisation Date.
5.6 Selection of an optional duration
(a) If a Borrower selects a Term of an optional duration, it may
also select in the relevant Request a Term of an approved
duration to apply if the selection of a Term of an optional
duration becomes ineffective in accordance with paragraph (b)
below.
(b) If:-
(i) a Borrower requests a Term of an optional duration; and
(ii) the Facility Agent determines, not later than the
Prescribed Time, that matching deposits are not available
to a Committed Bank in the London interbank market to fund
the Utilisation for that Term,
the Term for the proposed Utilisation shall be the alternative
period specified in the relevant Request or, in the absence of
any alternative selection, 1 month.
(c) If the Facility Agent makes a determination under paragraph (b)
above, it shall notify the relevant Borrower and the other
Committed Banks of the new Term for the proposed Advances not
later than the Prescribed Time.
5.7 Committed Banks' guarantee of Swingline Facility
(a) Each Bank other than the Swingline Bank (to the extent that it
is also a Committed Bank) guarantees to the Swingline Bank as
a principal obligor and not merely as a surety and as a
continuing obligation of that Committed Bank, the due and
punctual payment of all principal, interest and other amounts
payable now or in the future to the Swingline Bank by the
Obligors under or in respect of the Swingline Facility.
(b) If a Borrower is in default in payment of any such amount, the
Committed Banks other than the Swingline Bank (to the extent
that it is also a Committed Bank) will, within three Business
Days after a written demand from the Swingline Bank is received
by the Facility Agent, pay all sums in respect of principal,
interest and any other amount which may be payable thereunder
and certified as such in that demand PROVIDED THAT the liability
of the Committed Banks under this Clause 5.7 is subject to the
following conditions:
(i) the maximum aggregate Original Dollar Amount of the
Swingline Advances in respect of which the Committed Banks
are liable under this guarantee shall not, at any time,
exceed the Swingline Commitment at that time and the
maximum aggregate liability of the Committed Banks under
this guarantee, at any time, shall not exceed the amount of
those Swingline Advances plus all interest and or other
amounts due to the Swingline Bank under or in respect of
the Swingline Facility;
(ii) the liability of each Committed Bank is several (and
not joint or joint and several) and is limited, in respect
of each demand, to the proportion of the amount demanded
which its Commitment on the date of the demand bears to the
Total Commitments on that date;
(iii) the aggregate liability of the Committed Banks (other
than the Swingline Bank) in respect of any amount demanded
under this Clause 5.7 shall be reduced by a portion of that
amount equal to the proportion which the Swingline Bank's
Commitment (in its capacity as Committed Bank) bears to the
Total Commitments;
(iv) upon payment by the Committed Banks of all amounts
capable of being demanded hereunder, the Swingline Bank
will (provided all liabilities of the Obligors to the
Swingline Bank under the Swingline Facility have been
irrevocably and unconditionally discharged) forthwith
assign to the Committed Banks all claims, rights and
security which the Swingline Bank may now or hereafter have
against an Obligor and which would have been applied
towards the sum guaranteed and each Obligor expressly
consents to such an assignment; and
(v) the liability of each Bank under this Clause 5.7 shall
expire at (and accordingly no demand may be made by the
Swingline Bank pursuant to this paragraph (b) in respect of
liabilities incurred by the Obligors to the Swingline Bank
after) close of business on the Business Day after the
Final Maturity Date, but such expiry shall not prejudice
the rights of the Swingline Bank against the Committed
Banks in respect of or relating to liabilities of the
Obligors occurring or arising on or before that date.
(c) Any payments made by the Committed Banks to the Swingline Bank
for the account of an Obligor shall only be considered to be
payments made hereunder and shall only reduce the liability of
the Committed Banks hereunder if such payments are made
following a demand by the Swingline Bank under this Clause 5.7.
5.8 Acknowledgement of subrogation
Each Obligor agrees and acknowledges that, to the extent that
any Committed Bank makes any payment to the Swingline Bank under
Clause 5.7 (Committed Bank's guarantee of Swingline Facility)
that Committed Bank will automatically and immediately be
subrogated to any rights the Swingline Bank may have against any
Obligor or their respective assets in respect of the amount so
paid.
5.9 Obligors' counter-indemnity to the Committed Banks
(a) Each Obligor undertakes, on demand, to indemnify and hold
harmless each Finance Party from and against all liabilities,
reasonable costs, losses, damages and expenses which the Finance
Party may incur or sustain by reason of or arising in any way
whatsoever in connection with or by reference to the Swingline
Facility or that Finance Party's performance of the obligations
expressed to be assumed by it under or in respect of the
Swingline Facility (including, without limitation under Clause
5.7 (Committed Banks' guarantee of Swingline Facility)).
(b) Each Obligor agrees and acknowledges that its obligations under
this Clause 5.9 shall not be affected by any act, omission,
matter or thing which but for this provision might operate to
release or otherwise exonerate it from its obligations under
this Clause 5.9 in whole or in part, including without
limitation and whether or not known to it:
(i) any time or waiver granted to or composition with a Finance
Party or any other person;
(ii) any taking, variation, compromise, renewal or release
of, or refusal or neglect to perfect or enforce, any
rights, remedies or securities available to any Finance
Party or other person or arising under or in respect of the
Swingline Facility; or
(iii) any variation or extension of or increase in
liabilities under the Swingline Facility, so that
references in this Agreement to the Swingline Facility
shall include each such variation, extension and variation.
(c) This shall be a continuing indemnity, shall extend to the
ultimate balance of the obligations and liabilities of each
Obligor under this Clause 5.9 and shall continue in force
notwithstanding any intermediate payment in whole or in part of
such obligations or liabilities.
(d) The obligations of each Obligor under this Clause 5.9 shall be
in addition to and shall not be in any way prejudiced by any
collateral or other security now or hereafter held by any
Finance Party as security or any lien to which that Finance
Party may be entitled.
(e) No invalidity or unenforceability of all or any part of this
Clause 31.6 shall affect any rights of indemnity or otherwise
which any Finance Party would or may have in the absence of or
in addition to this Clause 5.9
6. THE UNCOMMITTED ADVANCE FACILITY AND COMPETITIVE BID OPTION
6.1 Receipt of Requests
A Borrower may exercise the competitive bid option and utilise
the Uncommitted Advance Facility if the Bid Option Agent
receives, not later than the Prescribed Time, a duly completed
Request.
6.2 Completion of Requests
A Request will not be regarded as being duly completed unless:-
(a) the Utilisation Date is a Business Day;
(b) only one currency is specified and the Requested Amount is
(subject to Clause 2.3 (Limits applicable to the Committed
Advance Facility and the Swingline Facility)):-
(i) if the currency is Dollars, a minimum of U.S.$5,000,000
and an integral multiple of U.S.$1,000,000; or
(ii) if the currency is Sterling a minimum of
L3,000,000 and an integral multiple of L100,000; or
(iii) if the currency is an Optional Currency other than
Sterling a minimum and integral multiple of the amounts
agreed between the Company and the Facility Agent
before the delivery of that Request; or
(iv) such other amount as the Bid Option Agent and the
Company may agree;
(c) the requested Term is specified which:-
(i) does not overrun the Final Maturity Date; and
(ii) is a period of 1, 2, 3 or 6 months or all of them.
(d) the payment instructions comply with Clause 12 (Payments);
and
(e) the then current rating applicable to the Company's long
term debt by S&P and/or Moody's is stated.
6.3 Invitations to the Bid Option Banks
The Bid Option Agent shall, not later than the Prescribed Time,
notify each Bid Option Bank of the details of the requested
Advances.
6.4 Offers from the Bid Option Banks
(a) Each Bid Option Bank may make up to four offers to make any
Advances, but the Bid Option Agent must receive, not later than
the Prescribed Time, a notice marked "CARNIVAL CORPORATION -
Uncommitted Advances" specifying, in respect of each offer:-
(i) the name of the Bid Option Bank;
(ii) the name of the Borrower;
(iii) the Utilisation Date;
(iv) its principal amount, which shall be:-
(1) an integral multiple of U.S.$500,000; or
(2) an integral multiple of L500,000; or
(3) an integral multiple of the relevant amount agreed
between the Company and the Facility Agent,
as appropriate;
(v) its Margin, expressed as an annual percentage rate to four
decimal places; and
(vi) if the relevant Request specifies more than one Term,
the Term for which that Bid Option Bank is prepared to
permit the Advance specified in its offer to be
outstanding.
The Bid Option Agent shall disregard offers which are received
by it later than the Prescribed Time.
(b) Each offer made by a Bid Option Bank under paragraph (a) above
shall be treated as a separate and irrevocable offer which will
remain available until the Prescribed Time whereupon it shall
lapse if not accepted.
(c) An offer by the Bid Option Agent or one of its Affiliates in its
capacity as a Bid Option Bank shall be disregarded unless
notified to the Borrower not later than the Prescribed Time.
(d) The Bid Option Agent shall, not later than the Prescribed Time,
notify the Borrower of any valid offers, specifying in respect
of each offer:-
(i) the name of the offeror;
(ii) its principal amount; and
(iii) its Margin.
6.5 Acceptance of Offers
(a) (i) If the Borrower wishes to accept any offers made under
Clause 6.4 (Offers from the Bid Option Banks), the Bid
Option Agent must receive from the Borrower, not later than
the Prescribed Time, notice of the aggregate principal
amount of offers which it wishes to accept (the "Accepted
Amount").
(ii) The Accepted Amount shall be:-
(1) an integral multiple of U.S.$500,000; or
(2) an integral multiple of L500,000; or
(3) an integral multiple of the relevant amount agreed
between the Company and Facility Agent,
as appropriate, and may, so long as the limit contained in
Clause 2.2 (Overall Facility limit) would not be exceeded,
exceed the Requested Amount.
(iii) Subject to the terms of this Agreement, each acceptance
of an offer shall be irrevocable and binding on the
Borrower and the relevant Bid Option Bank.
(iv) If the Borrower fails so to notify the Bid Option
Agent, the Borrower may not proceed with the Utilisation
and the relevant offers shall lapse.
(b) (i) Subject to sub-paragraph (ii) below, the Borrower may only
accept offers in ascending order of their Margins.
(ii) If two or more offers at the same Margin fall to be
partially accepted, the Borrower may only accept those
offers rateably in the proportion which their respective
principal amounts bear to each other.
(iii) The last offer or offers to be accepted in accordance
with either or both of sub-paragraphs (i) and (ii) above
shall be accepted only to the extent that the aggregate
principal amount of offers accepted does not exceed the
Accepted Amount.
(c) The Bid Option Agent shall, not later than the Prescribed Time,
notify each Bid Option Bank which has made any offer(s) whether
or not its offer(s) have been accepted, and, if so, specifying
in respect of each such offer:-
(i) the principal amount of its Advance; and
(ii) the applicable Margin.
6.6 Payment of Proceeds
Subject to the terms of this Agreement, each relevant Bid Option
Bank shall make its Advance available to the Facility Agent for
the Borrower on the relevant Utilisation Date.
7. THE SWINGLINE ADVANCE FACILITY
7.1 Receipt of Requests
(a) A Borrower may utilise the Swingline Advance Facility if the
Swingline Bank receives a duly completed Request, not later
than:
(i) 12 noon on the Business Day before the relevant Utilisation
Date (in the case of a Swingline Advance denominated in
Sterling); or
(ii) 9.30 a.m. on the second Business Day before the
relevant Utilisation Date (in the case of a Swingline
Advance denominated in Dollars).
(b) The Swingline Bank shall, not later than 3.00 p.m. on the
Business Day before the relevant Utilisation Date, notify the
Facility Agent (which shall promptly notify the Committed Banks)
of any Request for a Swingline Advance.
7.2 Form of Request
A Request will not be regarded as having been duly completed
unless:-
(a) the Utilisation Date is a Business Day;
(b) it is stated whether the Swingline Advance is to be in
Dollars or in Sterling and the Requested Amount is (subject
to Clause 2.3 (Limits applicable to the Committed Advance
Facility and the Swingline Facility)):
(i) if the currency is Dollars, a minimum of US$500,000 and
an integral multiple of US$100,000; and
(ii) if the currency is Sterling a minimum of L500,000
and an integral multiple of L100,000; or
(iii) such other minimum amounts as the Company and the
Swingline Bank may agree.
(c) only one Term is specified, which:-
(i) does not overrun the Final Maturity Date; and
(ii) is a period not exceeding 21 days;
(d) the payment instructions comply with Clause 12 (Payments);
and
(e) the then current rating applicable to the Company's long
term debt by S&P and/or Moody's is stated.
7.3 Payment of Proceeds
Subject to the terms of this Agreement, the Swingline Bank shall
make the Swingline Advance available to the relevant Borrower
on the relevant Utilisation Date.
8. REPAYMENT
(a) Each Borrower shall repay each Advance made or transferred to
it in full on its Maturity Date to the Facility Agent for the
relevant Bank.
(b) Each Borrower shall repay each Swingline Advance made to it in
full on its Maturity Date to the Swingline Bank.
9. PREPAYMENT AND CANCELLATION
9.1 Automatic Cancellation of the Total Commitments
The Swingline Commitment and the Commitment of each Committed
Bank shall be automatically cancelled at close of business on
the Final Maturity Date.
9.2 Voluntary cancellation and prepayment
(a) The Company may, by giving not less than 14 days' prior notice
to the Facility Agent, cancel the unutilised portion of the
Total Commitments in whole or in part (but, if in part, in an
integral multiple of $5,000,000). Any cancellation in part
shall be applied against the Commitment of each Committed Bank
pro rata.
(b) Subject to Clause 23.2 (Other indemnities) a Borrower may, by
giving not less than 4 Business Days prior notice to the
Facility Agent, prepay a Utilisation in whole or in part (but
if in part in an integral multiple of $5,000,000). Any such
prepayment shall be applied against all of the Advances in that
Utilisation pro rata.
(c) The Company may, by giving not less than 14 days' prior notice
to the Swingline Bank and the Facility Agent, cancel the
unutilised portion of the Swingline Commitment in integral
multiples of $1,000,000.
9.3 Additional right of prepayment and cancellation
If any Obligor is required to pay any amount to a Bank under
Clause 13 (Taxes) or Clause 15 (Increased costs), the Company
may, whilst the circumstances giving rise to the requirement
continue, serve a notice of prepayment and cancellation on that
Bank through the Facility Agent. If the Company serves a notice
of prepayment and cancellation on a Bank:
(a) each Borrower shall prepay any Advances made to it by that
Bank or its Affiliated Bank together with all other amounts
payable by it to that Bank or its Affiliated Bank under
this Agreement on the date falling 5 Business Days after
the date of service of the notice;
(b) if the Bank is a Committed Bank or an Affiliate of a
Committed Bank, its Commitment shall be cancelled on the
date of service of the notice; and
(c) if the notice relates to the Swingline Facility, no further
Swingline Advances will be made or requested and the
Swingline Commitment shall be cancelled.
9.4 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this
Agreement is irrevocable. The Facility Agent shall notify the
Banks promptly of receipt of any such notice relating to the
Committed Advance Facility.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid.
(c) No prepayment or cancellation is permitted except in accordance
with the express terms of this Agreement.
(d) Any amount prepaid under this Agreement may subsequently be
re-borrowed. No amount of the Total Commitments or the Swingline
Commitment cancelled under this Agreement may subsequently be
reinstated.
9.5 Replacement bank
If the Commitment of any Committed Bank or the Swingline
Commitment of the Swingline Bank is cancelled under Clause 9.3
(Additional right of prepayment and cancellation) or Clause 16.1
(Illegality), the Company may nominate a bank or financial
institution (with the consent of the Facility Agent, such
consent not to be unreasonably withheld) to become a Committed
Bank or the Swingline Bank (as appropriate) under this Agreement
with a Commitment or Swingline Commitment (as appropriate) equal
to or less than the cancelled Commitment of the retiring
Committed Bank or Swingline Bank (as the case may be) subject
to such documentation as the Agent may reasonably require.
10. INTEREST
10.1 Interest rate
The rate of interest on each Advance and each Swingline Advance
for its Term is the rate per annum determined by the Facility
Agent to be the aggregate of the applicable:-
(a) Margin;
(b) LIBOR; and
(c) in the case of a Swingline Advance denominated in Sterling,
the MLA Cost.
10.2 Due dates
Except as otherwise provided in this Agreement, accrued interest
on each Advance and each Swingline Advance is payable by the
relevant Borrower on its Maturity Date and, in the case of an
Advance with a Term of more than 6 months, on the date falling
6 months after its Utilisation Date.
10.3 Determination of applicable Margin and Facility Fee
(a) On any date that the Company notifies the Facility Agent of any
change to its long term unsecured debt rating in any Request or
pursuant to Clause 19.3 (Information - Miscellaneous) (as
determined by S&P or Moody's) the Facility Agent shall
determine:
(i) the Margin to apply to all Committed Advances and Swingline
Advances with a Utilisation Date which occurs in; and
(ii) the Facility Fee to apply during,
the period commencing on the date falling one Business Day after
receipt by the Facility Agent of that notice (the "Reset Date")
and continuing until the next Reset Date (a "Margin Period").
(b) The Company shall notify the Facility Agent of its long term
debt ratings (as determined by S&P and Moody's) in each Request
for a Committed Advance and shall notify those ratings to the
Swingline Bank (which shall promptly notify the Facility Agent)
in each Request for a Swingline Advance and if it fails to do
so, the Margin applicable to the Utilisation or Swingline
Advance specified in that Request shall be 1 per cent. per
annum.
(c) The Margin and Facility Fee applicable on and from the date of
this Agreement to and including the first Reset Date shall be
that determined by the Facility Agent on or prior to the date
of this Agreement in accordance with paragraph (c) below and
notified to the Company and the Banks on the date of this
Agreement.
(d) Subject to paragraphs (b) above and (e) below, the Margin and
Facility Fee applicable during each Margin Period or, as the
case may be, prior to the first Reset Date, where the Company's
long term debt rating (in each case, taking the higher rating,
if there is any difference between the rating applied by S&P and
that applied by Moody's and if only one such rating is available
relying on that rating) is as set out in Column I below, shall
be the percentage rate per annum set opposite that rating in
Column II below (in the case of the Margin) or Column III below
(in the case of the Facility Fee):
Column I
Rating
Column II
Margin
(per cent. per
annum)
Column III
Facility Fee
(per cent. per
annum)
S&P
Moody's
At least A
At least A2
0.17
0.06
At least A-
At least A3
0.18
0.07
At least
BBB+
At least
Baa1
0.275
0.125
At least BBB
At least
Baa2
0.35
0.15
At least
BBB-
At least
Baa3
0.4125
0.1875
Below BBB-
Below Baa3
0.6625
0.1875
(e) If, on any Reset Date:
(i) the only outstanding long term debt of the Company to which
a rating applies is subordinated debt, the rating of that
debt, for the purposes of paragraph (c) above, shall be
deemed to be the next sub-grade above the actual rating
applied by each of S&P and Moody's; or
(ii) the Company's long term debt is unrated by both S&P and
Moody's, the Margin shall be one per cent. per annum and
the Facility Fee shall accrue at 0.375 per cent. per annum.
10.4 Default interest
(a) If an Obligor fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Facility Agent
pay interest on the overdue amount from the due date up to the
date of actual payment, as well after as before judgment, at a
rate (the "default rate") determined by the Facility Agent to
be 1 per cent. per annum above the rate which would have been
payable if the overdue amount had, during the period of non-payment,
constituted a Committed Advance in the currency of the
overdue amount for such successive Terms of such duration as the
Facility Agent may reasonably determine (each a "Designated
Term").
(b) The default rate will be determined on each Business Day or the
first day of, or two Business Days before the first day of, the
relevant Designated Term, as appropriate.
(c) If the Facility Agent determines that adequate and fair means
do not exist for determining LIBOR in the currency of the
overdue amount the default rate will be determined by reference
to the cost of funds to the Facility Agent from whatever sources
it selects.
(d) Default interest will be compounded at the end of each
Designated Term (if calculated by reference to LIBOR).
10.5 Notification of rates of interest and the Facility Fee
The Facility Agent shall promptly notify each relevant Party of
the determination of a rate of interest (including, without
limitation, the Margin) or the applicable rate of the Facility
Fee under this Agreement.
11. OPTIONAL CURRENCIES
11.1 Selection
No Borrower may request an Advance denominated in an Optional
Currency unless the Facility Agent has confirmed to the Borrower
that the Optional Currency is readily available and freely
transferable in the London foreign exchange market but a
Borrower may request Swingline Advances denominated in Sterling
at any time.
11.2 Change of currency
If, before 4.30 p.m. three Business Days before the Utilisation
Date of an Advance to be denominated in an Optional Currency
other than Sterling, the Facility Agent receives notice from a
Bank that:-
(a) it is impracticable for the Bank to fund its Advance for
its Term in that Optional Currency in the ordinary course
of business in the London interbank market; or
(b) the use of the proposed Optional Currency might contravene
any law or regulation,
then:-
(i) the Facility Agent shall promptly and in any event before
5.30 p.m. three Business Days before that Utilisation Date
notify the relevant Borrower;
(ii) if the Facility Agent receives notice from the Borrower
by 9.00 a.m. two Business Days before the relevant
Utilisation Date, the Advance shall not be made;
(iii) if the Facility Agent does not receive any notice under
sub-paragraph (ii) above, it shall notify the relevant Bank
to that effect not later than 10.30 a.m. two Business Days
before that Utilisation Date and the Advance will be
denominated instead in Dollars in an amount equal to its
Original Dollar Amount;
(iv) subject to paragraph (v) below the Borrower shall
forthwith on demand indemnify the Bank concerned against
any liability which the Bank (acting reasonably) incurs as
a consequence of the operation of this Clause 11.2;
(v) no Bank shall be entitled to any indemnity under sub-paragraph
(iv) above if the Optional Currency in question
is any of Deutschmarks, French Francs, Swiss Francs,
Italian Lire, Japanese Yen, Finnish Markka, Swedish Kronor,
Danish Krone, Spanish Pesetas or Norwegian Kroner and the
relevant Bank incurs a loss by reason of funding its
Advance in that Optional Currency before 10.30 a.m. on the
second Business Day before the relevant Utilisation Date.
11.3 Notification of rates and amounts
The Facility Agent shall notify each relevant Party of any
applicable Facility Agent's Spot Rate of Exchange or Original
Dollar Amount promptly after it is ascertained.
12. PAYMENTS
12.1 Place
(a) All payments by an Obligor or a Bank under this Agreement, other
than payments by the Swingline Bank or by an Obligor to the
Swingline Bank in respect of Swingline Advances, shall be made
to the Facility Agent to its account at such office or bank as
it may, by not less than two Business Days notice in writing,
notify to the Obligor or Bank concerned for this purpose.
(b) Payments in respect of Swingline Advances by the Swingline Bank
or by an Obligor to the Swingline Bank shall be made by the
relevant Party in accordance with the arrangements agreed
between the Swingline Bank and the relevant Obligor on or prior
to the date of the Request for that Swingline Advance.
12.2 Funds
Payments under this Agreement to the Facility Agent shall be
made for value on the due date at such times and in such funds
as the Facility Agent may specify to the Obligor or Bank
concerned as being customary at the time for the settlement of
transactions in the relevant currency in the place for payment.
12.3 Distribution
(a) Each payment received by the Facility Agent under this Agreement
for another Party shall, subject to paragraphs (b) and (c)
below, be made available by the Facility Agent to that Party by
payment (on the date and in the currency and funds of receipt)
to its account with such bank in the principal financial centre
of the country of the relevant currency as it may notify to the
Facility Agent for this purpose by not less than 5 Business
Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an
Obligor in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from an Obligor under
this Agreement or in or towards the purchase of any amount of
any currency to be so applied.
(c) Where a sum is to be paid under this Agreement to the Facility
Agent for the account of another Party, the Facility Agent is
not obliged to pay that sum to that Party until it has
established that it has actually received that sum. The
Facility Agent may, however, assume that the sum has been paid
to it in accordance with this Agreement and, in reliance on that
assumption, make available to that Party a corresponding amount.
If the sum has not been made available but the Facility Agent
has paid a corresponding amount to another Party, that Party
shall forthwith on demand refund the corresponding amount to the
Facility Agent together with interest on that amount from the
date of payment to the date of receipt, calculated at a rate
determined by the Facility Agent to reflect its cost of funds.
12.4 Currency
(a) A repayment or prepayment of an Advance or a Swingline Advance
is payable in the currency in which the Advance or Swingline
Advance is denominated.
(b) Interest is payable in the currency in which the relevant amount
in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses, taxes and the
like are payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
12.5 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be
made without set-off or counterclaim.
12.6 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not
a Business Day, the due date for that payment shall instead be
the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal under this Agreement interest is payable on the
principal at the rate payable on the original due date.
12.7 Partial payments
(a) If the Facility Agent receives a payment insufficient to
discharge all the amounts then due and payable by the Obligors
under this Agreement, the Facility Agent shall apply that
payment towards the obligations of the Obligors under this
Agreement in the following order:-
(i) first, in or towards payment pro rata of any unpaid costs
and expenses of the Agents under this Agreement;
(ii) secondly, in or towards payment pro rata of any accrued
fees due but unpaid under Clause 22.1 (Facility Fee);
(iii) thirdly, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iv) fourthly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(v) fifthly, in or towards payment pro rata of any other sum
due but unpaid under this Agreement,
(b) the Facility Agent shall, if so directed by all the Committed
Banks and all the Bid Option Banks which have made an Advance
which is still outstanding, vary the order set out in sub-paragraphs
(a)(ii) to (v) above.
(c) paragraphs (a) and (b) above shall override any appropriation
made by an Obligor.
13. TAXES
13.1 Gross-up
All payments by an Obligor under the Finance Documents shall be
made without any deduction and free and clear of and without
deduction for or on account of any taxes, except to the extent
that the Obligor is required by law to make payment subject to
any taxes. If any tax or amounts in respect of tax must be
deducted, or any other deductions must be made, from any amounts
payable or paid by an Obligor, or paid or payable by the
Facility Agent to a Bank, under the Finance Documents, the
Obligor or the Facility Agent (as the case may be) shall deduct
or withhold such amounts as are required by law and remit such
deducted or withheld tax or other amounts to the appropriate tax
or other authority. Where payments made by an Obligor or the
Facility Agent under the Finance Documents are subject to such
deduction or withholding, the Obligor concerned shall pay such
additional amounts as may be necessary to ensure that the
relevant Bank receives a net amount equal to the full amount
which it would have received had payment not been made subject
to tax or withholding if, and only if, such tax or withholding
is imposed as a result of:
(a) actions taken by a Borrower (other than a novation of a
Utilisation to another Borrower (if permitted by the
Banks));
(b) in the case of payments by the Company, changes in United
States or Panamanian regulations, tax laws or other
statutes or any practice or concession of a tax or other
authority;
(c) in the case of payments by any Borrower other than the
Company, a Bank ceasing to be a Qualifying Bank as a result
of the introduction of or any change in or change to the
interpretation, administration or application of any:
(i) treaty, law or regulation; or
(ii) any practice or concession of the UK Inland
Revenue generally applied to institutions subject to
taxation in the United Kingdom
in each case, occurring after the date of this Agreement.
13.2 Tax receipts
All taxes required by law to be deducted or withheld by an
Obligor from any amounts paid or payable under the Finance
Documents shall be paid by the relevant Obligor when due and the
Obligor shall, within 15 days of the payment being made, deliver
to the Facility Agent for the relevant Bank evidence
satisfactory to that Bank (including all relevant tax receipts)
that the payment has been duly remitted to the appropriate
authority.
13.3 Refund of tax credits
If:-
(a) an Obligor makes a payment under Clause 13.1 (Gross-up) (a
"Tax Payment") in respect of a payment to a Bank under this
Agreement; and
(b) that Bank determines in its reasonable discretion that it
has obtained a refund of tax or obtained and used a credit
against tax on its overall net income (a "Tax Credit")
which that Bank in its discretion is able to identify as
attributable to that Tax Payment,
then, if it can do so without any material adverse consequences
for that Bank, that Bank shall reimburse the relevant Obligor
such amount as that Bank reasonably determines to be such
proportion of that Tax Credit as will leave that Bank (after
that reimbursement) in no better or worse position in respect
of its U.K. tax liabilities than it would have been in if no Tax
Payment had been required. A Bank shall have an absolute
discretion as to whether to claim any Tax Credit (and, if it
does claim, the extent, order and manner in which it does so).
No Bank shall be obliged to disclose any of its tax affairs or
computations to any Obligor.
13.4 Change of Borrower
If a Borrower, other than the Company, is required by law to
make payments under the Finance Documents subject to tax or
withholding at a rate which is higher than the rate (if any) at
which the Company is required to make payments under the Finance
Documents subject to tax or withholding, in each case as
contemplated by Clause 13.1 (Gross-up), the relevant Borrower
and the Company may, while the relevant tax or withholding
continues to be required, procure the transfer to the Company
and the assumption by the Company of (in each case subject to
documentation in form and substance satisfactory to the Facility
Agent, acting reasonably), all or the affected part of the
relevant Borrower's rights and obligations under the Finance
Documents. Any such transfer and assumption shall (subject to
payment of the Facility Agent's reasonable costs and expenses
(including reasonable legal fees)) be permitted without premium
or penalty. If, on the date of any such transfer and
assumption, payments by the Company must also be made subject
to tax or withholdings, Clause 13.1 (Gross up) shall apply to
the rights and obligations transferred to and assumed by the
Company as if they had originally been the Company's rights and
obligations.
14. MARKET DISRUPTION
(a) If LIBOR is to be determined by reference to Reference Banks and
a Reference Bank does not supply an offered rate by 1.00 p.m.
on a Rate Fixing Day, the applicable LIBOR shall, subject to
paragraph (b) below, be determined on the basis of the
quotations of the remaining Reference Banks.
(b) If, in relation to any proposed Utilisation or a Swingline
Advance:-
(i) LIBOR is to be determined by reference to Reference Banks
and no, or only one, Reference Bank supplies a rate for the
purposes of determining the applicable LIBOR; or
(ii) the Facility Agent (acting reasonably) otherwise
determines that adequate and fair means do not exist for
ascertaining the applicable LIBOR; or
(iii) the Facility Agent receives notification from Banks
participating in more than 50 per cent. in value of the
proposed Advances or (in the case of Swingline Advance)
from the Swingline Bank that, in their or its opinion:-
(1) matching deposits will not be available to them or it
(as the case may be) in the London interbank market in
the ordinary course of business to fund their Advances
for the relevant Term; or
(2) the cost to them or it (as the case may be) of matching
deposits in the London interbank market would be in
excess of the relevant LIBOR,
the Facility Agent shall promptly notify the Company and the
relevant Banks or the Swingline Bank (as appropriate) of the
fact and that this Clause 14 is in operation.
(c) After any notification under paragraph (b) above:-
(i) the Company and the Banks or the Swingline Bank (as
appropriate) may agree (through the Facility Agent) that
the Advances comprised in the Utilisation or the relevant
Swingline Advance shall not be made;
(ii) in the absence of such agreement:-
(A) in the case of Advances, the Term of the Advances
concerned shall be one month;
(B) in the case of a Swingline Advance, its Term shall be
14 days; and
(C) during the Term of each Advance or Swingline Advance
the rate of interest applicable to that Advance or
Swingline Advance (as the case may be) shall be the
applicable Margin plus the rate per annum which
expresses as a percentage rate per annum the cost to
the Bank concerned of funding that Advance or Swingline
Advance (as the case may be) from whatever sources it
may reasonably select, which rate shall be notified by
the Bank concerned to the Facility Agent before that
last date of such Term plus, in the case of a Swingline
Advance, the MLA Cost.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the Company shall within
5 days of demand by a Finance Party pay that Finance Party the
amount of any increased cost incurred by it as a result of any
change in or change in the interpretation or application of any
law or regulation (including any relating to taxation or reserve
asset, special deposit, cash ratio, liquidity or capital
adequacy requirements or any other form of banking or monetary
control). Any Finance Party intending to make a demand under
this Clause 15.1 shall notify the Company as soon as
practicable, upon becoming aware of the same, that it has
incurred an increased cost.
(b) In this Agreement "increased cost" means:-
(i) an additional cost incurred by a Finance Party as a result
of it having entered into, or performing, maintaining or
funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a
Finance Party in making, funding or maintaining all or any
advances comprised in a class of advances formed by or
including the Advances or the Swingline Advances made or to
be made by it under this Agreement as is attributable to it
making, funding or maintaining its Advances or Swingline
Advances (as the case may be); or
(iii) a reduction in any amount payable to a Finance Party or
the effective return to a Finance Party under this
Agreement or on its capital; or
(iv) the amount of any payment made by a Finance Party, or
the amount of interest or other return foregone by a
Finance Party, calculated by reference to any amount
received or receivable by a Finance Party from any other
Party under this Agreement.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased
cost:-
(a) in the case of the Swingline Bank, compensated for by the
MLA Cost or, in the case of any other Bank, which relates
to a cost imputed to that Bank in respect of an Advance in
Sterling of complying with the mandatory liquid assets
requirements of the Bank of England;
(b) compensated for by the operation of Clause 13 (Taxes) or
which would have been compensated for if (in the case of
payments by Borrowers other than the Company) the Bank was
a Qualifying Bank or if one of the other exceptions to
Clause 13.1 (Gross-up) had not applied;
(c) attributable to any change in the rate of tax on the
overall net income of a Bank (or the overall net income of
a division or branch of the Bank) imposed in the
jurisdiction in which its principal office or Facility
Office is situate; or
(d) which is incurred in consequence of the implementation of
matters set out in the report of the Basle Committee on
Banking Regulations and Supervisory Practices dated July,
1988 and entitled "International Convergence and Capital
Measurement and Capital Standards".
16. ILLEGALITY AND MITIGATION
16.1 Illegality
If it is or becomes unlawful in any jurisdiction for a Finance
Party to give effect to any of its obligations as contemplated
by this Agreement or to fund or maintain any Advance or
Swingline Advance, then:-
(a) the Finance Party may notify the Company through the
Facility Agent accordingly; and
(b) (i) each Borrower shall within the period allowed (by the
relevant regulation or legislation) or, (if no period
is allowed) forthwith prepay any Advances or Swingline
Advances made to it by that Finance Party together with
all other amounts payable by it to that Finance Party
under this Agreement; and
(ii) if the Finance Party is a Committed Bank or an
Affiliate of a Committed Bank, its Commitment shall be
cancelled; and
(iii) if the Finance Party is the Swingline Bank the
Swingline Commitment shall be cancelled.
16.2 Mitigation
Notwithstanding the provisions of Clauses 13 (Taxes),
15 (Increased costs) and 16.1 (Illegality), if in relation to
a Bank or (as the case may be) the Facility Agent, circumstances
arise which would result in:
(a) any deduction, withholding or payment of the nature
referred to in Clause 13 (Taxes); or
(b) any increased cost of the nature referred to in Clause 15
(Increased costs); or
(c) a notification pursuant to Clause 16.1 (Illegality),
then without in any way limiting, reducing or otherwise
qualifying the rights of that Bank, that Bank shall upon
becoming aware of the same notify the Facility Agent thereof
(whereupon the Facility Agent shall notify the Company) and such
Bank shall use all reasonable endeavours to transfer its
participation (or to procure the transfer of its Affiliated
Bank's participation (as the case may be)) in the Committed
Advance Facility or the Swingline Facility (as the case may be)
and its rights hereunder and under the Finance Documents to
another financial institution or Facility Office not affected
by the circumstances having the results set out in (a), (b) or
(c) above and shall otherwise take such reasonable steps as may
be open to it to mitigate the effects of such circumstances
provided that such Bank shall not be under any obligation to
take any such action if, in its reasonable opinion, to do so
might have a material adverse effect upon its business,
operations or financial condition or those of its Affiliated
Bank or might involve it or its Affiliated Bank in any unlawful
activity or any activity that is contrary to any request,
guidance or directive of any competent authority (whether or not
having the force of law) or might involve it or its Affiliated
Bank in any unusual expense or any tax disadvantage.
17. GUARANTEE
17.1 Guarantee
The Company irrevocably and unconditionally:-
(a) indemnifies each Finance Party against any loss or
liability suffered by it because of any failure by a
Borrower to perform promptly any of its obligations under
the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower
other than the Company does not pay any amount when due or
within 3 Business Days of its due date (disregarding, for
this purpose, any grace period provided for in Clause 20.2
(Non-payment)) under or in connection with any Finance
Document, the Company shall within 5 Business Days of a
demand by the Facility Agent pay that amount as if the
Company instead of the relevant Borrower were expressed to
be the principal obligor (and the Company's obligation to
make that payment shall not be subject to any grace period
available to it under Clause 20.2 (Non-payment)); and
(c) indemnifies each Finance Party on demand against any loss
or liability suffered by it if any obligation guaranteed by
the Company is or becomes unenforceable, invalid or
illegal.
17.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers under the
Finance Documents, regardless of any intermediate payment or
discharge in whole or in part.
17.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of
any Obligor or any security for those obligations or otherwise)
is made in whole or in part or any arrangement is made on the
faith of any payment, security or other disposition which is
avoided or must be restored on insolvency, liquidation or
otherwise without limitation, the liability of the Company under
this Clause 17 shall continue as if the discharge or arrangement
had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance
or restoration.
17.4 Waiver of defences
The obligations of the Company under this Clause 17 will not be
affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice any of its
obligations under this Clause 17 or prejudice or diminish those
obligations in whole or in part, including (whether or not known
to it or any Finance Party):-
(a) any time or waiver granted to, or composition with, any
Borrower or other person;
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of,
any Borrower or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the
full value of any security;
(c) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of a Borrower or any other person;
(d) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so that
references to that Finance Document in this Clause 17 shall
include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security, to the intent that the
Company's obligations under this Clause 17 shall remain in
full force and its guarantee be construed accordingly, as
if there were no unenforceability, illegality or
invalidity;
(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Borrower under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from
any law, regulation or order so that each such obligation
shall for the purposes of the Company's obligations under
this Clause 17 shall be construed as if there were no such
circumstance.
17.5 Immediate recourse
The Company waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment
from any person before claiming from the Company under this
Clause 17.
17.6 Appropriations
Until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or
agent on its behalf) may:-
(a) refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of those
amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or
otherwise) and the Company shall not be entitled to the
benefit of the same; and
(b) hold in an interest bearing suspense account any moneys
received from the Company or on account of the Company's
liability under this Clause 17, until such time as the
aggregate amount (including interest) standing to the
credit of such account and all other amounts recovered or
held in such suspense account by the Finance Parties in
respect of amounts due and payable by the Obligors equals
the amount due and payable by the Obligors under or in
respect of the Finance Documents.
17.7 Non-competition
Until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been
irrevocably paid in full, the Company shall not, after a claim
has been made or by virtue of any payment or performance by it
under this Clause 17:
(a) be subrogated to any rights, security or moneys held,
received or receivable by any Finance Party (or any trustee
or agent on its behalf) or be entitled to any right of
contribution or indemnity in respect of any payment made or
moneys received on account of the Company's liability under
this Clause 17;
(b) claim, rank, prove or vote as a creditor of any other
Obligor or its estate in competition with any Finance Party
(or any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any other
Obligor, or exercise any right of set-off as against any
other Obligor.
The Company shall hold in trust for (except to the extent that
a Security Interest is created thereby) and forthwith pay or
transfer to the Facility Agent for the Finance Parties any
payment or distribution or benefit of security received by it
contrary to this Clause 17.7.
17.8 Additional security
This guarantee is in addition to and is not in any way
prejudiced by any other security now or hereafter held by any
Finance Party.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
Each Obligor makes the representations and warranties in this
Clause 18 (Representations and warranties) to each Finance
Party.
18.2 Status, powers and compliance with laws
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of Panama and has all
requisite corporate power and authority under such laws to own
or lease and operate its properties and to carry on its business
as now conducted and as proposed to be conducted, and to
execute, deliver and perform its obligations under the Finance
Documents to which it is, or will be, a party;
(b) Each Borrower other than the Company is a limited liability
company, duly incorporated and validly existing under the laws
of England and has all requisite corporate power and authority
under those laws to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be
conducted and to execute, deliver, and perform its obligations
under the Finance Documents to which it is, or will be, a party.
(c) Each member of the Restricted Group is duly qualified or
licensed to do business and is in good standing, where
applicable, in all jurisdictions in which it owns or leases
property (including vessels), or proposes to own or lease
property (including vessels), or in which the conduct of its
business requires it to so qualify or be licensed, except to the
extent that the failure to so qualify or be in good standing
would have no material adverse effect on the business,
operations, properties, prospects or condition (financial or
otherwise) of the Restricted Group or on the ability of any such
person to perform its obligations under any of the Finance
Documents to which it is or may be a party; and
(d) Each member of the Restricted Group is in compliance in all
material respects with all applicable laws, rules, regulations
and orders.
18.3 Corporate authorities and no conflicts
The execution, delivery and performance by it of each Finance
Document to which it is or will be a party are within its
corporate powers and have been duly authorised by all necessary
corporate and stockholder approvals and:
(a) do not contravene its constitutional documents or its
charter or by-laws or any law, rule, regulation, judicial
or official order or decree applicable to or binding on it
or on any member of the Restricted Group; and
(b) do not contravene, and will not result in the creation of
any Security Interest under, any provision of any agreement
to which it or any member of the Restricted Group is a
party, or by which it or any of them or any of its or their
respective properties are bound.
18.4 Government approvals and authorisations
No authorisation or approval (including exchange control
approval) or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for
the due execution, delivery and performance by or enforcement
against it of the Finance Documents to which it is a party
(except such as have been duly obtained or made and remain in
full force and effect).
18.5 Legal Validity
Each Finance Document to which it is a Party is, or upon
execution will be, its legal, valid and binding obligation
enforceable against it in accordance with its terms (except as
enforcement may be limited by bankruptcy, moratorium,
insolvency, reorganisation or similar laws generally affecting
creditors' rights generally or by general equitable principles).
18.6 Accounts
Its audited accounts most recently delivered to the Facility
Agent which at the date on which it becomes a Party are its
Original Accounts (if any):-
(a) have been prepared in accordance with GAAP consistently
applied; and
(b) fairly represent its financial condition and the results of
its operations as at the date to which they were drawn up,
and there has been no material adverse change:
(i) in the case of the Company, in the business, operations,
properties or condition (financial or otherwise) of the
Restricted Group taken as a whole; and
(ii) in any other case, in its business, operations,
properties or condition (financial or otherwise),
in each case, since the date to which those accounts were drawn
up.
18.7 Litigation
There is not pending nor, to its knowledge upon due inquiry and
investigation, threatened any arbitration, litigation, action
or proceeding affecting any member of the Group by or before any
court, governmental agency or arbitrator, which reasonably could
be expected:
(a) to affect materially and adversely the assets, business,
properties, prospects, operations or condition (financial
or otherwise) of the Group taken as a whole; or
(b) to prohibit, limit in any way or materially adversely
affect the transactions contemplated by the Finance
Documents, including, without limitation, the ability of
any Obligor to perform its obligations under this
Agreement.
18.8 Immunities
No member of the Group, nor any of their respective property,
has any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) under the laws of the jurisdiction of organisation.
18.9 No taxes
In the case of the Company, there is no tax, levy, impost,
deduction, charge or withholding or similar item imposed:
(a) by Panama or the United States of America, or by any
political subdivision of either of them, on or by virtue of
the execution and delivery of these representations and
warranties, the execution or delivery or enforcement of
this Agreement or any other document to be furnished under
it; or
(b) by Panama or the United States of America, or by any
political subdivision of either of them, on any payment to
be made by it under this Agreement, other than taxes on or
measured by net income imposed by any such jurisdiction in
which a Bank is incorporated or has a fixed place of
business,
provided that, to the extent that the representations set out
in this Clause 18.9 apply to stamp taxes, imposts or similar
duties, they shall only be deemed made if and to the extent that
this Agreement is kept by the Facility Agent in any of the
United Kingdom or the States of New York and North Carolina.
18.10 No filing
It is not necessary that this Agreement be filed or recorded
with any court or other authority in Panama or the State of
Florida or its jurisdiction of incorporation (if different), or
that any stamp or similar tax be paid on or with respect to any
Finance Document to ensure the legality, validity,
enforceability or admissibility in evidence of any Finance
Document except to the extent set out in Clause 18.9 (No taxes).
18.11 No Default
(a) (i) in the case of a Swingline Advance and a Utilisation other
than a Rollover Utilisation, no Default is outstanding or
might result from that Utilisation; and
(ii) in the case of a Rollover Utilisation, no Event of
Default is outstanding or might result from that
Utilisation.
(b) there does not exist any event of default, or any event that
with notice or lapse of time or both would constitute an event
of default, under any agreement (other than this Agreement) to
which any member of the Group is a party or by which any of them
may be bound, or to which any of their properties or assets may
be subject, which default would have a material adverse effect
on the Group taken as a whole, or would materially adversely
affect the ability of the Obligors to perform their respective
obligations under this Agreement.
18.12 Margin regulations
No part of the proceeds of any Advance or Swingline Advance will
be used for any purpose that violates the provisions of any of
Regulations D, G, T, U or X of the Board of Governors of the
Federal Reserve System of the United States of America or any
other regulation of such Board of Governors. No member of the
Group is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock, within the
meaning of Regulations G, T, U and X issued by the Board of
Governors of the Federal Reserve System of the United States of
America.
18.13 Investment Company Act
It is not an "investment company" or a company "controlled" by
an "investment company" (as each of such terms is defined or
used in the Investment Company Act of 1940 of the United States
of America, as amended).
18.14 Taxes paid
(a) Each member of the Restricted Group:
(i) has filed or caused to be filed, or has timely requested an
extension to file or has received from the relevant
governmental authorities an extension to file, all material
tax returns which are required to have been filed; and
(ii) has paid all taxes shown to be due and payable on said
returns or extension requests or on any material
assessments made against it or any of its properties, and
all other material taxes, fees or other charges imposed on
it or any of its properties by any governmental authority
(other than those the amount or validity of which is
currently being contested in good faith by appropriate
proceedings and with respect to which appropriate reserves
in conformity with the applicable GAAP have been provided
on its books); and
(b) no material tax liens have been filed and no material claims are
being asserted with respect to any such taxes, fees or other
charges other than those the amount or validity of which is
currently being contested in good faith by appropriate
proceedings and with respect to which appropriate reserves in
accordance with GAAP have been provided on its books,
provided, however, that the representations and warranties made
in subparagraphs (a)(i) and (ii) above with respect to HAL and
the HAL Subsidiaries acquired on or about 17th January, 1989 are
limited to tax returns required to be filed with respect to the
period since 1st January, 1989.
18.15 Disclosure
No representation, warranty or statement made or document or
financial statement provided by any member of the Group or any
Affiliate of the Company, in or pursuant to any Finance
Document, or in any other document furnished in connection with
any of them, is untrue or incomplete in any material respect or
contains any misrepresentation of a material fact or omits to
state any material fact necessary to make any such statement
herein or therein not misleading;
18.16 Good title
It has good title to its properties and assets, except (in the
case of the Company) for:
(a) existing or future Security Interests or conditional sales
arrangements either securing Indebtedness or other
liabilities of a member of the Group, or those which the
Company in its reasonable business judgment has determined
would not be reasonably expected to materially interfere
with the business or operations of the Group as conducted
from time to time, in each case, which are permitted under
the terms of this Agreement; and
(b) minor irregularities therein which do not materially
adversely affect their value or utility.
18.17 ERISA
(a) No Insufficiency or Termination Event has occurred or is
reasonably expected to occur, and no "accumulated funding
deficiency" exists and no "variance" from the "minimum funding
standard" has been granted (each such term as defined in
Part III, Subtitle B, of Title I of ERISA) with respect to any
Plan (other than any Multiemployer Plan or Plan that has been
terminated and all the liabilities of which have been satisfied
in full prior to 30th March, 1990) in which any member of the
Restricted Group is a participant;
(b) none of the Company nor any ERISA Affiliate (other than the
Specified Subsidiaries) has incurred, or is reasonably expected
to incur, any Withdrawal Liability to any Multiemployer Plan;
and
(c) none of the Company nor any ERISA Affiliate (other than the
Specified Subsidiaries) has received any notification that any
Multiemployer Plan in which it is a participant is in
reorganisation or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganisation or to be terminated within the
meaning of Title IV of ERISA.
18.18 Solvency
It is, and on each Utilisation Date will be, Solvent.
18.19 Times for making representations and warranties
The representations and warranties set out in this Clause 18
(Representations and warranties):-
(a) (i) in the case of an Obligor which is a Party on the date
of this Agreement, are made by that Obligor on that
date; and
(ii) in the case of a Borrower which becomes a Party
after the date of this Agreement, will be deemed to be
made by that Borrower on the date it executes a
Borrower Accession Agreement; and
(b) (other than the representation set out in Clause 18.15
(Disclosure)) are deemed to be repeated by each Obligor on
the date of each Request and each Utilisation Date with
reference to the facts and circumstances then existing.
19. UNDERTAKINGS
19.1 Duration
The undertakings in this Clause 19 (Undertakings) remain in
force from the date of this Agreement for so long as any amount
is or may be outstanding under this Agreement or any Commitment
is in force.
19.2 Financial information
The Company shall supply to the Facility Agent in sufficient
copies for all the Banks:-
(a) as soon as the same are available (and in any event within
120 days of the end of each of its financial years):-
(i) in the case of the Company:
(A) the audited consolidated financial statements of:
(i) the Company; and
(ii) Kloster (if such audited statements are
required to be produced by any person other
than the Finance Parties); and
(B) the unaudited consolidated financial statements of
Kloster if audited financial statements are not so
required.
(ii) as soon as the same are available (and in any
event within 180 days of the end of the financial years
of the relevant Obligor), the audited financial
statements of each Obligor (other than the Company) for
that financial year,
each set of financial statements of the Company delivered
under sub-paragraph (i) above shall set forth in
comparative form, the corresponding figures for the
preceding financial year (excluding, as to any Subsidiary
acquired after the date of this Agreement, corresponding
information for the period preceding its acquisition). All
such audited consolidated financial statements to be
delivered by and in respect of the Company shall be
accompanied by an opinion thereon of independent certified
public accountants of recognised national standing in the
United States of America acceptable to the Facility Agent,
stating that those financial statements fairly present the
consolidated financial condition and results of operations
of each of:
(1) the Company, and
(2) Kloster (if required other than by the Finance
Parties),
as at the end of, and for, that financial year;
(b) (in the case of the Company) as soon as the same become
available and in any event within 75 days after the end of
each financial quarter of each of its financial years:
(i) unaudited consolidated statements of income, retained
earnings and cash flow of:
(A) the Company; and
(B) Kloster,
in each case for each such quarterly period and for the
period from the beginning of its then current financial
year to the end of such period; and
(ii) related unaudited consolidated balance sheets of:
(A) the Company; and
(B) Kloster,
in each case as at the end of each such quarterly
period.
(iii) Delivery of the Company's quarterly financial
statements containing information required to be filed
with the Securities and Exchange Commission of the
United States of America on Form 10-Q (as in effect on
the date of this Agreement) shall satisfy the
requirements of this paragraph (b) to the extent that
those requirements relate to the Company's consolidated
financial information, however such requirements shall
not be satisfied if the Company makes no such filings
or if there is a material change after the date of this
Agreement in the form or substance of financial
disclosures and financial information required to be
set out in Form 10-Q.
(iv) All unaudited consolidated financial statements
delivered under this paragraph (b) shall be accompanied
by a certificate of a senior financial officer of the
Company, stating that those financial statements fairly
present the consolidated financial condition and
results of the operations of each of:
(1) the Company; and
(2) Kloster,
as at the end of, and for, the period to which they
relate (subject to normal year end audit adjustments)
in accordance with GAAP, consistently applied;
(c) in the case of the Company:
(i) as soon as the same become available, but in any event
not later than 15th January of each calendar year
beginning on or after 1st January 1997, a five year
cash flow projection and the related income statement
and a balance sheet for the Company;
(ii) together with the financial statements specified
in paragraph (a)(i) above, a certificate signed by a
senior financial officer of the Company setting out in
reasonable detail computations establishing compliance
with Clause 19.21 (Financial covenants) as at the date
to which those financial statements were drawn up; and
(iii) together with the financial statements specified
in paragraph (b)(i) above, a certificate signed by a
senior financial officer on its behalf setting out in
reasonable detail computations establishing compliance
with Clause 19.21 (Financial covenants) as at the date
to which those financial statements were drawn up,
except that the Company shall have no obligation to provide
any information in respect of any Specified Subsidiary if
that Specified Subsidiary is not or has ceased to be a
member of the Group.
19.3 Information - Miscellaneous
Each Obligor shall supply to the Facility Agent:-
(a) all documents despatched by it to the shareholders of the
Company at the same time as they are despatched;
(b) promptly upon their becoming available copies of all
registration statements and periodic reports which each of
the Company and Kloster shall have filed with the
Securities and Exchange Commission of the United States of
America or any national securities exchange or market and
any ratings (and changes thereto) of its debt by Standard
& Poor's Corporation and Moody's Investors Service;
(c) as soon as reasonably possible, copies of all reports and
notices which any member of the Group files under ERISA
with the Internal Revenue Service, the PBGC, the
U.S. Department of Labor or the sponsor of a Multiemployer
Plan, or which any member of the Group receives from the
PBGC or the sponsor of a Multiemployer Plan related to:
(i) any Termination Event; and
(ii) with respect to a Multiemployer Plan:
(A) any Withdrawal Liability;
(B) any actual or expected reorganisation (within the
meaning of Title IV of ERISA); or
(C) any termination of a Multiemployer Plan (within
the meaning of Title IV of ERISA); and
(d) promptly, such further information in the possession or
control of any member of the Group regarding its financial
condition and operations as any Finance Party may
reasonably request,
in sufficient copies for all of the Banks, if the Facility Agent
so requests, but the Company will not be obliged to provide any
information relating to any Specified Subsidiary if that
Specified Subsidiary is not or has ceased to be a member of the
Group.
19.4 Notification of Default
Each Obligor shall notify the Facility Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon its
occurrence.
19.5 Compliance certificates
The Company shall supply to the Facility Agent:-
(a) together with the accounts specified in Clause 19.2(a)(i)
(Financial Information); and
(b) promptly at any other time, if the Facility Agent
reasonably so requests,
a certificate signed by a senior officer on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being
taken to remedy it.
19.6 Authorisations
Each Obligor shall promptly:-
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Facility Agent of,
any authorisation required under any law or regulation to enable
it to perform its obligations under, or for the validity or
enforceability of, any Finance Document.
19.7 Pari passu ranking
Each Obligor shall procure that its obligations under the
Finance Documents do and will rank at least pari passu with all
its other present and future unsecured obligations, except for
taxes, national insurance contributions, local or water
authority rates and employee remuneration and benefits which are
mandatorily preferred by law applying to companies generally.
19.8 Negative pledge
(a) No Obligor shall, and the Company shall procure that no other
member of the Group will, create or permit to subsist any
Security Interest securing Indebtedness on any of its assets.
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law in the ordinary course
of business and securing amounts not more than 30 days
overdue; or
(ii) Security Interests created by the Company over its
interests in any Specified Subsidiary;
(iii) any Security Interests (other than those referred to in
paragraph (ii) above) securing Indebtedness in an amount
not exceeding thirty five per cent. (35%) of the amount of
the total assets of the Company at any time (as shown in
its then most recent consolidated balance sheet of the
Group excluding the Specified Subsidiaries and excluding
the value of any intangible assets).
19.9 Disposals
Unless permitted under Clause 19.10 (Mergers, acquisitions and
asset disposals) no Obligor shall, and the Company shall procure
that no other member of the Group will, either in a single
transaction or in a series of transactions, whether related or
not and whether voluntarily or involuntarily, in any one
financial year sell, transfer, grant or lease or otherwise
dispose of assets of the Group with a book value in excess of
$250,000,000 (but excluding any sale or disposal of any or all
of the assets or capital stock of any Specified Subsidiary or
any member of the Windstar Group).
19.10 Mergers, acquisitions and asset disposals
(a) The Company:
(i) shall preserve and maintain in full force and effect its
corporate existence and its rights and those of its
Subsidiaries;
(ii) shall not and shall procure that no other member of the
Group will:
(A) merge or amalgamate with or into or convey, transfer,
lease or otherwise dispose of (whether in one
transaction or a series of transactions) all or
substantially all of its assets (whether now or
hereafter acquired); or
(B) acquire all or substantially all of the assets of any
person.
(b) The Company shall procure that no member of the Windstar Group
shall:
(i) acquire any assets of any member of the Non-Windstar Group;
or
(ii) merge or amalgamate with or into any member of the Non-Windstar
Group unless the relevant member of the Non-Windstar Group is
the surviving entity.
(c) Notwithstanding paragraph (a) above:
(i) any member of the Restricted Group other than a member of
the Windstar Group may:
(A) merge or amalgamate with the Company if the surviving
entity is the Company;
(B) transfer assets to the Company; and
(C) acquire assets of the Company, so long as those assets
do not constitute a substantial part of the assets of
the Company;
(ii) any member of the Restricted Group other than the
Company or a member of the Windstar Group may:
(A) merge or amalgamate with any other member of the
Restricted Group other than the Company so long as, if
the merger is with a Borrower, the Borrower is the
surviving entity; and
(B) transfer assets to any other member of the Restricted
Group other than the Company;
(iii) any Specified Subsidiary may:
(A) merge or amalgamate with any member of the Restricted
Group so long as the member of the Restricted Group is
the surviving entity; and
(B) dispose of assets to any member of the Group;
(iv) any member of the Group may acquire substantially all
of the assets of any person which is not a member of the
Group if that member of the Group is the surviving entity;
and
(v) the Company may change its jurisdiction of incorporation by
merger, amalgamation or otherwise, with the prior consent
of the Majority Committed Banks (such consent not to be
unreasonably withheld or delayed).
19.11 Insurance
The Company shall, and shall cause each of its Subsidiaries to,
insure and keep insured, with financially sound and reputable
insurers, so much of its properties, in such amounts and against
such risks, as to all the foregoing, in each case, reasonably
satisfactory to the Banks and as are usually and customarily
insured by companies engaged in a similar business with respect
to properties of a similar character.
19.12 The Company's stock
The Company shall ensure that at all times the number of the
issued and outstanding shares of its capital stock at least
sufficient to elect a majority of the Company's board of
directors shall be beneficially owned, directly or indirectly,
by Mr. Ted Arison or the members of his immediate family, free
and clear of Security Interests in favour of any other person.
19.13 Solvency
The Company shall procure that it is and shall be at all times
Solvent.
19.14 Limitation on payment restrictions affecting Subsidiaries
The Company shall not create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or
restriction (other than those contained in or permitted by or
through any other provision of the Finance Documents) on the
ability of any Subsidiary to:
(a) pay dividends or make any other distributions on such
Subsidiary's capital stock or pay any Indebtedness owed to
any member of the Group;
(b) make loans or advances to any member of the Group; or
(c) transfer any of its property or assets to any member of the
Group.
19.15 Transactions with officers, directors and shareholders
The Company shall not enter or permit any of its Subsidiaries
to enter into any transaction or agreement, including (without
limitation) any lease, Capital Lease, purchase or sale of real
property, purchase of goods or services, with any Subsidiary,
Affiliate or any officer, or director of the Company or of any
such Subsidiary or Affiliate, or any recorded or known
beneficial owner of equity securities of any such Subsidiary,
any known, recorded or beneficial owner of equity securities of
any such Affiliate or the Company, or any recorded or beneficial
owner of at least five per cent (5%) of the equity securities
of the Company, except on terms that are no less favourable to
the relevant member of the Group than:
(a) those that could have been obtained in a comparable
transaction by that member of the Group with an unrelated
person; and
(b) those that are between Subsidiaries which are consolidated
for financial reporting purposes with the Company.
19.16 Compliance with ERISA
The Company shall not become party to any prohibited
transaction, reportable event, accumulated funding deficiency
or plan termination, all within the meaning of ERISA and the
Code with respect to any Plan as to which there is an
Insufficiency, nor permit any Subsidiary to do so (except with
respect to a Multiemployer Plan if the foregoing shall result
from the act or omission of a person party to such Multiemployer
Plan other than a member of the Group).
19.17 Investment company
The Company shall not and shall not permit any of its
Subsidiaries to be or become an investment company subject to
the registration requirements of the Investment Company Act of
1940 of the United States of America, as amended.
19.18 Organisational documents
The Company shall not, without the prior written consent of the
Facility Agent (acting on the instructions of the Majority
Committed Banks) amend its articles of incorporation or by-laws
(or similar constitutive documents) unless the relevant
amendment would not adversely affect the rights of the Finance
Parties under this Agreement.
19.19 Syndication
The Company shall use reasonable efforts to assist the Arranger
in effecting Syndication to banks and the financial institutions
which are Qualifying Banks including (a) the provision by it and
procuring the possession by its advisers of such information
available to the Company as may be reasonably deemed necessary
by the Arranger in connection with Syndication (including,
without limitation, in connection with the preparation of an
information memorandum for potential lending institutions) and
(b) making available the management of and advisers to the
Company and its Subsidiaries for the purposes of making
presentations to potential lending institutions.
19.20 Clear market
The Company will not and will procure that no member of the
Group will, prior to the completion of Syndication, authorise,
enter into, announce or permit to be announced the terms of any
Indebtedness to any syndicate of banks other than under this
Agreement, which Indebtedness could, in the opinion of the
Arranger, have a negative and adverse effect on the Syndication
so long as the Syndication Date falls no later than the date
falling three months after the date of this Agreement.
19.21 Financial covenants
The Company shall ensure that:
(a) the ratio of its Total Debt to Total Capital, tested
quarterly, shall be at all times less than fifty per cent.
(50%);
(b) at the end of each of its financial quarters, the amount of
its Consolidated Cash Flow shall be, as at the end of each
of the four financial quarters immediately preceding
covenant testing, at least 125% of the sum of the aggregate
amount of:
(i) dividend payments;
(ii) scheduled principal loan repayments; and
(iii) scheduled Capital Lease payments made, in respect
of the Company, on a consolidated basis excluding the
Specified Subsidiaries,
in the four financial quarters immediately preceding
covenant testing;
(c) at the end of each month, the sum of the unencumbered cash
plus the current value of short term investments (in
conformity with GAAP) of the Restricted Group shall equal
at least Fifty Million Dollars ($50,000,000);
(d) the Tangible Net Worth of the Restricted Group shall
exceed, on a financial quarterly basis, the sum of:
(i) $835,000,000; and
(ii) fifty per cent. (50%) of cumulative consolidated
net income (excluding any losses) of the Restricted
Group beginning 1st December, 1992.
20. DEFAULT
20.1 Events of Default
Each of the events set out in Clauses 20.2 (Non-payment) to
20.15 (Material adverse change) (inclusive) is an Event of
Default (whether or not caused by any reason whatsoever outside
the control of any Obligor or any other person).
20.2 Non-payment
An Obligor does not pay on the due date any amount payable by
it under the Finance Documents at the place at and in the
currency in which it is expressed to be payable and, if the
failure to pay relates to an amount other than the principal
amount of an Advance or Swingline Advance, the failure is not
remedied within 8 Business Days of the due date.
20.3 Breach of other obligations
An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 20.2 (Non-payment))
and the default (if capable of remedy) is not remedied
within 10 days of the Facility Agent giving notice of the
default to the Company.
20.4 Misrepresentation
A representation, warranty or statement made or repeated in or
in connection with any Finance Document by any Obligor under or
in connection with any Finance Document is incorrect in any
material respect when made or deemed to be made or repeated.
20.5 Cross-default
(a) Any member of the Restricted Group shall fail to pay any amount
or amounts due in respect of Indebtedness (but excluding
Indebtedness resulting from Advances) (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to that Indebtedness; or
(b) any other default under one or more agreements or instruments
relating to Indebtedness of a member of the Restricted Group
(but excluding Indebtedness resulting from Advances) or any
other event, shall occur and shall continue after the applicable
grace period, if any, specified in the agreement or instrument
relating to that Indebtedness if the effect of that event is to
accelerate, or to permit the acceleration of, the maturity of
that Indebtedness; or
(c) any Indebtedness of a member of the Restricted Group shall be
declared to be due and payable or be required to be prepaid
(other than by a regularly scheduled or required prepayment)
prior to the stated maturity thereof,
provided that the aggregate amount of any such Indebtedness referred
to in any or all of paragraphs (a) to (c) (inclusive) above equals
or exceeds $20,000,000 or its equivalent in other currencies.
20.6 Insolvency
A member of the Restricted Group shall:
(a) generally not pay its debts as they become due; or
(b) threaten to stop making payments generally; or
(c) admit in writing its inability to pays its debts generally;
or
(d) make a general assignment for the benefit of its creditors;
or
(e) not be Solvent; or
(f) be unable to pay its debts; or
20.7 Insolvency proceedings
(a) Any proceeding shall be instituted in any jurisdiction by or
against any member of the Restricted Group:
(i) seeking to adjudicate it bankrupt or insolvent;
(ii) seeking its liquidation, winding up, reorganisation,
arrangement, adjustment, protection, relief, or composition
of its debts under any law relating to bankruptcy,
insolvency or reorganisation or relief of debtors; or
(iii) seeking an administration order, an order for relief,
or the appointment of a receiver, trustee, or other similar
official, for it or for any substantial part of its
property,
so long as in the case of any such proceeding instituted against
but not by a member of the Restricted Group, in respect of any
process other than administration:
(A) such proceeding shall remain undismissed or unstayed
for a period of forty-five (45) days; or
(B) an Event of Default shall not occur if any of the
relief sought in such proceeding (including, without
limitation the entry of an order for relief against it
or against the appointment of a receiver, trustee,
custodian or other similar official for it or any
substantial part of its property) shall be granted
within that 45 day period; or
(b) a member of the Restricted Group shall take any corporate action
to authorise any of the actions set forth in paragraph (a)
above; or
(c) any director, or if one or more directors are elected and
acting, any two directors of the member of the Restricted Group
or any person owning directly, or indirectly, shares of capital
stock of a member of the Restricted Group in a number sufficient
to elect a majority of directors of that member of the
Restricted Group shall take any preparatory or other steps to
convene a meeting of any kind of a member of the Restricted
Group, or any meeting is convened or any other preparatory steps
are taken, for the purpose of considering or passing any
resolution or taking any corporate action to authorise any of
the actions set forth above in paragraph (a) above.
(d) any order for the winding-up or administration of any member of
the Restricted Group is made.
20.8 Appointment of receivers and managers
Any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or the like is appointed in respect of any member
of the Restricted Group or any substantial part of its assets.
20.9 Creditors' process
One or more judgments or orders for the payment of money, singly
or in the aggregate, in excess of an amount equal to $10,000,000
shall be rendered against a member of the Restricted Group and
either:
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall have elapsed any period of ten (10) consecutive
days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall
not have been in effect.
20.10 Analogous proceedings
There occurs, in relation to a member of the Restricted Group,
any event anywhere which, in the reasonable opinion of the
Majority Committed Banks, appears to correspond with any of
those mentioned in Clauses 20.6 (Insolvency) to 20.9 (Creditors'
process) (inclusive) and any time period referred to in the
relevant Clause has lapsed.
20.11 Unlawfulness
It is or becomes unlawful for any Obligor to perform any of its
obligations under the Finance Documents to which it is a party.
20.12 Guarantee
The guarantee of the Company is not effective or is alleged by
an Obligor to be ineffective for any reason.
20.13 Ownership of the Obligors
Any Borrower (other than the Company) is not or ceases to be a
wholly owned Subsidiary of the Company.
20.14 Ownership of the Company
Micky Arison or Ted Arison (or, in the event of his death, a
member of his immediate family or another person acceptable to
the Banks) shall cease to own, directly or indirectly, shares
of capital stock of the Company entitled to elect directors, in
a number of shares at least sufficient to elect a majority of
directors of the Company.
20.15 Material adverse change
An extraordinary event shall occur or a material adverse change
affecting the business or operations of the Company shall occur,
which situation or change gives reasonable grounds to conclude
that the Company will not, or will be unable to, perform or
observe, in the normal course, its obligations under the Finance
Documents to which it is a party.
20.16 Acceleration
On and at any time after the occurrence of an Event of Default
the Facility Agent may, and shall if so directed by the Majority
Committed Banks, by notice to the Company:-
(a) cancel the Total Commitments and the Swingline Commitment;
and/or
(b) demand that all the Advances and Swingline Advances,
together with accrued interest, and all other amounts
accrued under this Agreement be immediately due and
payable, whereupon they shall become immediately due and
payable; and/or
(c) demand that all the Advances and Swingline Advances be
payable on demand, whereupon they shall immediately become
payable on demand.
21. THE AGENTS AND THE ARRANGER
21.1 Appointment and duties of the Agents
(a) Each Finance Party (other than the Facility Agent) irrevocably
appoints the Facility Agent to act as its agent under and in
connection with the Finance Documents.
(b) Each Borrower irrevocably appoints the Bid Option Agent to act
as its agent under the Finance Documents in connection with the
obtaining and receipt of offers in relation to Utilisations of
the Uncommitted Advance Facility.
(c) Each Party appointing an Agent irrevocably authorises that Agent
on its behalf to perform the duties and to exercise the rights,
powers and discretions that are specifically delegated to it
under or in connection with the Finance Documents, together with
any other incidental rights, powers and discretions.
(d) An Agent shall have only those duties which are expressly
specified in this Agreement. Those duties are solely of a
mechanical and administrative nature.
21.2 Role of the Arranger
Except as otherwise provided in this Agreement, the Arranger has
no obligations of any kind to any other Party under or in
connection with any Finance Document.
21.3 Relationship
The relationship between an Agent and the Parties which have
appointed it as Agent is that of agent and principal only.
Nothing in this Agreement constitutes either Agent as trustee
or fiduciary for any other Party or any other person and neither
Agent need hold in trust any moneys paid to it for a Party or
be liable to account for interest on those moneys.
21.4 Majority Committed Banks' directions
The Facility Agent will be fully protected if it acts in
accordance with the instructions of the Majority Committed Banks
in connection with the exercise of any right, power or
discretion or any matter not expressly provided for in the
Finance Documents. Any such instructions given by the Majority
Committed Banks will be binding on all the Banks. In the
absence of such instructions the Facility Agent may act as it
considers to be in the best interests of all the Banks.
21.5 Delegation
Each Agent may act under the Finance Documents through its
personnel and agents.
21.6 Responsibility for documentation
None of the Agents and the Arranger is responsible to any other
Party for:-
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document
(including any information memorandum).
21.7 Default
(a) Neither Agent is obliged to monitor or enquire as to whether or
not a Default has occurred. Neither Agent will be deemed to
have knowledge of the occurrence of a Default. However, if the
Facility Agent receives notice from a Party referring to this
Agreement, describing the Default and stating that the event is
a Default, it shall promptly notify the Banks.
(b) The Facility Agent may require the receipt of security
satisfactory to it whether by way of payment in advance or
otherwise, against any liability or loss which it will or may
incur in taking any proceedings or action arising out of or in
connection with any Finance Document before it commences these
proceedings or takes that action.
21.8 Exoneration
(a) Without limiting paragraph (b) below, neither Agent will be
liable to any other Party for any action taken or not taken by
it under or in connection with any Finance Document, unless
directly caused by that Agent's gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of either Agent in respect of any claim it might have
against that Agent or in respect of any act or omission of any
kind (including negligence or wilful misconduct) by that
officer, employee or agent in relation to any Finance Document.
21.9 Reliance
Each Agent may:-
(a) rely on any notice or document reasonably believed by it to
be genuine and correct and to have been signed by, or with
the authority of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to
verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Agent's
employment and those representing a Party other than that
Agent).
21.10 Credit approval and appraisal
Without affecting the responsibility of any Obligor for
information supplied by it or on its behalf in connection with
any Finance Document, each Bank confirms that it:-
(a) has made its own independent investigation and assessment
of the financial condition and affairs of each Obligor and
its related entities in connection with its participation
in this Agreement and has not relied exclusively on any
information provided to it by either Agent or the Arranger
in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
21.11 Information
(a) The Facility Agent shall promptly forward to the person
concerned the original or a copy of any document which is
delivered to the Facility Agent by a Party for that person.
(b) The Facility Agent shall promptly supply a Bank with a copy of
each document received by the Facility Agent under Clause 4
(Conditions precedent) or 27.5 (Additional Borrowers) upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the
Facility Agent is not obliged to review or check the accuracy
or completeness of any document it forwards to another Party.
(d) Except as provided above, neither Agent has any duty:-
(i) either initially or on a continuing basis to provide any
Bank with any credit or other information concerning the
financial condition or affairs of any Obligor or any
related entity of any Obligor whether coming into its
possession or that of any of its related entities before,
on or after the date of this Agreement; or
(ii) in the case of the Facility Agent and unless
specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other
documents from any Obligor.
21.12 The Agents and the Arranger individually
(a) If it is also a Bank, each of the Agents and the Arranger has
the same rights and powers under this Agreement as any other
Bank and may exercise those rights and powers as though it were
not an Agent or the Arranger.
(b) Each of the Agents and Arranger may:-
(i) carry on any business with an Obligor or its related
entities;
(ii) act as agent or trustee for, or in relation to any
financing involving, an Obligor or its related entities;
and
(iii) retain any profits or remuneration in connection with
its activities under this Agreement or in relation to any
of the foregoing.
21.13 Indemnities
(a) The Company shall within 5 Business Days of a demand indemnify
the Bid Option Agent for any liability or loss incurred by the
Bid Option Agent in any way relating to or arising out of its
acting as the Bid Option Agent other than any liability or loss
arising as a result of its gross negligence or wilful default.
(b) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the
Facility Agent for its proportion of any liability or loss
incurred by the Facility Agent in any way relating to or arising
out of its acting as the Facility Agent, except to the extent
that the liability or loss arises directly from the Facility
Agent's gross negligence or wilful misconduct.
(c) A Bank's proportion of the liability or loss set out in
paragraph (b) above is the proportion which the Original Dollar
Amount of its Advance(s) (if any) bears to the Original Dollar
Amount of all Advances outstanding on the date of the demand.
If, however, no Advances are outstanding on the date of demand,
then the indemnity will be provided only by the Committed Banks,
and a Committed Bank's proportion will be the proportion which
its Commitment bears to the Total Commitments at the date of
demand or, if the Total Commitments have been cancelled, bore
to the Total Commitments immediately before being cancelled.
(d) The Company shall within 5 Business Days of a demand reimburse
each Bank for any payment made by it under paragraph (b) above.
21.14 Compliance
(a) An Agent may refrain from doing anything which might, in its
opinion, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person, and may do
anything which, in its opinion, is necessary or desirable to
comply with any law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, neither Agent need
disclose any information relating to any Obligor or any of its
related entities if the disclosure might, in the opinion of that
Agent, constitute a breach of any law or regulation or any duty
of secrecy or confidentiality or be otherwise actionable at the
suit of any person.
21.15 Resignation of Agents
(a) Notwithstanding its irrevocable appointment, an Agent may resign
by giving notice to the Banks and the Company, in which case the
Agent concerned may (after consultation with the Company)
forthwith appoint one of its Affiliates as successor Agent or,
failing that, the Majority Committed Banks may appoint a
successor Agent.
(b) If the appointment of a successor Agent is to be made by the
Majority Committed Banks but they have not, within 30 days after
notice of resignation, appointed a successor Agent which accepts
the appointment, the retiring Agent may appoint a successor
Agent.
(c) The resignation of the retiring Agent and the appointment of any
successor Agent will both become effective only upon the
successor Agent notifying all the Parties that it accepts the
appointment. On giving the notification, the successor Agent
will succeed to the position of the retiring Agent and the term
"Facility Agent" or "Bid Option Agent", as appropriate, will
mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as the relevant Agent under
this Agreement.
(e) Upon its resignation becoming effective, this Clause 21 (The
Agents and the Arranger) shall continue to benefit the retiring
Agent in respect of any action taken or not taken by it under
or in connection with the Finance Documents while it was an
Agent, and, subject to paragraph (d) above, it shall have no
further obligation under any Finance Document.
21.16 Banks
Each Agent may treat each Bank as a Bank, entitled to payments
under this Agreement and as acting through its Facility
Office(s) until it has received notice from the Bank or the
Facility Agent to the contrary by not less than 5 Business Days
prior to the relevant payment.
21.17 Information between Agents
Each Agent shall promptly notify the other Agent of any relevant
information concerning a Utilisation which the other Agent
requires in order to enable it to perform its obligations under
this Agreement.
22. FEES
22.1 Facility Fee
(a) The Company shall pay to the Facility Agent for each Committed
Bank a facility fee computed at the rate per annum determined
in accordance with Clause 10.3 (Determination of applicable
Margin and Facility Fee) on the amount of that Committed Bank's
Commitment (irrespective of the level of usage of Facilities)
during the period from the date of this Agreement up to and
including the Final Maturity Date or if earlier, the date of
cancellation of the Total Commitments in full.
(b) Accrued facility fee is payable quarterly in arrear. Accrued
facility fee is also payable to the Facility Agent for the
relevant Committed Bank(s) on the cancelled amount of its
Commitment at the time the cancellation takes effect.
22.2 Auction fee
The Company shall pay to the Bid Option Agent for its own
account, upon delivery of each Request for the Uncommitted
Advance Facility, a tender fee in the amount agreed in the Fee
Letter.
22.3 VAT
Any fee referred to in this Clause 22 (Fees) is exclusive of any
value added tax or any other similar tax which might be
chargeable in connection with that fee. If any value added tax
or other similar tax is so chargeable, it shall be paid by the
Company at the same time as it pays the relevant fee.
23. EXPENSES
23.1 Initial and special costs
The Company shall within 5 Business Days of a demand pay the
Facility Agent and the Arranger the amount of all reasonable
costs and expenses (including legal fees) incurred by either of
them in connection with:-
(a) the negotiation, preparation, printing and execution of:-
(i) this Agreement and any other documents referred to in
this Agreement;
(ii) any other Finance Document (other than a Novation
Certificate in the form of Part I of Schedule 4)
executed after the date of this Agreement;
(b) any amendment, waiver, consent or suspension of rights (or
any proposal for any of the foregoing) requested by or on
behalf of an Obligor and relating to a Finance Document or
a document referred to in any Finance Document; and
(c) any other matter, not of an ordinary administrative nature,
arising out of or in connection with a Finance Document.
The Company's obligations to reimburse the Facility Agent for
fees and expenses (including legal fees) incurred by it and
referred to in paragraph (a) above and incurred in respect of
the production of any document prepared to effect Syndication
shall be limited to the amounts agreed between the Company and
the Arranger prior to the date of this Agreement.
23.2 Enforcement costs
The Company shall within 5 Business Days of a demand pay to each
Finance Party the amount of all costs and expenses (including
legal fees) properly incurred by it:-
(a) in connection with the enforcement of, or the preservation
of any rights under, any Finance Document; or
(b) in investigating any likely Default.
24. INDEMNITIES
24.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is
converted into a claim, proof, judgment or order in a currency
other than the currency (the "contractual currency") in which
the amount is expressed to be payable under the relevant Finance
Document:-
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability
arising out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when
converted into the contractual currency at a market rate in
the usual course of its business, is less than the amount
owed in the contractual currency, the Obligor concerned
shall forthwith on demand pay to that Finance Party an
amount in the contractual currency equal to the deficit;
and
(iii) the Obligor shall pay to the Finance Party concerned on
demand any exchange costs and taxes payable in connection
with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency
other than that in which it is expressed to be payable.
24.2 Other indemnities
The Company shall within 5 Business Days of a demand indemnify
each Finance Party against any loss or liability which that
Finance Party incurs as a consequence of:-
(a) the occurrence of any Default;
(b) the operation of Clause 20.16 (Acceleration) or Clause 30
(Pro rata sharing);
(c) any payment of principal or an overdue amount being
received from any source otherwise than on its Maturity
Date and, for the purposes of this paragraph (c), the
Maturity Date of an overdue amount is the last day of each
Designated Term (as defined in Clause 10.4 (Default
interest)) but if a Bank actually makes a profit, over its
cost of funding an Advance, as a result of the prepayment
of that Advance and the placing of the funds so received on
deposit, it shall pay to the Borrower concerned an amount
equal to the profit actually made by that Bank, to the
intent that the Bank shall be no better or worse off than
if the Advance had not been prepaid; or
(d) (other than by reason of negligence or default by a Finance
Party) a Utilisation not being effected or a Swingline
Advance not being made after:-
(i) in the case of a Utilisation of the Committed Advance
Facility or the making of a Swingline Advance, the
Borrower has delivered a Request for that Utilisation
or Swingline Advance; or
(ii) in the case of a Utilisation of the Uncommitted
Advance Facility, the Borrower has accepted offers for
that Utilisation.
The Company's liability in each case includes any loss (other
than loss of margin) for other loss or expense on account of
funds borrowed, contracted for or utilised to fund any amount
payable under any Finance Document, any amount repaid or prepaid
or any Advance.
25. EVIDENCE AND CALCULATIONS
25.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they
relate.
25.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate
or amount under this Agreement is prima facie evidence of the
matters to which it relates.
25.3 Calculations
Interest and the Facility Fee accrue from day to day and are
calculated on the basis of the actual number of days elapsed and
a year of 360 days, or in the case of interest (including any
applicable MLA Cost) payable on an amount denominated in
Sterling only, 365 days.
26. AMENDMENTS AND WAIVERS
26.1 Procedure
(a) Subject to Clause 26.2 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the
Company, the Majority Committed Banks and the Facility Agent.
The Facility Agent may effect, on behalf of the Committed Banks,
an amendment to which they or the Majority Committed Banks have
agreed.
(b) The provisions of Clause 6 (The Uncommitted Advance Facility)
may be amended or waived with the agreement of the Company and
the Facility Agent, but an amendment or waiver so effected will
apply only to Utilisations requested after the date the
amendment or waiver has been effected.
(c) The Facility Agent shall promptly notify the other Parties of
any amendment or waiver effected under paragraphs (a) or (b)
above, and any such amendment or waiver shall be binding on all
the Parties.
26.2 Exceptions
(a) An amendment or waiver which relates to:-
(i) the definition of "Majority Committed Banks" in Clause 1.1;
(ii) an extension of the date for, or a decrease in an
amount or a change in the currency of, any payment under
the Finance Documents;
(iii) an increase in a Committed Bank's Commitment;
(iv) the incorporation of additional borrowers otherwise
than in accordance with Clause 27.5 (Additional Borrowers)
or a release of the Company's obligations under Clause 17
(Guarantee);
(v) a term of a Finance Document which expressly requires the
consent of each Committed Bank; or
(vi) Clause 30 (Pro rata sharing) or this Clause 26
(Amendments and waivers),
may not be effected without the consent of each Committed Bank.
(b) (i) A Bid Option Bank which has made an Advance which is still
outstanding or has outstanding any offer to make an
Advance, is not bound by an amendment or waiver which
relates to:-
(A) the extension of the date for, or a decrease in an
amount or a change in the currency of, any payment to
it under the Finance Documents; or
(B) Clause 30 (Pro Rata Sharing) or this Clause 26
(Amendments and waivers),
unless it consents to that amendment or waiver.
(ii) No amendment may be made to the terms of or any waiver
be given under the Swingline Facility without the consent
of the Swingline Bank.
(c) The rights of each Finance Party under the Finance Documents:-
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under
the general law; and
(iii) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
27. CHANGES TO THE PARTIES
27.1 Transfers by Obligors
No Obligor may assign, transfer, novate or dispose of any of,
or any interest in, its rights and/or obligations under this
Agreement without the prior consent of the Banks.
27.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may at any time assign, transfer
or novate any of its rights and/or obligations under this
Agreement to another bank or financial institution (the "New
Bank") which is a Qualifying Bank in minimum amounts and
integral multiples of $10,000,000. The prior consent of the
Company is required for any such assignment, transfer or
novation, unless:-
(i) the transfer or novation constitutes the completion of
Syndication to banks and financial institutions agreed
between the Company and the Arranger prior to the date of
this Agreement or otherwise agreed between the Company and
the Facility Agent (each acting reasonably) thereafter; or
(ii) the New Bank is another Bank or an Affiliate of a Bank;
or
(iii) an Event of a Default is outstanding.
However, the prior consent of the Company must not be
unreasonably withheld or delayed.
(b) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 27.3
(Procedure for novations); or
(ii) the New Bank confirms to the Facility Agent and the
Company that it undertakes to be bound by the terms of this
Agreement as a Bank in form and substance satisfactory to
the Facility Agent. On the transfer becoming effective in
this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that they
are transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation, on terms where the relevant Bank
retains the discretion to exercise its voting rights under this
Agreement without reference to any party to that sub-contract,
if that Bank remains liable under this Agreement for that
obligation.
(d) On each occasion (other than the completion of Syndication) that
an Existing Bank assigns, transfers or novates any of its rights
and/or obligations under this Agreement, the New Bank shall, on
the date the assignment, transfer and/or novation takes effect,
pay to the Facility Agent for its own account a fee of $2,500.
(e) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other
Finance Parties that it:-
(i) has made its own independent investigation and assessment
of the financial condition and affairs of each Obligor and
its related entities in connection with its participation
in this Agreement and has not relied exclusively on any
information provided to it by the Existing Bank in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities while any amount is or may be outstanding under
this Agreement or any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:-
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under
this Clause; or
(ii) support any losses incurred by the New Bank by reason
of the non-performance by any Obligor of its obligations
under this Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank,
but excludes a Committed Bank if no amount is or may be owed to
or by that Committed Bank under this Agreement and its
Commitment has been cancelled or reduced to nil.
(i) If, at the time of any novation, transfer or assignment by a
Bank (including, without limitation, on the Syndication Date or
pursuant to Syndication) or of any change of Facility Office,
circumstances exist which would oblige the Company or any
Borrower to pay to the New Bank (or, in the case of a change in
Facility Office, the relevant Bank), under Clause 13 (Taxes),
Clause 15 (Increased costs) or Clause 16 (Illegality and
mitigation) any sum in excess of the sum (if any) which it would
have been obliged to pay to that Bank under the relevant Clause
in the absence of that novation, transfer assignment or change,
no Obligor shall be obliged to pay that excess.
27.3 Procedure for novations
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Facility
Agent a duly completed certificate, substantially in the
form of Part I of Schedule 4 and the Facility Agent
executes it; or
(ii) a Novation Certificate in the form of Schedule 6 is
executed by all the parties thereto.
(b) Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Facility Agent to execute any duly
completed Novation Certificate in the form of Part I of
Schedule 4 on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Novation Certificate:-
(i) the Existing Bank and the other Parties (the "existing
Parties") will be released from their obligations to each
other (the "discharged obligations");
(ii) the New Bank and the existing Parties will assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or
assumed by the New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing
Parties and vice versa (the "discharged rights") will be
cancelled; and
(iv) the New Bank and the existing Parties will acquire
rights against each other which differ from the discharged
rights only insofar as they are exercisable by or against
the New Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the
Facility Agent or, if later, the date specified in the Novation
Certificate.
27.4 Changes to the Bid Option Banks and the Bid Option Agent
(a) (i) The Company may, after consultation with the Bid Option
Agent, require the discharge of any Bid Option Bank (other
than a Bid Option Bank which is a Committed Bank or an
Affiliate of a Committed Bank) by not less than 5 Business
Days' notice to the Bid Option Agent and the Bid Option
Bank concerned.
(ii) A Bid Option Bank may, by not less than 5 Business
Days' notice to the Bid Option Agent, retire as a Bid
Option Bank.
(iii) In the event of any discharge or retirement under
sub-paragraph (i) or (ii) above, the Bid Option Bank concerned
will cease to participate further in the Uncommitted
Advance Facility. However, any such discharge or
retirement will not affect that Bid Option Bank's rights
and obligations in respect of any outstanding offer made by
it or in respect of any outstanding Advance made by it.
(b) Any bank or financial institution may become a Bid Option Bank
if:-
(i) that bank or financial institution is also a Committed
Bank;
(ii) it delivers to the Facility Agent a duly completed
accession agreement, substantially in the form set out in
Part II of Schedule 4, (a "Bid Option Bank Accession
Agreement") and the Facility Agent counter-signs it on
behalf of all the Parties; or
(iii) it executes a Novation Certificate, in the form of
Schedule 6, by which it agrees to become a Bid Option Bank.
Each Party authorises the Facility Agent to counter-sign any Bid
Option Bank Accession Agreement on its behalf.
(c) Any reference in this Agreement to the Banks or the Bid Option
Banks includes any bank or financial institution which becomes
a Bid Option Bank in accordance with this Clause, but excludes
a Bid Option Bank which is discharged or retires under this
Clause when no amount is or may be owed to or by that Bid Option
Bank under this Agreement.
27.5 Additional Borrowers
(a) If the Company wishes one of its wholly-owned Subsidiaries
incorporated in England and Wales to become an Additional
Borrower, then it may (after prior consultation with the
Facility Agent) deliver to the Facility Agent the documents
listed in Part II of Schedule 2.
(b) On delivery of a Borrower Accession Agreement, executed by the
relevant Subsidiary and the Company, the Subsidiary concerned
will become an Additional Borrower. However, it may not utilise
any of the Facilities or (in the case of the first Additional
Borrower at, or shortly after, the time it becomes an Additional
Borrower) accept a transfer of any Advances until the Facility
Agent confirms to the other Finance Parties and the Company that
it has received or waived all the documents referred to in
paragraph (a) above in form and substance satisfactory to it.
(c) Delivery of a Borrower Accession Agreement, executed by the
Subsidiary and the Company, constitutes confirmation by that
Subsidiary that the representations and warranties set out in
Clause 18 (Representations and warranties) and to be made by it
on the date of the Borrower Accession Agreement are correct in
all material respects, as if made with reference to the facts
and circumstances then existing.
27.6 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Committed
Bank, the Committed Bank of which it is an Affiliate) ceases to
be one of the Committed Banks, the Facility Agent shall (in
consultation with the Company) appoint another Committed Bank
or an Affiliate of a Committed Bank to replace that Reference
Bank.
27.7 Register
The Facility Agent shall keep a register of all the Parties and
shall supply any other Party (at that Party's expense) with a
copy of the register on request.
28. DISCLOSURE OF INFORMATION
(a) Subject to paragraph (b) below, a Bank may disclose to one of
its Affiliates or any person with whom it is proposing to enter,
or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement:-
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or
in connection with any Finance Document.
(b) Any information referred to in paragraph (a)(ii) above which is
confidential may only be disclosed to a person with whom a Bank
is proposing to enter, or has entered into, a transfer,
participation or other agreement in relation to this Agreement
if the person has provided the Company with a written
undertaking to keep the information confidential and only to use
it for the purposes of this Agreement.
29. SET-OFF
After an Event of Default has occurred and while the same is
continuing, a Finance Party may set off any matured obligation
owed by an Obligor under this Agreement (to the extent
beneficially owned by that Finance Party) against any obligation
(whether or not matured) owed by that Finance Party to that
Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of
business for the purpose of the set-off. Each Finance Party
which exercises its right of set-off under this Clause 29 shall
thereafter notify the Company of that exercise.
30. PRO RATA SHARING
30.1 Redistribution
If any amount owing by an Obligor under this Agreement to a
Finance Party (the "recovering Finance Party") is discharged by
payment, set-off or any other manner other than through the
Facility Agent in accordance with Clause 12 (Payments) (a
"recovery"), then:-
(a) the recovering Finance Party shall, within 3 Business Days,
notify details of the recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the recovery is
in excess of the amount which the recovering Finance Party
would have received had the recovery been received by the
Facility Agent and distributed in accordance with Clause 12
(Payments);
(c) subject to Clause 30.3 (Exception), the recovering Finance
Party shall, within 3 Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the
"redistribution") equal to the excess;
(d) the Facility Agent shall treat the redistribution as if it
were a payment by the Obligor concerned under Clause 12
(Payments) and shall pay the redistribution to the Finance
Parties (other than the recovering Finance Party) in
accordance with Clause 12.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the
claims paid under paragraph (d) above, and that Obligor
will owe the recovering Finance Party a debt which is equal
to the redistribution, immediately payable and of the type
originally discharged.
30.2 Reversal of redistribution
If under Clause 30.1 (Redistribution):-
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery,
to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by
the recovering Finance Party through the Facility Agent,
reimburse the recovering Finance Party all or the appropriate
portion of the redistribution paid to that Finance Party.
Thereupon the subrogation in Clause 30.1(e) (Redistribution)
will operate in reverse to the extent of the reimbursement.
30.3 Exception
A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim
against the Obligor concerned in the amount of the
redistribution pursuant to Clause 30.1(e) (Redistribution).
31. SEVERABILITY
If a provision of any Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not
affect:-
(a) the legality, validity or enforceability in that
jurisdiction of any other provision of the Finance
Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
32. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
and this has the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
33. NOTICES
33.1 Giving of notices
All notices or other communications under or in connection with
this Agreement shall be given in writing or by telex or
facsimile. Any such notice will be deemed to be given as
follows:-
(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start
and at the end of the sender's copy of the notice; and
(c) if by facsimile, when received in legible form,
so long as, in the case of notices given by facsimile by a
Borrower to the Facility Agent, the relevant Borrower has
entered into an indemnity agreement with the Facility Agent in
form and substance satisfactory to the Facility Agent.
However, a notice given in accordance with the above but
received on a non-working day or after business hours in the
place of receipt will only be deemed to be given on the next
working day in that place.
33.2 Addresses for notices
(a) The address, telex number and facsimile number of each Party
(other than an Agent) for all notices under or in connection
with this Agreement are:-
(i) that notified by that Party for this purpose to the
Facility Agent on or before it becomes a Party; or
(ii) any other notified by that Party for this purpose to
the Facility Agent by not less than five Business Days'
notice.
(b) The address, telex numbers and facsimile numbers of the Agents
are:-
NationsBank, N.A., London Branch
Loans Agency Department
New Broad Street House
35 New Broad Street
London EC2M 1NH
Telephone: 0171 860 3742
Facsimile: 0171 628 8692
Telex: 883181 NCNB G
or such other as either Agent may notify to the other Parties
by not less than 5 Business Days' notice.
(c) The Facility Agent shall, promptly upon request from any Party,
give to that Party the address, telex number or facsimile number
of any other Party applicable at the time for the purposes of
this Clause.
34. JURISDICTION
34.1 Submission
For the benefit of each Finance Party, each Obligor agrees that
the courts of England have jurisdiction to settle any disputes
in connection with any Finance Document and accordingly submits
to the jurisdiction of the English courts.
34.2 Service of process
Without prejudice to any other mode of service, each Obligor
(other than an Obligor incorporated in England and Wales):-
(a) irrevocably appoints Michael Muller of Alton House, 177
High Holborn, London WC1V 7AA as its agent for service of
process relating to any proceedings before the English
courts in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the
Obligor of the process will not invalidate the proceedings
concerned; and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to
its address for the time being applying under Clause 33.2
(Addresses for notices).
34.3 Forum convenience and enforcement abroad
Each Obligor:-
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order of an English court in
connection with a Finance Document is conclusive and
binding on it and may be enforced against it in the courts
of any other jurisdiction.
34.4 Non-exclusivity
Nothing in this Clause 34 limits the right of a Finance Party
to bring proceedings against an Obligor in connection with any
Finance Document:-
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
35. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
SCHEDULE 1
COMMITMENTS
Part I
The Committed Advance Facility
Committed Bank Commitment
$
NationsBank, N.A. 300,000,000
____________
Total Commitments $300,000,000
____________
Part II
The Swingline Facility
Swingline Bank Swingline Commitment
NationsBank, N.A., London Branch $10,000,000
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST UTILISATION
1. All Obligors
(a) A copy of constitutional documents of each Obligor; and
(b) a copy of its Original Accounts and its most recent unaudited
financial statements.
2. Company
(a) A copy of a resolution of the executive committee of the board
of directors of the Company:-
(i) approving the terms of, and the transactions contemplated
by, this Agreement and resolving that it execute this
Agreement and the Fee Letter;
(ii) authorising a specified person or persons to execute
this Agreement and the Fee Letter on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all other documents and
notices to be signed and/or despatched by it under or in
connection with this Agreement;
(b) a certificate of good standing in relation to the Company;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above;
(d) a certificate of a senior officer of the Company confirming that
utilisation of the Facilities in full would not cause any
borrowing limit binding on any Obligor to be exceeded;
(e) a five year cash flow projection and the related income
statement and balance sheet for the Company;
(f) a certificate of an Authorised Signatory of the Company
certifying that each copy document specified in Part I of this
Schedule 2 is correct, complete and in full force and effect as
at a date no earlier than the date of this Agreement; and
(g) a letter from Michael Muller confirming his acceptance of his
appointment to act as process agent under clause 34.2 (Service
of process).
3. Legal opinions
A legal opinion of Allen & Overy, English legal advisers to the
Facility Agent, addressed to the Finance Parties.
A legal opinion of Tapia Linares y Alfaro, external Panamanian
legal advisers to the Company, addressed to the Finance Parties.
A legal opinion of Arnaldo Perez, general counsel to the
Company, addressed to the Finance Parties.
PART II
TO BE DELIVERED BY AN ADDITIONAL BORROWER
(a) A Borrower Accession Agreement, duly executed by the Additional
Borrower and the Company;
(b) a copy of the memorandum and articles of association and
certificate of incorporation of the Additional Borrower;
(c) a copy of a resolution of the board of directors of the
Additional Borrower:-
(i) approving the terms of, and the transactions contemplated
by, the Borrower Accession Agreement and resolving that it
execute the Borrower Accession Agreement;
(ii) authorising a specified person or persons to execute
the Borrower Accession Agreement on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all other documents and
notices to be signed and/or despatched by it under or in
connection with this Agreement;
(d) a certificate of a director of the Additional Borrower
confirming that utilisation of the Facilities in full would not
cause any borrowing limit binding on it to be exceeded;
(e) (in the case of any Additional Borrower other than the first)
a copy of any other authorisation or other document, opinion or
assurance which the Facility Agent considers to be necessary or
desirable in connection with the entry into and performance of,
and the transactions contemplated by, the Borrower Accession
Agreement or for the validity and enforceability of any Finance
Document;
(f) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above;
(g) Original Accounts (if any) of the Additional Borrower;
(h) a legal opinion of Allen & Overy, legal advisers to the Facility
Agent, addressed to the Finance Parties; and
(i) a certificate of an Authorised Signatory of the Additional
Borrower certifying that each copy document specified in Part II
of this Schedule 2 is correct, complete and in full force and
effect as at a date no earlier than the date of the Borrower
Accession Agreement.
SCH EDULE 3
FORM OF REQUEST
To: NATIONSBANK, N.A. London Branch as [Facility Agent/Bid Option
Agent/Swingline Bank]
From: [BORROWER]
Date: [ ]
CARNIVAL CORPORATION $300,000,000 Revolving Credit Agreement
dated
[ ], 1996
1. We wish to utilise the [ ]* Facility as follows:-
(a) Utilisation Date: [ ]
(b) Requested Amount: [ ]
(c) Term: [ ] /alternative Term: [ ]**
(d) Currency: [ ]
(e) Payment Instructions: [ ].
(f) as at the date of this Request, the Company's long term
debt is rated [ ] by Moody's and/or [ ] by
S&P.
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorised Signatory
SCHEDULE 4
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: NATIONSBANK, N.A., London Branch as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
CARNIVAL CORPORATION -$300,000,000 Revolving Credit Agreement
dated
[ ], 1996
We refer to Clause 27.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New
Bank") agree to the Existing Bank and the New Bank novating all
the Existing Bank's rights and obligations referred to in the
Schedule in accordance with Clause 27.3 (Procedure for
novations).
2. The specified date for the purposes of Clause 27.3(c) is [date
of novation].
3. The Facility Office and address for notices of the New Bank for
the purposes of Clause 33.2 (Addresses for notices) are set out
in the Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
Rights and obligations to be novated
[Details of the rights and obligations of the Existing Bank to be
novated].
[New Bank]
[Facility Office
Address for notices]
[Existing Bank] [New Bank] NATIONSBANK, N.A., London
Branch
By: By: By:
Date: Date: Date:
PART II
BID OPTION BANK ACCESSION AGREEMENT
To: NATIONSBANK, N.A., London Branch as Facility Agent
From: [NEW BID OPTION BANK]
Date: [ ]
CARNIVAL CORPORATION -$300,000,000 Revolving Credit Agreement
dated [ ], 1996 (the "Credit Agreement")
We refer to Clause 27.4 (Changes in the Bid Option Banks and the Bid
Option Agent).
We agree to become a Bid Option Bank and to be bound by the terms
of the Facility Agreement as a Bid Option Bank in accordance with
Clause 27.4 (Changes in the Bid Option Banks and the Bid Option
Agent).
Our Facility Office and address for notices for the purposes of
Clause 33.2 (Addresses for notices) are:-
Facility Office Address for notices
[ [
] ]
This Agreement is governed by English law.
By:
[NEW BID OPTION BANK]
Acknowledgement
We confirm that you have become a Bid Option Bank with effect from
[ ].
NATIONSBANK, N.A., London Branch
By:
Date:
PART III
BORROWER ACCESSION AGREEMENT
To: NATIONSBANK, N.A., London Branch as Facility Agent
From: [PROPOSED BORROWER] and CARNIVAL CORPORATION
[ ], 1996
CARNIVAL CORPORATION -$300,000,000 Revolving Credit Agreement
dated [ ], 1996 (the "Credit Agreement")
We refer to Clause 27.5 (Additional Borrowers).
[Name of company] of [Registered Office] (Registered no.
[ ]) (the "Proposed Borrower") agrees to become an
Additional Borrower and to be bound by the terms of the Facility
Agreement as an Additional Borrower in accordance with Clause 27.5
(Additional Borrowers).
The address for notices of the Proposed Borrower for the purposes
of Clause 33.2 (Addresses for notices) is:-
[
]
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorised Signatory
By:
CARNIVAL CORPORATION
Authorised Signatory
SCHEDULE 5
TIMETABLES
In this Schedule 5:-
D-[x] = x Business Days before the relevant Utilisation Date
FA = Facility Agent
BOA = Bid Option Agent
CB = Committed Bank
BOB = Bid Option Bank
CLAUSE 5 - COMMITTED ADVANCE FACILITY
Clause
Event
Time
(approximate
equivalent
time in Miami)
5.1
FA receives Request
D-3
3.30 p.m.
D-3
10.30 a.m.
5.4
FA notifies CBs of details of
Request and amount of each
CB's Advance
D-3
5.00 p.m.
D-3
12 noon
5.6(b)
FA receives objection from a
CB to selection of a Term of
an optional duration
D-2
9.00 a.m.
D-2
4.00 a.m.
5.6(c)
FA notifies Borrower and CBs
of the new Term
D-2
10.00 a.m.
D-2
5.00 a.m.
CLAUSE 6 - UNCOMMITTED ADVANCE FACILITY
Clause
Event
Time
(approximate
equivalent
time in
Miami)
6.1
BOA receives Request
D-4
3.00 p.m.
D-4
10.00 a.m.
6.3
BOA notifies BOBs of details
of Request
D-4
5.00 p.m.
D-4
12 noon
6.4(c)
BOA and Affiliates make
offers to Borrower
D-3
9.00 a.m.
D-3
4.00 a.m.
6.4(a)
BOA receives offers from
BOBs
D-3
10.00 a.m.
D-3
5.00 a.m.
6.4(d)
BOA notifies Borrower of
offers
D-3
2.00 p.m.
D-3
9.00 a.m.
6.5(a)
and
6.4(b)
Borrower accepts or rejects
offers
D-3
3.30 p.m.
D-3
10.30 a.m.
6.5(c)
BOA informs BOBs of results
of offers
D-3
5.00 p.m.
D-3
12 noon
SCHEDULE 6
ALTERNATIVE FORM OF NOVATION CERTIFICATE
NOVATION AGREEMENT
DATED [ ]
relating to a $300,000,000 Revolving Credit Facility
for
CARNIVAL CORPORATION
arranged by
NATIONSBANC CAPITAL MARKETS, INC.
ALLEN & OVERY
London
THIS AGREEMENT is dated [ ] between:
(1) CARNIVAL CORPORATION (the "Company");
(2) NATIONSBANC CAPITAL MARKETS, INC. as arranger (in this capacity
the "Arranger");
(3) NATIONSBANK, N.A. as the bank party to the Credit Agreement (as
defined below) as at today's date as a Committed Bank, an
Uncommitted Bank and the Swingline Bank (the "Existing Bank");
(4) THE FINANCIAL INSTITUTIONS listed in Parts II and III of
Schedule 1 as the banks who wish to accede to the Credit
Agreement as Banks (the "New Banks"); and
(5) NATIONSBANK, N.A., London Branch as facility agent (in this
capacity the "Facility Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears or the
context otherwise requires:
"Credit Agreement"
means the Credit Agreement dated [ ],1996 between
the Company, the Arranger, the Existing Bank, the Bid Option
Agent and the Facility Agent.
"Effective Date"
means
[ ].
1.2 Incorporation of Credit Agreement definitions
Terms defined in the Credit Agreement shall, unless the contrary
intention appears or the context otherwise requires, have the
same meaning in this Agreement.
1.3 Incorporation
Clauses 1.2 (Construction), 31 (Severability) and 32
(Counterparts) of the Credit Agreement shall apply to this
Agreement, mutatis mutandis.
2. CONSENT, CONFIRMATION AND DESIGNATION
2.1 Consent and confirmation
The Borrowers, the Arranger, the Existing Bank and the Facility
Agent each consent to the New Banks becoming Banks and confirm
that, except as expressly provided by the terms of this
Agreement, each of the Finance Documents shall continue in full
force and effect.
2.2 Designation
The Facility Agent and the Company hereby designate this
Agreement a Finance Document.
3. NOVATION
3.1 Novation of Commitments and related rights and obligations and
new Bid Option Banks
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank named in Part I of Schedule 1 will become a
Committed Bank under the Credit Agreement with a Commitment
as set out opposite its name in Schedule 2;
(b) the Existing Bank's Commitment shall be and be deemed to be
reduced down to the level set out opposite its name in
Schedule 2; and
(c) each New Bank named in Part II of Schedule 1 will become a
Bid Option Bank;
(d) (i) each New Bank named in Part I of Schedule 1 will
automatically obtain and assume, and undertakes to
perform, all of the rights and obligations of a
Committed Bank under and in respect of each of the
Finance Documents in respect of the rights and
obligations transferred to it under paragraphs (a) and
(b) above; and
(ii) each New Bank named in Part II of Schedule 1
agrees to be bound by the terms of the Facility
Agreement as a Bid Option Bank in accordance with the
terms of Clause 27.4 (Changes in the Bid Option Banks
and the Bid Option Agent) of the Facility Agreement.
3.2 Amounts due on or before the Effective Date
(a) All amounts (if any) payable to the Existing Bank by the
Obligors on or before the Effective Date (including, without
limitation, all interest and fees payable on the Effective Date)
in respect of any period ending prior to the Effective Date
shall be for the account of the Existing Bank, and none of the
New Banks shall have any interest in, or any rights in respect
of, any such amount.
(b) If any Committed Advance falls to be made on the Effective Date:
(i) the Facility Agent will promptly notify each of the New
Banks named in Part I of Schedule 1 of that fact (and the
amount of its participation in that Committed Advance in
accordance with paragraph (ii) below); and
(ii) the Existing Bank and each New Bank named in Part I of
Schedule 1 shall participate in that Committed Advance
(subject to the terms of the Credit Agreement) as if the
novation of Commitments under Clauses 3.1(a) and (b)
(Novation of Commitments and related rights and obligations
and new Bid Option Banks) of this Agreement had taken
effect prior to opening of business on the Business Day
before the Effective Date,
and each Borrower acknowledges that the Existing Bank will not
be obliged to participate in any such Loan to any greater
extent.
3.3 Administrative details
Each New Bank has delivered to the Facility Agent its initial
details for the purposes of Clause 33 (Notices) of the Credit
Agreement.
4. NATURE OF THIS AGREEMENT
For the avoidance of doubt, the parties to this Agreement agree
that the transfer of rights and obligations contemplated by this
Agreement shall take effect (in accordance with its terms) as
a novation so that:
(a) Schedule 2 is substituted for Schedule 1 to the Credit
Agreement on the Effective Date; and
(b) this Agreement being a Novation Certificate, Clause 27.3(c)
(Procedure for novations) of the Credit Agreement shall
apply to the rights and obligations transferred, assumed
and released under Clauses 3.1 (Novation of Commitments and
related rights and obligations and new Bid Option Banks) of
this Agreement and to the associated rights and obligations
under the Finance Documents.
5. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
SCHEDULE 1
VARIOUS PARTIES
PART I
The New Committed Banks
[ ]
PART II
The New Bid Option Banks
[ ]
SCHEDULE 2
Banks and Commitments
Banks Commitments
$
____________
Total Commitments $300,000,000
____________
SIGNATORIES
Company
CARNIVAL CORPORATION
By:
Arranger
NATIONSBANC CAPITAL MARKETS, INC.
By:
Agent
NATIONSBANK, N.A., LONDON BRANCH
By:
Existing Bank
NATIONSBANK, N.A.
By:
New Banks
[ ]
SCHEDULE 7
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Swingline Advance denominated in Sterling is
calculated in accordance with the following formula:-
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
100-(B + S)
where on the day of application of the formula:-
B is the percentage of the Facility Agent's eligible
liabilities which the Bank of England requires the Facility
Agent to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Facility Agent to leading banks in the London interbank
market at or about 11.00 a.m. on that day for the relevant
period;
L is the percentage of eligible liabilities which (as a
result of the requirements of the Bank of England) the
Agent maintains as secured money with members of the London
Discount Market Association or in certain marketable or
callable securities approved by the Bank of England, which
percentage shall (in the absence of evidence that any other
figure is appropriate) be conclusively presumed to be 5
per cent.;
X is the rate at which secured Sterling deposits may be
placed by the Facility Agent with members of the London
Discount Market Association at or about 11.00 a.m. on that
day for the relevant period or, if greater, the rate at
which Sterling bills of exchange (of a tenor equal to the
duration of the relevant period) eligible for rediscounting
at the Bank of England can be discounted in the London
Discount Market at or about 11.00 a.m. on that day;
S is the percentage of the Facility Agent's eligible
liabilities which the Bank of England requires the Agent to
place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of
England on special deposits.
(b) For the purposes of this Schedule 3:-
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England;
(ii) "relevant period" in relation to a Swingline
Advance, means 3 months.
(c) In the application of the formula, B, Y, L, X, S and Z are
included in the formula as figures and not as percentages, e.g.
if B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant
period comprised in the Term of the relevant Swingline
Advance.
(ii) Each rate calculated in accordance with the formula is,
if necessary, rounded upward to four decimal places.
(e) If the Facility Agent determines that a change in circumstances
has rendered, or will render, the formula inappropriate, the
Facility Agent shall notify the Company of the manner in which
the MLA Cost will subsequently be calculated. The manner of
calculation so notified by the Facility Agent shall, in the
absence of manifest error, be binding on all the Parties.
SIGNATORIES TO THE FACILITY AGREEMENT
Company
CARNIVAL CORPORATION
By:/s/ Arnaldo Perez
Arranger
NATIONSBANC CAPITAL MARKETS, INC.
By:/s/ Thomas W. Bunn
Committed Bank, Bid Option Bank and Swingline Bank
NATIONSBANK, N.A.
By:/s/ Bennie H. Duck
Facility Agent and Bid Option Agent
NATIONSBANK, N.A., LONDON BRANCH
By:/s/ Bennie H. Duck
March 27, 1996
CHC Casinos Canada Limited
c/o CHC International, Inc.
3250 Mary Street
Miami, Florida
U.S.A. 33133
Attention: Sherwood M. Weiser
Peter Temling
Dear Sirs:
Carnival Corporation (the "Lender"), a Panama Corporation,
understands that CHC Casinos Canada Limited (the "Borrower"), a Nova
Scotia corporation created for the sole purpose of operating and
managing the Rama Casino (as defined below), has entered into an
operating agreement dated March 18, 1996 (the "Rama Operating
Agreement") with Casino Rama Inc. ("Rama"), an Ontario corporation,
certain affiliates of Rama and the Ontario Casino Corporation
("OCC"), whereunder the Borrower will provide casino management
services to OCC and Rama with respect to the operation of the Rama
Casino (as defined below) in consideration for base management fees
and incentive fees. The Lender understands that, pursuant to the
provisions of the Rama Operating Agreement, the Borrower is obliged
to provide an unsecured, subordinated, limited recourse loan to Rama
in the principal amount of up to U.S.$25,000,000 (the "Rama Loan")
all in accordance with the Rama Operating Agreement. The Lender
further understands that the availability of the Rama Senior Debt
(as defined below) is contingent on Rama obtaining the Rama Loan
from the Borrower.
Accordingly, the Lender is pleased to offer the Borrower a
term credit facility in the amount of U.S.$25,000,000 (the
"Amount"), subject to the terms and conditions set out below (the
"Credit Facility"). It is a condition to the provision of the
Credit Facility that the obligations of the Borrower under the
Credit Facility shall be guaranteed by CHC International, Inc. (the
"Guarantor"), a Florida corporation.
SECTION 1 - INTERPRETATION
1.1 Definitions. In this Agreement,
(a) "Accrued Opening Date Interest Amount" has the meaning given to
it in Section 5(a).
(b) "Agreement" means this letter agreement as the same may be
amended, modified, supplemented, restated or replaced from time to
time.
(c) "Amount" has the meaning given to it in the forepart of this
Agreement.
(d) "Available Cash Flow" means in respect of any month, all amounts
payable to the Borrower during such month on account of (i)
management or other fees pursuant to the Rama Operating Agreement,
and (ii) payment or repayment of all or any part of the Rama Loan
including, without limitation, all payments or repayments on account
of principal, interest and fees in respect of the Rama Loan but
excluding, in either case, amounts which may be limited by the loan
documents to be executed in connection with the Rama Senior Debt;
provided that Available Cash Flow in respect of each of the six
months immediately following the Opening Date shall be the Available
Cash Flow calculated in respect of such month in accordance with the
foregoing sentence less Cdn.$166,670.
(e) "Borrowing" has the meaning given to it in Section 2.
(f) "Business Day" means a day, excluding Saturday, Sunday, and any
other day which shall be in the City of Toronto or the City of Miami
a legal holiday or a day on which banking institutions are closed.
(g) "Canadian Dollars" and the symbols "Cdn$" and "$" each means
lawful money of Canada.
(h) "Credit Facility" has the meaning given to it in the forepart
of this Agreement.
(i) "Encumbrance" means any mortgage, charge, lien, hypothec, trust,
encumbrance, charge, pledge, assignment, security interest, title
retention or any other security arrangement of whatsoever nature or
kind.
(j) "Equivalent Amount" means, with respect to any given amount of
any currency, the amount of any other currency required to purchase
that amount of the first currency in Toronto in accordance with the
Lender's usual procedures.
(k) "Event of Default" has the meaning given to it in Section 10.
(l) "GAAP" means U.S. generally accepted accounting principles.
(m) "Guaranty Agreement" means the guaranty agreement of date even
herewith given by the Guarantor in favour of the Lender with respect
to the obligations of the Borrower hereunder.
(n) "Initial Payment Date" has the meaning given to it in Section
5(b).
(o) "OCC" has the meaning given to it in the forepart of this
Agreement.
(p) "Opening Date" means the date on which the Rama Casino opens to
the public at large.
(q) "Operating Year" means:
(i) the period commencing on the Opening Date and ending on the
first Repayment Date, inclusive,
and thereafter,
(ii) a period commencing on the day immediately following a
Repayment Date and ending on the next following
Repayment Date, inclusive.
(r) "Post-Opening Interest" has the meaning given to it in Section
5(b).
(s) "Promissory Note" has the meaning given to it in Section 2(c).
(t) "Rama" has the meaning given to it in the forepart of this
Agreement.
(u) "Rama Casino" means the casino operation of Rama located on the
reserve of the Chippewas of Rama First Nation, Ontario, Canada.
(v) "Rama Commitment Letter" means the commitment letter dated
February 22, 1996 addressed to the Guarantor from The Bank of Nova
Scotia in respect of the Rama Senior Debt as supplemented by a
letter dated February 29, 1996 from Aird & Berlis, counsel to The
Bank of Nova Scotia.
(w) "Rama Loan" has the meaning given to it in the forepart of this
Agreement.
(x) "Rama Operating Agreement" has the meaning given to it in the
forepart of this Agreement.
(y) "Rama Senior Debt" means the credit facilities to be provided
to Rama pursuant to the loan agreement to be entered into between
Rama as borrower, OCC, Borrower, certain affiliates of Rama and
Borrower, the lenders named therein and The Bank of Nova Scotia as
agent for the lenders, in accordance with the terms of the Rama
Commitment Letter.
(z) "Repayment Date" has the meaning given to it in Section 5(c).
(aa) "Termination Date" has the meaning given to it by Section
5(c).
(bb) "US Dollars" and "US$" each means lawful money of the
United States of America in same day immediately available funds or,
if such funds are not available, the form of money of the United
States of America that is customarily used in the settlement of
international banking transactions on the day payment is due
hereunder.
1.2 Headings. The division of this Agreement into articles,
sections, subsections, paragraphs, subparagraphs, clauses and
schedules and the insertion of headings are for convenience of
reference only and do not affect the construction or interpretation
of this Agreement.
1.3 References. Unless otherwise specified, references to Articles,
Sections and Schedules are to Articles and Sections of, and
Schedules to, this Agreement.
1.4 Number and Gender. Unless otherwise specified, words importing
the singular include the plural and vice versa and words importing
gender include all genders.
1.5 Time of Day. Unless otherwise specified, references to time of
day or date mean local time or date in the City of Toronto, Province
of Ontario.
1.6 Governing Law. This Agreement and each of the documents
contemplated by or delivered under or in connection with this
Agreement is governed by, and will be construed and interpreted in
accordance with, the laws of the Province of Ontario and the laws
of Canada applicable in the Province of Ontario without regard to
principles of conflicts of laws.
1.7 Attornment. Each of the parties irrevocably attorns to the non-exclusive
jurisdiction of the courts of the Province of Ontario.
1.8 Conflict. If there is a conflict between the provisions of this
Agreement and the provisions of any other document contemplated by,
or delivered under or in connection with, this Agreement, the
provisions of this Agreement prevail.
1.9 Severability. If any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any jurisdiction, the
illegality, invalidity or unenforceability of that provision will
not affect:
(a) the legality, validity or enforceability of the remaining
provisions of this Agreement; or
(b) the legality, validity or enforceability of that provision
in any other jurisdiction.
1.10 Time of Essence. Time is of the essence for every
provision of this Agreement.
1.11 Statutory References. Each reference to an enactment is
deemed to be a reference to that enactment, and to the regulations
made under that enactment, as amended or re-enacted from time to
time.
1.12 Schedules. The following Schedules are attached to and
form part of this Agreement:
Schedule Description
Schedule A Form of Promissory Note
Schedule B Form of Certificate of the Borrower's
Chief Financial Officer.
1.13 Entire Agreement. This Agreement together with all
documents contemplated by or delivered under or in connection with
this Agreement, constitutes the entire agreement between the parties
with respect to the subject matter and supersedes all prior
agreements, negotiations, discussions, undertakings,
representations, warranties and understandings, whether written or
verbal.
1.14 GAAP. Unless otherwise specified, each accounting term not
otherwise defined in this Agreement has the meaning given to it, and
each calculation is to be made and each financial statement is to
be prepared, in accordance with GAAP.
1.15 Rules of Construction. Each party acknowledges that it and
its legal counsel have reviewed and participated in settling the
terms of this Agreement and that any rule of construction or
interpretation to the effect that any ambiguity is to be resolved
against the drafting party will not be applicable in the
construction or interpretation of this Agreement.
1.16 No Waiver. No failure, omission or delay on the part of
the Lender in exercising any right, power or privilege hereunder
shall impair such right, power or privilege or operate as a waiver
thereof nor shall any single or partial exercise of any right, power
or privilege preclude any further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided are cumulative and not exclusive of any rights and
remedies provided by law.
SECTION 2 - CREDIT FACILITY
The Credit Facility is available as follows:
(a) The Borrower may, at any time and from time to time
prior to the Opening Date, draw down amounts which shall be not less
than US$5,000,000 and in an integral multiple of US$1,000,000 if in
excess thereof (each such amount being referred to herein as a
"Borrowing"), provided that the aggregate amount of all Borrowings
shall not exceed the Amount. After the Opening Date, no new
Borrowings shall be available under the Credit Facility. Upon the
occurrence and continuance of an Event of Default, the Lender shall
be under no further obligation to advance any new Borrowing
hereunder.
(b) The Lender shall advance to the Borrower the amount of
each Borrowing drawn down by the Borrower in accordance with
paragraph (a) above within two (2) Business Days of receipt by the
Lender of written notice of such drawdown in the form attached
hereto as Schedule C. Such advance shall be in immediately
available funds by wire transfer to such account as the Borrower may
direct in writing. For greater certainty, no written notice of a
drawdown hereunder made within five (5) Business Days of the Opening
Date shall be binding on the Lender and no advance to the Borrower
shall be made by the Lender after the Opening Date.
(c) The obligation of the Borrower to repay the Credit
Facility shall be further evidenced by a promissory note the form
attached hereto as Schedule A (the "Promissory Note"), which shall
be dated as of the date hereof and shall be executed and delivered
to the Lender simultaneously with the execution and delivery of this
Agreement. The Promissory Note shall be deemed to reflect the
aggregate unpaid principal amount of all indebtedness outstanding
under the Credit Facility, whether or not the face amount of such
note is in excess of the amount actually outstanding from time to
time. The Promissory Note will be executed by the Borrower in
Toronto, Ontario and delivered to the Lender in Toronto, Ontario.
(d) The Borrower may not reborrow any portion of the Credit
Facility repaid to the Lender.
SECTION 3 - PURPOSES
The proceeds of the Credit Facility shall be used by the
Borrower only for the purpose of advancing such proceeds to Rama by
way of the Rama Loan as provided in the Rama Operating Agreement.
The terms of the Rama Loan shall provide, inter alia, that the
proceeds of the Rama Loan shall be used only for the purpose of the
development and construction of the Rama Casino.
SECTION 4 - INTEREST
(a) The Borrower shall pay interest on the outstanding
amount of the Credit Facility from time to time at the rate of 30%
per annum, calculated monthly in arrears based on the actual number
of days elapsed during such month in a year of 365 days, payable as
prescribed by Section 5, with interest on overdue interest at the
same rate set out above, compounded monthly.
(b) Interest payable under this provision is payable both
before and after any or all of default, demand and judgement.
(c) The annual rate of interest to which the rate set out
in Section 4(a) is equivalent for the purposes of the Interest Act
(Canada) is the rate so determined multiplied by the number of days
in the applicable calendar year and divided by 365.
(d) Notwithstanding the provisions of this Section 4 or any
other provision of this Agreement, in no event shall the aggregate
"interest" (as that term is defined in Section 347 of the Criminal
Code (Canada)) payments payable to the Lender hereunder exceed the
effective annual rate of interest on the "credit advanced" (as
defined therein) lawfully permitted under Section 347 of the
Criminal Code (Canada). In the event that any such payments are
prohibited as provided in this paragraph, such payments shall be
made at the highest rate permitted.
SECTION 5 - REPAYMENT AND REDUCTION OF CREDIT FACILITY
The Borrower shall repay the Credit Facility as follows:
(a) Interest shall accrue on each Borrowing in accordance
with Section 4 from the date of drawdown of such Borrowing until
immediately prior to the Opening Date. The aggregate amount of
interest accrued on all Borrowings immediately prior to the Opening
Date is herein referred to as the "Accrued Opening Date Interest
Amount". The Accrued Opening Date Interest Amount together with
interest thereon, shall be repaid in twenty-four equal monthly
instalments, payable on the first day of each month, commencing on
the first day of the third month following the month in which the
Opening Date falls. For greater certainty, interest shall continue
to accrue on the outstanding balance of the Accrued Opening Date
Interest Amount in accordance with Section 4 until such amount is
repaid in full.
(b) Interest shall accrue on the amount of each Borrowing
outstanding from time to time in accordance with Section 4 from and
including the Opening Date (interest so accruing is herein referred
to as "Post-Opening Interest"). Post-Opening Interest shall be
payable monthly in arrears on the first day of each month commencing
on the first day of the month immediately following the month in
which the Opening Date falls (the "Initial Payment Date").
(c) The principal amount of the Borrowings shall be repaid
in the amount of United States Dollars set forth next to the dates
of repayment (each a "Repayment Date") as follows:
Repayment Date Amount
First Anniversary of the Initial Five (5%) percent of the
aggregate principal Payment Date amount of all
Borrowings
outstanding on the
Opening Date
Second Anniversary of the Initial Five (5%) percent of the
aggregate principal
Payment Date amount of all Borrowings outstanding
on the Opening Date
Third Anniversary of the Initial Five (5%) percent of the
aggregate principal
Payment Date amount of all Borrowings outstanding
on the Opening Date
Fourth Anniversary of the Initial Five (5%) percent of the
aggregate principal
Payment Date amount of all Borrowings outstanding
on the Opening Date
Fifth Anniversary of the Initial Five (5%) percent of the
aggregate principal
Payment Date amount of all Borrowings outstanding
on the Opening Date
Sixth Anniversary of the Initial Aggregate amount of all
Payment Date outstanding Borrowings at the
(the "Termination Date") Termination Date.
(d) (i) Notwithstanding the provisions of Sections 5(a),
(b) and (c), the Borrower shall, commencing on the
Initial Payment Date, make monthly payments to
Lender on the first day of each month equal to
seventy-five (75%) percent of Available Cash Flow
in respect of the immediately preceding month
which shall be applied to pay the amounts referred
to in Sections 5(a), (b) and (c) in respect of the
Operating Year in which the relevant month occurs,
subject, in each case, to the limitation that the
aggregate amount payable under this Section
5(d)(i) in any Operating Year shall not exceed the
aggregate of the amounts payable pursuant to
Sections 5(a), (b) and (c) in respect of such
Operating Year.
(ii) Within sixty (60) days following each
Repayment Date, the Borrower shall pay to the
Lender the amount, if any, equal to the
difference between
(A) the aggregate amount paid by the Borrower to
the Lender pursuant to Section 5(d)(i) during
the Operating Year ending on such Repayment
Date, and
(B) the aggregate of all amounts that would, but
for the provisions of Section 5(d)(i), have
been payable by the Borrower to the Lender
pursuant to Sections 5(a), (b) and (c) in
respect of such Operating Year,
together with all accrued interest thereon.
(iii) All payments made pursuant to this Section
5(d) shall be applied as follows:
(A) firstly, to Post-Opening Interest and accrued
interest thereon,
(B) secondly, to the Accrued Opening Date Interest
Amount and accrued interest thereon, and
(C) the balance thereof to principal,
or, after the occurrence and continuance of an
Event of Default, otherwise as the Lender, in its
sole discretion, may determine.
(e) For greater certainty, all amounts outstanding
hereunder including, without limitation, all principal, interest and
expenses of Lender under this Agreement shall be immediately due and
payable on the earlier of (i) the Termination Date, and (ii) the
date on which the Lender declares all amounts outstanding under the
Credit Facility to be immediately due and payable in accordance with
Section 10.
(f) All payments of principal and interest hereunder shall
be made to the Lender in lawful money of the United States of
America in immediately available funds. Whenever payment shall be
due on a day other than a Business Day payment shall be made on the
immediately preceding Business Day.
SECTION 6 - INCREASED COSTS
(a) The Borrower will reimburse or compensate the Lender
for any increase in cost to the Lender or any reduction in income
or effective return to the Lender in respect of the Credit Facility
resulting from an imposition of or change in any condition or
requirement (whether or not having the force of law) of any
government, governmental agency or body, tribunal or regulatory
authority including, without limitation, an imposition of or change
in any tax payable by the Lender (other than a tax on the net income
of the Lender derived from sources other than the transactions
contemplated hereby) or any other requirement applicable to the
Lender. If and whenever at any time or from time to time the Lender
determines that it is entitled to be reimbursed or compensated
hereunder, it will so notify the Borrower and will provide to the
Borrower a statement in writing setting forth the amount of such
compensation or reimbursement and the calculation thereof (which may
include the use of reasonable averages and allocations) which shall
be, in the absence of manifest error, conclusive evidence of the
amount of such reimbursement or compensation required to be paid
hereunder.
(b) Without limiting the generality of Section 6(a), the
Borrower shall make all payments to the Lender in respect of the
Credit Facility without setoff, counterclaim, restrictions or
conditions of any kind and free and clear of, and without deduction
or withholdings for or on account of, any present or future duties,
taxes, levies, imposts, fees, deductions, assessments, withholdings
or other charges of any nature whatsoever or interest, penalties or
other amounts in respect thereof (collectively, "Taxes") unless such
deduction or withholding is required by law or the administrative
practice of any taxation authority. If any such deduction or
withholding is so required, the Borrower shall (i) pay such
additional amounts as may be necessary in order that the Lender
receives a net amount after such deduction or withholding (including
any deduction or withholding in respect of such additional amounts)
equal to the full amount that the Lender would have received had no
such deduction or withholding been required, and (ii) pay the full
amount deducted or withheld to the relevant taxation authority in
accordance with applicable law and forthwith after payment furnish
the Lender with a receipt evidencing such payment. If the Borrower
fails to pay to the relevant taxation authority when due any Taxes
that it was required to deduct or withhold under this paragraph 6(b)
in respect of any payment to Lender hereunder or fails to furnish
Lender with the receipt referred to above, the Borrower shall
indemnify the Lender on an after-tax basis for any Taxes that may
become payable as a result of such failure. The Borrower's
obligations under this Section 6(b) shall survive the termination
or revocation of this Agreement and the payment of all amounts
payable under this Agreement and the Credit Facility.
(c) (i) The Lender shall notify the Borrower in writing of
any assessment or reassessment (a "Claim")
pertaining to a matter in respect of which the
Borrower may be liable to make payments under
Section 6(a) or 6(b) within 30 days of the date on
which the Lender receives such a Claim provided
that in the event of failure to give such notice,
such failure shall not reduce the obligations of
the Borrower hereunder (except to the extent that
such failure materially prejudices the contest of
such Claim).
(ii) The Borrower shall have the right, by notice
to the Lender given not later than 10 days
after receipt by the Borrower of notice of a
Claim to assume control of the defence,
compromise or settlement of the Claim at its
own expense but only so long as the Borrower
is not in default under any provision of this
Agreement.
(iii) Upon the assumption of control of any Claim by
the Borrower, the Borrower shall diligently
proceed with the defence, compromise or
settlement of the Claim at its sole expense
and, in connection therewith, the Lender shall
cooperate fully, but at the expense of the
Borrower to take such steps as in the
reasonable opinion of the Borrower, are
necessary to enable the Borrower to negotiate,
defend, settle or compromise such Claim. The
Borrower shall consult with the Lender and its
counsel in good faith with respect to the
Lender's interest with respect to any Claim
and shall diligently keep the Lender informed
of the progress of any Claim. No settlement,
compromise or disposition of any Claim may be
made by the Borrower without the written
consent of the Lender.
(iv) Nothing herein shall oblige the Lender to
defend, compromise or settle any Claim or
request any refund of taxes referred to in
Section 6(b).
(d) If the Lender receives any refund of taxes (i) in
respect of which the Lender received reimbursement or compensation
from the Borrower under Section 6(a), or (ii) which were paid by the
Borrower to a relevant taxation authority under Section 6(b), the
Lender shall, within 15 days of the date on which any right of any
taxing authority to dispute the Lender's entitlement to such refund
expires, pay to the Borrower the net amount of such refund (after
deducting any taxes payable by the Lender with respect to such
refund); provided that the Lender shall not be required to make a
payment under this Section 6(c) if an Event of Default has occurred
and is continuing.
SECTION 7 - PREPAYMENT
The Borrower may, at any time and from time to time, upon
three (3) Business Days written notice to the Lender, prepay any
portion of the Borrowings outstanding in minimum amounts of
U.S.$100,000.00. Concurrently with any prepayment, the Borrower
shall pay a prepayment premium of ten (10%) percent of the amount
of Borrowings being prepaid in compensation for lost income to the
Lender.
SECTION 8 - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender:
(a) it is a corporation validly incorporated and subsisting
under the laws of the Province of Nova Scotia, and that it
is duly registered or qualified to carry on business in all
jurisdictions where the nature of its properties, assets or
its business makes such registration or qualification
necessary;
(b) the execution and delivery of this Agreement and of all
Promissory Notes contemplated hereby have been duly
authorized by all necessary actions and do not (i) violate
any law, regulation or rule by which it is bound, (ii)
violate any provision of its memorandum or articles of
incorporation or other incorporation or organization
documents, by-laws or any unanimous shareholders' agreement
to which it is subject, or (iii) result in a breach of, a
default under, or the creation of any Encumbrance on its
properties and assets under any agreement or instrument to
which it is a party or by which it or any of its properties
and assets may be bound or affected;
(c) no event has occurred which constitutes, or which with
giving of notice, lapse of time or other condition would
constitute, a default having a material adverse effect on
its financial condition under or in respect of any
agreement, undertaking or instrument to which it or any of
its properties or assets may be subject;
(d) the principal place of business of the Borrower is at the
Rama Casino in Ontario, Canada; and
(e) the issued and outstanding shares in the capital of the
Borrower consists of one hundred (100) common shares of no
par value, all of which are held legally and beneficially
by CHC Casinos Corp., a Florida corporation. All of the
issued and outstanding shares in the capital of CHC Casinos
Corp. are held legally and beneficially by the Guarantor.
SECTION 9 - COVENANTS
The Borrower covenants and agrees with the Lender, while
this Agreement is in effect or any Borrowings are outstanding:
(a) to pay all sums of money when due under this Agreement;
(b) to maintain its corporate existence as a validly subsisting
corporate entity;
(c) to provide the Lender with the following:
(i) monthly, consolidated Borrower-prepared financial
statements, including an income statement, balance
sheet and cash flow statement (in appropriate form and
sufficient detail to support all calculations required
in connection with the Borrower's obligations under
this Agreement including, without limitation, Section
5(d) hereof) all in form satisfactory to Lender within
30 days of each month-end, together with a certificate
of the Chief Financial Officer of the Borrower as to
the accuracy and completeness of such statements and as
to other matters in the form attached as Schedule "B",
(ii) annual, consolidated audited financial statements
within 120 days of each fiscal year end
accompanied by an auditor's report,
(iii) annual business plans, budgets and all other
information provided to Rama or the OCC pursuant
to the Rama Operating Agreement (as the same may
be amended, restated, supplemented or replaced
from time to time), simultaneously with the
delivery of such materials to such parties, unless
such information is required to be kept
confidential by the provisions of the Rama
Operating Agreement (as the same may be amended,
restated, supplemented or replaced from time to
time),
(iv) monthly financial statements of Rama, including an
income statement, balance sheet and cash flow
statement within 30 days of each month-end and any
other financial statements or similar statements
of Rama received by the Borrower whether pursuant
to the Rama Loan or the Rama Operating Agreement,
and
(v) such other financial and operating statements and
reports as the Lender may reasonably request;
(d) to notify the Lender promptly of any change in the
information provided under the representations and
warranties contained in Sections 8(c), (d) or (e);
(e) to give the Lender prompt notice of any Event of Default or
any event which, with notice or lapse of time, or both,
would constitute an Event of Default;
(f) to enter into the documents and agreements contemplated by
the Rama Commitment Letter to be entered into by the
Borrower no later than April 30, 1996 on terms and
conditions substantially as set out in the Rama Commitment
Letter, with such changes as the Lender may approve, acting
reasonably, and deliver to the Lender a copy of all such
documents and agreements forthwith after the execution and
delivery thereof, and not to agree to or suffer to exist,
without the express written consent of the Lender, any
surrender or termination of such documents and agreements
or any amendment or waiver of any provision in respect of
payments or repayments under or the term of such documents
and agreements;
(g) to file all income tax returns which are or will be
required to be filed by it, to pay or make provision for
payment of all taxes (including interest and penalties)
which are or will become due and payable by it and to
provide adequate reserves for the payment of any tax the
payment of which is being contested;
(h) except as contemplated by the Rama Commitment Letter or the
documents and agreements entered into in connection
therewith, not to grant, create, assume or suffer to exist
any Encumbrance affecting any of its properties, assets or
other rights, without the prior written consent of the
Lender;
(i) not to incur any indebtedness of any nature or kind without
the prior written consent of the Lender except:
(i) indebtedness owing to trade creditors of the Borrower
incurred in the ordinary course of the Borrower's
business,
(ii) indebtedness related to guarantees given by the
Borrower in favour of Rama and the OCC in respect
of cost overruns and operating deficits incurred
in connection with the operation of the Rama
Casino pursuant to the Rama Operating Agreement,
and
(iii) indebtedness related to guarantees given by the
Borrower in favour of The Bank of Nova Scotia (as
agent under the Rama Senior Debt) as contemplated
by the Rama Commitment Letter;
(j) except as contemplated by the Rama Operating Agreement or
the Rama Commitment Letter, not to invest in any other
person by way of equity investment or otherwise or provide
any financial assistance (by way of loan, guarantee or
otherwise) to any other person, without the prior written
consent of the Lender;
(k) not to sell, transfer, convey, lease or otherwise dispose
of any material part of its property or assets;
(l) not to engage in or carry on any business other than the
operation of the Rama Casino in accordance with the
provisions of the Rama Operating Agreement and the making
of the Rama Loan;
(m) not to issue any additional shares from treasury or to
cause any of its subsidiaries to issue any shares from
their respective treasuries; and
(n) not to change its name or merge, amalgamate or consolidate
with any other corporation or take part in any capital or
corporate reorganization or similar proceeding or
arrangement.
SECTION 10 - EVENTS OF DEFAULT
The occurrence of any one or more of the following events
or circumstances constitutes an "Event of Default" under this
Agreement:
(a) the Borrower fails to pay any principal, interest, fees or
other amounts under this Agreement when due, whether by
acceleration or otherwise and such failure continues
unremedied for a period of three (3) days following the
date on which written notice thereof is given by the Lender
to the Borrower;
(b) the Borrower fails to comply with any covenant or other
provision of this agreement or any other agreement with the
Lender and such failure continues unremedied for a period
of ten (10) days following the date on which written notice
thereof is given by the Lender to the Borrower or, if such
failure is not capable of being remedied within such ten
(10) day period, if the Borrower does not commence in good
faith the remedying thereof within such period or does not
thereafter prosecute to completion with diligence and
continuity the remedying thereof;
(c) any representation or warranty made herein or in any
document, agreement or certificate delivered pursuant
hereto shall be false or inaccurate in any material
respect;
(d) the Rama Casino is not open to the public by August 15,
1996;
(e) any voluntary or involuntary case or proceeding (including
the filing of any notice) is commenced under any
bankruptcy, insolvency, incorporation or other applicable
law in any jurisdiction in respect of the:
(i) bankruptcy, liquidation, winding-up, dissolution or
suspension of general operations,
(ii) composition, rescheduling, reorganization,
arrangement or readjustment of, or other relief
from, or stay or proceedings to enforce, some or
all of the debts or obligations,
(iii) appointment of a trustee, receiver, receiver and
manager, liquidator, administrator, custodian or
other official for, or for all or a substantial
part of the assets, or
(iv) possession, foreclosure, seizure or retention, or
sale or other disposition of, or other proceedings
to enforce security over, all or a substantial
part of the assets,
of the Borrower and, in the case of an involuntary case or
proceeding, the Borrower acquiesces to such case or
proceeding or the Borrower does not actively and diligently
contest such case or proceeding in good faith and such case
or proceeding is not dismissed, vacated or stayed within
sixty (60) days of institution;
(f) the Borrower is unable to meet its liabilities generally as
they become due, or is, or is adjudged or declared to be,
or admits to being, bankrupt or insolvent;
(g) the Borrower:
(i) fails at any time to pay any indebtedness in the
aggregate amount of U.S.$75,000 (or the Equivalent
Amount thereof in any currency) or more when due and
such failure continues unremedied for a period of ten
(10) days, or
(ii) fails to perform or observe any material covenant
or agreement contained in any agreement or in any
instrument evidencing, securing or relating to any
indebtedness in the aggregate amount of
U.S.$75,000 (or the Equivalent Amount thereof in
any currency) or more and, as a result of that
failure, any other party to that agreement or
instrument exercises a right to accelerate the
maturity of any amount owing under that agreement
or instrument;
(h) any writ, execution, attachment or similar process is
threatened, issued or levied against all or any part of the
assets of the Borrower in connection with any judgment
against the Borrower unless it is being actively and
diligently contested in good faith by appropriate and
timely proceedings or where the assets affected or the
amount involved do not, in the opinion of the Lender,
materially affect the assets or business of the Borrower;
(i) any secured creditor, encumbrancer or lienor, or any
trustee, receiver, receiver and manager, agent, bailiff or
other similar official appointed by or acting for any
secured creditor, encumbrancer or lienor, takes possession
of, or forecloses, seizes or retains, or sells or otherwise
disposes of, or otherwise proceeds to enforce security
over, all or a substantial part of the assets of the
Borrower or gives notice of its intention to do any of the
foregoing;
(j) the Borrower suspends or threatens to suspend or cease to
carry on business;
(k) the Guarantor fails to perform or observe any material
covenant or agreement contained in, or is in default under,
the Guaranty Agreement; and
(l) the Borrower ceases to be the operator of the Rama Casino
or receives proper notice of termination as operator of the
Rama Casino in accordance with the provisions of the Rama
Operating Agreement or the documents evidencing or securing
the Rama Senior Debt.
Upon the occurrence and continuance of an Event of Default, the
Lender may, by written notice to the Borrower, declare all amounts
outstanding under the Credit Facility to be immediately due and
payable. The Borrower shall immediately pay to the Lender all such
outstanding amounts, including, without limitation all principal,
interest and expenses of Lender under or in connection with this
Agreement.
SECTION 11 - CONDITIONS TO EFFECTIVENESS
The effectiveness of this agreement is subject to and
conditional upon the receipt, in form and substance satisfactory to
the Lender of:
(a) a duly executed copy of this Agreement;
(b) a duly executed copy of the Guaranty Agreement;
(c) certified copy of the Rama Operating Agreement duly
executed by all parties thereto;
(d) certified copy of the Rama Commitment Letter duly
executed by all parties thereto;
(e) a certificate of the chief financial officer of the
Borrower attaching monthly projections of Available
Cash Flow in respect of the fifteen month period
commencing with the month in which the Opening Date
falls;
(f) an officer's certificate of each of the Borrower and
the Guarantor with respect to:
(i) its articles, by-laws and shareholder agreements
(if any),
(ii) resolutions of its board of directors
authorizing it to execute, deliver and perform
its obligations under this Agreement and any
documents delivered pursuant hereto or in
connection herewith, and
(iii) the names, offices and specimen signatures of
the persons authorized to sign this Agreement
and the agreements and documents contemplated
hereby;
(g) an officer's certificate of the Borrower with respect
to the accuracy of the representations and warranties
contained herein and the absence of any defaults;
(h) certificate of status in respect of the Borrower;
(i) certificate of good standing status in respect of the
Guarantor;
(j) an opinion of legal counsel to the Borrower;
(k) an opinion of legal counsel to the Guarantor;
(l) such other documents as the Lender may reasonably
request; and
(m) payment of Lender's legal and other fees and expenses
incurred in connection with this Agreement and the
transactions contemplated hereby.
The obligation of the Lender to make available the Borrowings is
further subject to and conditional upon the Lender being of the
opinion that a material adverse change in the financial condition,
ownership, or operation of the Borrower or any subsidiary has not
occurred.
SECTION 12 - INDEMNITY
The Borrower shall indemnify the Lender from and against
all losses, damages, expenses and liabilities which the Lender
sustains or incurs as a consequence of any default by the Borrower
under any of the provisions of this agreement or any
misrepresentation by the Borrower contained in or delivered in
writing in connection with this agreement.
SECTION 13 - EXPENSES
The Borrower shall pay the reasonable fees (including, but
not limited to, all fees of the Lender's counsel on a solicitor and
client basis) and expenses incurred by the Lender in connection with
the preparation, negotiation, documentation and operation of the
Credit Facility including the enforcement of the Lender's rights
under the Credit Facility whether or not any amounts are advanced
under the Credit Facility.
SECTION 14 - CURRENCY CONVERSION
If, for the purpose of obtaining judgement in any court,
determining the amount outstanding under this agreement or for any
other purpose, it is necessary to convert an amount in one currency
(the "Original Currency") into another currency (the "Second
Currency"), the Equivalent Amount of the Second Currency shall be
used. If the conversion relates to a judgement, the conversion
shall be performed as of the date 2 Business Days preceding that on
which judgement is given. For all other purposes, the conversion
shall be performed as of the date and time of determination.
The Borrower agrees that any obligations in respect of any
Original Currency due from it to the Lender shall, notwithstanding
any judgement or payment in any Second Currency, be discharged only
to the extent that, on the Business Day following receipt of any sum
so paid or adjudged to be due in the Second Currency, the Lender
may, in accordance with normal banking procedures, purchase, in the
Toronto foreign exchange market, the Original Currency with the
amount of the Second Currency so paid or so adjudged to be due; and
if the amount of the Original Currency so purchased is less than the
amount of the Original Currency due to the Lender, the Borrower
agrees, as a separate obligation and notwithstanding any such
payment or judgement, to pay the Lender the amount of the Second
Currency required to purchase the amount of the Original Currency
necessary to make up such difference on such date together with
interest (at the rate per annum set forth in the Interest provision
hereof) and expenses (including legal fees on a solicitor and client
basis) from such date to the date of payment.
SECTION 15 - ASSIGNMENT AND PARTICIPATION
This agreement shall be binding upon and enure to the
benefit of the Lender and the Borrower and their respective
successors and permitted assigns. The Lender may assign or transfer
its rights, benefits and obligations to any other Person
("Assignee"). After any such assignment or transfer, the term
"Lender" as used in this agreement shall be deemed to be the
Assignee to the extent of its interest.
In assigning or transferring all or any part of its rights
or obligations as aforesaid, the Lender may reveal to potential
Assignees or participants all or any information regarding the
Borrower as the Lender deems necessary or desirable.
This Agreement may not be assigned by the Borrower without
the prior written consent of the Lender, which consent may be
arbitrarily withheld.
SECTION 16 - NOTICE
Unless otherwise specified, any notice to a party must be
given in writing and delivered personally or by courier, sent by
prepaid registered or certified mail to the party as follows:
If to the Lender:
Carnvial Corporation
3655 N.W. 87th Avenue
Miami, Florida
U.S.A. 33178-2428
Attention: Vice President of Finance
If to the Guarantor:
CHC International, Inc.
3250 Mary Street
Miami, Florida
U.S.A. 33133
Attention: Robert Sturges and Peter Temling
If to the Borrower:
CHC Casinos Canada Limited
c/o CHC International, Inc.
3250 Mary Street
Miami, Florida
U.S.A. 33133
Attention: Robert Sturges and Peter Temling
or to any other address or Person that the party designates. Any
such notice will be deemed to have been given when actually
received.
SECTION 17 - EXPIRY DATE
This offer is open for acceptance until March 27, 1996
unless extended in writing by the Lender.
Please acknowledge your acceptance of the above terms and
conditions by signing the attached copy of this letter under your
corporate seal in the space provided below and returning it to the
undersigned.
Yours truly,
Howard S. Frank
Vice Chairman
We acknowledge and accept the terms
and conditions of this agreement as
of the date first above written.
CHC CASINOS CANADA LIMITED
By:/s/ W. Peter Temling
Title:Sr. Vice President
CHC INTERNATIONAL, INC.
By:/s/ W. Peter Temling
Title:Sr. Vice President
Schedule "A" to the agreement dated as of the 27th day of March,
1996 between CHC Casinos Canada Limited as Borrower, CHC
International, Inc. as Guarantor and Carnival Corporation as Lender.
PROMISSORY NOTE
U.S.$25,000,000 Principal Sum March 27, 1996
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises to pay
to or to the order of Carnival Corporation (the "Lender") at its
office at 3655 N.W. 87th Avenue, Miami, Florida, U.S.A. 33178-2428,
the lesser of:
(i) the sum of TWENTY-FIVE MILLION United States Dollars
(U.S.$25,000,000) (the "Amount"), and
(ii) the aggregate unpaid principal balance of all advances
made to the Borrower by the Lender, as determined on
the grids appearing on any attachment hereto,
together with interest thereon at the rate of 30% per annum,
calculated and compounded monthly in arrears, with interest on
overdue interest at the same rate set out above, at the times and
otherwise in accordance with the terms of the letter agreement dated
March 27, 1996 between the Borrower, CHC International, Inc. and the
Lender (the "Agreement").
This promissory note is the promissory note referred to in and is
subject to, and the Borrower and the holder of this promissory note
are entitled to the benefits of, the Agreement. The Agreement
contains, inter alia provisions regarding (i) the payment of
principal and interest provided for herein, and (ii) the
acceleration of the maturity hereof upon the occurrence of certain
stated events. All capitalized terms used herein and not otherwise
defined herein shall have the same meanings as are prescribed in the
Agreement.
Interest payable under this promissory note is payable both before
and after any or all of default, demand and judgement.
All payments of principal and interest hereunder shall be made to
the Lender in lawful money of the United States of America in
immediately available funds. Whenever payment shall be due on a
day other than a Business Day payment shall be made on the
immediately preceding Business Day.
The Borrower hereby waives presentment for payment, demand, notice
of dishonour, protest and all other notices of any kind relating to
this promissory note of the enforcement hereof.
The Borrower hereby irrevocably authorizes the Lender to record on
any attachments hereto, all advances and repayments and the unpaid
principal balance of advances from time to time. The Borrower
agrees that, in the absence of manifest error in such recordations,
they shall be prima facie evidence of the amount of the unpaid
principal balance, except for the failure of the Lender to correctly
record the amount of any advance or any claim for the repayment of
such advance and the interest thereon.
This promissory note and each of the documents contemplated by or
delivered under or in connection with this promissory note is
governed by, and will be construed and interpreted in accordance
with, the laws of the Province of Ontario and the laws of Canada
applicable in the Province of Ontario.
The Borrower and the holder of this promissory note irrevocably
attorns to the non-exclusive jurisdiction of the courts of the
Province of Ontario.
If any provision of this promissory note is or becomes illegal,
invalid or unenforceable in any jurisdiction, the illegality,
invalidity or unenforceability of that provision will not affect:
(a) the legality, validity or enforceability of the remaining
provisions of this promissory note; or
(b) the legality, validity or enforceability of that provision
in any other jurisdiction.
Time is of the essence for every provision of this promissory note.
In witness whereof the undersigned has executed this promissory note
as of the date first written above.
CHC CASINOS CANADA LIMITED
By:__________________________
Title:_______________________
(Seal)
Executed before me at City of Toronto,
in the Province of Ontario,
this 27th day of March,
1996
A Notary Public in and for
the Province of Ontario.
Schedule of Advances and Reductions of Principal
Date
Amount of
Principal
Advanced
Amount of
Principal
Paid
Unpaid
Principal
Balance
Notation
Made By
Schedule "B" to the agreement dated as of the 27th day of March,
1996 between CHC Casinos Canada Limited as Borrower, CHC
International, Inc. as Guarantor and Carnival Corporation as Lender.
MONTHLY CERTIFICATE OF THE BORROWER'S CHIEF FINANCIAL OFFICER
To: CARNIVAL CORPORATION
3655 N.W. 87th Avenue
Miami, Florida
33178-2428
U.S.A.
Attention: Gerald R. Cahill
Dear Sirs/Mesdames:
I, ________________________, the undersigned, in my
capacity as Chief Financial Officer of CHC Casinos Canada Limited
(the "Borrower"), after due inquiry, hereby certify that:
1. This Certificate is delivered pursuant to Section 9(c)(i)
of the letter agreement dated March 27, 1996 between Carnival
Corporation as Lender, CHC International, Inc. as guarantor and the
Borrower as borrower (the "Loan Agreement"). All capitalized terms
appearing in this certificate shall have the meaning assigned to
such terms pursuant to the Loan Agreement.
2. I am familiar with and have examined the provisions of the
Loan Agreement and have made such reasonable investigations of
corporate records and inquiries of other officers and senior
personnel of the Borrower and others which in my opinion are
sufficient to enable me to make an informed statement herein.
3. Based on the foregoing, the Borrower is not in default in
the performance or observance of any of the terms, covenants,
agreements or conditions of the Loan Agreement, nor has any event
or circumstance occurred which, with notice or lapse of time, or
both, would constitute an Event of Default [except for those set
forth in Exhibit A hereto].
4. Attached hereto as Exhibit [A or B as applicable] are the
monthly, consolidated financial statements, of the Borrower which
I verily believe to be complete and accurate in all material
respects as of the dates thereof and for the periods covered
thereby.
5. Attached as Exhibit [B or C as applicable] is the
calculation of the amount payable pursuant to Section 5(d) of the
Loan Agreement in respect of the month ended on the date of the
financial statements attached hereto as Exhibit [A or B applicable].
Dated at _____________, this ___________ day of
___________________, _____.
CHC CASINOS CANADA LIMITED
By:
Name:
Title: Chief Financial Officer
Schedule "C" to the agreement dated as of the 27th day of March,
1996 between CHC Casinos Canada Limited as Borrower, CHC
International, Inc. as Guarantor and Carnival Corporation as Lender.
DRAWDOWN NOTICE
To: CARNIVAL CORPORATION
3655 N.W. 87th Avenue
Miami, Florida
33178-2428
U.S.A.
Attention: Gerald R. Cahill
Dear Sirs/Mesdames:
This Drawdown Notice is delivered pursuant to Section 2 of
the letter agreement dated March 27, 1996 between Carnival
Corporation as Lender, CHC International, Inc. as guarantor and the
undersigned as borrower (the "Loan Agreement"). All capitalized
terms appearing in this certificate shall have the meaning assigned
to such terms pursuant to the Loan Agreement.
We hereby request a Borrowing pursuant to Section 2 of the
Loan Agreement as follows:
1. Drawdown Date: / /
day month year
2. Payment Instructions:
3. Amount of Borrowing: [minimum U.S.$5,000,000 and integral
multiples of U.S.$1,000,000 in excess thereof]
Dated at _____________, this ___________ day of
___________________, _____.
CHC CASINOS CANADA LIMITED
By:
Name:
Title: Chief Financial Officer
TO: Carnival Corporation ("Offeror")
3655 NW 87 Avenue
Miami, Florida
United States of America
and 21 February, 1996
CS First Boston Limited
One Cabot Square
London E14 4QJ
United Kingdom
Dear Sirs,
Proposed partial offers for shares in Airtours plc
6. This letter sets out the terms on which I undertake to accept
the offer to be made by (or on behalf of) Offeror (the "Ordinary
Offer") to acquire up to 20,000,000 ordinary shares representing
17.34 per cent of the current issued ordinary share capital of
Airtours plc ("Offeree").
7. The Ordinary Offer and the offer by (or on behalf of) Offeror
(the "Preference Offer") to acquire up to 8,758,612 convertible
cumulative preference shares representing 17.34 per cent of the
issued convertible cumulative preference share capital of
Offeree (together with the Ordinary Offer, "the Offers") shall
be made substantially on the terms of the attached draft press
announcement (the "Press Announcement"), any additional terms
and conditions as may be required to comply with the
requirements of The City Code on Takeovers and Mergers (the
"Code"), the London Stock Exchange and the Securities and
Exchange Commission and any additional terms and conditions
agreed between Offeror and Offeree.
8. I warrant and undertake to you that:
8.1 I am the registered holder and beneficial owner of 30,000,000
(the "Offeree Ordinary Shares") ordinary shares of 10p each in
the capital of Offeree ("Ordinary Shares");
8.2 I hold the Offeree Ordinary Shares free from any lien, charge
or other encumbrance, equity or third party right of any nature;
and
8.3 I have full power and authority to accept the Ordinary Offer in
respect of such number of Offeree Ordinary Shares as is referred
to in paragraph 4.
4.1 I shall (save as provided herein) irrevocably accept the
Ordinary Offer in respect of 5,201,224 of the Offeree Ordinary
Shares ("the Shares").
4.2 My acceptance in respect of the Shares shall be made by 09.00
am (London time) on the first closing date of the Offers in
accordance with the procedure for acceptance set out in the
formal document containing the Offers (the "Offer Document") to
be despatched to Shareholders.
4.3 I undertake that Offeror will acquire the Shares pursuant to the
Ordinary Offer free from any lien, charge, or other encumbrance,
equity or other third party right of any nature and together
with all rights of any nature attaching or accruing to them
including the right to all dividends declared, made or paid
after the date of this letter.
4.4 I shall elect to receive only Class A Common Stock of Offeror
as consideration under the Ordinary Offer.
4.5 My obligations under paragraphs 4.1 to 4.4 (inclusive) shall not
apply to prevent me accepting in respect of all my Offeree
Ordinary Shares (but not some only) and shall terminate in the
event that there is made a general offer made by a third party
to acquire the whole of the issued ordinary share capital of
Offeree (other than ordinary shares already held by such third
party or persons acting in concert therewith), which is
unanimously recommended by the directors of Offeree, on terms
which represent (in the opinion of the Directors of Offeree) an
improvement on the value of the consideration offered under the
Ordinary Offer as at the date on which a firm intention to make
such general offer is announced (a "Competing Offer"). In the
event that I accept a Competing Offer and if the Competing Offer
is declared wholly unconditional, I shall pay you a cash sum
and/or transfer securities to you (as provided below) having an
aggregate value in an amount equal to 20% of the product of (i)
30,000,000 and (ii) the difference between the amount per
Ordinary Share of (a) the cash and the fair market value of any
other consideration given to the holders of the Ordinary Shares
pursuant to the Competing Offer, as determined by the directors
of Offeree in good faith, and (b) L4.50. I shall pay
cash/transfer securities (as provided below) to you of an
aggregate value equal to such amount the business day after I
receive the consideration under the Competing Offer. In respect
thereof, you hereby agree if requested by me to accept payment
by way of the transfer of non-cash consideration including loan
notes (other than loan notes received by me in respect of a
Competing Offer which becomes or is declared unconditional in
all respects on or after April 7, 1996) of the same type to the
extent and in the same percentage (or such lower percentage as
I may specify) as I receive it as consideration under the
Competing Offer provided however that I will be responsible for
paying all costs and expenses incurred in transferring any
securities or other non-cash consideration (including, for the
avoidance of doubt all transfer or other taxes) to the Offeror.
Notwithstanding the foregoing provisions, with respect to any
non-cash consideration that I receive in respect of a Competing
Offer which becomes or is declared unconditional in all respects
prior to April 7, 1996, you hereby agree that I shall have no
obligation hereunder to make any payment or transfer of non-cash
consideration in your favour (or to determine in what manner any
liability which I may on April 7, 1996, have to you hereunder
is to be discharged) until April 7, 1996. Notwithstanding my
absolute obligation to pay cash/transfer securities (as
aforesaid) to you of an aggregate value equal to such amount as
aforesaid, you agree that you shall discuss with me and consider
in good faith potential alternative structures which I may
propose in connection with any liability which I may have to you
in such circumstances in order to help me minimise any tax
liability which may arise by virtue of my accepting the
Competing Offer or otherwise by reason of the provisions of this
paragraph 4.5.
4.6 An offer shall not be prevented from being a Competing Offer
within the meaning of paragraph 4.5 solely by reason of the fact
that, when such offer is announced, the making of it is stated
to be the subject of a precondition to the effect that the
resolution referred to in paragraph 7.1 below is not passed.
5. In order to secure the performance of my obligations under
paragraph 4, I irrevocably appoint any director for the time
being of Offeror to be my attorney in my name and on my behalf
to execute a Form or Forms of Acceptance and/or such other
documents and to do such other acts and things as may be
necessary to accept (or procure the acceptance of) the Ordinary
Offer in respect of the Shares. However:
5.1 the appointment shall not take effect until 09.00 am (London
time) on the first closing date of the Offers and only then if
I have failed to comply with my obligations in paragraph 4.2;
and
5.2 such attorney shall act in accordance with paragraph 4.4 (where
applicable).
6. Although the terms of the Ordinary Offer will give accepting
shareholders the right to withdraw acceptances at any time after
the first closing date of the Offers and before the Offers
become or are declared unconditional in all respects I shall not
withdraw my acceptance of the Ordinary Offer in respect of the
Shares unless a Competing Offer is announced.
7. Until the Ordinary Offer becomes or is declared unconditional
in all respects, lapses or is withdrawn (or a firm intention to
make a Competing Offer, as defined in paragraph 4.5, is
announced):
7.1 I shall exercise the voting rights attached to the Offeree
Ordinary Shares in favour of the resolution (the "Special
Resolution") to be proposed at a general meeting of Offeree for
the purpose of increasing the authorised share capital of
Offeree and disapplying the provisions of section 89 of the
Companies Act 1985 in respect of the proposed allotment to you
by Offeree, as referred to in the Press Announcement, of
20,000,000 new Ordinary Shares;
7.2 Subject to my duties as a director of Offeree, I shall not,
without the prior written consent of Offeror, signed by a duly
authorised director, requisition or join in the requisition of
any general or class meeting of Offeree for the purpose of
considering any resolution affecting or having an impact on the
Offers or the proposed allotment referred to in paragraph 7.1
other than the Special Resolution; and
7.3 Subject to my duties as a director of Offeree, I shall not take
any action or make any statement which is or may be prejudicial
to the success of the Offers (it being agreed that any action
or statement which I may take or make in relation to a Competing
Offer, or an offer or approach which the Board of Directors of
Offeree unanimously believes could be or may become a Competing
Offer or lead to the person making such approach (or on whose
behalf such approach is made) making a Competing Offer, shall
not constitute a breach of this paragraph 7.3).
And in particular (without limitation):
7.4 Subject to the provisions of paragraph 4.5, I shall not offer
any Offeree Ordinary Shares to any person or accept any other
offer in respect of all or any of the Offeree Ordinary Shares;
7.5 I shall not make any offer to acquire or acquire the whole or
any part of the issued share capital of Offeree and I shall
procure that no company which I control (as such term is defined
in Section 840 of the Income and Corporation Taxes Act 1988),
will make such an offer or acquisition; and
7.6 I shall not enter into any agreement or arrangement with any
person, whether conditionally or otherwise, to do any of the
acts referred to in this paragraph 7.2 to 7.5;
Provided always that nothing in this paragraph 7 (or elsewhere
in this letter) shall prevent me from (i) engaging in
discussions with any person or persons in connection with a
Competing Offer (as defined in paragraph 4.5), or any offer or
approach which the Board unanimously believes could be or may
become a Competing Offer or lead to the person making such
approach (or on whose behalf such approach is made) making a
Competing Offer or (ii) at any time after the Board unanimously
comes to believe that any such offer, if made, would constitute
a Competing Offer, undertaking to accept and/or recommend to
shareholders, or recommending, any such offer or allowing any
such undertaking to be referred to in any announcement of a
Competing Offer.
8. I agree to:
8.1 the issue of the Press Announcement in the terms attached
(including the reference to me);
8.2 details of this undertaking being set out in the Offer Document
and in any document filed by the Offeror with the Securities and
Exchange Commission as a result of the transactions described
herein or my being appointed a director of the Offeror;
8.3 this undertaking being available for inspection during the offer
period (as defined in the Code).
9. I shall supply you promptly on request with all information,
including details of my interests and dealings in securities of
Offeror and Offeree, and (to the extent that such information
is reasonably available to me) those of any other person
interested in the Shares, as may be required by the Code for
inclusion in the Offer Document or as may be required by the
securities laws and regulations of the United States of America
for inclusion in any document filed by the Offeror with the
Securities and Exchange Commission as a result of the
transactions described herein or my being appointed a director
of the Offeror. I shall notify you promptly of any changes to
such information but in relation to the interests and dealings
of any person other than myself, only to the extent that such
changes are notified to me.
10. In my capacity as director of Offeree, I undertake (subject to
my duties as a director of Offeree) to use all reasonable
endeavours to procure that:
10.1 the Offer Document (unless posted after the announcement of
a firm intention to make a Competing Offer, as defined in
paragraph 4.5) is accompanied by a letter from the
directors of Offeree to Offeree shareholders, in a form
agreed with Offeror (such agreement not to be unreasonably
withheld or delayed), in which the directors unanimously
recommend shareholders to vote in favour of the Special
Resolution to the extent that such recommendation is not
inconsistent with their duties as directors;
10.2 Offeree and its directors provide Offeror and its advisers
with any reasonable assistance and information, execute any
documents reasonably required by the Offeror and do
anything reasonably considered to be necessary to enable
Offeror to:
(a) make the Offers in accordance with the requirements of
the London Stock Exchange, the Code and the securities
laws and regulations of the United States of America;
and
(b) despatch the Offer Document promptly.
10.3 Until the Ordinary Offer becomes or is declared
unconditional in all respects, lapses or is withdrawn (or
a firm intention to make a Competing Offer, as defined in
paragraph 4.5, is made):
(a) that without prior consultation with the Offeror and, in so
far as is practicable giving due consideration to its
views, no member of the Offeree Group will enter into any
transaction outside the ordinary course of business which
is material in the context of the Offeree Group as a whole;
and
(b) that without the prior consent of the Offeror:
(i) there is no amendment to the memorandum or articles of
association of any member of the Offeree Group;
(ii) there is no alteration to the authorised or issued
share capital of any member of the Offeree Group
and no options or rights granted over any such
share capital (other than pursuant to the Special
Resolution or in order to satisfy existing rights
or entitlements);
(iii) there is no amendment (other than the coming into
effect of an amendment prior to the date of this
letter which has been disclosed to the Offeror
specifically for the purposes of this letter) to
the service agreement or other arrangements with
any director of Offeree;
(iv) no member of the Offeree Group makes any
acquisition or disposal of assets of a material
amount as defined in Note 2 to rule 21 of the Code
or grants any interest over assets of a material
amount; or
(v) no special resolution is proposed at any general
meeting of the Offeree (other than the Special
Resolution).
11. Offeror's agreement to make the Offers is conditional on no
event occurring or becoming known to you before despatch of the
Offer Document as a result of which the Panel on Takeovers and
Mergers (the "Panel") requires or permits Offeror not to make
the Offer.
12. I agree that until the Ordinary Offer becomes or is declared
unconditional in all respects, lapses or a firm intention to
make a Competing Offer is announced and save as required by law
or the rules of the London Stock Exchange or the Code, I shall
neither for my own account nor on behalf of Offeree (and I shall
not permit any person on my behalf to) (i) initiate, solicit or
encourage, directly or indirectly, any inquiries or the making
of any proposal or offer (including, without limitation, any
proposal or offer to shareholders of Offeree) with respect to
a merger, consolidation or similar transaction involving, or any
purchase of any of the shares of, Offeree or any purchase of any
of any assets of Offeree or any of its subsidiaries having a
value in excess of L25 million (or the shares of entities
holding the same) (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal," except that
"Acquisition Proposal" shall not include any such transaction
among Offeree and Offeror, Offeree and its wholly owned
subsidiaries or among Offeree's wholly owned subsidiaries) or
(ii) engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions
with, any person relating to an Acquisition Proposal, or (iii)
otherwise facilitate directly or indirectly any effort or
attempt to make or implement an Acquisition Proposal. I will
immediately terminate and use all reasonable endeavours to
procure (in so far as in my capacity as a Director of Offeree
I am able) that Offeree terminates any existing discussions or
negotiations with any parties conducted to-date with respect to
any Acquisition Proposal. I will promptly notify you if any
such inquiries or proposals are received by me, any such
information is requested from me, or any such negotiations or
discussions are sought to be initiated or continued.
Notwithstanding the foregoing, if Offeree receives a Competing
Offer or an offer or approach which the board of directors of
Offeree unanimously believes could be or may become a Competing
Offer or lead to the person making such approach (or on whose
behalf such approach is made) making a Competing Offer, I will
promptly notify you of such offer or approach and I may engage
in the above-mentioned, or any other, activities.
13.1 I agree that, save as provided in paragraph 13.2 and if and
to any extent the number of Ordinary Shares in respect of
which you do obtain acceptances pursuant to the Ordinary
Offer (including excess applications) falls short of
20,000,000, I will sell to you at the time when the
Ordinary Offer becomes or is declared unconditional in all
respects and you will purchase upon the same terms per
ordinary share as the terms of the Ordinary Offer such
additional number of my Offeree Ordinary Shares as is equal
to such shortfall, save to the extent of any part of such
shortfall which is to be satisfied by Mr T. Trickett
pursuant to the terms of an undertaking of even date
herewith. In respect of any such sale of additional
Offeree Shares, I shall receive consideration in the form
of Class A Common Stock of Offeror on the same terms
(including as to the date of settlement) as under the
Ordinary Offer.
13.2 The provisions of paragraph 13.1 shall terminate upon the
announcement of a Competing Offer and shall be of no effect
at any time after the making of any such announcement.
14. This undertaking will lapse if:
14.1 the Press Announcement is not released by 8.30a.m. on 22
February, 1996;
14.2 the Offer Document is not posted to shareholders of Offeree
within 28 days (or such longer period as the Panel may
agree) after the date of the Press Announcement; or
14.3 the Ordinary Offer lapses or is withdrawn.
If the undertaking lapses, I shall have no claim against Offeror
and Offeror shall have no claim against me.
15. Any date, time or period referred to in this undertaking shall
be of the essence except to the extent to which I and Offeror
agree in writing to vary any date, time or period, in which
event the varied date, time or period shall be of the essence.
16. I have been given a realistic opportunity to consider whether
or not I should give this undertaking and whether I should
receive independent advice about the nature of this undertaking.
17. I agree that damages would not be an adequate remedy for breach
of this undertaking.
18. I acknowledge that, in connection with the Offers, C S First
Boston is acting for Offeror and for no-one else and agree that
C S First Boston will not be responsible to me for providing the
protections afforded to its customers nor for providing advice
in relation to the Offers.
19. This undertaking is governed by English law and we each hereby
submit to the exclusive jurisdiction of the High Court of
Justice in England.
20. I acknowledge that any shares of Class A Common Stock of Offeror
to be acquired by me pursuant to paragraph 13 hereof have not
been and will not be registered under the Securities Act of
1933, as amended (the "Securities Act"), and may not be offered,
sold, resold or delivered directly or indirectly in or into the
United States or to, or for the account or benefit of, a US
person (as defined in Regulation 5 promulgated under the
Securities Act) except pursuant to an available exemption from
registration. I also agree to be bound by the same offering
restrictions as are applicable to shares of Class A Common Stock
to be issued in the Ordinary Partial Offer and agree to make
similar representations to the Offeror in respect of United
States securities laws as if I had signed a form of acceptance
under the Ordinary Partial Offer in respect of any Offeree
Ordinary Shares sold by me pursuant to paragraph 13.1.
Signed as a deed by )
DAVID CROSSLAND ) /s/ David Crossland
in the presence of: )
/s/ R.N.F. Lee Signature of witness
R.N.F. Lee Name of witness
Addleshaw, Sons Latham Address of witness
Dennis House, Marsden St.
Manchester
Solicitor Occupation of witness
Agreed and accepted by
/s/ Howard S. Frank
for and on behalf of
Carnival Corporation
21 February, 1996
TO: Carnival Corporation ("Offeror")
3655 NW 87 Avenue
Miami, Florida
United States of America
and 21 February, 1996
CS First Boston Limited
One Cabot Square
London E14 4QJ
United Kingdom
Dear Sirs,
Proposed partial offers for shares in Airtours plc
21. This letter sets out the terms on which I undertake to accept
the offer to be made by (or on behalf of) Offeror (the
"Ordinary Offer") to acquire up to 20,000,000 ordinary shares
representing 17.34 per cent of the current issued ordinary
share capital of Airtours plc ("Offeree").
22. The Ordinary Offer and the offer by (or on behalf of) Offeror
(the "Preference Offer") to acquire up to 8,758,612
convertible cumulative preference shares representing 17.34
per cent of the issued convertible cumulative preference
share capital of Offeree (together with the Ordinary Offer,
"the Offers") shall be made substantially on the terms of the
attached draft press announcement (the "Press Announcement"),
any additional terms and conditions as may be required to
comply with the requirements of The City Code on Takeovers
and Mergers (the "Code"), the London Stock Exchange and the
Securities and Exchange Commission and any additional terms
and conditions agreed between Offeror and Offeree.
23. I warrant and undertake to you that:
23.1 I am the registered holder and beneficial owner of 7,000,000
(the "Offeree Ordinary Shares") ordinary shares of 10p each
in the capital of Offeree ("Ordinary Shares");
23.2 Subject only to the terms of a deed of even date herewith
between myself and David Crossland, I hold the Offeree
Ordinary Shares free from any lien, charge or other
encumbrance, equity or third party right of any nature; and
23.3 I have full power and authority to accept the Ordinary Offer
in respect of such number of Offeree Ordinary Shares as is
referred to in paragraph 4.
4.1 I shall (save as provided herein) irrevocably accept the
Ordinary Offer in respect of 2,000,000 of the Offeree
Ordinary Shares ("the Shares").
4.2 My acceptance in respect of the Shares shall be made by 09.00
am (London time) on the first closing date of the Offers in
accordance with the procedure for acceptance set out in the
formal document containing the Offers (the "Offer Document")
to be despatched to Shareholders.
4.3 I undertake that Offeror will acquire the Shares pursuant to
the Ordinary Offer free from any lien, charge, or other
encumbrance, equity or other third party right of any nature
and together with all rights of any nature attaching or
accruing to them including the right to all dividends
declared, made or paid after the date of this letter.
4.4 I shall elect to receive only Class A Common Stock of Offeror
as consideration under the Ordinary Offer.
4.5 My obligations under paragraphs 4.1 to 4.4 (inclusive) shall
not apply to prevent me accepting in respect of all my
Offeree Ordinary Shares (but not some only) and shall
terminate in the event that there is made a general offer
made by a third party to acquire the whole of the issued
ordinary share capital of Offeree (other than Ordinary Shares
already held by such third party or persons acting in concert
therewith), which is unanimously recommended by the directors
of Offeree, on terms which represent (in the opinion of the
Directors of Offeree) an improvement on the value of the
consideration offered under the Ordinary Offer as at the date
on which a firm intention to make such general offer is
announced (a "Competing Offer"). In the event that I accept
a Competing Offer and if the Competing Offer is declared
wholly unconditional, I shall pay you a cash sum and/or
transfer securities to you (as provided below) having an
aggregate value in an amount equal to 20% of the product of
(i) 7,000,000 and (ii) the difference between the amount per
Ordinary Share of (a) the cash and the fair market value of
any other consideration given to the holders of the Ordinary
Shares pursuant to the Competing Offer, as determined by the
directors of Offeree in good faith, and (b) L4.50. I shall
pay cash/transfer securities (as provided below) to you of
an aggregate value equal to such amount the business day
after I receive the consideration under the Competing Offer.
In respect thereof, you hereby agree if requested by me to
accept payment by way of the transfer of non-cash
consideration (other than loan notes) of the same type to the
extent and in the same percentage (or such lower percentage
as I may specify) as I receive it as consideration under the
Competing Offer provided however that I will be responsible
for paying all costs and expenses incurred in transferring
any securities or other non-cash consideration (including,
for the avoidance of doubt all transfer or other taxes) to
the Offeror. Notwithstanding my absolute obligation to pay
cash/transfer securities (as aforesaid) to you of an
aggregate value equal to such amount as aforesaid, you agree
that you shall discuss with me and consider in good faith
potential alternative structures which I may propose in
connection with any liability which I may have to you in such
circumstances in order to help me minimise any tax liability
which may arise by virtue of my accepting the Competing Offer
or otherwise by reason of the provisions of this paragraph
4.5.
4.6 An offer shall not be prevented from being a Competing Offer
within the meaning of paragraph 4.5 solely by reason of the
fact that, when such offer is announced, the making of it is
stated to be the subject of a precondition to the effect that
the resolution referred to in paragraph 7.1 below is not
passed.
5. In order to secure the performance of my obligations under
paragraph 4, I irrevocably appoint any director for the time
being of Offeror to be my attorney in my name and on my
behalf to execute a Form or Forms of Acceptance and/or such
other documents and to do such other acts and things as may
be necessary to accept (or procure the acceptance of) the
Ordinary Offer in respect of the Shares. However:
5.1 the appointment shall not take effect until 09.00 am (London
time) on the first closing date of the Offers and only then
if I have failed to comply with my obligations in paragraph
4.2; and
5.2 such attorney shall act in accordance with paragraph 4.4
(where applicable).
6. Although the terms of the Ordinary Offer will give accepting
shareholders the right to withdraw acceptances at any time
after the first closing date of the Offers and before the
Offers become or are declared unconditional in all respects
I shall not withdraw my acceptance of the Ordinary Offer in
respect of the Shares unless a Competing Offer is announced.
7. Until the Ordinary Offer becomes or is declared unconditional
in all respects, lapses or is withdrawn (or a firm intention
to make a Competing Offer, as defined in paragraph 4.5, is
announced):
7.1 I shall exercise the voting rights attached to the Offeree
Ordinary Shares in favour of the resolution (the "Special
Resolution") to be proposed at a general meeting of Offeree
for the purpose of increasing the authorised share capital of
Offeree and disapplying the provisions of section 89 of the
Companies Act 1985 in respect of the proposed allotment to
you by Offeree, as referred to in the Press Announcement, of
20,000,000 new Ordinary Shares;
7.2 Subject to my duties as a director of Offeree, I shall not,
without the prior written consent of Offeror, signed by a
duly authorised director, requisition or join in the
requisition of any general or class meeting of Offeree for
the purpose of considering any resolution affecting or having
an impact on the Offers or the proposed allotment referred to
in paragraph 7.1 other than the Special Resolution; and
7.3 Subject to my duties as a director of Offeree, I shall not
take any action or make any statement which is or may be
prejudicial to the success of the Offers (it being agreed
that any action or statement which I may take or make in
relation to a Competing Offer, or an offer or approach which
the Board of Directors of Offeree unanimously believes could
be or may become a Competing Offer or lead to the person
making such approach (or on whose behalf such approach is
made) making a Competing Offer, shall not constitute a breach
of this paragraph 7.3).
And in particular (without limitation):
7.4 Subject to the provisions of paragraph 4.5, I shall not offer
any Offeree Ordinary Shares to any person or accept any other
offer in respect of all or any of the Offeree Ordinary
Shares;
7.5 I shall not make any offer to acquire or acquire the whole or
any part of the issued share capital of Offeree and I shall
procure that no company which I control (as such term is
defined in Section 840 of the Income and Corporation Taxes
Act 1988), will make such an offer or acquisition; and
7.6 I shall not enter into any agreement or arrangement with any
person, whether conditionally or otherwise, to do any of the
acts referred to in this paragraph 7.2 to 7.5;
Provided always that nothing in this paragraph 7 (or elsewhere in
this letter) shall prevent me from (i) engaging in discussions
with any person or persons in connection with a Competing Offer
(as defined in paragraph 4.5), or any offer or approach which the
Board unanimously believes could be or may become a Competing
Offer or lead to the person making such approach (or on whose
behalf such approach is made) making a Competing Offer or (ii) at
any time after the Board unanimously comes to believe that any
such offer, if made, would constitute a Competing Offer,
undertaking to accept and/or recommend to shareholders, or
recommending, any such offer or allowing any such undertaking to
be referred to in any announcement of a Competing Offer.
8. I agree to:
8.1 the issue of the Press Announcement in the terms attached
(including the reference to me);
8.2 details of this undertaking being set out in the Offer
Document and in any document filed by the Offeror with the
Securities and Exchange Commission as a result of the
transactions described herein;
8.3 this undertaking being available for inspection during the
offer period (as defined in the Code).
9. I shall supply you promptly on request with all information,
including details of my interests and dealings in securities
of Offeror and Offeree, and (to the extent that such
information is reasonably available to me) those of any other
person interested in the Shares, as may be required by the
Code for inclusion in the Offer Document or as may be
required by the securities laws and regulations of the United
States of America for inclusion in any document filed by the
Offeror with the Securities and Exchange Commission as a
result of the transactions described herein. For the period
of 40 days following the Ordinary Offer becoming or being
declared unconditional in all respects I shall notify you
promptly of any changes to such information but in relation
to the interests and dealings of any person other than
myself, only to the extent that such changes are notified to
me.
10. In my capacity as director of Offeree, I undertake (subject
to my duties as a director of Offeree) to use all reasonable
endeavours to procure that:
10.1 the Offer Document (unless posted after the announcement of
a firm intention to make a Competing Offer, as defined in
paragraph 4.5) is accompanied by a letter from the directors
of Offeree to Offeree shareholders, in a form agreed with
Offeror (such agreement not to be unreasonably withheld or
delayed), in which the directors unanimously recommend
shareholders to vote in favour of the Special Resolution to
the extent that such recommendation is not inconsistent with
their duties as directors;
10.2 Offeree and its directors provide Offeror and its advisers
with any reasonable assistance and information, execute any
documents reasonably required by the Offeror and do anything
reasonably considered to be necessary to enable Offeror to:
(a) make the Offers in accordance with the requirements of
the London Stock Exchange, the Code and the securities
laws and regulations of the United States of America; and
(b) despatch the Offer Document promptly.
10.3 Until the Ordinary Offer becomes or is declared unconditional
in all respects, lapses or is withdrawn (or a firm intention
to make a Competing Offer, as defined in paragraph 4.5, is
made):
(a) that without prior consultation with the Offeror and, in so
far as is practicable giving due consideration to its views,
no member of the Offeree Group will enter into any
transaction outside the ordinary course of business which is
material in the context of the Offeree Group as a whole; and
(b) that without the prior consent of the Offeror:
(i) there is no amendment to the memorandum or articles of
association of any member of the Offeree Group;
(ii) there is no alteration to the authorised or issued
share capital of any member of the Offeree Group and
no options or rights granted over any such share
capital (other than pursuant to the Special
Resolution or in order to satisfy existing rights or
entitlements);
(iii) there is no amendment (other than the coming into
effect of an amendment prior to the date of this
letter which has been disclosed to the Offeror
specifically for the purposes of this letter) to the
service agreement or other arrangements with any
director of Offeree;
(iv) no member of the Offeree Group makes any acquisition
or disposal of assets of a material amount as
defined in Note 2 to rule 21 of the Code or grants
any interest over assets of a material amount; or
(v) no special resolution is proposed at any general meeting
of the Offeree (other than the Special Resolution).
11. Offeror's agreement to make the Offers is conditional on no
event occurring or becoming known to you before despatch of
the Offer Document as a result of which the Panel on
Takeovers and Mergers (the "Panel") requires or permits
Offeror not to make the Offer.
12. I agree that until the Ordinary Offer becomes or is declared
unconditional in all respects, lapses or a firm intention to
make a Competing Offer is announced and save as required by
law or the rules of the London Stock Exchange or the Code, I
shall neither for my own account nor on behalf of Offeree
(and I shall not permit any person on my behalf to) (i)
initiate, solicit or encourage, directly or indirectly, any
inquiries or the making of any proposal or offer (including,
without limitation, any proposal or offer to shareholders of
Offeree) with respect to a merger, consolidation or similar
transaction involving, or any purchase of any of the shares
of, Offeree or any purchase of any of any assets of Offeree
or any of its subsidiaries having a value in excess of L25
million (or the shares of entities holding the same) (any
such proposal or offer being hereinafter referred to as an
"Acquisition Proposal," except that "Acquisition Proposal"
shall not include any such transaction among Offeree and
Offeror, Offeree and its wholly owned subsidiaries or among
Offeree's wholly owned subsidiaries) or (ii) engage in any
negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any
person relating to an Acquisition Proposal, or (iii)
otherwise facilitate directly or indirectly any effort or
attempt to make or implement an Acquisition Proposal. I will
immediately terminate and use all reasonable endeavours to
procure (in so far as in my capacity as a Director of Offeree
I am able) that Offeree terminates any existing discussions
or negotiations with any parties conducted to-date with
respect to any Acquisition Proposal. I will promptly notify
you if any such inquiries or proposals are received by me,
any such information is requested from me, or any such
negotiations or discussions are sought to be initiated or
continued. Notwithstanding the foregoing, if Offeree receives
a Competing Offer or an offer or approach which the board of
directors of Offeree unanimously believes could be or may
become a Competing Offer or lead to the person making such
approach (or on whose behalf such approach is made) making a
Competing Offer, I will promptly notify you of such offer or
approach and I may engage in the above-mentioned, or any
other, activities.
13.1 I agree that, save as provided in paragraph 13.2 and if and
to any extent the number of Ordinary Shares in respect of
which you do obtain acceptances pursuant to the Ordinary
Offer (including excess applications) falls short of
20,000,000, I will sell to you at the time when the Ordinary
Offer becomes or is declared unconditional in all respects
and you will purchase upon the same terms per Ordinary Share
as the terms of the Ordinary Offer such additional number of
my Offeree Ordinary Shares as is equal to 18.91892 per cent
of such shortfall or, if less, 1,500,000 of such ordinary
shares. In respect of any such sale of additional Offeree
Shares, I shall receive consideration in the form of Class A
Common Stock of Offeror on the same terms (including as to
the date of settlement) as under the Ordinary Offer.
13.2 The provisions of paragraph 13.1 shall terminate upon the
announcement of a Competing Offer and shall be of no effect
at any time after the making of any such announcement.
14. This undertaking will lapse if:
14.1 the Press Announcement is not released by 8.30a.m. on 22
February, 1996;
14.2 the Offer Document is not posted to shareholders of Offeree
within 28 days (or such longer period as the Panel may agree)
after the date of the Press Announcement; or
14.3 the Ordinary Offer lapses or is withdrawn.
If the undertaking lapses, I shall have no claim against Offeror
and Offeror shall have no claim against me.
15. Any date, time or period referred to in this undertaking
shall be of the essence except to the extent to which I and
Offeror agree in writing to vary any date, time or period, in
which event the varied date, time or period shall be of the
essence.
16. I have been given a realistic opportunity to consider whether
or not I should give this undertaking and whether I should
receive independent advice about the nature of this
undertaking.
17. I agree that damages would not be an adequate remedy for
breach of this undertaking.
18. I acknowledge that, in connection with the Offers, C S First
Boston is acting for Offeror and for no-one else and agree
that C S First Boston will not be responsible to me for
providing the protections afforded to its customers nor for
providing advice in relation to the Offers.
19. This undertaking is governed by English law and we each
hereby submit to the exclusive jurisdiction of the High Court
of Justice in England.
20. I acknowledge that any shares of Class A Common Stock of
Offeror to be acquired by me pursuant to paragraph 13 hereof
have not been and will not be registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not
be offered, sold, resold or delivered directly or indirectly
in or into the United States or to, or for the account or
benefit of, a US person (as defined in Regulation 5
promulgated under the Securities Act), except pursuant to an
available exemption from registration. I also agree to be
bound by the same offering restrictions as are applicable to
shares of Class A Common Stock to be issued in the Ordinary
Partial Offer and agree to make similar representations to
the Offeror in respect of United States securities laws as if
I had signed a form of acceptance under the Ordinary Partial
Offer in respect of any Offeree Ordinary Shares sold by me
pursuant to paragraph 13.1.
Signed as a deed by )
THOMAS TRICKETT ) /s/ Thomas Trickett
in the presence of: )
/s/ R.N.F. Lee Signature of witness
R.N.F. Lee Name of witness
Addleshaw, Sons & Latham Address of witness
Dennis House, Marsden St.
Manshester
Solicitor Occupation of witness
Agreed and accepted by
/s/ Howard S. Frank
for and on behalf of
Carnival Corporation
21 February, 1996
SHAREHOLDERS' AGREEMENT
between
CARNIVAL CORPORATION
and
DAVID CROSSLAND
Dated February 21, 1996
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Restrictions on Transfer of Shares . . . . . . . . . . . . 3
2.1 Limitation on Transfer. . . . . . . . . . . . . . . . 3
2.2 Permitted Transfers . . . . . . . . . . . . . . . . . 4
2.3 Permitted Transfer Procedures . . . . . . . . . . . . 5
2.4 Agreement to be Bound; Substitution of Transferee . . 5
2.5 Registration Rights . . . . . . . . . . . . . . . . . 5
3. Notice of Proposed Transfers.. . . . . . . . . . . . . . . 6
4. Directors. . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Election of Directors . . . . . . . . . . . . . . . . 7
4.2 Removal and Replacement . . . . . . . . . . . . . . . 8
4.3 The Existing Shareholder. . . . . . . . . . . . . . . 9
4.4 Purchaser's Appointment of the Existing Shareholder . 9
5. Exceptions to Restrictions . . . . . . . . . . . . . . . . 10
6. Stock Certificate Legend . . . . . . . . . . . . . . . . . 10
7. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 11
7.1 Notices . . . . . . . . . . . . . . . . . . . . . . . 11
7.2 Amendment and Waiver. . . . . . . . . . . . . . . . . 13
7.3 Specific Performance. . . . . . . . . . . . . . . . . 13
7.4 Headings. . . . . . . . . . . . . . . . . . . . . . . 14
7.5 Severability. . . . . . . . . . . . . . . . . . . . . 14
7.6 Entire Agreement. . . . . . . . . . . . . . . . . . . 14
7.7 Term of Agreement . . . . . . . . . . . . . . . . . . 14
7.8 Variations in Pronouns. . . . . . . . . . . . . . . . 15
7.9 Governing Law . . . . . . . . . . . . . . . . . . . . 15
7.10 Jurisdiction and Venue. . . . . . . . . . . . . . . . 15
7.11 Further Assurances. . . . . . . . . . . . . . . . . . 16
7.12 Successors and Assigns. . . . . . . . . . . . . . . . 16
7.13 Counterparts. . . . . . . . . . . . . . . . . . . . . 16
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated February __, 1996 (this "Agreement"),
between Carnival Corporation, a Panamanian Corporation (the
"Purchaser") and David Crossland (the "Existing Shareholder").
W I T N E S S E T H :
WHEREAS, the Purchaser and Airtours plc, a company incorporated
under the laws of England and Wales (the "Company"), have entered
into a share subscription agreement ("the Subscription Agreement")
whereby the Purchaser has agreed to subscribe for 20 million
Ordinary Shares of the Company for L5.00 per Ordinary Share, upon
the terms and subject to the conditions contained therein (the
"Share Subscription");
WHEREAS, the Purchaser and the Company have announced that the
Purchaser intends to commence a partial offer for up to 20 million
Ordinary Shares of the Company and a partial offer for up to
8,758,612 Preference Shares of the Company, upon the terms and
subject to the conditions set forth in the press announcement (a
copy of which is annexed hereto) to be dated February ___, 1996 (the
"Partial Offers");
WHEREAS, the Existing Shareholder and Thomas Trickett have agreed,
subject to the Partial Offers becoming unconditional in all respects
and the obligations of the Existing Shareholder and Thomas Trickett
pursuant to the irrevocable undertakings of even date herewith not
having terminated pursuant to paragraph 4.5 thereof, to sell to the
Purchaser such further number of Ordinary Shares (the "Share
Purchase") so that after the Share Subscription, the Partial Offers
and the Share Purchase are consummated the Purchaser shall own
40 million Ordinary Shares and up to 8,758,612 Preference Shares.
WHEREAS, in order to induce the Purchaser to consummate the Share
Subscription, the Partial Offers and the Share Purchase, the parties
hereto wish to restrict the transfer of the Ordinary Shares and the
Common Stock of the Purchaser to be held by the Existing Shareholder
immediately following completion of the Share Subscription, the
Partial Offers and the Share Purchase.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
21. Definitions.
As used in this Agreement, the following terms shall have the
meanings set forth below:
"Board of Directors" means the Board of Directors of the
Company.
"Closing Date" means the date on which the Partial
Offers become or are declared wholly
unconditional.
"Common Stock" means shares of Class A Common Stock,
par value $.01 per share, of the
Purchaser (including any other capital
stock of the Purchaser into which the
Class A Common Stock may be
reclassified or reconstituted and also
including any capital stock of the
Purchaser arising from such Common
Stock by reason of any stock split
and/or consolidation in relation to
such stock).
"Family Members" has the meaning assigned such term
in Section 2.2.2.
"Family Trust" has the meaning assigned such term in
Section 2.2.2.
"Involuntary Transfer" means any transfer, proceeding or action by
or in which the Existing Shareholder shall
be deprived or divested of any right, title
or interest in or to any Ordinary Shares,
including, without limitation, any seizure
under levy of attachment or execution, any
transfer in connection with bankruptcy
(whether pursuant to the filing of a
voluntary or an involuntary petition under
the bankruptcy laws of England and Wales or
elsewhere) or other court proceeding to a
debtor in possession, trustee in bankruptcy
or receiver or other officer or agency.
"Ordinary Shares" means ordinary shares of 10p each
in the capital of the Company
(including any other shares in the
capital of the Company into which
such ordinary shares may at any
time be converted and also
including any shares in the capital
of the Company arising from the
same by reason of any subdivision
and/or consolidation of such
Ordinary Shares or by reason of any
issue of shares in the Company by
way of capitalisation of reserves).
"Permitted Transferees" has the meaning assigned such term
in Section 2.2.
"Person" means any individual, firm, corpora-
tion, partnership, limited liability
company, trust, incorporated or
unincorporated association, joint
venture, joint stock company,
governmental body or other entity of
any kind.
"Shares" means all such Ordinary Shares as are
held by the Existing Shareholder
immediately following completion of the
Partial Offers and the Share Purchase
and all such Common Stock as is
received by the Existing Shareholder
pursuant to the Partial Offers and the
Share Purchase.
"Shareholders" shall mean the Existing Shareholder and
any Permitted Transferee and the term
"Shareholder" shall mean any such
Person.
"Shareholders' Meeting" has the meaning assigned such term
in Section 4.1.
"transfer" has the meaning set forth in Section
2.1.
"Written Resolution" has the meaning set forth in
Section 4.1.
22. Restrictions on Transfer of Shares.
22.1 Limitation on Transfer
Prior to the second anniversary of the Closing Date, the Existing
Shareholder shall not sell, give, assign, hypothecate, pledge,
charge, encumber, grant a lien or security interest in or
otherwise transfer (whether by operation of law or otherwise) any
Shares or any right, title or interest therein or thereto
(including, without limitation, any beneficial interests or voting
rights in the Shares)(each a "transfer"), except (i) in accordance
with the provisions of this Agreement or (ii) with the consent of the
Purchaser or (iii) any transfer by way of
acceptance of the Partial Offers or in implementation of the Share
Purchase; or (iv) any Involuntary Transfer. Any attempt to transfer
any Shares or any rights thereunder in violation of the preceding
sentence shall be null and void ab initio and, with respect to
Common Stock, the Purchaser shall not register any such transfers.
For the avoidance of doubt neither the provisions of this Section
2 nor the provisions of Section 3 shall apply to any Ordinary Shares
acquired by the Existing Shareholder after Completion of the Partial
Offers and the Share Purchase or to any Common Stock acquired by the
Existing Shareholder otherwise than pursuant to the Partial Offers
and the Share Purchase.
22.2 Permitted Transfers
Notwithstanding anything to the contrary contained in this
Agreement, the Existing Shareholder may transfer Shares in
accordance with Section 2.2 and Sections 2.3 and 2.4 (the Persons
to whom the Existing Shareholder may so transfer Shares (other
than a transfer under Section 2.2.2) being referred to hereinafter
as "Permitted Transferees").
22.2.1 Transfers by the Existing Shareholder
At any time, the Existing Shareholder may transfer any or all
of his Shares to a member of his immediate family, which
shall include his parents, spouse, siblings, children (and
any children of his spouse or former spouse) or grandchildren
(and any grandchildren of his spouse or former spouse)
("Family Members"), or a trust, corporation, limited
liability company or partnership, all of the beneficial
interests in which shall be held by him or one or more of his
Family Members (collectively, a "Family Trust"); provided,
however, that during the period any such trust, corporation,
or partnership holds any right, title or interest in any
Shares, no Person other than David Crossland or one or more
of his Family Members may be or become beneficiaries,
stockholders, members or limited or general partners thereof.
22.2.2 Exchange Transactions
At any time, the Existing Shareholder may sell Shares;
provided, that the aggregate sales proceeds (net of selling
expenses and brokerage costs, but not any applicable taxes)
from such sales ("the Permitted Sales") made at any time
after this Agreement becomes effective (whether or not during
the two years following the Closing Date) may not exceed L25
million. The Existing Shareholder may also sell Shares
generating sales proceeds (net of selling expenses and
brokerage costs) of up to a sum equal to the amount of any
capital gains tax payable in respect of the Permitted Sales
(and/or in respect of the sale of Shares in accordance with
this sentence) provided that such sale proceeds (net of
selling expenses and brokerage costs) do not exceed L10
million in the aggregate. In addition to any Shares which
may be disposed of in accordance with the preceding two
sentences, the Existing Shareholder may sell Shares such that
the aggregate sale proceeds (net of selling expenses and
brokerage costs, but not any applicable taxes) from such
sales equal the amount of the capital gains tax, if any,
payable by the Existing Shareholder in respect of his
disposal of Ordinary Shares in the Partial Offers and/or the
Share Purchase (including capital gains tax payable as a
result of sales of Shares in accordance with this sentence).
For purposes of this Section 2.2.2, any sales in U.S. dollars
shall be converted into pounds sterling on the basis of the
noon buying rate in New York City for pounds sterling as
certified for customs purposes by the Federal Reserve Bank of
New York, in each case, on the date or dates on which such
Shares are sold.
22.3 Permitted Transfer Procedures
If the Existing Shareholder wishes to transfer Shares under this
Section 2, the Existing Shareholder shall give notice to the
Purchaser of its intention to make any transfer permitted under
this Section 2 not less than seven (7) days prior to effecting
such transfer, which notice (in the case of a transfer under
Section 2.2.1) shall state the name and address of each Permitted
Transferee to whom such transfer is proposed and the number and
type of Shares proposed to be transferred to such Permitted
Transferee or, with respect to any transfer under Section 2.2.2,
the number and type of Shares to be sold and the proposed date or
dates of sale (it being understood that the Existing Shareholder
shall be under no obligation to sell any Shares on such date or
dates and that he shall be entitled to sell the relevant Shares
on (an) alternative date(s) without giving any further
notification hereunder Provided that such Shares are sold not less
than eight (8) days after the relevant notification has been given
hereunder and not more than 30 days after the proposed date (or
the last of the proposed dates) for such sale(s) referred to in
such notification).
22.4 Agreement to be Bound; Substitution of Transferee
No transfer (other than a transfer pursuant to Section 2.2.2) may
be made pursuant to this Section 2 unless the Permitted Transferee
has agreed in writing in respect of the Shares so transferred to
be bound by the terms and conditions of this Agreement. With
respect to the Shares transferred to a Permitted Transferee, the
Permitted Transferee shall be substituted for, and enjoy the same
rights and be subject to the same obligations, as its predecessor
hereunder.
22.5 Registration Rights
If the Existing Shareholder proposes to transfer any Common Stock
received pursuant to the Partial Offers and the Share Purchase,
other than in contravention of the provisions of this Agreement,
the Existing Shareholder may request that its United States
securities counsel (which shall be Cleary, Gottlieb, Stein &
Hamilton or another United States securities counsel designated
by the Existing Shareholder and reasonably acceptable to the
Purchaser) ("Shareholder Counsel") deliver a legal opinion to him
and the Purchaser that the proposed transfer can be made without
registration under Section 5 of Securities Act of 1933, as amended
(the "Act"), subject to customary assumptions and qualifications
(the "Securities Law Opinion"), which legal opinion shall be
reasonably satisfactory to the Existing Shareholder and the
Purchaser. If Shareholder Counsel is unable to deliver the
Securities Law Opinion, then the Existing Shareholder may request
that the Purchaser's United States securities counsel (which shall
be Paul, Weiss, Rifkind, Wharton & Garrison or another United
States securities counsel designated by the Purchaser and
reasonably acceptable to the Existing Shareholder) ("Purchaser
Counsel") deliver the Securities Law Opinion to him and the
Purchaser, which legal opinion shall be reasonably satisfactory
to the Existing Shareholder and the Purchaser. The Existing
Shareholder shall cooperate with Purchaser Counsel by delivering
customary certificates and other information reasonably requested
by Purchaser Counsel and the Purchaser shall use all reasonable
endeavours to procure that Purchaser Counsel shall either deliver
the Securities Law Opinion, or confirm that it is not able to give
such an opinion, as soon as reasonably practicable after receipt
of the relevant request from the Existing Shareholder. If
Purchaser Counsel is unable to deliver the Securities Law Opinion
with respect to the proposed transfer, then the Purchaser agrees
to enter into a registration rights agreement with the Existing
Shareholder, on customary terms and conditions, to provide the
Existing Shareholder (as soon as reasonably practicable after it
has become apparent that the Securities Law Opinion cannot be
given either by Shareholder Counsel or Purchaser Counsel) with (i)
demand registration rights for one registration statement to allow
the resale of the Common Stock acquired by the Existing
Shareholder in the Partial Offers and the Share Purchase and then
held by him (the "Subject Shares") and (ii) piggy-back
registration rights with respect to the Subject Shares.
Notwithstanding the foregoing, the Purchaser shall not be required
to provide a Securities Law Opinion or to enter into a
registration rights agreement if, in the opinion of Purchaser
Counsel (which opinion is delivered in writing to the Purchaser
and the Existing Shareholder in a form reasonably satisfactory of
the Existing Shareholder and the Purchaser), the Existing
Shareholder may resell the Subject Shares under Rule 144
promulgated under the Act (or any successor provision) within a
period of 180 days.
23. Notice of Proposed Transfers.
23.1 If, at any time on or after the second anniversary of the
Closing Date, the Existing Shareholder wishes to sell or
otherwise transfer any Shares which are Ordinary Shares
(other than in accordance with Sections 2.2 and 2.3), the
Existing Shareholder shall first notify the Purchaser in
writing of such intention and shall not enter into (or agree
to enter into) such transfer or disposition until at least 15
days after the giving of such notice. During such 15 day
period, the Purchaser or another Person designated by the
Purchaser may make an offer to purchase such Ordinary Shares
and the parties agree to discuss such offer. Under no
circumstances shall the Existing Shareholder be obligated to
sell such Ordinary Shares to the Purchaser or another Person
by virtue of this Section 3.
23.2 The provisions of Section 3.1 shall have no application to:
(a) any transfer(s) of Ordinary Shares after the second
anniversary of the Closing Date if such transfer by the
Existing Shareholder shall be made in accordance with
Sections 2.2 and 2.3; or
(b) to any transfer of less than 2,500,000 (or such greater
number as shall from time to time represent 25% of the
Ordinary Shares then held by the Existing Shareholder)
Ordinary Shares ("the Transfer Limit") Provided that
transfers exempted from clause 3.1 pursuant to this
clause 3.2 (b) shall not in aggregate exceed, during any
three month period, the Transfer Limit.
24. Directors
24.1 Election of Directors
24.1.1 In his capacity as director of the Company, the Existing
Shareholder agrees (subject to his duties as a director
of the Company) to use all reasonable endeavours to
procure that if the Partial Offers become or are declared
unconditional in all respects, the directors of the
Company shall promptly approve the appointment of Micky
Arison and Howard S. Frank as directors of the Company.
24.1.2 On or after the Closing Date, for so long as the
Purchaser owns Ordinary Shares representing at least 20%
of the Company's ordinary share capital in issue from
time to time and the Purchaser owns Ordinary Shares which
(taking full account of any sub-division and/or
consolidation of the ordinary share capital of the
Company, or any issue by the Company by way of
capitalisation of reserves, after the date of this
Agreement) represent at least 75% of the aggregate number
of Ordinary Shares acquired by the Purchaser in the
Partial Offers, the Share Subscription and the Share
Purchase, the Existing Shareholder shall vote all
Ordinary Shares and other voting securities of the
Company then held by him in all elections for directors
of the Company whether at any annual or extraordinary
general meeting of shareholders of the Company or in any
written resolution executed in lieu of such a meeting so
that the Board of Directors shall (subject to the Board
of Directors having approved the identity of the relevant
individuals as referred to in Clause 6.3 of the
Subscription Agreement) include at all times two
individuals designated by the Purchaser (the "Purchaser
Directors") Provided that the Existing Shareholder shall
not be obliged hereunder to vote all or any of his
Ordinary Shares (or other voting securities of the
Company), or otherwise comply with the provisions of this
Section 4.1.2, in respect of any resolution to appoint,
or re-appoint, to the Board of Directors of the Company
any individual whose office as a director of the Company
has been vacated pursuant to the Articles of Association
of the Company or in respect of whom a resolution of the
Company in general meeting removing him from such office
has been passed or a resolution of the Company in general
meeting in relation to his appointment or re-appointment
as a director has failed to be passed. Subject to the
other provisions of this Section 4.1, the Purchaser's
rights under the preceding sentence shall continue if the
Purchaser owns Ordinary Shares representing less than 20%
of the ordinary share capital of the Company in issue
from time to time if such percentage falls below 20%
solely by reason of the Purchaser not participating in
any issue of Ordinary Shares by the Company which is not
made available to the Purchaser (a " Restricted Share
Offer"). The provisions of the first sentence of this
Section 4.1.2 shall continue to apply, but in respect of
only one Purchaser Director (a) if the Purchaser's
percentage ownership of the issued ordinary share capital
of the Company falls below 20% other than solely by
reason of the Purchaser not participating in a Restricted
Share Offer or (b) if such percentage ownership falls
below 15% for any reason. Once the Purchaser's
percentage ownership in the ordinary share capital of the
Company has fallen below 15%, other than solely by reason
of the Purchaser not participating in a Restricted Share
Offer, or below 10% for any reason, the provisions of
this Section 4.1.2 shall be of no effect.
24.2 Removal and Replacement
After the Closing Date, the Purchaser shall be entitled at any
time and for any reason (or for no reason) to designate one or
both of the Purchaser Directors for removal. If at any time after
the Closing Date, a vacancy is created on the Board of Directors
by reason of the death, removal or resignation of any Purchaser
Director, then the Purchaser shall designate a nominee or nominees
to be elected to fill such vacancy until the next annual general
meeting of the Company, and provided that such nominee shall have
been approved by the Board of Directors as referred to in Clause
6.3 of the Subscription Agreement the Existing Shareholder shall,
as soon as practicable after the date such vacancy first occurs
and in any event prior to the transaction of any other business
by the shareholders recommend such nominee(s) to the shareholders
of the Company and at any general meeting of the Company vote all
Ordinary Shares and other voting securities of the Company then
held by him to elect such nominee or nominees. The rights of the
Purchaser under this Section 4.2 shall be reduced or extinguished
to the same extent as the rights provided for in Section 4.1.
24.3 The Existing Shareholder
For so long as the Existing Shareholder is required pursuant to
Section 4.1.2 to vote his Ordinary Shares and other voting
securities of the Company for at least one Purchaser Director and
David Crossland remains the Executive Chairman or Chief Executive
of the Company, then the Purchaser agrees that, on any resolution
relating to the appointment or re-appointment to the Board of
Directors of the Company, or removal from such Board, of David
Crossland, whether at any annual or extraordinary general meeting
of shareholders of the Company or in any written resolution
executed in lieu of such a meeting, it shall vote all Ordinary
Shares and other voting securities of the Company held by it in
favour of Mr Crossland's appointment or re-appointment to such
Board (or, as the case may be, retention on such Board) Provided
that the provisions of this Section 4.3 shall not apply in respect
of any resolution to appoint, or re-appoint, Mr Crossland to such
Board if he shall have vacated office as a director of the Company
pursuant to the Articles of Association of the Company or if a
resolution of the Company in general meeting removing him from
such office has been passed or if a resolution of the Company in
general meeting in relation to his appointment or re-appointment
to such office has failed to be passed.
24.4 Purchaser's Appointment of the Existing Shareholder
The Purchaser hereby undertakes to the Existing Shareholder that
David Crossland shall be appointed a Director of the Purchaser
immediately following the later of (i) the Closing Date and (ii)
the Purchaser's 1996 Annual Meeting of Stockholders (scheduled to
be held on April 15, 1996) and further undertakes that the
Purchaser will not thereafter remove him from the Board of
Directors of the Purchaser or procure or seek or instigate his
removal from such Board until the earliest of the following
events: (i) David Crossland ceasing to be the Executive Chairman
or Chief Executive of the Company; (ii) the rights of the
Purchaser pursuant to the provisions of Section 4.1.2 either (a)
ceasing or (b) reducing so as to apply in respect of only one
Purchaser Director where such reduction occurs for any reason
other than as a result of the issue of Ordinary Shares as
consideration in the acquisition of another Person or part or all
of the undertaking of another Person and (iii) the Existing
Shareholder ceasing to hold Common Stock which (taking full
account of any stock split, stock dividend, recapitalisation
subdivision, or other consolidation in relation to such stock
after the date of this Agreement) represents less than 500,000
shares of the Common Stock issued to the Existing Shareholder
pursuant to the Partial Offers and the Share Purchase Provided
that the Purchaser shall not be obliged to maintain (or seek to
maintain) David Crossland on its Board of Directors or to seek to
procure his re-appointment of such Board if he is not eligible to
serve as a Director under the Company's or the Purchaser's
Articles of Association or by-laws or under applicable law.
25. Exceptions to Restrictions.
(i) Without complying with Sections 2 or 3, the Existing
Shareholder may transfer any or all of his Ordinary Shares
pursuant to (a) an offer, tender offer or partial offer
commenced by any Person which is either unanimously
recommended by the Board of Directors or is recommended by
all of the members of the Board of Directors other than
Purchaser Directors or (b) a general offer made by any Person
for the entire issued ordinary share capital of the Company
(other than Ordinary Shares held by such Person or parties
acting in concert with it) or (c) a merger, recapitalization,
reorganisation, scheme of arrangement, consolidation or
similar transaction approved by the holders of the Ordinary
Shares.
(ii) Without complying with Section 2, the Existing
Shareholder may transfer any or all of his Common Stock
pursuant to (a) a tender offer or exchange offer
commenced (1) by the Company or (2) by any other Person
with respect to which the Board of Directors of the
Purchaser sends to its stockholders a statement that it
recommends such offer or is neutral with respect to such
offer, (b) a tender offer or exchange offer made by any
Person for all of the outstanding shares of Common Stock
of the Purchaser (other than shares of Common Stock held
by such Person and its affiliates) or (c) pursuant to a
merger, recapitalization, consolidation or similar
transaction approved by the holders of the Common Stock.
(iii) Notwithstanding any other provision of this Agreement,
Section 2 shall not apply to the Existing Shareholder's
participation in the Partial Offers in accordance with
his Irrevocable Undertaking dated as of the date hereof
or selling certain of his Ordinary Shares in the Share
Purchase.
26. Stock Certificate Legend
A copy of this Agreement shall be filed with the Secretary of the
Purchaser and kept with the records of the Purchaser. During the
period of two years after the Closing Date or, if shorter, the
period during which this Agreement remains in force, the parties
shall use all reasonable endeavours to cause each certificate
representing Shares to bear a legend substantially in the
following form:
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") OF ANY OF THE SECURITIES REPRE-
SENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SHAREHOLDERS' AGREEMENT, DATED FEBRUARY 21, 1996 (THE
"SHAREHOLDERS' AGREEMENT"), BETWEEN CARNIVAL CORPORATION (THE
"COMPANY") AND DAVID CROSSLAND[, A COPY OF WHICH MAY BE INSPECTED
AT THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER
THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY
UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE
TERMS OF THE SHAREHOLDERS' AGREEMENT.
In addition, the parties shall use all reasonable endeavours to
procure that such legend is removed from relevant stock and share
certificates upon the expiry of such two year period (or if
sooner, on the date on which this Agreement terminates).
27. Miscellaneous.
27.1 Notices
A notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally
or sent by pre-paid first class post recorded delivery (or
recorded delivery air mail if overseas) or by fax to the party due
to receive the notice or communication sent during normal business
hours in the jurisdiction of the sender (with the sender receiving
confirmation of receipt) at its address set out below (or fax
number specified below) or another address or fax number specified
by that party by written notice to the other. A notice or other
communication is deemed given when actually received (as evidenced
by the recorded delivery or the confirmation of receipt of fax).
The addresses and fax numbers of the parties for the purposes of
this Section 7.1 are as follows:
(a) if to the Purchaser:
Carnival Corporation
3655 NW 87 Avenue
Miami, Florida USA 33010
Attention: Howard S. Frank
Telecopy: (305) 471-4700
with a copy to:
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
United Kingdom
Attention: Simon Burgess
Telecopy: (+44)-171-600-5555
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: James Dubin, Esq.
Telecopy: 001-212-757-3990
(b) if to David Crossland:
David Crossland
Tower Hamlet
Princess Tower Road
Hougue Bie
St Saviours
Jersey JE2 7UA
Telecopy: 01534 854311
with a copy to:
Mourant du Feu & Jeune
PO Box 87
22 Grenville Street
St Helier
Jersey JE4 8PX
Attention: Conrad Coutanche
Telecopy: 01534 609333
27.2 Amendment and Waiver
(i) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or fur-
ther exercise thereof or the exercise of any other right,
power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be
available to the parties hereto at law, in equity or
otherwise.
(ii) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision
of this Agreement, and any consent to any departure by
any party from the terms of any provision of this
Agreement, except as otherwise expressly provided for
herein, shall be effective (a) only if it is made or
given in writing and signed by the Purchaser and the
Existing Shareholder (and by any Permitted Transferees)
and (b) only in the specific instance and for the
specific purpose for which made or given.
27.3 Specific Performance
The parties hereto intend that each of the parties have the right
to seek damages or specific performance in the event that the
other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or
proceeding to enforce the provisions hereof, the party against
whom such action or proceeding is brought hereby waives any claim
or defense therein that the plaintiff party has an adequate remedy
at law.
27.4 Headings
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
27.5 Severability
If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any
way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
27.6 Entire Agreement
This Agreement, together with the exhibits hereto, is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
27.7 Term of Agreement
This Agreement shall terminate in the event that the obligations
of the Existing Shareholder and Thomas Trickett under paragraphs
4.1 to 4.4 of the irrevocable undertakings of even date herewith
given by them to the Purchaser are terminated pursuant to
paragraph 4.5 thereof and this Agreement shall, provided that it
shall not have terminated as aforesaid, become effective upon the
Closing Date and shall be of no effect prior to that time.
Notwithstanding the foregoing, if the Closing Date does not occur
prior to May 30, 1996, this Agreement shall terminate. After the
effectiveness of this Agreement, (i) this Agreement shall
terminate if the Purchaser and its permitted transferees under the
Subscription Agreement (the "Purchaser Transferees") own less than
13,333,333 of the Ordinary Shares acquired by the Purchaser in the
Share Subscription, the Partial Offers and the Share Purchase
(taking full account of any sub-division and/or consolidation of
the ordinary share capital of the Company, or any issue by the
Company by way of capitalisation of reserves, after the date of
this Agreement) and (ii) Sections 2.1, 2.2, 2.3, 2.4 and 3 of this
Agreement shall terminate if the Purchaser and the Purchaser
Transferees own less than 26,666,666 of the Ordinary Shares
acquired by the Purchaser in the Share Subscription, the Partial
Offers and the Share Purchase (taking full account of any sub-division
and/or consolidation of the ordinary share capital of the
Company, or any issue by the Company by way of capitalisation of
reserves, after the date of this Agreement).
27.8 Variations in Pronouns
All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may
require.
27.9 Governing Law
This Agreement shall be governed and construed in accordance with
English law.
27.10 Jurisdiction and Venue.
(i) The courts of England shall have exclusive jurisdiction to
hear and decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection
with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably
submits to the exclusive jurisdiction of the courts of
England.
(ii) Each party irrevocably waives any objection which it
might at any time have to the courts of England being
nominated as the forum to hear and decide any Proceedings
and to settle any Disputes and agrees not to claim that
the courts of England are not a convenient or appropriate
forum.
(iii) Process by which any proceedings are begun in England may
be served on the Purchaser by being personally delivered
to Clifford Chance, 200 Aldersgate Street, London EC1A
4JJ marked for the attention of Simon G.F. Burgess.
Process by which any proceedings are begun in England may
be served on the Existing Shareholder by being personally
delivered to Addleshaw Sons & Latham, Dennis House,
Marsden Street, Manchester M2 1JD marked for the
attention of Paul A. Lee. Nothing contained in this
Section 7.10 affects the right to serve process in
another matter permitted by law.
27.11 Further Assurances
Each of the parties shall execute such instruments and take such
action as may be reasonably necessary to carry out the provisions
hereof and the transactions contemplated hereby.
27.12 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors, heirs, legatees and
legal representatives. Without the consent of each of the
parties, this Agreement is not assignable except in connection
with a transfer of Shares by the Existing Shareholder to a
Permitted Transferee or by the Purchaser to any permitted assignee
of the benefit of the Subscription Agreement.
27.13 Counterparts
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have caused
to be executed, this Agreement on the date first written above.
CARNIVAL CORPORATION
By:/s/ Howard S. Frank
Name:
Title:
/s/ David S. Crossland
DAVID CROSSLAND
DATED 21 FEBRUARY, 1996
(1) CARNIVAL CORPORATION
(2) AIRTOURS PLC
____________________________________________
SUBSCRIPTION AGREEMENT
____________________________________________
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
Tel: (0171) 600 1000
Fax: (0171) 6000 5555
Ref: SGFB/C3976/24/CWB
CONTENTS
PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . 1
2. THE OFFERS . . . . . . . . . . . . . . . . . . . . . . . . 5
3. CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . 5
4. COMPANY/PURCHASER UNDERTAKINGS . . . . . . . . . . . . . . 6
5. COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . 10
6. SHARE RIGHTS/DIRECTOR RIGHTS . . . . . . . . . . . . . . . 11
8. RESTRICTIONS ON TRANSFER OF SHARES . . . . . . . . . . . . 14
9. STANDSTILL PROVISIONS. . . . . . . . . . . . . . . . . . . 16
10. TERMINATION OF RESTRICTIONS. . . . . . . . . . . . . . . . 17
11. SECURITIES PROVISIONS. . . . . . . . . . . . . . . . . . . 18
12. ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . . . 18
13. CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . 19
14. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . 21
15. NON COMPETE. . . . . . . . . . . . . . . . . . . . . . . . 21
16. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . 24
17. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . 24
18. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULES
Schedule 1 - Conditions
Schedule 2 - Warranties
Schedule 3 - Provisions for the protection of the Company
Agreed Form Document - Press Release
THIS AGREEMENT is made the 21st day of February, 1996 between:-
1. CARNIVAL CORPORATION a corporation registered in Panama
having its principal place of business at 3655 NW 87th
Avenue, Miami, Florida, USA (" the Purchaser").
2. AIRTOURS PLC a limited liability company registered in
England and Wales (Registered no 742748) and having its
registered office at Parkway Three, Parkway Business Centre,
300 Princess Road, Manchester M14 7QU ("the Company").
WHEREAS
(A) The Purchaser wishes to acquire 40 million Ordinary Shares in
the capital of the Company through making a partial offer for
up to 20 million Ordinary Shares and subscribing for 20
million new Ordinary Shares.
(B) The purpose of this agreement is to regulate such
transactions which will be made on the basis of and
subject to the terms and conditions hereinafter set out.
NOW IT IS HEREBY AGREED as follows:
28. INTERPRETATION
28.1 In this Agreement:-
"the Act" means the Companies Act 1985;
"the Code" means The City Code on Takeovers and Mergers;
"Company Group" means the Company, its subsidiaries and subsidiary
undertakings;
"Completion" means Completion of the obligations of the parties
hereto in accordance with Clause 5;
"Completion Date" means the date on which Completion takes place;
"the Conditions" means the matters on which Completion is
conditional and which are set out in Schedule 1 hereto;
"Directors" means the Board of Directors of the Company;
"Disclosure Information" means:
(a) all information contained in the documents listed in the
Index marked "A" and the Index marked "B", copies of which
have been initialled by or on behalf of the Purchaser and the
Company;
(b) all information contained in the notes of meetings held
between representatives of the Company (or its advisers) and
representatives of the Purchaser (or its advisers) which
notes have been initialled by or on behalf of the Purchaser
and the Company and are contained in the bundle marked "C";
(c) all information contained in copy documentation/files made
available for inspection by the Purchaser and its advisers at
the offices of the Company's auditors, Grant Thornton; and
(d) all information supplied verbally to the Purchaser and its
advisers by any partner or professional employee of Grant
Thornton;
"Forms of Acceptance and Election" means the combined forms
pursuant to which shareholders in the Company can accept the
Ordinary Offer and the Preference Offer respectively and also
elect to receive cash instead of new Common Stock in the Purchaser
by way of consideration;
"Involuntary Transfer" has the meaning given to it in the
Shareholders' Agreement;
"Listing Particulars" means the document which will be published
by the Company in connection with the Subscription and comprising
listing particulars in accordance with the Listing Rules;
"Listing Rules" means the rules made by the London Stock Exchange
pursuant to Section 142 of the Financial Services Act 1986;
"the London Stock Exchange" means London Stock Exchange Limited;
"the Offers" means the Ordinary Offer and the Preference Offer;
"the Offer Document" means the document making the Offers and
incorporating the Listing Particulars;
"the Ordinary Offer" means the partial offer to be made by or on
behalf of the Purchaser for up to 20,000,000 Ordinary Shares upon
the terms and subject to the conditions set out or referred to in
the Press Release;
"Ordinary Shares" means Ordinary Shares of 10p each in the
Company;
"Ordinary Share Equivalents" means any security or obligation
which is by its terms convertible into Ordinary Shares and any
option, warrant or other subscription or purchase right with
respect to Ordinary Shares (including, without limitation, the
Preference Shares and the Airtours plc Share Option Scheme (1986)
or the Airtours plc Savings Related Share Option Scheme);
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, governmental body
or other entity of any kind;
"the Preference Offer" means the partial offer to be made by or
on behalf of the Purchaser for up to 8,758,612 Preference Shares
upon the terms and subject to the conditions set out in the Press
Release;
"Preference Shares" means Convertible Cumulative Preference Shares
of 20p each in the Company;
"Press Release" means the Press Release in the agreed form annexed
hereto as Annex A giving details of the Offers and the
Subscription;
"Purchaser Group" means the Purchaser, its subsidiaries and
subsidiary undertakings;
"Shareholders' Agreement" means the shareholders' agreement dated
the date hereof between the Purchaser and David Crossland;
"Shares" means all Ordinary Shares and Ordinary Share Equivalents
held by the Purchaser, whether acquired pursuant to the
Subscription, the Ordinary Offer or the Share Purchase or
thereafter acquired (and including any other shares in the capital
of the Company into which such Ordinary Shares may at any time be
converted and also including any shares in the capital of the
Company arising from the same by reason of any sub-division and/or
consolidation of such Ordinary Shares or by reason of any issue
of shares in the Company by way of capitalisation of reserves);
"the Share Purchase" means the acquisition of additional Ordinary
Shares by the Purchaser and their sale by David Crossland and
Thomas Trickett pursuant to paragraph 13 of the Undertakings;
"the Special Resolution" means the Resolution to be proposed to
the shareholders of the Company to increase the authorised share
capital of the Company, to grant the Directors authority pursuant
to Section 80 of the Act and to authorise the Directors to make
certain allotments (including the allotment of the Subscription
Shares to the Purchaser) without complying with the pre-emption
provisions set out in Section 89 of the Act;
"the Subscription" means the subscription by the Purchaser for the
Subscription Shares pursuant to the terms hereof;
"the Subscription Shares" means the 20,000,000 new Ordinary Shares
of 10p each in the Company to be subscribed by the Purchaser
pursuant to the Subscription;
"Warranty" means a statement contained in Schedule 2 and
"Warranties" means all those statements;
"the Undertakings" means the irrevocable undertakings of even date
herewith given by each of David Crossland and Thomas Trickett to
the Purchaser in connection with the Offers and the Share
Purchase;
"Wholly Owned Subsidiary" means, in relation to the Purchaser, any
subsidiary of the Purchaser all of whose voting securities are
owned directly or indirectly by the Purchaser and, in relation to
the Company, any subsidiary of the Company all of whose voting
securities are owned directly or indirectly by the Company;
28.2 In this Agreement, a reference to:-
28.2.1 a "subsidiary undertaking" or "parent undertaking" is to
be construed in accordance with Section 258 of the Act
and a "subsidiary" or "holding company" is to be
construed in accordance with section 736 of the Act;
28.2.2 a document in the "agreed form" is a reference to a
document in a form approved and for the purposes of
identification signed by or on behalf of each party or in
another form as may be agreed by or on behalf of each
party;
28.2.3 a statutory provision includes a reference to the
statutory provision as modified or re-enacted or both
from time to time before the date of this Agreement and
any subordinate legislation made under the statutory
provision before the date of this Agreement;
28.2.4 a person includes a reference to a body corporate,
association or partnership;
28.2.5 a clause or schedule, unless the context requires
otherwise, is a reference to a clause of or a schedule to
this Agreement.
28.3 The headings in this Agreement do not affect its
interpretation.
29. THE OFFERS
Within 28 days of the date hereof (or by such later date as the
Panel on Takeovers and Mergers may agree) the Purchaser will post
the Offer Document (together with the Forms of Acceptance and
Election) to the holders of Ordinary Shares and Preference Shares.
The Offer Document shall be accompanied by a circular from the
Company incorporating a Notice convening an Extraordinary General
Meeting of the Company to be held on the first closing date of the
Ordinary Offer and at which the Special Resolution will be
proposed.
30. CONDITIONS
30.1 Completion is conditional on the Conditions being satisfied,
or being waived as hereinafter permitted, on or before 30th
May 1996 or such later date as may be agreed between the
parties.
30.2 The Purchaser and the Company shall make all reasonable
efforts to achieve satisfaction of each of the conditions as
soon as reasonably possible and if at any time either of them
becomes aware of a matter which might prevent a condition
being satisfied it shall immediately inform the other.
30.3 At any time the Purchaser may waive either of Conditions 5
and 8 by notice to the Company and the Purchaser and the
Company jointly may agree to waive either of Conditions 6 and
7. The Purchaser may at any time waive Condition 6 without
the agreement of the Company provided that it has been
established to the reasonable satisfaction of the Company
that neither the lack of any such authorisation, order,
grant, recognition, confirmation, consent, clearance,
licence, permission, exemption or approval as are referred to
in that Condition, nor any other matter arising in respect of
or as a result of the Offers and/or the Share Purchase and/or
the Subscription, will entitle any government, governmental,
quasi-governmental, supranational, statutory or regulatory
body, trade agency, professional body, association,
institution, environmental body or court to make any order or
take any other action requiring any member of the Company
Group to take, or refrain from taking, any action, which
action or refraining from action would in the Company's
opinion have an adverse effect on any member of the Company
Group. If all the Conditions have not either been satisfied
or so waived on or before 30 May 1996, or such later date as
may be agreed between the parties, then this Agreement shall
automatically cease and determine (save for the provisions of
Clause 13) and neither party hereto shall have any claim
against the other save in respect of any liability then
accrued due.
31. COMPANY/PURCHASER UNDERTAKINGS
31.1 The Company hereby undertakes to the Purchaser that:-
31.1.1 to the extent applicable, the Company and the Purchaser
shall forthwith make all filings and furnish all
information required with respect to the transactions
contemplated by this Agreement by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the "HSR Act") and
any other foreign antitrust laws and shall use all
reasonable endeavours to obtain the early termination of
the waiting period under the HSR Act and all other
required approvals under foreign antitrust laws provided
however that no member of the Company Group or of the
Purchaser Group shall be required to agree to dispose of
or hold separate any portion of its business or assets;
31.1.2 prior to Completion neither the Company nor any of its
subsidiaries nor subject to their fiduciary duties any of
the respective officers and directors of the Company or
any of its subsidiaries shall, and the Company shall use
all reasonable endeavours to cause its employees, agents
and representatives (including, without limitation, any
investment banker, attorney or accountant retained by the
Company or any of its subsidiaries) not save as required
by law, or the rules of the London Stock Exchange or the
Code to, (i) initiate, solicit or encourage directly or
indirectly, any enquiries or the making of any proposal
or offer (including, without limitation, any proposal or
offer to shareholders of the Company) with respect to a
merger, consolidation or similar transaction involving,
or any purchase of any shares of, the Company or any
purchase of any of the assets of the Company or any of
its subsidiaries having a value in excess of L25 million
(or the shares of entities holding the same) (any such
proposal or offer being hereinafter referred to as an
"Acquisition Proposal", except that "Acquisition
Proposal" shall not include any transaction between the
Purchaser and the Company or the Company and a Wholly
Owned Subsidiary of the Company or among the Company's
Wholly Owned Subsidiaries) or (ii) engage in any
negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any
person relating to an Acquisition Proposal, or (iii)
otherwise facilitate directly or indirectly any effort or
attempt to make or implement an Acquisition Proposal.
The Company will immediately cease and cause to be
terminated any existing discussions or negotiations with
any parties conducted to-date with respect to any
Acquisition Proposal. The Company will take the
necessary steps to inform its directors of the
obligations undertaken in this Clause 4.1.2. The Company
will promptly notify the Purchaser if any such enquiries
or proposals are received by it or any such negotiations
or discussions are sought to be initiated or continued.
Nothing contained in this Agreement shall prohibit the
Company, its subsidiaries and its respective officers and
directors from (A) doing any of the foregoing with
respect to asset sales or sales of securities in the
ordinary course of business or (B) recommending its
shareholders to vote in favour of the Special Resolution;
31.1.3 if the Company receives (i) a general offer made by a
third party to acquire the whole of the issued ordinary
share capital of the Company (other than Ordinary Shares
already held by such third party or persons acting in
concert with it) which is unanimously recommended by the
Directors, on terms which represent (in the opinion of
the Directors) an improvement on the value of the
Ordinary Offer as at the date on which a firm intention
to make such general offer is announced (a "Competing
Offer") or (ii) an offer or approach which the Directors
unanimously believe could be or may become a Competing
Offer or lead to the Person making such approach (or on
whose behalf such approach is made) making a Competing
Offer, the Company may engage in the activities described
in Clause 4.1.2. The Company will promptly inform the
Purchaser if any enquiries or proposals with respect to
a Competing Offer (or any such offer or approach as
described in (ii) above) are received by it, any such
information is requested from it, or any such
negotiations or discussions are sought to be initiated or
continued;
31.1.4 the Company will provide Micky Arison and Howard S. Frank
and their professional advisers with all such information
concerning the Company Group as they shall reasonably
require for the purpose of satisfying themselves as to
the accuracy and completeness of the Listing Particulars;
4.1.5 So long as the Purchaser (or any member of the Purchaser
Group, which is also a permitted assignee pursuant to clause
14 hereof) owns at least 10% of the ordinary share capital of
the Company in issue from time to time (or, in the case of
clause 4.1.5.2 only, at least 5% of such ordinary share
capital during any tax year) the Company hereby agrees that
it shall provide the Purchaser, as soon as reasonably
practicable following receipt of a request from the
Purchaser, but in any event no later than the date reasonably
requested by the Purchaser, with such financial statements or
financial, tax and other information as are necessary in
order to enable the Purchaser to prepare and/or file:
4.1.5.1 any annual reports, quarterly reports, registration
statements or other documents that it is required to file
with the Securities and Exchange Commission ("the SEC")
or any other regulator in the Unites States, its being
agreed by the Company that nothing in this clause 4.1.5
shall prevent the Purchaser entering into or proposing to
enter into any agreement, transaction or arrangement on
a purely voluntary basis and that if any such agreement,
transaction or arrangement into which the Purchaser
enters or proposes to enter gives rise to a requirement
on the part of the Purchaser to file a document with the
SEC or any other regulator in the United States, the
provisions of this clause shall apply notwithstanding the
fact that there was no requirement for the Purchaser to
enter into or propose to enter into such agreement,
transaction or arrangement;
4.1.5.2 any tax returns or other forms required to be filed
(including any required to be filed pursuant to any
election for tax purposes made under any law or
regulation) with any tax authority having jurisdiction
over any member of the Purchaser Group or any of the
principal stockholders of the Purchaser or any Purchaser
Director.
4.1.6 The Company acknowledges and agrees that after the Closing
Date and so long as the Purchaser (or any member of the
Purchaser Group which is also a permitted assignee pursuant
to clause 14 hereof), owns at least 10% of the ordinary share
capital of the Company:
4.1.6.1 all financial statements or information provided by it
under Clause 4.1.5 shall be conformed, in such manner as
shall be advised to the Company by the Purchaser from
time to time (or in the absence of any such advice from
the Purchaser in such manner as shall be determined by
the Company or advised to the Company by its auditors) so
as to be in accordance with United States generally
accepted accounting principles (any disbursement cost
incurred by the Company, including to its auditors, in so
conforming such financial statements or information to be
borne by the Purchaser) it being agreed between the
parties that if the Purchaser disagrees with the
interpretation of the requirements of US GAAP advised to
the Company by its auditors, the Company shall in respect
of future financial statements or information carry out
such conforming in accordance with the interpretation of
the requirements of US GAAP advised to the Company by the
Purchaser (and shall, to the extent necessary, reconform
any financial statements or information previously
supplied for inclusion in any filing which the Purchaser
is to make with the SEC), but the Company shall not be
deemed to have breached the provisions of this clause
4.1.6 in respect of the financial statements or
information supplied prior to receipt of such advice from
the Purchaser;
4.1.6.2 if required by law or regulation applicable to the
Purchaser or if requested by the SEC or any other
regulator having jurisdiction over the Purchaser, the
Company shall use its best endeavours to procure that
there is provided an audit report from its auditors and
a consent from its auditors to the SEC or such other
regulator, any costs of such auditors in relation thereto
to be borne by the Purchaser;
4.1.6.3 if required by the underwriter or underwriters in a
public offering of the Purchaser's securities, the
Company shall use its best endeavours to cause its
auditors to provide to such underwriter or underwriters
and to the Purchaser a customary "comfort letter", any
costs of such auditors in relation thereto to be borne by
the Purchaser; and
4.1.6.4 if required by the Purchaser, the Company shall use all
reasonable endeavours to procure that the independent
accountants of the Purchaser are given access, upon
reasonable prior notice, to inspect the audit working
papers of the Company's auditors
4.1.7 If the Company's auditors fail to provide the Purchaser's
independent accountants with access to its working papers or
fail to provide any of the materials described in sub-clauses
4.1.6.2 and 4.1.6.3 above, then the Company agrees to provide
to the Purchaser's independent accountants access to its
records (financial and otherwise) so that the Purchaser's
independent accountants can review or audit any financial
statements or information provided by the Company under
clauses 4.1.5 and 4.1.6 or provide any of the materials
described in sub-clauses 4.1.6.2 and 4.1.6.3 above. If the
Company appoints new auditors, it agrees that it shall inform
such auditors of the provisions of these clauses 4.1.5 to
4.1.7 and seek to secure their confirmation that, as of the
date of their appointment and based upon then current law and
regulations, they would be able to comply with any request of
the Purchaser under sub-clauses 4.1.6.2 to 4.1.6.4.
31.2 The Purchaser hereby undertakes to the Company that, as soon
as reasonably practicable, it shall provide such information
as the Company shall reasonably request for inclusion in the
Listing Particulars or in any other document or announcement
required by the Listing Rules, the Act or the Financial
Services Act 1986 to be published or made by the Company in
connection with the Offers and/or the Subscription.
32. COMPLETION
32.1 Completion shall take place at the registered office of the
Company or at such other address as may be agreed between the
parties contemporaneously with the satisfaction (or waiver)
of the last of the Conditions when:-
32.1.1 the Purchaser will subscribe for the Subscription Shares
in cash at a price of 500p per share upon and subject to
the terms of the Company's Memorandum and Articles of
Association (and in the event of any failure by the
Purchaser so to do the Company is hereby authorised to
treat this Agreement as an application by the Purchaser
to subscribe for the Subscription Shares in accordance
with the terms hereof at 500p in cash per share payable
in full on allotment) and by electronic transfer to the
bank account nominated by the Company pay the aggregate
subscription price therefor amounting to L100,000,000;
32.1.2 the Directors will allot and issue the Subscription
Shares, register the Purchaser as the holder thereof in
the Company's register of members and deliver a share
certificate for the Subscription Shares to the Purchaser;
32.1.3 Mr Micky Arison and Mr Howard S. Frank will be appointed
Directors of the Company;
32.1.4 the Purchaser shall deliver to the Company the notice
required pursuant to sections 198 to 203 of the Act in
respect of its interest in the Company and shall procure
the delivery to the Company by each of the individuals
referred to in clause 5.1.3 of:
32.1.4.1 the notice (if any) required from each of them
pursuant to sections 324 to 328 of the Act in
respect of their respective interests in the
Company; and
32.1.4.2 Form 288, duly completed and signed by such
individual so as to indicate his consent to his
appointment as a director of the Company.
32.2 The parties shall use all reasonable endeavours to procure
that the last Condition (save for condition 3) is satisfied
(or waived) on a closing date of the Ordinary Offer and that
condition 3 is satisfied on the next following business day.
32.3 In the event that the Purchaser shall fail to pay the
subscription monies referred to in clause 5.1 in full on the
date fixed for the Completion in accordance with Clause 5.1,
the Company shall have the right by notice to the Purchaser
served on the Completion Date to rescind this Agreement
whereupon each party's rights and obligations hereunder shall
automatically cease and determine (other than in respect of
Clause 13) and (save aforesaid) neither party hereto shall
have any claim against the other save in respect of any
liability then accrued due.
33. SHARE RIGHTS/DIRECTOR RIGHTS
33.1 The Subscription Shares shall be issued free from all liens,
charges and encumbrances and as from their date of allotment
and issue they shall rank pari passu in all respects with the
Ordinary Shares then in issue.
33.2 The Purchaser shall have the right to nominate two Directors
for appointment to the Board of Directors of the Company for
so long as it owns Ordinary Shares representing at least 20%
of the ordinary share capital in issue from time to time and
the Purchaser owns Ordinary Shares which (taking full account
of any subdivision or consolidation of the ordinary share
capital of the Company, or any issue by the Company by way of
capitalisation of reserves after the date of this Agreement)
represent at least 75% of the aggregate number of Ordinary
Shares acquired by the Purchaser pursuant to the Ordinary
Offer, the Subscription and the Share Purchase. Subject to
the other provisions of this Clause 6.2, the Purchaser's
rights under the preceding sentence shall continue if the
Purchaser owns Ordinary Shares representing less than 20% of
the ordinary share capital of the Company in issue from time
to time if such percentage falls below 20% solely by reason
of the Purchaser not participating in any issue of Ordinary
Shares by the Company which is not made available to the
Purchaser (a "Restricted Share Offer"). The rights of the
Purchaser under the first sentence of this Clause 6.2 shall
continue to apply, but in respect of only one Director if
either (a) the Purchaser's percentage ownership of the
ordinary share capital of the Company falls below 20% other
than solely by reason of the Purchaser not participating in
a Restricted Share Offer or (b) if such percentage ownership
falls below 15% for any reason. Once the Purchaser's
percentage ownership in the ordinary share capital of the
Company has fallen below 15%, other than solely by reason of
the Purchaser not participating in a Restricted Share Offer,
or below 10% for any reason, the rights of the Purchaser
under this Clause 6.2 shall be extinguished.
33.3 The Company shall each take all necessary steps to appoint
and (save as provided below) maintain on the Board of the
Company the individual or individuals which the Purchaser is
entitled to nominate for appointment. The directors so
nominated as at Completion shall be the two individuals
referred to in clause 5.1.3. The identity of any alternative
individuals to be so nominated shall be subject to the
approval of the Company which shall not be unreasonably
withheld or delayed. The Company shall not be obliged
hereunder to maintain (or seek to maintain) on the Board of
the Company (or to seek to procure reinstatement on such
Board of) an individual whose office as a director of the
Company is vacated pursuant to the Articles of Association of
the Company or in respect of whom a resolution of the Company
in General Meeting removing him from such office is passed or
a resolution of the Company in General Meeting in relation to
his appointment or re-appointment as a director fails to be
passed. The Purchaser shall procure, if there is any
reduction or extinguishing of its rights pursuant to Clause
6.2, that one or both (as the case may be) of its nominated
individuals resigns forthwith from the Board of Directors of
the Company and shall also procure that if it nominates an
alternative individual for appointment to such Board, the
nominated individual which such individual is to replace
resigns forthwith from such Board. Any resignation which the
Purchaser is to procure pursuant to this Clause 6.3 shall be
in writing, executed as a deed and shall contain an
irrevocable and unconditional waiver from the resigning
individual of any claim which he has, or may have, against
the Company solely in connection with such resignation.
33.4 For so long as the Company is not a subsidiary of another
Person, the Purchaser shall not exercise any voting rights it
may have in the Company in relation to or on any resolution
which refers or relates to action taken or proposed to be
taken by any of the Company's subsidiaries which holds an air
carrier operating licence (as defined in Article 2(c) of
Council Regulation No. 2407/92/EC) issued by a Member State
of the European Community ("Relevant Subsidiary") except
those relating to:
(a) the amount and/or timing of any dividend or other
distribution to be declared by the Relevant Subsidiary;
(b) alterations or amendments to the Relevant Subsidiary's
articles of association;
(c) increases or reductions in the Relevant Subsidiary's issued
share capital;
(d) any liquidation or winding-up of the Relevant Subsidiary;
(e) any acquisition or disposal by the Relevant Subsidiary of any
shares or other securities in another Person, other than in
the ordinary course of the Relevant Subsidiary's business;
(f) any amalgamation of the Relevant Subsidiary with another
Person;
(g) the incurring by the Relevant Subsidiary of indebtedness of
a nominal amount exceeding in any one case US$ 100 million
(and for the avoidance of doubt the incurring of indebtedness
on or in relation to separate transactions shall not for this
purpose be aggregated).
33.5 In connection with any change to the capital structure of a
Relevant Subsidiary with a view to establishing contingency
arrangements to meet the circumstances of majority ownership
of a Relevant Subsidiary ceasing to be vested in EU nationals
(as referred to in the letter of 2 February, 1996 from the
Civil Aviation Authority addressed to the Company) the
Company shall, so far as reasonably practicable:
(a) supply drafts of the documentation proposed to effect such
change, together with details of the proposed shareholders or
investors in such changed capital structure, to the Purchaser
and give due consideration to any reasonable comments of the
Purchaser in relation thereto made during a reasonable period
after the supply of such drafts; and
(b) notify the Purchaser in advance of any intention on the part
of the Company to implement such change and give due
consideration to any reasonable comments of the Purchaser in
relation thereto made during a reasonable period after such
notification.
Provided that nothing in this Clause 6.5 shall prevent the Company
implementing any such change if it considers that such is in the
best interests of the Company Group.
34. WARRANTIES
34.1 At the date of this Agreement, the Company hereby warrants to
the Purchaser in the terms of Schedule 2. For the avoidance
of doubt the Warranties shall not be or be deemed to be
repeated at any time after the date of this Agreement.
34.2 The Company acknowledges that the Purchaser is entering into
this Agreement in reliance on each Warranty which has also
been given as a representation and with the intention of
inducing the Purchaser to enter into this Agreement.
34.3 If, on or before the date of Completion, the Purchaser
considers that the Company is in breach of a Warranty and the
Purchaser has a bona fide belief that, were this Agreement to
proceed to Completion, such breach would give rise to a claim
by the Purchaser for damages exceeding L15 million, and the
Purchaser delivers to the Company an opinion of Queen's
Counsel to the effect that, were this Agreement to proceed to
Completion, such breach would give rise to a claim by the
Purchaser which would, on the balance of probabilities,
result in an award of damages in favour of the Purchaser in
a sum exceeding L15 million ("the Opinion"), the Purchaser
may by notice (given at any time after the delivery of the
Opinion, but before Completion) to the Company elect to
terminate this Agreement whereupon each parties rights and
obligations under this Clause 7 and all other clauses of this
agreement (other than clause 13) including accrued rights and
obligations at the date of termination, cease and determine
immediately such that, for the avoidance of doubt, the
Purchaser shall have no claim against the Company in respect
of the breach of Warranty giving rise to such termination.
If the Purchaser becomes aware prior to Completion of any
breach of Warranty which would entitle it to terminate this
Agreement pursuant to this Clause 7.3, and the Purchaser
proceeds to Completion, the Company shall have no liability
to the Purchaser in respect of such breach.
34.4 The Warranties shall not in any respect be extinguished or
affected by Completion.
34.5 The Purchaser hereby confirms to the Company that having read
the Disclosure Information or been made aware verbally by a
partner or professional employee of Grant Thornton in the
case of Disclosure Information supplied by it the Purchaser
has no actual knowledge, at the date hereof, of any fact or
circumstance which would entitle it to make a claim for
breach of the Warranties.
34.6 The Purchaser hereby acknowledges that it does not enter into
this Agreement in reliance on any warranties,
representations, undertakings, covenants or indemnities
(express or implied) howsoever or to whomsoever made except
those arising pursuant to the Undertakings, the Shareholders
Agreement or the Warranties.
34.7 The provisions of Schedule 3 shall apply as if set out
herein.
35. RESTRICTIONS ON TRANSFER OF SHARES
35.1 Prior to the second anniversary of the Completion Date, the
Purchaser shall not sell, give, assign, hypothecate, pledge,
charge, encumber, grant a lien or security interest in or
otherwise transfer (whether by operation of law or otherwise)
any Shares or any right, title or interest therein or thereto
(including, without limitation, any beneficial interests or
voting rights in the Shares)(each a "transfer"), except (i)
in accordance with the provisions of this Agreement or (ii) with the
consent of the Company. Any attempt to transfer any Shares
or any rights thereunder in violation of this Clause shall be null
and void ab initio.
35.2 Notwithstanding anything to the contrary contained in this
Agreement, the Purchaser may transfer any or all of its
Shares to any of its Wholly Owned Subsidiaries or any Person
who acquires all or substantially all of the assets of the
Purchaser (any Person to whom the Purchaser may so transfer
Shares being referred to hereinafter as a "Permitted
Transferees") provided that if any Permitted Transferee
ceases to be a Wholly Owned Subsidiary the Purchaser shall
forthwith procure the re-transfer to the Purchaser or another
Permitted Transferee of the Purchaser of all the Shares then
held by the Permitted Transferee which ceases to be a Wholly
Owned Subsidiary.
35.3 If the Purchaser wishes to transfer Shares under Clause 8.2,
it shall give notice to the Company of its intention to make
such transfer not less than seven (7) days prior to effecting
such transfer, which notice shall state the name and address
of each Permitted Transferee to whom such transfer is
proposed and the number and class of Shares proposed to be
transferred to such Permitted Transferee. For the avoidance
of doubt, the Ordinary Shares acquired by the Purchaser
pursuant to the Subscription, the Offers and the Share
Purchase shall not be transferred (or agreed to be
transferred) to any Permitted Transferee within 7 days
following the date upon which such Shares are registered in
the name of the Purchaser.
35.4 No transfer may be made pursuant to Clause 8.2 unless the
Permitted Transferee has agreed in writing in respect of the
Shares so transferred to be bound by the terms and conditions
of this Agreement. With respect to any Shares transferred to
a Permitted Transferee, the Permitted Transferee shall be
substituted for, and enjoy the same rights and be subject to
the same obligations in relation to the relevant Shares, as
its predecessor hereunder.
35.5 If, at any time on or after the second anniversary of the
Completion Date (or at any time prior to that anniversary but
after the occurrence of an event specified in Clause 10(b)),
the Purchaser wishes to transfer or otherwise dispose of any
Shares (other than to a Permitted Transferee in accordance
with Clause 8.2), the Purchaser shall first notify the
Company in writing of such intention and shall not enter into
(or agree to enter into) such transfer or disposition until
at least 15 days after the giving of such notice. During such
15 day period, the Company may arrange for a Person or
Persons to make an offer to purchase such Shares and the
Purchaser and the Company agree to discuss such offer. Under
no circumstances shall the Purchaser be obligated to sell any
of its Shares to such Person or Persons by virtue of this
Clause 8.5.
35.6 Without complying with this Clause 8, the Purchaser may
transfer any or all of its Shares pursuant to (a) a general
offer, a tender offer or partial offer commenced by any
Person which is unanimously recommended by the Directors, (b)
a general offer made by any Person for the entire issued
ordinary share capital of the Company (other than Ordinary
Shares held by such Person or by Persons acting in concert
with it) or (c) a merger, recapitalisation, reorganisation,
scheme of arrangement, consolidation or similar transaction
approved by the holders of Ordinary Shares.
36. STANDSTILL PROVISIONS
36.1 The Purchaser hereby undertakes to the Company that during
the Standstill Period (as defined below) it will not,
directly or indirectly, unless in any such case specifically
requested in advance to do so by the Directors or required to
do so by the Panel on Takeovers and Mergers, acquire any
Ordinary Shares or Ordinary Share Equivalents or convert any
Preference Shares such that the Purchaser (and any Person or
Persons acting in concert, within the meaning of the Code,
with the Purchaser) holds (or together hold) or exercises (or
together exercise) the voting rights attached to more than
29.9% of the issued Ordinary Shares, provided that the
Purchaser shall not be in breach of this Clause 9.1 by virtue
of the combined holding of the Purchaser and David Crossland
exceeding 29.9% of the issued Ordinary Shares in
circumstances where the Purchaser neither holds, nor
exercises the voting rights attached to more than 29.9% of
the issued Ordinary Shares.
36.2 Nothing in this Clause 9, shall preclude the Purchaser from
acquiring any Ordinary Shares as a result of any subdivision
and/or consolidation of the ordinary share capital of the
Company or as a result of any issue of Ordinary Shares by way
of capitalisation of reserves, (other than in circumstances
where such Ordinary Shares are allotted in lieu of a cash
dividend) or from acquiring any Preference Shares.
36.3 As used herein, the term "Standstill Period" shall mean the
period from the Completion Date until the earlier to occur
of:
(i) the first anniversary of the Completion Date; and
(ii) without encouragement by or the participation of the
Purchaser or any member of the Purchaser Group (a) the
acquisition by any Person or Persons (other than the
Purchaser or any member of the Purchaser Group) of, or
the making of any general offer, tender offer or partial
offer by any Person or Persons (other than the Purchaser
or any member of the Purchaser Group) for, or the public
announcement of a firm intention on the part of any
Person or Persons (other than the Purchaser or any member
of the Purchaser Group) which intention is not or has
ceased to be subject to the satisfaction of any
conditions to acquire (by any means), Ordinary Shares
which, if added to the Ordinary Shares (if any) already
owned by such Person or Persons would represent thirty
percent (30%) or more of the total number of the
outstanding Ordinary Shares in issue at the relevant
time, (b) the receipt by any such Person or Persons of
the Company's agreement or consent to make such an
acquisition or (c) the Company publicly announcing its
intent to enter into or its entering into an agreement to
(i) merge, consolidate or otherwise combine with another
Person or (ii) to sell all or substantially all of the
assets or undertaking of the Company.
36.4 The Company undertakes to give the Purchaser at least five
days prior written notice of any proposed issue or issues of
equity securities (or securities convertible into equity
securities or the conversion of such securities into equity
securities) with an aggregate nominal value which will exceed
(or which, on conversion would exceed) 1% of the aggregate
nominal value of the ordinary share capital of the Company in
issue on the date of such notification, the Purchaser hereby
acknowledging that such notification need not be in writing
if the proposed issue or issues is/are discussed at a meeting
of the Directors at which either or both of the Directors
nominated by the Purchaser pursuant to Clause 6 are present.
36.5 The Company undertakes to the Purchaser that, at any time
when the Purchaser has the right pursuant to Clause 6.2 to
nominate for appointment at least one director of the
Company, it will not without the prior written consent of the
Purchaser, propose any resolution (other than the Special
Resolution) at any shareholders' meeting to disapply the pre-emption
provisions set out in section 89 of the Act other
than any such disapplication ("a Permitted Disapplication")
which relates only to the period until the expiry of the next
following Annual General Meeting of the Company (or, if
sooner, the expiry of 15 months after the date of passing of
such special resolution) and is limited to the allotment of
equity securities in connection with a rights issue (as
defined in the Notice of the 1996 Annual General Meeting of
the Company) and/or the allotment (otherwise than in
connection with a rights issue) of equity securities up to an
aggregate nominal amount which does not exceed 5% of the
aggregate nominal amount of the issued ordinary share capital
of the Company on the date such special resolution is passed.
37. TERMINATION OF RESTRICTIONS
Notwithstanding any other provision in this Agreement, (a) the
restrictions applicable to the Purchaser in Clauses 8.1, 8.5 and
9 shall terminate on the earliest to occur of (i) the failure to
elect any Directors designated by the Purchaser as a result of a
breach of Clause 6.3 of this Agreement by the Company or (ii) the
breach by David Crossland of the Shareholders' Agreement or (iii)
an order being made or resolution passed, or a petition being
presented (which is not discharged dismissed or withdrawn within
30 days after its presentation and in respect of which the Company
fails to deliver to the Purchaser within such 30 day period an
opinion of Queens Counsel to the effect that the same is frivolous
or vexatious or represents an abuse of process), for the winding
up of the Company or the appointment of a provisional liquidator
to the Company or for an administration order in respect of the
Company, or a receiver being appointed of the whole or part of the
Company's business or assets or a voluntary arrangement being
proposed under section 1 of the Insolvency Act 1986 or section 425
of the Act in respect of the Company, and (b) the restrictions
applicable to the Purchaser in Clauses 8.1 and 9 shall terminate
on the earlier to occur of (i) David Crossland ceasing to be
"Chief Executive" or "Executive Chairman" of the Company or (ii)
one or more Involuntary Transfers occurring in which more than 1%
of the issued Ordinary Shares are transferred.
38. SECURITIES PROVISIONS
38.1 All of the provisions of Clauses 8, 9, 10 and 11 of this
Agreement shall apply to all of the Shares now owned or which
may be issued or transferred hereafter to the Purchaser
whether in consequence of the Subscription, the Partial
Offers or the Share Purchase or in consequence of any
additional issuance, rights offering, purchase, exchange or
reclassification of any of the Shares (including without
limitation, upon the exercise of any option or warrant),
corporate reorganization, or any other form of
recapitalisation, consolidation, merger, share split or share
dividend, or which are acquired by the Purchaser in any other
manner.
38.2 A copy of this Agreement shall be filed with the secretary of
the Company and kept with the records of the Company. Each
certificate representing Shares now held or hereafter
acquired by the Purchaser shall, for so long as this
Agreement is effective, bear a legend substantially in the
following form:
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") OF ANY OF THE SHARES REPRESENTED
BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SUBSCRIPTION AGREEMENT, DATED FEBRUARY 21, 1996 (THE "SUBSCRIPTION
AGREEMENT"), AMONG CARNIVAL CORPORATION AND AIRTOURS PLC (THE
"COMPANY"), A COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S
REGISTERED OFFICE.
39. ANNOUNCEMENTS
39.1 Subject to Clause 12.2, neither party may, before or after
Completion, make or send a public announcement, communication
or circular concerning the transactions referred to in this
Agreement unless it has first obtained the written consent of
the other parties, which may not be unreasonably withheld or
delayed.
39.2 Clause 12.1 does not apply to:
39.2.1 a public announcement, communication or circular required
by law or a regulation of a stock exchange, if the party
required to make or send it has, if practicable, first
consulted with and given due consideration to the
reasonable requirements of the other party; or
39.2.2 a public announcement communication or circular which
does no more than repeat information previously published
by either of the parties without contravention of clause
12.1.
40. CONFIDENTIAL INFORMATION
40.1 Before and after Completion the Purchaser and the Company
shall:
40.1.1 not use or disclose to a person Confidential Information
regarding the other which it has or acquires; and
40.1.2 make every effort to prevent the use or disclosure of
Confidential Information belonging to the other.
40.2 The Purchaser and the Company shall each ensure that their
respective subsidiaries and subsidiary undertakings comply
with Clause 13.1.
40.3 Clause 13.1 does not apply to:
40.3.1 disclosure of Confidential Information to a director,
officer or employee of the Purchaser or the Company whose
function requires him to have the Confidential
Information but only on terms that clause 13.1 applies to
use (other than solely in the performance of that
function which shall not operate to the detriment of the
party to which the Confidential Information relates) or
disclosure by the Director, Officer or employee and that
the party making such disclosure shall be responsible to
the other for any failure by such director, officer or
employee to comply with clause 13.1;
40.3.2 disclosure of Confidential Information required to be
disclosed by law or the London Stock Exchange, the New
York Stock Exchange, Inc. or any other Regulatory
Authority;
40.3.3 disclosure of Confidential Information to an adviser for
the purpose of advising the Purchaser or the Company but
only on terms that Clause 13.1 applies to use or
disclosure by the adviser and that the party making such
disclosure shall be responsible to the other party for
any failure by such adviser to comply with clause 13.1;
40.3.4 Confidential Information in relation to one party which
becomes publicly known except by a breach by the other
party of Clause 13.1 or 13.2.
40.4 For the purpose of this clause Confidential Information means
all information not publicly known used in or otherwise
relating to the business, customers or financial or other
affairs, of either the Purchaser or the Company, including,
without limitation, information relating to:-
(a) the marketing of goods or services including, without
limitation, customer names and lists and other details of
customers, sales targets, sales statistics, market share
statistics, prices, market research reports and surveys, and
advertising or other promotional materials; or
(b) future projects, business development or planning, commercial
relationships and negotiations.
40.5 Without prejudice to any other rights or remedies that either
party may have, each party acknowledges and agrees that:
(a) the other party would be irreparably harmed by a breach of
any of the provisions of this clause 13;
(b) damages would not be an adequate remedy for any such breach;
(c) the other party shall be entitled to the remedies of
injunction, specific performance and other equitable relief
(and corresponding remedies in jurisdictions outside the
United Kingdom) for any threatened or actual breach of the
provisions of this clause 13;
(d) no proof of special damages shall be necessary for the
enforcement of this clause 13; and
(e) each of the obligations under this clause 13 is severable and
distinct and to the extent that any particular provision is
held to be unenforceable all the remaining provisions shall
continue to apply.
40.6 Forthwith upon this Agreement becoming unconditional the
Confidentiality Agreement dated 10 January 1996 between the
Company and the Purchaser shall automatically cease and
determine.
41. ASSIGNMENT
Without the consent of the other, neither the Company nor the
Purchaser may assign or transfer or purport to assign or transfer
a right or obligation under this Agreement other than with respect
to the Purchaser to any Wholly Owned Subsidiary or to any person
who acquires all or substantially all of the assets of the
Purchaser on the basis that any such assignee which in a Wholly
Owned Subsidiary will re-assign the right or obligation to the
Purchaser or another Permitted Transferee on ceasing to be a
Wholly Owned Subsidiary.
42. NON COMPETE
42.1 The Purchaser hereby covenants to the Company that, during
the Relevant Period, neither the Purchaser nor any other
member from time to time of the Purchaser's Group will,
without the prior written consent of the Company (and other
than through its interest in the Company), either on its own
behalf or jointly with any other Person or on behalf of any
other Person or as manager, consultant, principal or agent
for any other Person, directly or indirectly carry on or be
concerned or engaged in a "Competing Business", which for the
purposes of this Clause 15 shall mean a business involved in
supplying (whether as a tour operator or retail travel agent
or otherwise howsoever) within the United Kingdom, Sweden,
Denmark, Norway or Finland Air Inclusive Tours in respect of
land-based (or substantially land-based) holidays in the
Restricted Area. For the avoidance of doubt, it is agreed
that any business involved in operating a charter airline (or
airline charter services) providing flights from the United
Kingdom, Sweden, Denmark, Norway or Finland for holidaymakers
travelling to land based (or substantially land-based)
holidays in the Restricted Area shall constitute a Competing
Business for the purposes of this Clause 15.1.
42.2 For the purposes of Clause 15.1:
"Relevant Period" shall mean the period from the date upon which
this Agreement becomes unconditional in all respects until the
date which is one year after the date upon which there ceases to
be on the board of directors of the Company an individual who has
been nominated by the Purchaser pursuant to Clause 6.
"Restricted Area" shall mean:
(a) any country bordering on the Mediterranean Sea;
(b) the Canary Islands; and
(c) any resort or other location which is served by an airport
which is within 7 hours (sub-sonic) flying time from any
airport in the United Kingdom, Sweden, Denmark, Norway or
Finland (provided that such resort or other location is not
in North America or South America or within 1,000 miles of
the coast of North America or South America).
"land based (or substantially land based) holidays" shall mean
holidays where the holiday accommodation is either wholly or
principally land based, but shall not, however, include any
holiday where the provision of land based accommodation is related
to a cruise.
42.3 Nothing in Clause 15.1 shall prevent the Purchaser and any
other member of the Purchaser Group from:
(a) owning (as an aggregate within the Purchaser Group) whether
directly or indirectly not more than 5% of any class of the
issued share capital or issued capital stock of any Person
where such class of share capital or capital stock is dealt
in on a recognised stock exchange or on an over the counter
market or
(b) acquiring:
(i) the undertaking of any Person where such undertaking
includes a Competing Business; or
(ii) the shares of any Person ("Acquired Company") which
itself or through any subsidiary or subsidiary
undertaking carries on or is engaged in a Competing
Business.
Provided that:
(A) (i) the Competing Business is not the principal
activity of such undertaking or Acquired Company
at the date of acquisition and the turnover
derived from such Competing Business is not (by
reference to the latest available audited
accounts of the relevant company or corporation)
more than 25% of the turnover of the relevant
undertaking or Acquired Company (Provided that
the exception from Clause 15.1 comprised in this
Clause 15.3(b)(A) shall not apply in the event
the Purchaser or a member of the Purchaser Group
acquires the undertaking of any Person or the
shares of any Person and sells all or
substantially all of the assets of such
undertaking or Person (other than the Competing
Business) within 180 days after making such
acquisition; and
(ii) if the Purchaser intends to sell all or any
portion of the Competing Business the
Purchaser shall, prior to initiating or
entertaining any discussions with any other
party with regard to the sale of the whole
or any significant part of such Competing
Business notify the Company of such
proposed disposal, and at the Company's
request following such notification,
negotiate in good faith with the Company in
relation to a sale to the Company of the
whole or (at the Company's election) some
part of such Competing Business provided
however that the Purchaser shall not be
obliged to sell all or any portion of the
Competing Business to the Company or any
other Person by virtue of this Clause 15.3
(b); or
(B) the turnover from such Competing Business is not (by
reference to the latest available audited accounts
of the relevant Person) more than 1% of the turnover
of the relevant undertaking or Acquired Company and
the relevant Person has not, since the expiry of the
period to which such audited accounts relate, been
party to any acquisition or reorganisation, or
fundamental change to its business, such that at the
time of the Purchaser's acquisition such percentage
will have increased to more than 1%.
42.4 The Purchaser agrees with the Company that the provisions of
Clause 15.1 are reasonable in the context of the Subscription
and the Offers and necessary for the protection of the
Company and the Purchaser agrees that, having regard to that
fact, such provisions do not work harshly on it or on other
members of the Purchaser Group.
42.5 While the restriction contained in Clause 15.1 is considered
by the parties to be reasonable in all the circumstances, it
is agreed that if such restriction shall be adjudged to go
beyond what is reasonable in all the circumstances for the
protection of the interests of the Company, but would be
adjudged reasonable if part or parts of wording thereof were
deleted or the period thereof were reduced or the range of
businesses or areas dealt with thereby were reduced in scope,
such restriction shall apply with such modifications as may
be necessary to make it effective.
42.6 No provision by virtue of which this Agreement (or any
agreement or arrangement of which this Agreement forms part)
is subject to registration under the Restrictive Trade
Practices Act 1976 shall take effect until the day after the
date on which particulars required by that Act to be
furnished to the Director General of Fair Trading in respect
of this Agreement (or of the agreement or arrangement of
which it forms part) have been furnished to him in accordance
with that Act.
43. NOTICES
43.1 A notice or other communication under or in connection with
this Agreement shall be in writing and shall be delivered
personally or sent by first class post pre-paid recorded
delivery (or recorded delivery air mail if overseas) or by
fax to the party due to receive the notice or communication
sent during normal business hours in the jurisdiction of the
sender (with the sender receiving confirmation of receipt) at
its address (or fax number) set out in this Agreement or
another address (or fax number) specified by that party by
written notice to the other. A notice or other communication
is deemed given when actually received as evidenced by the
recorded delivery or the confirmation of receipt of fax.
43.2 The fax numbers for the purposes of this clause 16 are as
follows:
(i) the Purchaser:
Fax no: (305) 471-4700
(ii) the Company:
Fax no: (0161) 232-6524
44. GOVERNING LAW AND JURISDICTION
44.1 This Agreement is governed by and shall be construed in
accordance with English law.
44.2 The Courts of England shall have exclusive jurisdiction to
hear and decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection
with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably
submits to the exclusive jurisdiction of the courts of
England.
44.3 Each party irrevocably waives any objection which it might at
any time have to the courts of England being nominated as the
forum to hear and decide any Proceedings and to settle any
Disputes and agrees not to claim that the courts of England
are not a convenient or appropriate forum.
44.4 Process by which any proceedings are begun in England may be
served on the Purchaser by being personally delivered to
Clifford Chance, 200 Aldersgate Street, London EC1 4JJ marked
for the attention of Simon G.F. Burgess. Nothing contained
in this Clause 17.4 affects the right to serve process in
another manner permitted by law.
45. COUNTERPARTS
This Agreement may be executed in any number of counterparts each
of which when executed and delivered is an original, but all the
counterparts together constitute the same document.
AS WITNESS the hands of the parties hereto, or their duly authorised
representatives, the day and year first above written.
SCHEDULE 1
THE CONDITIONS
1. The posting on or before 21 March 1996, or such later date as
the Panel on Takeovers and Mergers may agree, of the Offer
Document and Notice convening the Extraordinary General
Meeting of the Company at which the Special Resolution is to
be proposed.
2. The passing of the Special Resolution at an Extraordinary
General Meeting of the Company or at any adjournment thereof;
3. The Subscription Shares being admitted to the Official List
of the London Stock Exchange and such admission becoming
effective in accordance with paragraph 7.1 of the Listing
Rules.
4. The shares of Class A Common Stock issuable to the Company's
shareholders pursuant to the Offers and the Share Purchase
shall have been approved for listing on the New York Stock
Exchange, Inc., subject to official notice of issuance.
5. It having been established in terms reasonably satisfactory
to the Purchaser that the proposed acquisition of Ordinary
Shares and Preference Shares in the Company pursuant to the
Offers and the Share Purchase and the Subscription for the
Subscription Shares by the Purchaser Group, or any matter
arising therefrom, will not be referred to the Monopolies and
Mergers Commission.
6. All necessary filings having been made in connection with the
Offers and the Subscription and the Share Purchase and all
authorisations, orders, grants, recognitions, confirmations,
consents, clearances, licences, permissions, exemptions and
approvals necessary for or in respect of the Offers, the
Subscription or the proposed acquisition of any shares in the
Company by the Purchaser Group being obtained on terms and in
a form reasonably satisfactory to the Purchaser from
appropriate governments, governmental, quasi-governmental,
supranational, statutory or regulatory bodies, trade
agencies, professional bodies, associations, institutions,
environmental bodies and courts, and such authorisations,
orders, grants, recognitions, confirmations, consents,
clearances, licences, permissions, exemptions and approvals
remaining in full force and effect at the time at which this
Agreement becomes otherwise unconditional in all respects and
no notice of any intention to revoke, suspend, restrict,
modify or not renew any of the same having been received by
the Purchaser or the Company and all necessary filings having
been made and all waiting periods under any applicable
legislation and regulations in any jurisdiction having
expired or been terminated, in each case as may be necessary
in connection with the Offers, the Subscription and the Share
Purchase under the laws and regulations of any jurisdiction
and all necessary statutory or regulatory obligations in any
jurisdiction having been complied with.
7. Assurances satisfactory to both the Purchaser and the Company
being received from the United Kingdom Civil Aviation
Authority and the Danish Civil Aviation Authority that the
certificates, licences, approvals, arrangements and consents
including, without limitation, the Air Transport Licences and
the Air Operator's Certificates of any member of the Company
Group will not be adversely affected by the Offers the
Subscription or the Share Purchase.
8. The Undertakings remaining in full force and effect and the
obligations of Mr. D. Crossland and Mr. T. Trickett pursuant
to paragraphs 4.1 to 4.4 thereof not having been terminated
pursuant to paragraph 4.5 thereof.
SCHEDULE 2
THE WARRANTIES
1. OFFER DOCUMENT
1.1 Each statement of fact contained in the Offer Document or the
Listing Particulars concerning or relating to the Company
Group or its Directors will be true and accurate in all
material respects and not misleading. Each forecast,
estimate and expression of opinion, intention or expectation
contained in the Offer Document or the Listing Particulars
concerning the Company Group or its Directors will be
honestly held, fairly based and be made after all reasonable
enquiry and consideration.
1.2 No information will be omitted from the Offer Document or the
Listing Particulars which might make a statement of fact,
forecast, estimate or expression of opinion, intention or
expectation in the Offer Document or the Listing Particulars
concerning or relating to the Company Group or its Directors
untrue or inaccurate in any material respect or misleading or
which, in the context of the Subscription, the Offers and the
Share Purchase, is material for disclosure in the Offer
Document or the Listing Particulars.
2. ACCOUNTS
The audited consolidated balance sheet of the Company as at 30
September 1995 and the audited consolidated profit and loss
account and cash flow statement of the Company for the financial
year ended on such date (including the notes thereon) (such
balance sheet, profit and loss account and cash flow statement and
notes being the "Accounts") as set out in the Accounts give a true
and fair view of the state of affairs of the Company and its
subsidiaries at such date and the profits and cash flows of the
Company and its subsidiaries for the financial year ended at that
date and were prepared in accordance with applicable United
Kingdom accounting standards and under the historical cost
convention and in accordance with the accounting policies stated
therein consistently applied with the audited consolidated
accounts of the Company for the two preceding financial years and
the Accounts comply with the applicable provisions of the Act.
3. MATERIAL ADVERSE CHANGE
Since 30 September 1995 until the date hereof, taking due account
of the normal seasonal nature of the business of the Company and
its subsidiaries there has been no material adverse change in the
financial or trading position of the Company and its subsidiaries
(taken as a whole).
SCHEDULE 3
PROVISIONS FOR THE PROTECTION OF THE COMPANY
1. Remedies
1.1 After Completion the Purchasers rights for breach of the
Warranties shall only lie in damages and it shall not be
entitled to rescind or repudiate this Agreement.
1.2 Where the matter or default giving rise to a breach of any
Warranty is capable of remedy, the breach shall not entitle
the Purchaser to damages or other compensation unless written
notice of the breach is given to the Company and the matter
or default is not remedied to the reasonable satisfaction of
the Purchaser within 30 days after the date on which such
notice is served. This right to remedy shall not apply prior
to Completion.
2. Exclusion of Certain Claims
2.1 No claim shall be made by the Purchaser against the Company
and the Company shall not have any liability to the Purchaser
under the Warranties:
(a) in respect of any matter or thing fairly disclosed in the
Disclosure Information;
(b) in respect of any matter appearing on the files of the
Company maintained by the Registrar of Companies in England
and Wales at Companies House as the same appeared on 12
February 1996;
(c) in respect of any liability to the extent that it occurs as
a result of:
(i) any legislation not in force at the date hereof or any
change of law or administrative practice having
retrospective effect which comes into force after the
date hereof; or
(ii) any increase hereafter in the rates of taxation in
force at the date hereof;
(d) in respect of a liability which is contingent only unless and
until such contingent liability becomes an actual liability
and is due and payable, but this paragraph 2.1(d) shall not
operate to avoid a claim made with reasonable particularity
in respect of a contingent liability within the applicable
time limits specified in paragraph 3 of this Schedule; or
(e) in respect of any matter referred to in the Press Release.
3. Time Limits
3.1 No claim shall be brought by the Purchaser for breach of any
of the Warranties unless notice in writing of such claim
(specifying in reasonable detail the event, matter or default
which gives rise to the claim and, if practicable, an
estimate of the amount claimed) has been given on or before
the date falling 30 days after the date of publication of the
report and accounts of the Company for its financial year
ending 30 September 1996.
3.2 Any such claim that may have been made shall (if it has not
been previously satisfied, settled or withdrawn) be deemed to
have been waived or withdrawn on the expiration of 18 months
after the date it was made unless court proceedings in
respect of it shall then have been issued and served on the
Company (except that if such claim is based on a contingent
liability as described paragraph 2.1(d), then the Purchaser
shall not be obligated to commence court proceedings within
such 18 month period if such proceedings may not be commenced
as a matter of English law) but shall be obligated to issue
and serve on the Company Court proceedings in respect of such
claim within 18 months after the relevant liability ceases to
be a contingent liability.
4. Thresholds
4.1 The Company shall not have any liability in respect of any
claim made under or in respect of any of the Warranties
unless the amount of that claim when added to the aggregate
amount of all other claims under or in respect of the
Warranties exceeds L15,000,000 (in which case the Purchaser
shall have a claim for the full amount of such claims and not
only the excess over L15,000,000).
4.2 The total liability of the Company in respect of all claims
under or in respect of the Warranties shall not exceed
L100,000,000.
4.3 If any relevant claim is made, or any relevant liability of
the Company determined, in a currency other than pounds
sterling, for the purposes of applying the provisions of
paragraphs 4.1 and 4.2 of this Schedule such claim/liability
shall be construed as a claim/liability for the equivalent
amount in pounds sterling, calculated by reference to the
rate of exchange prevailing on, for the purposes of paragraph
4.1 the date the claim is made or, for the purposes of
paragraph 4.2 the date upon which the liability is discharged
by the Company.
5. Allowance Against Claims
If the Company shall have made any payment in respect of a claim
under the Warranties and any member of the Company Group shall
thereafter receive a quantifiable monetary benefit, refund or
payment from a third party which is directly referable to the
Warranty claim, the Purchaser shall forthwith repay to the Company
a sum (not in excess of the Warranty payment received by the
Purchaser from the Company) corresponding to such net benefit,
refund or payment from a third party as the case may be provided
that any such repayment shall have no effect on any previous or
future application of the provisions of Clause 4.1 of this
Schedule 3.
Signed by )
for and on behalf of ) /s/ Howard S. Frank
CARNIVAL CORPORATION )
Signed by )
for and on behalf of ) /s/ H. H. Collinson
AIRTOURS PLC )
EXHIBIT 11
CARNIVAL CORPORATION
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
(in thousands, except per share data)
EXHIBIT 12
CARNIVAL CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands, except ratios)