FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended November 30, 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)
Registrant's telephone number, including area code (305) 599-2600
Securities registered pursuant to Section 12(b) of the Act:
Name of exchange on
Title of each class which registered
Class A Common Stock New York Stock
($.01 par value) Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: None.
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 by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of Registrant's knowledge, in any definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [ X ].
The aggregate market value of the voting stock held by non-affiliates
of the Registrant is approximately $5,250,000,000 based upon the closing
market price on February 14, 1997 of a share of Class A Common Stock on the
New York Stock Exchange as reported by the Wall Street Journal.
At February 14, 1997, the Registrant had outstanding 242,078,952 shares
of its Class A Common Stock, $.01 par value and 54,957,142 shares of its
Class B Common Stock, $.01 par value.
DOCUMENTS INCORPORATED BY REFERENCE
The information described below and contained in the Registrant's 1996
annual report to shareholders to be furnished to the Commission pursuant to
Rule 14a-3(b) of the Exchange Act is shown in Exhibit 13 and is incorporated
by reference into this Form 10-K.
Part and Item of the Form 10-K
Part II
Item 5(a) and (b). Market for the Registrant's Common Stock and Related
Stockholder Matters - Market Information and Holders.
Item 6. Selected Financial Data
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Item 8. Financial Statements and Supplementary Data
The information described below and contained in the Registrant's 1997
definitive Proxy Statement, to be filed with the Commission is incorporated
by reference into this Form 10-K.
Part and Item of the Form 10-K
Part III
Item 10. Directors and Executive Officers of the Registrant.
Item 11. Executive Compensation.
Item 12. Security Ownership of Certain Beneficial Owners and
Management.
Item 13. Certain Relationships and Related Transactions.
PART I
Item 1. Business
A. General
Carnival Corporation was incorporated under the laws of the Republic of
Panama in November 1974. Carnival Corporation, including its 100% owned
subsidiaries (the "Company"), is the world's largest multiple-night cruise
company based on the number of passengers carried, revenues generated, and
available capacity. The Company offers a broad range of cruise products,
serving the contemporary cruise market through Carnival Cruise Lines
("Carnival"), the premium cruise market through Holland America Line ("HAL")
and the luxury cruise market through Windstar Cruises. In total the Company
owns and operates 22 cruise ships with an aggregate capacity of 30,837
passengers based on two passengers per cabin*. The Company also owns 50% of
Seabourn Cruise Line ("Seabourn"), which serves the luxury market with two
ships, and 29.5% of Airtours plc ("Airtours"), a leisure travel company with
two cruise ships marketed primarily in Europe. Together, Seabourn and
Airtours have a total capacity of approximately 2,350 passengers. In
addition, Airtours will begin operation of a third ship commencing in May
1997.
The eleven Carnival ships have an aggregate capacity of 20,332
passengers with itineraries in the Caribbean, the Mexican Riviera and
Alaska. The eight HAL ships have an aggregate capacity of 10,061
passengers, with itineraries in the Caribbean, the Mediterranean and Alaska
and through the Panama Canal, as well as other worldwide itineraries. The
three Windstar ships have an aggregate capacity of 444 passengers with
itineraries in the Caribbean, the South Pacific, the Mediterranean and the
Far East. The three Seabourn ships have an aggregate capacity of 612
passengers, and have itineraries throughout the world. The two Airtours
ships have itineraries in the Mediterranean, the Canary Islands and the
Caribbean.
The Company has signed agreements with various shipyards providing for
the construction of additional cruise ships. The following table reflects a
summary of these vessels under construction:
EXPECTED PASSENGER
VESSEL DELIVERY SHIPYARD CAPACITY
Carnival Cruise Lines
Elation 02/98 Masa-Yards 2,040
Paradise 11/98 Masa-Yards 2,040
Carnival Triumph 06/99 Fincantieri 2,640
Carnival Newbuild 07/00 Fincantieri 2,640
Total Carnival Cruise Lines 9,360
Holland America Line
Rotterdam VI 09/97 Fincantieri 1,320
HAL Newbuild 02/99 Fincantieri 1,440
HAL Newbuild 09/99 Fincantieri 1,440
Total Holland America Line 4,200
13,560
* In accordance with industry practice all capacities indicated within this
document are calculated based on two passengers per cabin even though some
cabins can accommodate three or four passengers.
As a result of this shipbuilding program and planned ship sales and
retirements, the Company currently expects its passenger capacity to
increase by 37% to 42,300 in mid-2000 (excluding Seabourn and Airtours).
The Company also operates a tour business, through Holland America
Westours, which markets sight-seeing tours and cruise/tour packages to
Alaska. HAL-Westours operates 16 hotels in Alaska and the Canadian Yukon,
two luxury dayboats offering tours to the glaciers of Alaska and the Yukon
River, over 290 motor coaches used for sight-seeing and charters in the
states of Washington and Alaska and twelve private domed rail cars which are
run on the Alaskan railroad between Anchorage and Fairbanks.
Historically, the Company's products have been marketed primarily in
North America through Carnival, HAL, Windstar Cruises, HAL-Westours, and
Seabourn. During 1996, the Company took steps to expand its markets into
Europe and Asia which are described below. The existing cruise markets in
Europe and Asia are much smaller and less developed than the North American
market. Cruise passengers carried in Europe and Asia in 1996 are estimated
to be approximately 1.0 million and 0.5 million, respectively, compared to
approximately 4.6 million in North America.
In April 1996, the Company acquired a 29.5% interest in Airtours, a
leisure travel company publicly traded on the London Stock Exchange that
provides air inclusive packaged holidays to the British, Scandinavian and
North American markets. In addition, in September 1996 the Company and
Hyundai Merchant Marine Co. Ltd. ("HMM") signed an agreement to form a 50/50
joint venture to develop the Asian cruise vacation market. See Part I,
"Item 1. Business, G. Investments in Affiliates", for a further description
of these businesses.
In December 1996, the Company and Airtours signed a letter of intent
with the controlling shareholders (the "Syndicate") of Costa Crociere SpA
("Costa"), a publicly traded cruise company headquartered in Italy to
acquire all of the equity securities of Costa held by the Syndicate and to
launch a tender offer for the remaining outstanding equity securities of
Costa. Costa markets its cruise products primarily in Europe. The cost of
acquisition, assuming all of the outstanding equity securities are tendered,
would be approximately $300 million cash, with the Company and Airtours each
contributing 50% of that amount. The letter of intent provides that the
commencement of the tender offer is conditioned on the successful conclusion
of a due diligence review by the Company and Airtours, the signing of a
definitive agreement with the Syndicate, the receipt of all corporate and
regulatory and government approvals, certain minimum levels of acceptance on
the tender offer and other customary conditions found in transactions of
this type.
B. Cruise Ship Segment
Industry
The passenger cruise industry as it exists today began in approximately
1970. Over time, the industry has evolved from a trans-ocean carrier service
into a vacation alternative to land-based resorts and sight-seeing
destinations. According to Cruise Lines International Association ("CLIA"),
an industry trade group, in 1970 approximately 500,000 North American
passengers took cruises for three consecutive nights or more. CLIA
estimates that this number reached 4.6 million passengers in 1996, an
average compound annual growth rate of 8.9% since 1970. Also, according to
CLIA, by the end of 1996 the number of ships in service totaled 129 with an
aggregate capacity of approximately 110,000 berths. CLIA estimates that the
number of passengers carried in North America increased from 4.38 million in
1995 to 4.6 million in 1996 or approximately 5.0%. There was no growth in
the number of passengers carried in North America during 1994 and 1995. The
Company nevertheless has been able to increase the number of passengers it
carried by approximately 200,000 in each of the past three years, or an
average of 15.2% per year.
CLIA estimates that the number of cruise passengers will grow to
approximately 4.9 million in 1997. CLIA also projects that by the end of
1997, North America will be served by 135 vessels having an aggregate
capacity of approximately 124,000 berths.
The following table sets forth the North American industry and Company
growth over the past five years based on passengers carried for at least
three consecutive nights:
<TABLE>
<CAPTION>
NORTH AMERICAN COMPANY CRUISE
CRUISE PASSENGERS
YEAR PASSENGERS* CARRIED
(Calendar) (Fiscal)
<S> <C> <C>
1996 4,600,000(est) 1,764,000
1995 4,378,000 1,543,000
1994 4,448,000 1,354,000
1993 4,480,000 1,154,000
1992 4,136,000 1,153,000
</TABLE>
*Source: CLIA.
From 1992 through 1996, the Company's average compound annual growth
rate in number of passengers carried was 11.2% versus the industry average
of 2.7%.
The Company's passenger capacity has grown from 17,973 at November 30,
1992 to 30,837 at November 30, 1996. The delivery of the Statendam,
Sensation and Maasdam in 1993 increased capacity by 4,572 berths, more than
offsetting a decrease of 906 berths related to the sale of the Mardi Gras.
During 1994, net capacity increased by 2,369 berths due to the delivery of
the Fascination and Ryndam, net of the 937 decrease in berths related to the
sale of the Carnivale. In 1995, with the delivery of the Imagination,
capacity increased by 2,040 berths. During 1996, net capacity increased by
4,802 berths due to delivery of the Inspiration, the Veendam and the
Carnival Destiny, net of the 1,146 decrease in passenger capacity related to
the sale of the Festivale.
In spite of the cruise industry's growth since 1970, the Company
believes cruises represent only approximately 2% of the applicable North
American vacation market, defined as persons who travel for leisure purposes
on trips of three nights or longer involving at least one night's stay in a
hotel. Only an estimated 7% of the North American population has ever taken
a cruise.
Cruise Ships and Itineraries
Under the Carnival Cruise Lines name, the Company serves the
contemporary market with eleven ships (the "Carnival Ships"). All of the
Carnival Ships were designed by and built for Carnival, including ten
SuperLiners which are among the largest in the cruise industry. Nine of the
Carnival Ships operate in the Caribbean and two Carnival Ships call on ports
in the Mexican Riviera. During 1996, the Carnival Ship Tropicale began
operating in Alaska during the summer season. Carnival also offers cruises
through the Panama Canal and to the Hawaiian Islands. See "Sales and
Marketing".
Through its subsidiary, HAL, the Company operates eleven ships offering
premium or luxury specialty vacations. Eight of these ships, the Rotterdam,
the Nieuw Amsterdam, the Noordam, the Westerdam, the Statendam, the Maasdam,
the Ryndam and the Veendam are operated under the Holland America Line name
(the "HAL Ships"). The remaining three ships, the Wind Star, the Wind Song
and the Wind Spirit, are operated under the Windstar Cruises name (the
"Windstar Ships").
The HAL Ships offer premium cruises of various lengths, in the
Caribbean, Alaska, Panama Canal, Europe, the Mediterranean, Hawaii, Mexico,
South Pacific, South America and the Orient. Cruise lengths vary from one
to 99 days, with a large proportion of cruises being seven or ten days in
length. Periodically, the HAL Ships make longer grand cruises or operate on
short-term special itineraries. For example, in 1996, the Rotterdam made a
99-day world cruise, and a 50-day Grand South America voyage. HAL will
continue to offer these special and longer itineraries in order to increase
travel opportunities for its customers and strengthen its cruise offerings
in view of the fleet expansion. The majority of the HAL Ships operate in
the Caribbean during fall to early spring and in Alaska during late spring
to early fall. The three Windstar Ships currently operate in the Caribbean,
the Mediterranean and the South Pacific.
The following table presents summary information concerning the
Company's ships. Areas of operation are based on current itineraries and
are subject to change.
<TABLE>
<CAPTION>
YEAR
FIRST IN GROSS LENGTH PRIMARY
COMPANY PAX REGISTERED & AREAS OF
NAME REGISTRY BUILT SERVICE CAP* TONS WIDTH OPERATION
<S> <C> <C> <C> <C> <C> <C> <C>
Carnival Cruise Lines
Carnival Destiny Panama 1996 1997 2,642 101,000 893/116 Caribbean
Inspiration Panama 1996 1996 2,040 70,367 855/104 Caribbean
Imagination Panama 1995 1995 2,040 70,367 855/104 Caribbean
Fascination Panama 1994 1994 2,040 70,367 855/104 Caribbean
Sensation Panama 1993 1993 2,040 70,367 855/104 Caribbean
Ecstasy Liberia 1991 1991 2,040 70,367 855/104 Caribbean
Fantasy Liberia 1990 1990 2,044 70,367 855/104 Bahamas
Celebration Liberia 1987 1987 1,486 47,262 738/92 Caribbean
Jubilee Panama 1986 1986 1,486 47,262 738/92 Mexican
Riviera
Holiday Panama 1985 1985 1,452 46,052 727/92 Mexican
Riviera
Tropicale** Liberia 1982 1982 1,022 36,674 660/85 Alaska,
Caribbean
Total Carnival Ships Capacity......... 20,332
Holland America Line
Veendam Bahamas 1996 1996 1,266 55,451 720/101 Alaska,
Caribbean
Ryndam Netherlands 1994 1994 1,266 55,451 720/101 Alaska,
Caribbean
Maasdam Netherlands 1993 1993 1,266 55,451 720/101 Europe,
Caribbean
Statendam Netherlands 1993 1993 1,266 55,451 720/101 Alaska,
Caribbean
Westerdam Netherlands 1986 1988 1,494 53,872 798/95 Canada,
Caribbean
Noordam Netherlands 1984 1984 1,214 33,930 704/89 Alaska,
Caribbean
Nieuw Amsterdam Netherlands 1983 1983 1,214 33,930 704/89 Alaska,
Caribbean
Rotterdam V** Netherlands 1959 1959 1,075 37,783 749/94 Alaska,
Worldwide
Total HAL Ships Capacity.............. 10,061
Windstar Cruises
Wind Spirit Bahamas 1988 1988 148 5,736 440/52 Caribbean,
Mediterranean
Wind Song Bahamas 1987 1987 148 5,703 440/52 South
Pacific
Wind Star Bahamas 1986 1986 148 5,703 440/52 Caribbean,
Mediterranean
Total Windstar Ships Capacity........ 444
Total Capacity.......................... 30,837
</TABLE>
* In accordance with industry practice passenger capacity is calculated
based on two passengers per cabin even though some cabins can accommodate
three or four passengers.
** In November 1996, Carnival Cruise Lines' cruise ship Tropicale was sold
to the joint venture with HMM and the Company chartered the vessel back
until the vessel enters service with the joint venture in the spring of
1998. Holland America Line's Rotterdam V is expected to be replaced in
September 1997 by the Rotterdam VI, which is currently under construction.
__________________________
Cruise Ship Construction
The Company is currently constructing four cruise ships to be operated
under the Carnival name and three cruise ships to be operated under the
Holland America Line name. The following table presents summary information
concerning ships under construction:
<TABLE>
<CAPTION>
EXPECTED PAX ESTIMATED REMAINING
VESSEL DELIVERY SHIPYARD CAP (1) TONS COST TO BE PAID
<S> <C> <C> <C> <C> <C> <C>
(In millions)
Carnival Cruise Lines
Elation 02/98 Masa-Yards 2,040 70,367 $ 300 $ 281
Paradise 11/98 Masa-Yards 2,040 70,367 300 283
Carnival Triumph 06/99 Fincantieri(2) 2,640 101,000 400 372
Carnival Newbuild 07/00 Fincantieri 2,640 101,000 430 430
Total Carnival Ships Capacity 9,360 1,430 1,366
Holland America Line
Rotterdam VI 09/97 Fincantieri(2) 1,320 62,000 270 199
HAL Newbuild 02/99 Fincantieri(2) 1,440 63,000 300 286
HAL Newbuild 09/99 Fincantieri(2) 1,440 63,000 300 286
Total HAL Ships Capacity 4,200 870 771
Total 13,560 $2,300 $2,137
</TABLE>
(1) In accordance with cruise industry practice, passenger capacity is
calculated based on two passengers per cabin even though some cabins can
accommodate three or four passengers.
(2) The construction contracts with such shipyards are denominated in
Italian Lire. Contracts denominated in a foreign currency have been fixed
into U.S. Dollars through the utilization of forward currency contracts.
Cruise Tariffs
The table below sets forth certain price information for the Company's
cruises. Brochure prices vary depending upon size and location of cabin,
the time of year that the voyage takes place, and when the booking is made.
The cruise brochure price includes a wide variety of activities and
facilities, such as a fully equipped casino, nightclubs, theatrical shows,
movies, parties, a discotheque, a health club and swimming pools on each
ship. The brochure price also includes numerous dining opportunities daily.
Brochure pricing information below is per person based on double
occupancy:
<TABLE>
<CAPTION>
AREA OF OPERATION CRUISE LENGTH PRICE RANGE
<S> <C> <C>
Carnival Cruise Lines
Caribbean 3-day $ 519--939
4-day 599--1,169
7-day 999--2,599
Mexico 3-day 519--939
4-day 599--1,099
7-day 999--2,049
Alaska 7-day 1,399--2,749
Holland America Line
Alaska 7-day $ 1,025--7,000
Caribbean 7-day 1,262--5,775
10-day 2,032--6,000
Europe 10- to 12-day 3,375--14,045
Panama Canal 10- to 22-day 2,795--15,400
Windstar Cruises
Caribbean 7-day $ 3,195--3,295
Mediterranean 7- to 16-day 2,695--6,095
South Pacific 7-day 3,195--3,495
</TABLE>
Brochure prices are regularly discounted through the Company's early
booking discount program and other promotions.
On-Board and Other Revenues
The Company derives revenues from certain on-board activities and
services including casino gaming, liquor sales, gift shop sales, shore
tours, photography and promotional advertising by merchants located in ports
of call.
The casinos, which contain slot machines and gaming tables including
blackjack, craps, roulette and stud poker, are generally open only when the
ships are at sea in international waters. The Company also earns revenue
from the sale of alcoholic and other beverages. Certain onboard activities
are managed by independent concessionaires from which the Company collects a
percentage of revenues, while certain other activities are managed by the
Company.
The Company receives additional revenue from the sale to its passengers
of shore excursions at each ship's ports of call. On the Carnival Ships,
such shore excursions are operated by independent tour operators and include
bus and taxi sight-seeing excursions, local boat and beach parties, and
nightclub and casino visits. On the HAL Ships, shore excursions are
operated by Holland America Westours and independent parties.
In conjunction with its cruise vacations on the Carnival Ships, the
Company sells pre-cruise and post-cruise land packages. Such packages
generally include one, two or three-night vacations at locations such as
Walt Disney World in Orlando, Florida or resorts in the South Florida and
the San Juan, Puerto Rico areas.
In conjunction with its cruise vacations on the HAL Ships, HAL sells
pre-cruise and post-cruise land packages which are more fully described
below. (See "Item 1. Business - Tour Segment")
Passengers
The following table sets forth the aggregate number of passengers
carried and percentage occupancy for the Company's ships for the periods
indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED NOVEMBER 30,
1996 1995 1994
<S> <C> <C> <C>
Number of Passengers 1,764,000 1,543,000 1,354,000
Occupancy Percentage* 107.6% 105.0% 104.0%
</TABLE>
- -----------------------------------------
*In accordance with cruise industry practice, total capacity is
calculated based on two passengers per cabin even though some cabins can
accommodate three or four passengers. Occupancy percentages in excess of
100% indicate that more than two passengers occupied some cabins.
- -----------------------------------------
The following table sets forth the actual occupancy percentage for all
cruises on the Company's ships during each quarter for the fiscal years
ended November 30, 1995 and November 30, 1996:
<TABLE>
<CAPTION>
OCCUPANCY
QUARTER ENDING PERCENTAGE
<S> <C>
February 28, 1995 99.9
May 31, 1995 100.3
August 31, 1995 114.6
November 30, 1995 104.6
February 29, 1996 107.1
May 31, 1996 107.2
August 31, 1996 114.5
November 30, 1996 101.1
</TABLE>
Sales and Marketing
The Company's products are positioned to appeal to the contemporary,
premium and luxury-specialty segments. The luxury-specialty segment, which
is not as large as the other segments, is served by cruises with per diems
of $300 or higher. The premium segment typically is served by cruises that
last for 7 to 14 days or more at per diems of $250 or higher, and appeal
principally to more affluent customers. The contemporary segment, on the
other hand, is served typically by cruises that are 7 days or shorter in
length, are priced at per diems of $200 or less, and feature a casual
ambiance. The Company believes that the success and growth of the Carnival
cruises is attributable in large part to its early recognition of this
market segmentation and its efforts to reach and promote the expansion of
the contemporary segment.
Carnival Cruise Lines
Carnival believes that its success is due in large part to its unique
product positioning within the industry. Carnival markets the Carnival Ship
cruises not only as alternatives to competitors' cruises, but as vacation
alternatives to land-based resorts and sight-seeing destinations. Carnival
seeks to attract passengers from the broad vacation market, including those
who have never been on a cruise ship before and who might not otherwise
consider a cruise as a vacation alternative. Carnival's strategy has been to
emphasize the cruise experience itself rather than particular destinations,
as well as the advantages of a prepaid, all-inclusive vacation package.
Carnival markets the Carnival Ship cruises as the "Fun Ships " experience,
which includes a wide variety of shipboard activities and entertainment,
such as full-scale casinos and nightclubs, an atmosphere of pampered service
and high quality food.
The Company markets the Carnival Ships as the "Fun Ships " and uses the
themes "Carnival's Got the Fun " and "The Most Popular Cruise Line in the
World ", among others. Carnival advertises nationally directly to consumers
on network television and through extensive print media utilizing its
spokesperson, Kathie Lee Gifford. Carnival believes its advertising
generates interest in cruise vacations generally and results in a higher
degree of consumer awareness of the "Fun Ships " concept and the "Carnival "
name. Substantially all of Carnival's cruise bookings are made through
travel agents, which arrangement is encouraged as a matter of policy. In
fiscal 1996, Carnival took reservations from about 31,000 of approximately
48,000 travel agencies in the United States and Canada. Travel agents
receive a standard commission of 10% (15% in the State of Florida), plus the
potential of an additional commission based on sales volume. Moreover,
because cruise vacations are substantially all-inclusive, sales of Carnival
cruise vacations yield a significantly higher commission to travel agents
than selling air tickets and hotel rooms. During fiscal 1996, no one travel
agency accounted for more than 2% of Carnival's revenues.
Carnival engages in substantial promotional efforts designed to
motivate and educate retail travel agents about its "Fun Ships " cruise
vacations. Carnival employs approximately 90 business development managers
and 30 in-house service representatives to motivate independent travel
agents and promote its cruises. Carnival believes it has one of the largest
sales forces in the industry.
To facilitate access and to simplify the reservation process, Carnival
employs approximately 360 reservation agents to take bookings from
independent travel agents. Carnival's fully-automated reservation system
allows its reservation agents to respond quickly to book cabins on its
ships. In addition, through Leisure Shopper and Cruise Director, travel
agents have the ability to make reservations through computer terminals
directly into Carnival's computerized reservations system. Carnival has a
policy of pricing comparable cabins (based on cabin size, location, vessel
class and length of voyage) on its various ships at the same rate within its
brochures ("common rating"). Through common rating, Carnival is able to
offer customers a wider variety of voyages for the same price, which the
Company believes improves occupancy on all its cruises. However, discounts
from brochure prices may vary depending upon the ship, itinerary, time of
year and demand for each cruise.
Carnival's cruises generally are substantially booked several months in
advance of the sailing date. This lead time allows Carnival to adjust its
prices, if necessary, in relation to demand for available cabins, as
indicated by the level of advance bookings. Carnival's SuperSaver fares,
introduced several years ago, are designed to encourage potential passengers
to book cruise reservations earlier, which helps the Company to more
effectively manage yields (pricing and occupancy). Carnival's payment terms
require that a passenger pay approximately 15% of the cruise price within 7
days of the reservation date and the balance not later than 45 days before
the sailing date for 3- and 4-day cruises and 60 days before the sailing
date for 7-day cruises.
Holland America Line (HAL) and Windstar
The HAL and Windstar Ships cater to the premium and luxury-specialty
markets, respectively. The Company believes that the hallmarks of the HAL
experience are beautiful ships and gracious, attentive service. HAL
communicates this difference as "A Tradition of Excellence ", a reference to
its long standing reputation as a first class and grand cruise line.
Substantially all of HAL's bookings are made through travel agents,
which arrangement HAL encourages as a matter of policy. In fiscal 1996, HAL
took reservations from about 22,000 of approximately 48,000 travel agencies
in the United States and Canada. Travel agents receive a standard
commission of between 10% and 15%, depending upon the specific cruise
product sold, with the potential for override commissions based upon sales
volume. During 1996, no one travel agency accounted for more than 1% of
HAL's total revenue.
HAL has focused much of its recent sales effort at creating an
excellent relationship with the travel agency community. This is related to
the HAL marketing philosophy that travel agents have a large impact on the
consumer cruise selection process and will recommend HAL more often because
of its excellent reputation for service to both consumers and independent
travel agents. HAL solicits continuous feedback from consumers and the
independent travel agents making bookings with HAL to insure they are
receiving excellent service.
HAL's marketing communication strategy is primarily composed of
newspaper and magazine advertising, large scale brochure distribution and
direct mail solicitations to past passengers (referred to as "alumni") and
television. HAL engages in substantial promotional efforts designed to
motivate and educate retail travel agents about its products. HAL employs
approximately 50 field sales representatives, 25 teleaccount sales
representatives and 15 sales and service representatives to support the
field sales force. To facilitate access to HAL and to simplify the
reservation process for the HAL ships, HAL employs approximately 260
reservation agents to take bookings from travel agents. In addition,
through Leisure Shopper and Cruise Director, travel agents have the ability
to make reservations directly into HAL's reservations system. HAL's cruises
generally are booked several months in advance of the sailing date.
Windstar Cruises has its own marketing and reservations staff. Field
sales representatives for both HAL and Carnival act as field sales
representatives for Windstar. Marketing efforts are primarily devoted to a)
travel agent support and awareness, b) direct mail solicitation of past
passengers and c) distribution of brochures. The marketing features the
distinctive nature of the graceful, modern sail ships and the distinctive
"casually elegant" experience on "intimate itineraries" (apart from the
normal cruise experience). Windstar's cruise market positioning is embodied
in the phrase "180 degrees from ordinary ".
Seasonality
The Company's different businesses experience varying degrees of
seasonality. The Company's revenue from the sale of passenger tickets for
Carnival Cruise Lines' ("Carnival") ships is moderately seasonal.
Historically, demand for Carnival cruises has been greater during the
periods from late June through August and lower during the fall months. HAL
cruise revenues are more seasonal than Carnival's cruise revenues. Demand
for HAL cruises is strongest during the summer months when HAL ships operate
in Alaska and Europe for which HAL obtains higher pricing. Demand for HAL
cruises is lower during the winter months when HAL ships sail in more
competitive markets.
Competition
In addition to competing with each other, cruise lines compete for
consumer disposable leisure time dollars with other vacation alternatives
such as land-based resort hotels and sight-seeing destinations, and public
demand for such activities is influenced by general economic conditions.
As described under Part I, Item 1. Business, B. Cruise Ship Segment,
Industry, the North American cruise industry had an aggregate of 129 ships
and 110,000 berths at the end of 1996. From the end of 1996 through the end
of 1999, the Company currently estimates 22 new ships will be introduced
into the North American market with a capacity of approximately 35,000
berths. The estimate of new ship introductions is based on scheduled ship
deliveries and could increase. The lead time for design, construction and
delivery of a typical cruise ship is approximately two to three years. Over
the last several years as new vessels were introduced by the Company and
some of its competitors a number of older vessels were removed from service
in the North American market due to age or lack of profitability. The
Company believes that this trend may continue in the future. Nonetheless,
net capacity in the North American cruise market will most likely increase
over the next several years and thus may increase the levels of competition
within the industry.
The Company, including all its cruise products, is the largest cruise
company in the world based on passengers carried, revenues generated and
available capacity. The primary methods of competition among cruise lines
are in the areas of cruise pricing, cruise product and cruise destination.
A discussion of each of the Company's cruise products and its primary cruise
competition is included below.
The Carnival ships compete with cruise ships operated by six different
cruise lines which operate year round from Florida, California and Puerto
Rico with similar itineraries and with ten other cruise lines operating
seasonally from other ports in Florida, California and Puerto Rico,
including cruise ships operated by HAL. Competition for cruise passengers
is substantial. Ships operated by Royal Caribbean Cruise Line and Norwegian
Cruise Line sail regularly from Miami and Celebrity Cruises sails regularly
from Ft. Lauderdale on itineraries similar to those of the Carnival Ships.
Carnival competes year round with ships operated by Royal Caribbean Cruise
Line embarking from Los Angeles to the west coast of Mexico. Cruise lines
such as Norwegian Cruise Line, Royal Caribbean Cruise Line and Princess
Cruises offer voyages competing with Carnival from San Juan to the
Caribbean. The Walt Disney Co. has announced that it intends to enter the
cruise market with two ships in 1998.
In Alaska, HAL and Carnival compete directly with cruise ships operated
by ten different cruise lines with the largest competitors being Princess
Cruises and Royal Caribbean Cruise Line. Over the past several years, there
has been a steady increase in the available capacity among all cruise lines
operating in Alaska. In the Caribbean, HAL competes with cruise ships
operated by 16 different cruise lines, its primary competitors being
Princess Cruises, Royal Caribbean Cruise Line, Celebrity Cruises and
Norwegian Cruise Line, as well as the Carnival Ships.
Governmental Regulation
The Ecstasy, Fantasy, Celebration and Tropicale are Liberian flagged
ships and the balance of the Carnival Ships are registered in Panama. The
Ryndam, Maasdam, Statendam, Westerdam, Noordam, Nieuw Amsterdam and the
Rotterdam are registered in the Netherlands, while the Veendam is flagged in
the Bahamas. The Windstar Ships are registered in the Bahamas. The ships
are subject to inspection by the United States Coast Guard for compliance
with the Convention for the Safety of Life at Sea and by the United States
Public Health Service for sanitary standards. The Company is also regulated
by the Federal Maritime Commission, which, among other things, certifies
ships on the basis of the ability of the Company to meet obligations to
passengers for refunds in case of nonperformance. The Company believes it
is in compliance with all material regulations applicable to its ships and
has all licenses necessary to the conduct of its business. In connection
with a significant portion of its Alaska cruise operations, HAL relies on a
concession permit from the National Park Service, which is periodically
renewed, to operate its cruise ships in Glacier Bay National Park. There
can be no assurance that the permits will continue to be renewed or that
regulations relating to the renewal of such permits, including preference
rights, will remain unchanged in the future.
The International Maritime Organization has adopted safety standards as
part of the "Safety of Life at Sea" ("SOLAS") Convention, applicable
generally to all passenger ships carrying 36 or more passengers.
Generally, SOLAS imposes enhanced vessel structural requirements designed to
improve passenger safety. The SOLAS requirements are phased in through the
year 2010. However, certain stringent SOLAS fire safety requirements must
be implemented by October 1997. The Company believes that its ships,
excluding the Rotterdam V which is scheduled for removal from service in
September 1997, either currently meet or will meet the 1997 SOLAS
requirements without significant additional expenditures.
Public Law 89-777 administered by the Federal Maritime Commission
("FMC") requires most cruise line operators to establish financial
responsibility for nonperformance of transportation. The FMC's regulations
require that a cruise line demonstrate its financial responsibility through
a guaranty, escrow arrangement, surety bond, insurance or self-insurance.
Currently, the amount required must equal 110% of the cruise line's highest
amount of customer deposits over a two-year period up to a maximum coverage
level of $15 million, subject to a sliding scale. The FMC has proposed
increasing the coverage requirements under the FMC regulations. The
proposed new regulations are viewed favorably by the Company and are not
expected to have a material effect on the Company. The FMC has received
public comments regarding the proposed regulations and may take final action
at any time.
From time to time, various other regulatory and legislative changes
have been or may in the future be proposed that could have an effect on the
cruise industry in general.
Financial Information
For financial information about the Company's cruise ship segment with
respect to the three fiscal years ended November 30, 1996, see Note 10
"Segment Information" to the Company's Consolidated Financial Statements in
Exhibit 13 incorporated by reference into this Annual Report on Form 10-K.
C. Tour Segment
In addition to its cruise business, HAL markets sight-seeing tours
separately and as a part of cruise/tour packages under the Holland America
Westours name. Tour operations are based in Alaska, Washington State and
western Canada. Since a substantial portion of Holland America Westours'
business is derived from the sale of tour packages in Alaska during the
summer tour season, tour operations are highly seasonal.
Holland America Westours
Holland America Line-Westours Inc. ("Holland America Westours") is a
wholly-owned subsidiary of HAL. The group of subsidiaries which together
comprise the tour operations perform three independent yet interrelated
functions. During 1996, as part of an integrated travel program to
destinations in Alaska, the tour service group offered 43 different tour
programs varying in length from 7 to 21 days. The transportation group and
hotel group support the tour service group by supplying facilities needed to
conduct tours. Facilities include dayboats, motor coaches, rail cars and
hotels.
Two luxury dayboats perform an important role in the integrated Alaska
travel program offering tours to the glaciers and fjords of Alaska and the
Yukon River. The Yukon Queen cruises the Yukon River between Dawson City,
Yukon Territory and Eagle, Alaska and the Ptarmigan operates on Portage Lake
in Alaska. The two dayboats have a combined capacity of 249 passengers.
A fleet of over 290 motor coaches using the trade name Gray Line
operates in Alaska, Washington and western Canada. These motor coaches are
used for extended trips, city sight-seeing tours and charter hire. HAL
conducts its tours both as part of a cruise/tour package and as individual
sight-seeing products sold under the Gray Line name. In addition, HAL
operates express Gray Line motor coach service between downtown Seattle and
the Seattle-Tacoma International Airport.
Twelve private domed rail cars, which are called "McKinley Explorers",
run on the Alaska railroad between Anchorage and Fairbanks, stopping at
Denali National Park.
In connection with its tour operations, HAL owns or leases motor coach
maintenance shops in Seattle, and at Juneau, Fairbanks, Anchorage, Skagway
and Ketchikan in Alaska. HAL also owns or leases service offices at
Anchorage, Denali Park, Fairbanks, Juneau, Ketchikan and Skagway in Alaska,
at Whitehorse in the Yukon Territory, in Seattle and at Vancouver in British
Columbia. Certain real property facilities on federal land are used in HAL's
tour operations pursuant to permits from the applicable federal agencies.
Westmark Hotels
HAL owns and/or operates 16 hotels in Alaska and the Canadian Yukon
under the name Westmark Hotels. Four of the hotels are located in Canada's
Yukon Territory and offer a combined total of 585 rooms. The remaining 12
hotels, all located throughout Alaska, provide a total of 1,649 rooms,
bringing the total number of hotel rooms to 2,234.
The hotels play an important role in HAL's tour program during the
summer months when they provide accommodations to the tour passengers. The
hotels located in the larger metropolitan areas remain open during the
entire year, acting during the winter season as centers for local community
activities while continuing to accommodate the traveling public. HAL hotels
include dining, lounge and conference or meeting room facilities. Certain
hotels have gift shops and other tourist services on the premises.
The hotels are summarized in the following table:
<TABLE>
<CAPTION>
OPEN DURING
HOTEL NAME LOCATION ROOMS 1996 SEASON
<S> <C> <C> <C>
Alaska Hotels:
Westmark Anchorage Anchorage 198 year-round
Westmark Inn Anchorage 90 seasonal
Westmark Inn Fairbanks 173 seasonal
Westmark Fairbanks Fairbanks 238 year-round
Westmark Juneau Juneau 105 year-round
The Baranof Juneau 193 year-round
Westmark Cape Fox Ketchikan 72 year-round
Westmark Kodiak Kodiak 81 year-round
Westmark Shee Atika Sitka 101 year-round
Westmark Inn Skagway Skagway 209 seasonal
Westmark Tok Tok 92 seasonal
Westmark Valdez Valdez 97 year-round
Canadian Hotels (Yukon Territory):
Westmark Inn Beaver Creek 174 seasonal
Westmark Klondike Inn Whitehorse 99 seasonal
Westmark Whitehorse Whitehorse 181 year-round
Westmark Inn Dawson 131 seasonal
</TABLE>
Thirteen of the hotels are owned by a HAL subsidiary. The remaining
three hotels, Westmark Anchorage, Westmark Cape Fox and Westmark Shee Atika,
are operated by Westmark under arrangements involving third parties such as
management agreements and leases.
For the hotels that operate year-round, the occupancy percentage for
1996 was 58%, and for the hotels that operate only during the summer months,
the occupancy percentage for 1996 was 79%.
Seasonality
The Company's tour revenues are extremely seasonal with a large
majority generated during the late spring and summer months in connection
with the Alaska cruise season. Holland America Westours' tours are
conducted in Washington State, Canada and Alaska. The Alaska tours coincide
to a great extent with the Alaska cruise season, May through September.
Washington tours are conducted year-round although demand is greatest during
the summer months. During periods in which tour demand is low, HAL seeks to
maximize its motor coach charter activity such as operating charter tours to
ski resorts in Washington and Canada.
Sales and Marketing
HAL tours are marketed both separately and as part of cruise-tour
packages. Although most HAL cruise-tours include a HAL cruise as the cruise
segment, other cruise lines also market HAL tours as a part of their cruise-
tour packages and sight-seeing excursions. Tours sold separately are
marketed through independent travel agents and also directly by HAL,
utilizing sales desks in major hotels. General marketing for the hotels is
done through various media in Alaska, Canada and the continental United
States. Travel agents, particularly in Alaska, are solicited, and displays
are used in airports in Seattle, Washington, Portland, Oregon and various
Alaskan cities. Rates at Westmark Hotels are on the upper end of the scale
for hotels in Alaska and the Canadian Yukon.
Concessions
Certain tours in Alaska are conducted on federal property requiring
concession permits from the applicable federal agencies such as the National
Park Service or the United States Forest Service.
Competition
Holland America Westours competes with independent tour operators and
motor coach charter operators in Washington, Alaska and the Canadian
Rockies. The primary competitors in Alaska are Princess Tours (which owns
approximately 130 motor coaches and three hotels) and Alaska
Sightseeing/Trav-Alaska (which owns approximately 40 motor coaches). The
primary competitor in Washington is Gazelle (with approximately 18 motor
coaches).
Westmark Hotels compete with various hotels throughout Alaska,
including the Super 8 national motel chain, many of which charge prices
below those charged by HAL. Dining facilities in the hotels also compete
with the many restaurants in the same geographic areas.
Government Regulation
HAL's motor coach operations are subject to regulation both at the
federal and state levels, including primarily the U.S. Department of
Transportation, the Washington Utilities Department of Transportation, the
British Columbia Motor Carrier Commission and the Alaska Department of
Transportation. Certain of HAL's tours involve federal properties and are
subject to regulation by various federal agencies such as the National Park
Service, the Federal Maritime Administration and the U.S. Forest Service.
In connection with the operation of its beverage facilities in the
Westmark Hotels, HAL is required to comply with state, county and/or city
ordinances regulating the sale and consumption of alcoholic beverages.
Violations of these ordinances could result in fines, suspensions or
revocation of such licenses and preclude the sale of any alcoholic beverages
by the hotel involved.
In the operation of its hotels, HAL is required to comply with
applicable building and fire codes. Changes in these codes have in the past
and may in the future, require substantial capital expenditures to insure
continuing compliance such as the installation of sprinkler systems.
Financial Information
For financial information about the Company's tour segment with respect
to the three fiscal years ended November 30, 1996, see Note 10 "Segment
Information" to the Company's Consolidated Financial Statements in Exhibit
13 incorporated by reference into this Annual Report on Form 10-K.
D. Employees
The Company's Carnival operations have approximately 1,400 full-time
and 300 part-time employees engaged in shoreside operations. Carnival also
employs approximately 360 officers and 8,900 crew and staff on the Carnival
Ships.
The Company's HAL operations have approximately 3,200 employees engaged
in shoreside, tour and hotel operations, of which approximately 1,500
employees hold part-time/seasonal positions. HAL also employs approximately
250 officers and 3,700 crew and staff on the HAL Ships and Windstar Ships.
Due to the seasonality of its Alaska and Canadian operations, HAL tends to
increase its work force during the summer months, employing significant
additional full-time and part-time personnel. HAL has entered into
agreements with unions covering employees in certain of its hotels and
certain of its tour and ship employees.
The Company considers its employee relations generally to be good.
E. Suppliers
The Company's largest purchases are for airfare, advertising, fuel,
food and related items, hotel supplies and products related to passenger
accommodation. Although the Company chooses to use a limited number of
suppliers for most of its food and fuel purchases, most of the necessary
supplies are available from numerous sources at competitive prices. The use
of a limited number of suppliers enables the Company to obtain volume
discounts.
F. Insurance
The Company maintains insurance covering legal liabilities related to
crew, passengers and other third parties on the Carnival Ships and the HAL
Ships in operation through The Standard Steamship Owners Protection &
Indemnity Association (Europe) Limited (the "SSOPIA") and the Steamship
Mutual Underwriting Association Ltd. (the "SMUAL"). The amount and terms of
these insurances are governed by the rules of the foregoing associations.
The Company currently maintains insurance on the hull and machinery of
each vessel in amounts equal to the approximate market value of each vessel.
The Company maintains war risk insurance on each vessel which includes legal
liability to crew and passengers including terrorist risks for which
coverage would be excluded from SSOPIA or SMUAL. The coverage for hull and
machinery and war risks is effected with international markets, including
underwriters at Lloyds. The Company, as currently required by the FMC,
maintains at all times two $15 million performance bonds for the Carnival
Ships, and the HAL and Windstar Ships, respectively, to cover passenger
ticket liabilities in the event of a canceled or interrupted cruise. See
"CRUISE SHIP SEGMENT - Government Regulation" for a discussion of changes to
the performance bond requirements proposed by the FMC.
The Company maintains certain levels of self insurance for liabilities
and hull and machinery through the use of substantial deductibles. Such
deductibles may be increased in the future. The Company does not carry
coverage related to loss of earnings or revenues for its cruise operations.
The Company also maintains various insurance policies to protect the
assets, earnings and liabilities arising from the operation of Holland
America Westours.
G. Investments in Affiliates
Seabourn Cruise Line
In April 1992, the Company acquired 25% of the capital stock of
Seabourn. As part of the transaction, the Company also made a subordinated
secured ten-year loan of $15 million to Seabourn and a $10 million
convertible loan to Seabourn. In December 1995, the $10 million convertible
loan was converted by the Company into an additional 25% equity interest in
Seabourn. Seabourn operates three ultra-luxury ships, which have an
aggregate capacity of 612 passengers and have itineraries in the Caribbean,
the Baltic, the Mediterranean and the Far East. The Seabourn product is
primarily marketed in North America.
Airtours plc
In April 1996, the Company acquired a 29.5% interest in Airtours for
approximately $307 million. Airtours and subsidiaries is the largest air
inclusive tour operator in the world and is publicly traded on the London
Stock Exchange. Airtours provides air inclusive packaged holidays to the
British, Scandinavian and North American markets. Airtours provides
holidays to approximately 5 million people per year and owns or operates 32
hotels, two cruise ships and 31 aircraft.
Airtours was founded in the United Kingdom in 1972 and is currently the
second largest provider of air inclusive packages in the United Kingdom. In
1994, Airtours entered the Scandinavian market via the acquisition of the
Scandinavian Leisure Group and expanded its share of this market in 1996
with the acquisition of Spies. In 1995, Airtours acquired Sunquest
Vacations, a Canadian tour operator. During 1996, Airtours acquired Alba
Tours International located in Canada, began operations in Los Angeles,
California with Sunquest Holidays, and began construction of a time share
facility in Orlando, Florida. Today Airtours is the market leader in
Scandinavia and is one of Canada's leading tour operators.
Airtours operates 18 aircraft (one additional aircraft is scheduled to
enter service in the spring of 1997) exclusively for its U.K. tour operators
providing a large proportion of their flying requirements. In addition,
Airtours' subsidiary Premiair operates a fleet of 13 aircraft (one additional
aircraft is also scheduled to enter service with Premiar in the spring of
1997), which provides most of the flying requirements for Airtours'
Scandinavian tour operators.
Airtours owns or operates 32 hotels (6,500 rooms) which provide rooms
to Airtours' tour operators principally in the Mediterranean and the Canary
Islands. In addition, Airtours has a 50% interest in Tenerife Sol, a joint
venture with Sol Hotels Group of Spain, which owns and operates three
additional hotels in the Canary Islands providing 1,300 rooms.
Through its subsidiary Sun Cruises, Airtours owns and operates two
cruise ships. Both the 800-berth MS Seawing and the 1,062-berth MS Carousel
commenced operations in 1995. Recently, Airtours acquired a third ship, the
MS Sundream, which is the sister ship of the MS Carousel. The MS Sundream
is expected to commence operations in May 1997. The ships operate in the
Mediterranean, the Caribbean and around the Canary Islands and are sold
exclusively by Airtours' tour operators.
Joint Venture with Hyundai Merchant Marine Co. Ltd.
In September 1996, the Company and Hyundai Merchant Marine Co. Ltd.
("HMM") signed an agreement to form a 50/50 joint venture to develop the
Asian cruise vacation market (the "Joint Venture"). The Company and HMM
each have contributed $4.8 million as the initial capital of the Joint
Venture. In addition, in November 1996 the Company sold Carnival Cruise
Lines' cruise ship Tropicale to the Joint Venture for approximately $95.5
million cash. The Company then chartered the vessel from the Joint Venture
until the Joint Venture is ready to begin cruise operations in the Asian
market in or around the spring of 1998. The Joint Venture borrowed the
$95.5 million purchase price from a financial institution and the Company
and HMM each guaranteed 50% of the borrowing.
Seasonality
The Company's investments in affiliates are accounted for using the
equity method of accounting. Starting with the Company's quarter ending
August 31, 1996, the Company's portion of Airtours' operating results are
being recorded by the Company on a two month lag basis. Airtours' earnings
are very seasonal due to the seasonal nature of the European leisure travel
industry. During the last two fiscal years, Airtours' third and fourth
fiscal quarters, ending June 30 and September 30, respectively, have been
profitable, with the fourth quarter being its most profitable quarter.
During this same period, Airtours experienced seasonal losses in its first
and second fiscal quarters ending on December 31 and March 31, respectively.
Item 2. Properties
The Company's cruise ships are described in Section B of Item 1 under
the heading "Cruise Ship Segment". The properties associated with HAL's
tour operations are described in Section C of Item 1 under the heading "Tour
Segment".
Carnival's shoreside operations and the Company's corporate
headquarters are located at 3655 N.W. 87th Avenue, Miami, Florida. These
facilities consist of approximately 231,000 square feet of office facility
which the Company purchased in December 1994 and approximately 225,000
square feet of office facility recently constructed next to the existing
facility. Carnival is also leasing approximately 60,000 square feet of
office space at 5225 N.W. 87th Avenue, Miami, Florida until September 1997.
HAL headquarters are at 300 Elliott Avenue West in Seattle, Washington
in leased space in an office building. The lease is for approximately
125,000 square feet.
The Company's cruise ships, tour properties and shoreside operations
facilities are well maintained and in good condition.
Item 3. Legal Proceedings
In April 1996 and October 1996, four complaints were filed in the
Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida,
against the Company (the "Florida Actions"). In April 1996, a complaint was
filed in the Superior Court of Washington for King County against Holland
America Westours (the "Washington Action"). In November 1996, a complaint
was filed against the Company in the 18th Judicial District Court, Parish of
Iberville, Louisiana (the "Louisiana Action"). These actions (collectively
the "Port Charges Complaints"), brought on behalf of purported classes of
persons who traveled on a Company ship and paid port charges to the Company,
allege that statements made by the Company in advertising and promotional
materials concerning port charges were false and misleading.
The Florida Actions allege claims of negligent misrepresentation,
unjust enrichment, violation of the Florida Deceptive and Unfair Trade
Practices Act, fraud, negligence, breach of fiduciary duties, breach of
implied covenants of good faith and fair dealing, fraudulent
misrepresentations and/or omission, restitution, conversion, money had and
received, resulting trust and constructive trust. The Washington Action
alleges claims of negligent misrepresentation, unjust enrichment and
violation of the Washington Consumer Protection Act. The Louisiana Action
alleges violation of the Louisiana Unfair Trade Practices and Consumer
Protection Law, fraud and breach of express contractual obligations. The
Company has removed the Louisiana Action to federal court, and a hearing on
the Company's motion to dismiss is presently scheduled for August 1997.
In one of the Florida Actions, Sutton v. Carnival, the plaintiffs seek
damages "in excess of fifteen thousand dollars, (but less than $50,000 per
individual class member)" for each of eight separate grounds for relief.
The remaining Port Charges Complaints seek unspecified compensatory damages
on behalf of the purported class (or, alternatively, refunds of port charges
allegedly in excess of certain charges levied by governmental authorities),
attorneys' fees, costs, punitive damages and injunctive relief.
In June and August 1996, respectively, two complaints were filed
against both the Company and Holland America Westours in the Superior Court
for the State of California, Los Angeles County (the "California Actions")
and in January 1997, a complaint was filed against the Company in the Fourth
Judicial District Court, Hennepin County, Minnesota (the "Minnesota
Action"). These actions (collectively the "Travel Agent Complaints"),
brought on behalf of purported classes of all travel agencies who during the
past four years (California Actions) or the past six years (Minnesota
Action) booked a cruise with the Company, contain allegations that the
Company's advertising practices regarding port charges resulted in an
improper and concealed form of commission bypass. The Travel Agent
Complaints allege claims of breach of contract, negligent misrepresentation,
unjust enrichment, unlawful business practices and common law fraud and seek
unspecified compensatory damages (or alternatively, the payment by the
Company of usual and customary commissions on port charges in excess of
certain charges levied by government authorities), an accounting, attorneys'
fees and costs, punitive damages and injunctive relief.
The Port Charges Complaints and the Travel Agent Complaints are in
preliminary stages and it is not now possible to determine the ultimate
outcome of the lawsuits. Management believes that the Company has
substantial and meritorious defenses to the claims and intends to vigorously
defend the lawsuits. Management understands that purported class action
lawsuits similar to the Port Charges Complaints and the Travel Agent
Complaints have been filed against five other cruise lines.
The United States Attorney for the District of Alaska has commenced an
investigation to determine if a Holland America Line vessel discharged bilge
water, alleged to have contained oil or oily mixtures, at various locations
allegedly within the United States territorial waters at various times
during the summer and early fall of 1994. It is unknown whether any
proceedings will be initiated and, if so, what violations will be alleged.
To date, no penalties have been sought or imposed. Management does not
believe that the amount of potential penalties will have a material impact
on the Company.
Wartsila Marine Industries Incorporated ("Wartsila") operated a Finnish
shipyard and had contracted to build three ships for the Company in the late
1980's. Wartsila filed for bankruptcy in 1989 without completing
construction of the vessels, causing the Company to incur incremental costs
to complete the ships and to lose profits because of the delay in their
delivery. During 1995, the Company received $40 million in cash from the
settlement of litigation with Metra Oy, the former parent company of
Wartsila, related to losses suffered in connection the construction of these
three ships. Of the $40 million received, $6.2 million was used to pay
related legal fees, $14.4 million was recorded as other income and $19.4
million was used to reduce the cost basis of certain ships which had been
the subject of the Company's lawsuit against Metra Oy.
On June 25, 1996, the Company reached an agreement with the trustees of
Wartsila and creditors for the bankruptcy which resulted in an additional
cash payment of approximately $80 million. Of the $80 million received, $5
million was used to pay certain costs, $32 million was recorded as other
income and $43 million was used to reduce the cost basis of certain ships
which had been affected by the bankruptcy.
In the normal course of business, various other claims and lawsuits
have been filed or are pending against the Company. The majority of these
claims and lawsuits are covered by insurance. Management believes the
outcome of such suits which are not covered by insurance would not have a
material adverse effect on the Company's financial condition or results of
operations.
Item 4. Submission of Matters to a Vote or Security Holders
None.
Executive Officers of the Registrant
Pursuant to General Instruction G(3), the information regarding
executive officers of the Company called for by Item 401(b) of Regulation
S-K is hereby included in Part 1 of this report.
The following table sets forth the name, age and title of each
executive officer. Titles listed relate to positions within Carnival
Corporation unless otherwise noted.
<TABLE>
<CAPTION>
NAME AGE POSITION
<S> <C> <C>
Micky Arison 47 Chairman of the Board and Chief Executive
Officer
Gerald R. Cahill 45 Vice President-Finance
Pamela C. Conover 40 Vice President-Strategic Planning
Robert H. Dickinson 54 President and Chief Operating Officer
of Carnival and Director
Howard S. Frank 55 Vice-Chairman, Chief Financial Officer
and Director
A. Kirk Lanterman 65 President and Chief Executive Officer of
Holland America Line-Westours Inc. and
Director
Lowell Zemnick 53 Vice President and Treasurer
Meshulam Zonis 63 Senior Vice President-Operations of
Carnival and Director
</TABLE>
Business Experience of Officers
Micky Arison, age 47, has been Chief Executive Officer since 1979 and
Chairman of the Board since 1990. He was President from 1979 to May 1993
and has also been a director since June 1987. Prior to 1979, he served
Carnival for successive two-year periods as sales agent, reservations
manager and as Vice President in charge of passenger traffic. He is the son
of Ted Arison, Carnival Corporation's founder.
Gerald R. Cahill, age 45, is a Certified Public Accountant and has been
Vice President-Finance since September 1994. Mr. Cahill was the chief
financial officer from 1988 to 1992 and the chief operating officer from
1992 to 1994 of Safecard Services, Inc. From 1979 to 1988 he held financial
positions at Resorts International Inc. and, prior to that, spent six years
with Price Waterhouse LLP.
Pamela C. Conover, age 40, has been Vice President-Strategic Planning
since May 1995. Ms. Conover was the chief executive officer of Epirotiki
Cruise Line from May 1994 through April 1995. From 1985 through 1994 Ms.
Conover worked as a Vice President of Citibank N.A. New York and
subsequently as a Managing Director of Citicorp Securities Inc.
Robert H. Dickinson, age 54, has been President and Chief Operating
Officer of Carnival since May 1993. From 1979 to May 1993, he was Senior
Vice President--Sales and Marketing of Carnival. He has also been a
director since June 1987.
Howard S. Frank, age 55, has been Vice-Chairman of the Board since
October 1993 and has been Chief Financial Officer and Chief Accounting
Officer since July 1, 1989 and a director since 1992. From July 1989 to
October 1993 he was Senior Vice President-Finance. From July 1975 through
June 1989, he was a partner with Price Waterhouse LLP.
A. Kirk Lanterman, age 65, is a Certified Public Accountant and has
been President and Chief Executive Officer of Holland America Line-Westours
Inc. since January 1989 and a director since 1992. From 1983 to January
1989, he was President and Chief Operating Officer of Holland America
Line-Westours Inc. From 1979 to 1983, he was President of Westours which
merged in 1983 with Holland America Line.
Lowell Zemnick, age 53, is a Certified Public Accountant and has been
Vice President since 1980 and Treasurer since September 1990. Mr. Zemnick
was the chief financial officer of Carnival Cruise Lines from 1980 to
September 1990 and was the chief financial officer of Carnival Corporation
from May 1987 through June 1989.
Meshulam Zonis, age 63, has been Senior Vice President-Operations of
Carnival since 1979. He has also been a director since June 1987. From
1974 through 1979, Mr. Zonis was Vice President-Operations of Carnival.
Special Note Regarding Forward-Looking Statements
Certain statements under the headings "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Business"
and elsewhere in this Form 10-K constitute "forward-looking statements"
within the meaning of the reform act. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors, which may
cause the actual results, performance or achievements of the Company to be
materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors
include, among others, the following: general economic and business
conditions which may impact levels of disposable income of consumers and
pricing and passenger yields for the Company's cruise products; increases in
cruise industry capacity in the Caribbean and Alaska; changes in tax laws
and regulations (especially any change affecting the Company's status as a
"controlled foreign corporation" as defined in Section 957(a) of the Internal
Revenue Code (see "Taxation of the Company")); the ability of the Company to
implement its shipbuilding program and to expand its business outside the
North American market where it has less experience; delivery of new vessels on
schedule and at the contracted price; weather patterns in the Caribbean;
unscheduled ship repairs and drydocking; incidents involving cruise vessels
at sea; and changes in laws and government regulations applicable to the
Company (including the implementation of the "Safety of Life at Sea
Convention" and changes in FMC surety and guaranty arrangements).
PART II
Item 5. Market for the Registrant's Common Stock and Related Stockholders
Matters
A. Market Information
The information required by Item 201(a) of Regulation S-K, market
information, is shown in Exhibit 13 and is incorporated by reference into
this Annual Report on Form 10-K.
B. Holders
The information required by Item 201(b) of Regulation S-K, holders of
common stock, is shown in Exhibit 13 and is incorporated by reference into
this Annual Report on Form 10-K.
C. Dividends
Any dividend declared by the Board of Directors on the Company's Common
Stock will be paid concurrently at the same rate on the Class A Common Stock
and the Class B Common Stock. For its Class A Common Stock and Class B
Common Stock (collectively, the "Common Stock"), the Company declared cash
dividends of $.075 per share in each of the first three quarters of fiscal
1995, $.09 in the fourth quarter of fiscal 1995 and $.09 in the first three
quarters of fiscal 1996, and $.11 in the fourth quarter of fiscal 1996 and
first quarter of fiscal 1997. Payment of future quarterly dividends on the
Common Stock will depend, among other factors, upon the Company's earnings,
financial condition and capital requirements and certain tax considerations
of certain members of the Arison family and trusts for the benefit of Mr.
Ted Arison's children (the "Principal Shareholders"), some of whom are
required to include a portion of the Company's earnings in their taxable
income, whether or not the earnings are distributed (see "D. Taxation of the
Company"). The Company may also declare special dividends to all
stockholders in the event that the Principal Shareholders are required to
pay additional income taxes by reason of their ownership of the Common
Stock, either because of an income tax audit of the Company or the Principal
Shareholders or because of certain actions by the Company (such as a failure
by the Company to maintain its investment in shipping assets at a certain
level) that would trigger adverse tax consequences to the Principal
Shareholders under the special tax rules applicable to them.
While no tax treaty currently exists between the Republic of Panama and
the United States, under current law the Company believes that distributions
to its shareholders are not subject to taxation under the laws of the
Republic of Panama. Dividends paid by the Company will be taxable as
ordinary income for United States Federal income tax purposes to the extent
of the Company's current or accumulated earnings and profits, but generally
will not qualify for any dividends-received deduction.
The payment and amount of any dividend is within the discretion of the
Board of Directors, and it is possible that the amount of any dividend may
vary from the levels discussed above. If the law regarding the taxation of
the Company's income to the Principal Shareholders were to change so that
the amount of tax payable by the Principal Shareholders were increased or
reduced, the amount of dividends paid by the Company might be more or less
than is currently contemplated.
D. Taxation of the Company
The following discussion summarizes the expected United States Federal
income taxation of the Company's current operations. State and local taxes
are not discussed. The discussion is based upon currently existing
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
existing and proposed regulations thereunder and current administrative
rulings and court decisions. All of the foregoing are subject to change and
any such change could affect the continuing validity of this discussion. In
connection with the foregoing, investors should be aware that the Tax Reform
Act of 1986 (hereinafter, the "1986 Tax Act") changed significantly the
United States Federal income tax rules applicable to the Company and certain
holders of its stock (including the Principal U.S. Shareholders). Although
the relevant provisions of the 1986 Tax Act are discussed herein, they have
not yet been the subject of extensive administrative or judicial
interpretation.
United States
Carnival Corporation is a Panamanian corporation, and its material
subsidiaries (other than subsidiaries engaged in the bus, hotel and tour
business of Holland America Line) are Panamanian, Liberian, Netherlands
Antilles and Bahamian corporations. Accordingly, the Company's income from
sources outside of the United States ("foreign source income") generally is
not subject to United States tax. Moreover, the Company anticipates that,
under current law, all or virtually all of its income from sources within
the United States ("United States Source Income") that constitutes Shipping
Income (as defined below) will be exempt from United States corporate income
taxation for as long as Carnival Corporation and its subsidiaries meet the
requirements of Section 883 of the Code. Section 883 of the Code provides
that income of a foreign corporation derived from the international
operation, or from the rental on a full or bareboat basis, of ships
("Shipping Income") is exempt from United States taxation if (1) the foreign
country in which the foreign corporation is organized grants an equivalent
exemption to citizens of the United States and to corporations organized in
the United States (an "equivalent exemption jurisdiction") and (2) the
foreign corporation is a controlled foreign corporation ("CFC") as defined
in Section 957(a) of the Code (the "CFC Test"). The Company believes that
substantially all of its United States Source Income other than Holland
America Line's income from its bus, hotel and tour operations, currently
qualifies as Shipping Income, and that Panama, the Netherlands Antilles,
the Bahamas and Liberia are equivalent exemption jurisdictions. (Holland
America Line's income from its hotel and tour operations, is not Shipping
Income, and, accordingly, is subject to United States corporate income tax).
If, however, Panamanian, Netherlands Antilles, Bahamian or Liberian law were
to change adversely, the Company would consider taking appropriate steps
(including reincorporating in another jurisdiction) so as to remain eligible
for the exemption from United States Federal income tax provided by Section
883 of the Code.
A foreign corporation is a CFC when stock representing more than 50% of
such corporation's voting power or equity value is owned (or considered as
owned) on any day of its fiscal year by United States persons who each own
(or are considered as owning) stock representing 10% or more of the
corporation's voting power ("Ten Percent Shareholders"). Stock of the
Company representing more than 50% of the total combined voting power of all
classes of stock is owned by the Micky Arison 1994 "B" Trust (the "B
Trust"),which is a "United States Person", and thus the Company meets the
definition of a CFC. The B Trust is a U.S. trust whose primary beneficiary
is Micky Arison, the Company's Chairman of the Board. Accordingly, at the
corporate level, the Company expects that virtually all of its income (with
the exception of its United States source income from the operation of
transportation, hotel and tour business of HAL) will remain exempt from
United States income taxes. The B Trust has entered into an agreement with
the Company that is designed to ensure, except under certain limited
circumstances, that stock possessing more than 50% of the Company's voting
power will be held by Ten Percent Shareholders until at least July 1, 1997.
Because the Company is a CFC, a pro rata share of the shipping earnings of
the Company, as well as certain other amounts, is includable in the taxable
income of any "Ten Percent Shareholder", as defined above.
A substantial portion of the Company's income will, as discussed below,
be treated as United States Source Income. If the Company were to fail to
meet the requirements of Section 883 of the Code with respect to any of its
United States Source Income (or if Section 883 of the Code were repealed),
some or all of the Company's Shipping Income that is United States Source
Income would become subject to a significant United States tax burden, the
amount of which would depend, in part, on the extent to which the Company's
income is effectively connected with the conduct of a United States trade or
business. Any such United States Source Income that is considered to be
"effectively connected" with the conduct of a United States trade or
business would be subject not only to general United States Federal
corporate income tax, but also to a 30% "branch level" tax on effectively
connected earnings and profits (generally, adjusted taxable income reduced
by taxes and adjusted for the amount of the Company's earnings treated as
reinvested in the Company's United States business). Any such United States
Source Income that is not considered to be effectively connected with a
United States trade or business will instead be subject to a 4% tax on
United States source gross transportation income (or, possibly, to a 30% tax
if any such income were considered to be 100% United States Source Income
under the rules described below, which, the Company does not believe to be
the case with respect to any significant portion of its Shipping Income).
The Company believes that at least a significant portion of its United
States Source Income would probably be considered to be effectively
connected with a United States trade or business for this purpose.
Under amendments to the Code enacted as part of the 1986 Tax Act, the
Company's United States Source Income will include 50% of all transportation
income (including income derived from, or in connection with, the use or
hiring, or leasing for use of a cruise ship, or the performance of services
directly related to such use) attributable to transportation that begins or
ends in the United States, and 100% of such transportation income with
respect to transportation which begins and ends in the United States. The
legislative history of these rules suggests that a cruise which begins and
ends in United States ports, but which calls on one or more foreign ports
(including ports in possessions of the United States), will be treated as
transportation that begins or ends in the United States, rather than as
transportation that begins and ends in the United States, thus resulting in
no more (and, with respect to a cruise that calls on more than one foreign
port, possibly less) than 50% United States Source Income. There are,
however, no regulations or other authoritative interpretations of these new
rules, and, accordingly, the matter is not entirely free from doubt.
Under a provision of the Technical and Miscellaneous Revenue Act of
1988, Section 883 of the Code applies only to income derived from the
international operation of ships. The legislative history of that provision
indicates that Section 883 of the Code does not apply to Shipping Income
that is treated as 100% United States Source Income under the source of
income rules discussed in the preceding paragraph since it does not
constitute income from the international operation of a ship because it
results from transportation that is considered to begin and end in the
United States; accordingly, any such income may well be subject to United
States corporate tax unless another exception was applicable. As discussed
in the preceding paragraph, although the matter is not entirely free from
doubt, the Company does not believe that any significant portion of its
Shipping Income from its current operations is 100% United States Source
Income under the applicable provisions of the Code. Accordingly, the
Company does not believe that the 1988 legislation significantly increases
its United States corporate tax with respect to its current operations.
Other Jurisdictions
The Company anticipates that its income will not be subject to
significant taxation under the laws of the Republic of Panama, Liberia, the
Netherlands Antilles, the British Virgin Islands or the Bahamas.
Item 6. Selected Financial Data
The information required by Item 6, selected financial data for the
five years ended November 30, 1996, is shown in Exhibit 13 and is
incorporated by reference into this Annual Report on Form 10-K.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of operations
The information required by Item 7, Management's Discussion and
Analysis of Financial Condition and Results of Operation, is shown in
Exhibit 13 and is incorporated by reference into this Annual Report on Form
10-K.
Item 8. Financial Statements and Supplementary Data
The financial statements, together with the report thereon of Price
Waterhouse LLP dated January 15, 1997, is shown in Exhibit 13 and is hereby
incorporated by reference into this Annual Report on Form 10-K.
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
None.
PART III
Items 10, 11, 12 and 13. Directors and Executive Officers of the
Registrant, Executive Compensation, Security Ownership of Certain
Beneficial Owners and Management, and Certain Relationships and
Related Transactions
The information required by Items 10, 11, 12 and 13 is incorporated by
reference to the Registrant's definitive Proxy Statement to be filed with
the Commission not later than 120 days after the close of the fiscal year
except that the information concerning the Registrant's executive officers
called for by Item 401(b) of Regulation S-K has been included in Part I of
this Annual Report on Form 10-K.
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) (1)-(2) Financial Statements and Schedules:
The financial statements shown in Exhibit 13 are hereby incorporated
herein by reference.
(3) Exhibits:
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Annual Report on Form 10-K and
such Exhibit Index is hereby incorporated herein by reference.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the three months ended
November 30, 1996.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Miami, and the State of Florida on this 21 day of February 1997.
CARNIVAL CORPORATION
By /s/ Micky Arison
Micky Arison
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Micky Arison Chairman of the Board, Chief February 21, 1997
Micky Arison Executive Officer and Director
/S/ Howard S. Frank Vice-Chairman, Chief Financial February 27, 1997
Howard S. Frank and Accounting Officer and Director
/s/ Maks L. Birnbach Director February 21, 1997
Maks L. Birnbach
/s/ Richard G. Capen, Jr.Director February 27, 1997
Richard G. Capen, Jr.
/s/ David Crossland Director February 27, 1997
David Crossland
/s/ Robert H. Dickinson Director February 25, 1997
Robert H. Dickinson
/s/ Shari Arison Dorsman Director February 27, 1996
Shari Arison Dorsman
/s/ James Dubin Director February 22, 1997
James Dubin
/s/ A. Kirk Lanterman Director February 25, 1997
A. Kirk Lanterman
/s/ Modesto Maidique Director February 27, 1997
Modesto Maidique
/s/ William S. Ruben Director February 25, 1997
William S. Ruben
/s/ Stuart Subotnick Director February 22, 1997
Stuart Subotnick
/s/ Sherwood M. Weiser Director February 25, 1997
Sherwood M. Weiser
/s/ Meshulam Zonis Director February 27, 1997
Meshulam Zonis
/s/ Uzi Zucker Director February 25, 1997
Uzi Zucker
</TABLE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Page No. in
Sequential
Numbering
System
Exhibits
<S> <C>
3.1-Form of Amended and Restated Articles of Incorporation of the
Company.(1)
3.2-Form of By-laws of the Company.(2)
4.1-Revolving Credit Agreement dated as of July 1, 1993, Amended and
Restated as of December 17, 1996, by and among Carnival Corporation,
Citibank, N.A. and various other lenders.
4.2-Agreement of the Company dated February 25, 1997 to furnish certain
debt instruments to the Securities and Exchange Commission.
4.3-Form of Indenture dated as of March 1, 1993 between Carnival Cruise
Lines, Inc. and First Trust National Association, as Trustee, relating to
the Debt Securities, including form of Debt Security.(3)
4.4-Second Amended and Restated Shareholder Agreement dated September 26,
1994 by and among Carnival Corporation, Ted Arison, TAMMS Investment
Company, The Ted Arison Family Holding Trust No. 4, The Micky Arison "B"
Trust, and T.A. Limited. (4)
4.5-Letter Agreement dated July 11, 1989 between the Company and the Ted
Arison Irrevocable Trust.(5)
10.1-Retirement and Consulting Agreement dated November 20, 1996 between A.
Kirk Lanterman and Carnival Corporation
10.2-Amendment to Consulting Agreement Dated August 5, 1996 between the
Company and Arison Investments Ltd.
10.3-Carnival Corporation Automatic Dividend Reinvestment Plan.
10.4-David Crossland Director's Agreement.
10.5-James M. Dubin Director's Agreement.
10.6-Modesto M. Maidique Director's Agreement.
10.7-Richard G. Capen Director's Agreement.
10.8-Shari Arison Dorsman Director's Agreement.
10.9-Carnival Cruise Lines, Inc. Stock Option Plan.(6)
10.10-Carnival Cruise Lines, Inc. Restricted Stock Plan.(7)
10.11-Carnival Cruise Lines, Inc. Retirement Plan.(8)
10.12-Carnival Cruise Lines, Inc. Non-Qualified Retirement Plan.(9)
10.13-Carnival Cruise Lines, Inc. Key Management Incentive Plan.(10)
10.14-1993 Outside Directors' Stock Option Plan.(11)
10.15-1993 Carnival Cruise Lines, Inc. Restricted Stock Plan.(12)
10.16-Holland America Line-Westours Inc. 1994-1996 Key Management Incentive
Plan.(13)
10.17-Amended and Restated Carnival Corporation 1992 Stock Option Plan.(14)
10.18-1994 Carnival Cruise Line Key Management Incentive Plan.(15)
10.19-Form of Deferred Compensation Agreement between the Company and each
of Harvey Levinson, Meshulam Zonis and Robert H. Dickinson.(16)
10.20-Stock Compensation Agreement dated February 1, 1991, between the
Company and Robert H. Dickinson.(17)
10.21-Consulting Agreement/Registration Rights Agreement dated June 14,
1991, between the Company and Ted Arison.(18)
10.22-Indemnity Agreement between the Company and Ted Arison.(19)
10.23-First Amendment to Consulting Agreement/Registration Rights
Agreement.(20)
10.24-Consulting Agreement dated July 31, 1992, between the Company and
Arison Investments Ltd.(21)
10.25-Assignment and Assumption Agreement dated March 20, 1995 among Ted
Arison, Cititrust (Jersey) Limited, Royal Bank of Scotland Trust Company
(Jersey) Limited and the Company.(22)
10.26-Shipbuilding Agreement dated January 12, 1993 between Futura Cruises,
Inc. and Fincantieri - Cantieri Navali Italiani S.p.A.*(23)
10.27-Shipbuilding Agreement dated December 23, 1993 between Kvaerner
Masa-Yards, Inc. and the Company.*(24)
10.28-Shipbuilding Agreement dated December 10, 1993 between Wind Surf
Limited and Fincantieri-Cantieri Navali Italiani S.p.A.*(25)
10.29-Shipbuilding Agreement dated January 14, 1995 between Utopia Cruises,
Inc. and Fincantieri-Cantieri Navali Italiani S.p.A.*(26)
10.30-Shipbuilding Agreement dated January 14, 1995 between Wind Surf
Limited and Fincantieri-Cantieri Navali Italiani S.p.A.*(27)
10.31-Shipbuilding Agreement dated December 7, 1994 between Carnival
Corporation and Kvaerner Masa-Yards, Inc.*(28)
10.32-Shipbuilding Agreement dated January 12, 1995 between Carnival
Corporation and Kvaerner Masa-Yards, Inc.*(29)
10.33-Shipbuilding Agreement dated March 25, 1992 between Carnival
Corporation and Kvaerner Masa-Yards, Inc.*(30)
10.34-Organization agreement dated February 25, 1994 between the Company and
the principals of The Continental Companies.(31)
10.35-Stock Purchase Agreement between Carnival Corporation and CHC
International.(32)
10.36-Stock Purchase Agreement between Carnival Corporation, Sherwood Weiser
and others.(33)
10.37-Letter dated February 21, 1996 to Carnival Corporation and CS First
Boston Limited from David Crossland.(34)
10.38-Letter dated February 21, 1996 to Carnival Corporation and CS First
Boston Limited from Thomas Trickett.(35)
10.39-Shareholders' Agreement dated February 21, 1996 between Carnival
Corporation and David Crossland.(36)
10.40-Subscription Agreement dated February 21, 1996 between Carnival
Corporation and Airtours plc.(37)
10.41-Maks L. Birnbach Director's Agreement.(38)
10.42-William S. Ruben Director's Agreement.(39)
10.43-Stuart Subotnick Director's Agreement.(40)
10.44-Sherwood M. Weiser Director's Agreement.(41)
10.45-Uzi Zucker Director's Agreement (42)
11.0-Statement regarding computation of per share earnings.
12.0-Ratio of Earnings to Fixed Charges
13.0-Portions of 1996 Annual Report incorporated by reference into 1996
Annual Report on Form 10-K
21-Subsidiaries of the Company.(43)
23.0-Consent of Price Waterhouse
27.0-Financial Data Schedule (for SEC use only)
</TABLE>
* Portions of documents omitted pursuant to an order for confidential
treatment pursuant to Rule 24b-2 under the Securities Act of 1934, as
amended.
<TABLE>
<CAPTION>
Sequential
Numbering
System
Exhibits
<S> <C>
(1)Incorporated by reference to Exhibit No. 4.1 to the registrant's
Quarterly Report on Form 10-Q for the Quarter Ended February 28, 1995 (File
No. 1-9610), filed with the Securities and Exchange Commission.
(2)Incorporated by reference to Exhibit No. 3.2 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(3)Incorporated by reference to Exhibit No. 4 on Form S-3 to the
registrant's registration statement on Form S-3 (File No. 33-53136), filed
with the Securities and Exchange Commission.
(4)Incorporated by reference to Exhibit 4.1 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended August 31, 1994 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(5)Incorporated by reference to Exhibit No. 4.10 to the registrant's
registration statement on Form S-1 (File No. 33-31795), filed with the
Securities and Exchange Commission.
(6)Incorporated by reference to Exhibit No. 10.1 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(7)Incorporated by reference to Exhibit No. 10.2 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(8)Incorporated by reference to Exhibit No. 10.3 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1990 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
(9)Incorporated by reference to Exhibit No. 10.4 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1990 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
(10)Incorporated by reference to Exhibit No. 10.5 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1993 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
(11)Incorporated by reference to Exhibit No. 10.6 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1993 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
(12)Incorporated by reference to Exhibit No. 10.41 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1992
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(13)Incorporated by reference to Exhibit No. 10.8 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1996
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(14)Incorporated by reference to Exhibit No. 10.29 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(15)Incorporated by reference to Exhibit No. 10.30 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(16)Incorporated by reference to Exhibit No. 10.17 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(17)Incorporated by reference to Exhibit No. 10.43 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1991
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(18)Incorporated by reference to Exhibit No. 4.3 to post-effective amendment
no. 1 on Form S-3 to the registrant's registration statement on Form S-1
(File No. 33-24747), filed with the Securities and Exchange Commission.
(19)Incorporated by reference to Exhibit No. 10.18 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(20)Incorporated by reference to Exhibit No. 10.40 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1992
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(21)Incorporated by reference to Exhibit No. 10.39 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1992
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(22)Incorporated by reference to Exhibit No. 10.18 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1996
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(23)Incorporated by reference to Exhibit No. 10.42 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1992
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(24)Incorporated by reference to Exhibit No. 10.39 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1993
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(25)Incorporated by reference to Exhibit No. 10.40 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1993
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(26)Incorporated by reference to Exhibit No. 10.23 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(27)Incorporated by reference to Exhibit No. 10.24 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(28)Incorporated by reference to Exhibit No. 10.25 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(29)Incorporated by reference to Exhibit No. 10.26 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(30)Incorporated by reference to Exhibit No. 10.27 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(31)Incorporated by reference to Exhibit 10.1 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1994 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(32)Incorporated by reference to Exhibit No. 10.31 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(33)Incorporated by reference to Exhibit No. 10.32 to the registrant's
Annual Report on Form 10-K for the fiscal year ended November 30, 1994
(Commission File No. 1-9610), filed with the Securities and Exchange
Commission.
(34)Incorporated by reference to Exhibit 10.2 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1996 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(35)Incorporated by reference to Exhibit 10.3 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1996 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(36)Incorporated by reference to Exhibit 10.4 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1996 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(37)Incorporated by reference to Exhibit 10.5 to the registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1996 (Commission File
No. 1-9610), filed with the Securities and Exchange Commission.
(38)Incorporated by reference to Exhibit No. 28.1 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1990 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
(39)Incorporated by reference to Exhibit No. 28.2 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(40)Incorporated by reference to Exhibit No. 28.3 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(41)Incorporated by reference to Exhibit No. 28.4 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(42)Incorporated by reference to Exhibit No. 28.5 to the registrant's
registration statement on Form S-1 (File No. 33-14844), filed with the
Securities and Exchange Commission.
(43)Incorporated by reference to Exhibit No. 21 to the registrant's Annual
Report on Form 10-K for the fiscal year ended November 30, 1994 (Commission
File No. 1-9610), filed with the Securities and Exchange Commission.
</TABLE>
EXHIBIT 4.1
U.S. $1,000,000,000
REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 1, 1993
AMENDED AND RESTATED
AS OF DECEMBER 17, 1996
By And Among
CARNIVAL CRUISE LINES, INC.
now known as
CARNIVAL CORPORATION,
as Borrower,
and
CITIBANK, N.A.,
as Agent,
CIBC, INC., FIRST UNION NATIONAL BANK OF FLORIDA,
THE FUJI BANK, LIMITED, NEW YORK BRANCH,
ROYAL BANK OF CANADA,
as Managing Agents,
BARNETT BANK, N.A.,
THE DAI-ICHI KANGYO BANK, LIMITED, ATLANTA AGENCY,
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA
AGENCY, THE BANK OF TOKYO-MITSUBISHI, LTD.-ATLANTA AGENCY,
NATIONSBANK, N.A. (SOUTH), THE SAKURA BANK, LIMITED,
ATLANTA AGENCY AND THE SUMITOMO BANK, LIMITED,
as Co-Agents,
and
CITIBANK, N.A., BANCA DI ROMA - HOUSTON AGENCY, BANK OF HAWAII,
THE BANK OF NOVA SCOTIA, BARNETT BANK, N.A.,
CIBC, INC., CREDIT LYONNAIS, ATLANTA AGENCY,
THE DAI-ICHI KANGYO BANK, LIMITED, ATLANTA AGENCY, FIRST
UNION NATIONAL BANK OF FLORIDA, THE FUJI BANK, LIMITED, NEW YORK
BRANCH, THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY,
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE,
THE BANK OF TOKYO-MITSUBISHI, LTD.-ATLANTA AGENCY,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONAL WESTMINSTER BANK PLC, NATIONSBANK, N.A. (SOUTH),
NORTHERN TRUST COMPANY, ROYAL BANK OF CANADA,
THE SAKURA BANK, LIMITED, ATLANTA AGENCY,
THE SANWA BANK LIMITED, ATLANTA AGENCY,
THE SUMITOMO BANK, LIMITED, SUNTRUST BANK, MIAMI, N.A.,
UNITED STATES NATIONAL BANK OF OREGON,
THE YASUDA TRUST AND BANKING COMPANY, LIMITED, as Banks.<PAGE>
Table of Contents
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02 Accounting Terms . . . . . . . . . . . . . . . . . . . . .14
Section 1.03 Governing Language . . . . . . . . . . . . . . . . . . . .14
Section 1.04 Computation of Time Periods. . . . . . . . . . . . . . . .14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . . . . . . . .14
Section 2.01 The A Advances . . . . . . . . . . . . . . . . . . . . . .14
Section 2.02 Making the A Advances. . . . . . . . . . . . . . . . . . .15
Section 2.03 The B Advances . . . . . . . . . . . . . . . . . . . . . .16
Section 2.04 General Provisions . . . . . . . . . . . . . . . . . . . .19
Section 2.05 Interest and Default Interest. . . . . . . . . . . . . . .20
Section 2.06 Prepayments. . . . . . . . . . . . . . . . . . . . . . . .24
Section 2.07 Increased Costs; Additional Interest . . . . . . . . . . .25
Section 2.08 Payments and Computations. . . . . . . . . . . . . . . . .26
Section 2.09 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . .27
Section 2.10 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Section 2.11 Borrower's Termination of Commitments. . . . . . . . . . .31
Section 2.12 Borrower's Increase of Commitments . . . . . . . . . . . .32
ARTICLE III CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . . . .35
Section 3.01 Conditions Precedent to Initial Advances
to be Made On or After December 17, 1996 . . . . . . . . .35
Section 3.02 Conditions Precedent to Each A Borrowing . . . . . . . . .36
Section 3.03 Conditions Precedent to Each B Borrowing . . . . . . . . .37
ARTICLE IV REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . .37
Section 4.01 Representations and Warranties of
the Borrower . . . . . . . . . . . . . . . . . . . . . . .37
(a) Due Existence; Compliance . . . . . . . . . . . . . . . . . . .38
(b) Corporate Authorities; No Conflicts . . . . . . . . . . . . . .38
(c) Government Approvals and Authorizations . . . . . . . . . . . .38
(d) Legal, Valid and Binding. . . . . . . . . . . . . . . . . . . .38
(e) Financial Information . . . . . . . . . . . . . . . . . . . . .39
(f) Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . .39
(g) Immunities. . . . . . . . . . . . . . . . . . . . . . . . . . .39
(h) No Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . .39
(i) No Filing . . . . . . . . . . . . . . . . . . . . . . . . . . .40
(j) No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . .40
(k) Margin Regulations. . . . . . . . . . . . . . . . . . . . . . .40
(l) Investment Company Act. . . . . . . . . . . . . . . . . . . . .40
(m) Taxes Paid. . . . . . . . . . . . . . . . . . . . . . . . . . .40
(n) Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . .41
(o) Good Title. . . . . . . . . . . . . . . . . . . . . . . . . . .41
(p) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
ARTICLE V COVENANTS OF THE BORROWER.. . . . . . . . . . . . . . . . . . .42
Section 5.01 Affirmative Covenants. . . . . . . . . . . . . . . . . . .42
(a) Compliance with Laws. . . . . . . . . . . . . . . . . . . . . .42
(b) Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . .42
(c) Financial Information; Defaults . . . . . . . . . . . . . . . .42
(d) Financial Covenants . . . . . . . . . . . . . . . . . . . . . .45
(e) Corporate Existence, Mergers. . . . . . . . . . . . . . . . . .45
(f) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .46
(g) Actions Respecting Certain Excess Sale Proceeds . . . . . . . .46
(h) Further Assurances. . . . . . . . . . . . . . . . . . . . . . .46
Section 5.02 Negative Covenants . . . . . . . . . . . . . . . . . . . .46
(a) Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . .47
(b) Limitation on Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . . . . .47
(c) Transactions with Officers, Directors
and Shareholders. . . . . . . . . . . . . . . . . . . . . . . .47
(d) Compliance with ERISA . . . . . . . . . . . . . . . . . . . . .47
(e) Investment Company. . . . . . . . . . . . . . . . . . . . . . .48
(f) Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
(g) Organizational Documents. . . . . . . . . . . . . . . . . . . .48
ARTICLE VI DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
Section 6.01 Events of Default. . . . . . . . . . . . . . . . . . . . .48
ARTICLE VII RELATION OF LENDERS; ASSIGNMENTS, DESIGNATIONS
AND PARTICIPATIONS. . . . . . . . . . . . . . . . . . . . . . .51
Section 7.01 Lenders and Agent. . . . . . . . . . . . . . . . . . . . .51
Section 7.02 Pro Rata Sharing . . . . . . . . . . . . . . . . . . . . .51
Section 7.03 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . .51
Section 7.04 Approvals. . . . . . . . . . . . . . . . . . . . . . . . .52
Section 7.05 Exculpation. . . . . . . . . . . . . . . . . . . . . . . .52
Section 7.06 Indemnification. . . . . . . . . . . . . . . . . . . . . .53
Section 7.07 Agent as Lender. . . . . . . . . . . . . . . . . . . . . .53
Section 7.08 Notice of Transfer; Resignation;
Successor Agent. . . . . . . . . . . . . . . . . . . . . .53
Section 7.09 Credit Decision; Not Trustee . . . . . . . . . . . . . . .54
Section 7.10 Assignments, Designations and Participation. . . . . . . .54
Section 7.11 Managing Agent; Co-Agent . . . . . . . . . . . . . . . . .59
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .60
Section 8.01 Amendments . . . . . . . . . . . . . . . . . . . . . . . .60
Section 8.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . .60
Section 8.03 No Waiver; Remedies. . . . . . . . . . . . . . . . . . . .60
Section 8.04 Costs, Expenses, Fees and Indemnities. . . . . . . . . . .60
Section 8.05 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . .61
Section 8.06 Judgment . . . . . . . . . . . . . . . . . . . . . . . . .62
Section 8.07 Consent to Jurisdiction; Waiver
of Immunities. . . . . . . . . . . . . . . . . . . . . . .62
Section 8.08 Binding Effect; Merger; Severability;
GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . .63
Section 8.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . .64
Section 8.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . .64
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
Schedule I - List of Applicable Lending Offices
Schedule II - Outstanding Principal Balance of A Advances
as of December 17, 1996
Exhibit A-1 - Form of Series A Note
Exhibit A-2 - Form of Series B Note
Exhibit B-1 - Form of Notice of Series A Borrowing
Exhibit B-2 - Form of Notice of Series B Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E-1 - Form of Opinion of General Counsel of the Borrower
Exhibit E-2 - Form of Opinion of Special Panamanian Counsel to the
Borrower
Exhibit F - Form of Assumption Agreement
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of July 1, 1993, amended
and restated as of December 17, 1996, is made and entered into by and among
CARNIVAL CRUISE LINES, INC. now known as CARNIVAL CORPORATION (the
"Borrower"), a corporation organized and existing under the laws of The
Republic of Panama ("Panama"), and CITIBANK, N.A., a national banking
association organized and existing under the laws of the United States of
America ("United States" or "U.S."), and each of the other banks or other
institutions whose names may appear on the signature pages of this Agreement
(each a "Bank" and, collectively, the "Banks") or, if applicable, in the
Register for whom Citibank, N.A., subject to Article VII of this Agreement,
acts as Agent, and subject to Section 7.11 of this Credit Agreement as
hereby amended and restated, each of those certain Banks named in the cover
page hereof acts as Managing Agent and each of those certain other Banks
named in the cover page hereof acts as Co-Agent. Capitalized terms not
otherwise herein defined shall have the respective meanings set forth below
in Section 1.01.
PRELIMINARY STATEMENTS
(1) The Borrower, the Agent and the Lenders therein named have
executed and delivered the Revolving Credit Agreement dated as of July 1,
1993 and Amendment No. 1 thereto dated as of June 15, 1994, and the
Revolving Credit Agreement dated as of July 1, 1993, amended and restated as
of December 5, 1995, and Advances have been made.
(2) The Borrower desires to borrow from the Lenders upon the
terms and conditions set forth herein.
(3) The Lenders have agreed severally, but not jointly, each for
the aggregate amount and in the percentage interest (as to each Lender, the
"Percentage Interest") set forth opposite each Lender's name and signature,
below, or if applicable, in any relevant amendment hereto, or, if
applicable, in the Register, to provide credits upon the terms and
conditions set forth herein.
(4) The Borrower has requested and the Agent and the Lenders have
agreed, upon the terms and conditions of this Agreement, to extend the
Termination Date from December 5, 2000 to December 17, 2001, to increase the
aggregate Commitment of the Lenders from Seven Hundred Fifty Million Dollars
($750,000,000) to One Billion Dollars ($1,000,000,000), to provide for
future increases of the Commitment up to a total amount of One Billion Five
Hundred Million Dollars ($1,500,000,000), to reallocate the Commitment among
the Lenders, and to make certain other amendments to this Agreement. In
connection with this Agreement as hereby amended and restated, inter alia,
the outstanding Series A Notes of the Borrower will be exchanged for
Series A Notes issued in the form of the Exhibit A-1 to this Agreement as
amended and restated, reflecting the Commitment of the Lenders as herein
provided, and the outstanding Series B Notes of the Borrower will be
exchanged for Series B Notes reflecting the aggregate Commitment of the
Lenders as herein provided, and issued to each Lender in the form of Exhibit
A-2 to this Agreement as amended and restated.
(5) The outstanding principal balance of A Advances owing each
Lender as of December 17, 1996, more particularly described in Schedule II
hereto made a part hereof, shall be prepaid in full not later than the first
Interest Payment Date of such A Advances falling after December 17, 1996.
(6) The Lenders have requested the Agent, and the Agent has
agreed, to act on behalf of the Lenders in accordance with the terms and
conditions set forth herein.
Now, therefore, the Borrower, the Lenders and the Agent hereby
agree among themselves as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, each of
the following terms shall have the respective meaning set forth below (such
meanings, unless otherwise indicated, to apply to both the singular and
plural forms of the terms defined):
"Advance" means an A Advance or a B Advance.
"A Advance" means an advance by a Lender to the Borrower as part
of an A Borrowing and refers to a Base Rate Advance or a LIBOR Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type made by each of the Lenders pursuant to Section
2.01.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. For
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the securities
having voting power for the election of directors of such Person, or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by
contract or otherwise.
"Agent" shall mean Citibank, N.A., and any successor agent under
this Agreement.
"Agreement" means this Agreement, as it may be amended,
supplemented or otherwise modified from time to time.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance,
and such Lender's Eurodollar Lending Office in the case of a LIBOR Rate
Advance and, in the case of a B Advance, the office of such Lender notified
by such Lender to the Agent as its Applicable Lending Office with respect to
such B Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Bank" means, at any time, an Eligible Assignee not at
such time a Lender hereunder pursuant to Section 2.12.
"Assumption Agreement" means an agreement in substantially the
form of Exhibit F hereto by which an institution agrees to become a Lender
party to this Agreement pursuant to Section 2.12 by agreeing to be bound by
all obligations of a Lender hereunder.
"B Advance" means an advance by a Lender to the Borrower as part
of a B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances from each of the Lenders whose offer to make one or more B Advances
as part of such borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any Interest Period or any other period, a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank, N.A., in
New York, New York, from time to time, as its base rate;
(b) a rate equal to 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
determined weekly on each Monday (or if such day is not a Business Day,
on the next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank, N.A., on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank, N.A., from three New York certificate of deposit
dealers of recognized standing selected by Citibank, N.A., in either
case adjusted to the nearest 1/4 of one percent, or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one percent; or
(c) a rate equal to 1/2 of one percent per annum above the then
current Federal Funds Rate.
"Base Rate Advance" means an A Advance or a B Advance which bears
interest at the Base Rate.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which commercial banks are required or authorized by law to
close in New York, New York, London, England or in the city where the
Lending Office is located.
"Capital Expenditures" mean the aggregate of all expenditures
(including that portion of leases which is capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries (or on the balance sheet
of any unconsolidated Subsidiary) and capitalized interest) by the Borrower
and its Subsidiaries that, in conformity with GAAP, should be, have been or
should have been included in the property, plant or equipment reflected in a
consolidated balance sheet of the Borrower and its Subsidiaries.
"Capital Lease" means, with respect to any Person, any lease of
any property (whether real, personal or mixed) by such Person as lessee
that, in accordance with GAAP, either would be required to be classified and
accounted for as a capital lease on a balance sheet of such Person or
otherwise be disclosed as such in a note to such balance sheet, other than,
in the case of the Borrower or a Subsidiary of the Borrower, any such lease
under which the Borrower or such Subsidiary is the lessor.
"Closing Date" means the day, but not later than July 1, 1993, on
which the respective parties hereto shall have executed and delivered this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
"Commitment" means the obligation of each Lender to lend the
amount set forth in Section 2.01 hereof, as such amount may be reduced or
increased from time to time pursuant to this Agreement.
"Commitment Date" has the meaning specified in Section 2.12.
"Commitment Increase" has the meaning specified in Section 2.12.
"Consolidated Cash Flow" means, in conformity with GAAP, net cash
from operations, as shown in the consolidated statements of cash flows of
the Borrower and its Subsidiaries excluding Specified Subsidiaries.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type pursuant to
Section 2.02(e) or 2.05(b)(ii) (E) or (F).
"Default" means any event or condition that, with the giving of
notice, the lapse of time or both, would become an Event of Default.
"Designated Bidder" means (i) an Eligible Assignee or (ii) a
special purpose corporation which is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper
rated at least "Prime-1" by Moody's Investors Services, Inc. or "A-1" by
Standard & Poor's Ratings Services or a comparable rating from the successor
of either of them, that, in either case, (x) is organized under the laws of
the United States or any State thereof, (y) shall have become a party hereto
pursuant to Section 7.10(d), (e), (f) and (z) is not otherwise a Lender.
"Designation Agreement" means a designation agreement entered into
by a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Agent, in substantially the form of Exhibit D hereto.
"Dollars" and "$" mean the lawful and freely transferable currency
of the United States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Drawdown Date" shall mean the date an Advance is to be made to
the Borrower pursuant to this Agreement.
"Eligible Assignee" means (i) a commercial bank, savings and loan
institution, insurance company or financial institution organized under the
laws of the United States, or any State thereof, which bank has both assets
in excess of One Billion Dollars ($1,000,000,000) and combined capital and
surplus in excess of One Hundred Million Dollars ($100,000,000), or which
insurance company or financial institution has total assets in excess of One
Billion Dollars ($1,000,000,000), (ii) a commercial bank organized under the
laws of any other country which is a member of the OECD or has concluded
special lending arrangements with the International Monetary Fund associated
with its General Arrangements to Borrow, or a political subdivision of any
such country, which bank has a combined capital and surplus (or the
equivalent thereof under the accounting principles applicable thereto) in
excess of One Hundred Million Dollars ($100,000,000), provided that such
bank is acting through a branch or agency located in the United States, the
Cayman Islands or the country in which it is organized or another country
which is also a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, (iii) the central bank of any country which
is a member of the OECD or (iv) a finance company, insurance company or
other financial institution or a fund which is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business, has total assets in excess of Five Hundred Million Dollars
($500,000,000), is doing business in the United States and is organized
under the laws of the United States, or any State thereof, or under the laws
of any member country of the OECD.
"ERISA" means the Employee Retirement Income Security Act of 1974,
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.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Agent.
"Event of Default" means any of the events specified as such in
Section 6.01 of this Agreement.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fee Payment Date" means (i) the last day of the calendar quarter
in which the Closing Date occurs, and (ii) the last day of each successive
and respective calendar quarter thereafter to and including the Termination
Date, or such earlier date as the Commitment of the Lenders shall have been
terminated, and the principal of and interest on each Advance shall have
been paid, in full.
"GAAP" means at any time generally accepted United States
accounting principles at such time.
"HAL" means HAL Antillen N.V., a Netherlands Antilles corporation.
"HAL Subsidiaries" mean the Subsidiaries of HAL.
"Incorporation Jurisdictions" mean the respective jurisdictions of
incorporation or legal organization of the Borrower and each of its
Subsidiaries.
"Increase Date" has the meaning specified in Section 2.12.
"Increasing Lender" has the meaning specified in Section 2.12.
"Indebtedness" means (a) any liability of any Person (i) for
borrowed money, or under any reimbursement obligation related to a letter of
credit or bid or performance bond facility, or (ii) evidenced by a bond,
note, debenture or other evidence of indebtedness (including a purchase
money obligation) representing extensions of credit or given in connection
with the acquisition of any business, property, service or asset of any
kind, 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 (iii) 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
the preceding clause (a) that (i) the Person 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
Lien on any property or asset owned or held by that Person, regardless
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 clauses (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.
"Interest Payment Date" means with respect to any Advance
comprising part of the same Borrowing (1) the last day of each Interest
Period, (2) the day any principal amount of such Borrowing matures and
becomes due and payable, (3) the Termination Date, and (4) with respect to
any A Advance, if the Interest Period is longer than three (3) months, the
last day of each third month following such Borrowing.
"Interest Period" means, (A) for each A Advance comprising part of
the same A Borrowing, the period commencing on the date of such A Advance,
or the date of the Conversion of any A Advance into such an A Advance and
ending on the last day of the period selected by the Borrower or the Agent,
as the case may be, pursuant to this Agreement and, thereafter, each
respective and successive period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower or the Agent, as the case may be, subject to
the provisions below. The duration of each such Interest Period shall be
(y), in the case of a Base Rate Advance, such period as the Agent shall
notify the Borrower and (z), in the case of a LIBOR Rate Advance, one, two,
three or six months, and, if available, nine or twelve months, in each case
selected by the Borrower or the Agent, as the case may be, pursuant to this
Agreement and
(B) for each B Advance comprising part of the same B Borrowing,
the interest period or interest periods specified in the related Notice of B
Borrowing, or selected by the Agent, as the case may be, pursuant to this
Agreement
provided, however, with respect to each Advance that:
(i) no Interest Period relating to any Advance shall commence on
or end after the maturity date of such Advance;
(ii) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same duration;
(iii) no Interest Period shall end after the Termination Date;
and
(iv) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, in the case of any Interest Period for a LIBOR Rate Advance,
that if such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof,
each Eligible Assignee that shall become a party hereto pursuant to Section
7.10(a), (b) and (c) or Section 2.12 and, except when used in reference to
an A Advance, an A Borrowing, a Series A Note, a Commitment, the Termination
Date or a related term, each Designated Bidder.
"Lending Office" means the International Banking Facility of the
Agent in New York City, or any other office or affiliate of the Agent
hereafter selected and notified to the Borrower from time to time by the
Agent.
"LIBOR Rate Advance" means an A Advance or a B Advance which bears
interest based on the LIBOR Rate.
"LIBOR Rate" means, for an Interest Period for each LIBOR Rate
Advance comprising part of the same Borrowing, the rate determined by the
Agent to be the rate of interest per annum (i) rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, appearing on Telerate screen 3750
at 11:00 A.M. (London time) two Business Days before the first day of such
Interest Period for a term equal to such Interest Period and in an amount
substantially equal to such portion of the Loan, or if the Agent cannot so
determine the LIBOR Rate by reference to Telerate screen 3750, then (ii)
equal to the average (rounded upward to the nearest whole multiple of 1/100
of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in United States Dollars are offered by the
principal office of each of the Reference Lenders in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a term equal
to such Interest Period and in an amount substantially equal to such portion
of the Loan. In the latter case, the LIBOR Rate for an Interest Period
shall be determined by the Agent on the basis of applicable rates furnished
to and received by the Agent from the Reference Lenders two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.05. If at any time the Agent shall determine that
by reason of circumstances affecting the London interbank market
(i) adequate and reasonable means do not exist for ascertaining the LIBOR
Rate for the succeeding Interest Period or (ii) the making or continuance of
any Loan at the LIBOR Rate has become impracticable as a result of a
contingency occurring after the date of this Agreement which materially and
adversely affects the London interbank market, the Agent shall so notify the
Lenders and the Borrower. Failing the availability of the LIBOR Rate, the
LIBOR Rate shall mean the Base Rate thereafter in effect from time to time
until such time as a LIBOR Rate may be determined by reference to the London
interbank market.
"Lien" means any lien, charge, easement, claim, mortgage, Option,
pledge, right of first refusal, right of usufruct, 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).
"Loan" means the Advances to the Borrower by each Lender provided
for in Article II of this Agreement.
"Loan Documents" mean this Agreement and the Notes.
"Majority Lenders" means at any time Lenders holding at least 51%
of the then aggregate unpaid principal amount of the Series A Notes held by
Lenders, or, if no such principal amount is then outstanding, Lenders having
at least 51% of the Commitments (provided that, for purposes hereof, neither
the Borrower, nor any of its Affiliates, if a Lender, shall be included in
(i) the Lenders holding such amount of the A Advances or having such amount
of the Commitments or (ii) determining the aggregate unpaid principal amount
of the A Advances or the total Commitments).
"March 30, 1990 Loan Agreement" means that certain Loan Agreement
dated as of March 30, 1990 by and among the Borrower, Wind Surf Limited,
Citibank, N.A. as Agent and the banks therein named, as the same may be
amended, supplemented or otherwise modified from time to time.
"Moody's" has the meaning specified in Section 2.05(b)(ii)(B).
"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, in the event that 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.
"NCL" means Norwegian Cruise Line Limited (formerly Kloster Cruise
Limited),
a corporation organized and existing under the laws of the Islands of
Bermuda.
"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 a company and its Subsidiaries as at such
date.
"Note" means any of, and "Notes" mean all, the respective Series A
Notes and the Series B Notes, as any such note may be replaced, amended,
supplemented or otherwise modified from time to time.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"Obligations" mean all obligations, including but not limited to,
all principal, interest, fees, expenses and other obligations set forth in
Article II and Section 8.04 hereof, of every nature of the Borrower from
time to time owed to the Agent, any of the Lenders, or all of them, under
any of the Loan Documents.
"Option" means (1) any right to buy or sell specific property in
exchange for an agreed upon sum, (2) any right to receive funds, the amount
of which is determined by reference to the value of capital stock or the
purchase price thereof, (3) any right of the type or kind referred to as a
"phantom stock right," and (4) any other right commonly known or referred to
as an "option."
"PBGC" means the Pension Benefit Guaranty Corporation, or any
entity or entities succeeding to any or all its functions under ERISA.
"Percentage Interest" shall have the meaning set forth in
Preliminary Statement (2) of this Agreement.
"Person" means any individual, corporation, partnership, business
trust, joint venture, association, joint stock company, trust or other
unincorporated organization, whether or not a legal entity, or any
government or agency or political subdivision thereof.
"Plan" means, at any time, any employee pension benefit plan
maintained by a Person, any of its Subsidiaries, or any ERISA Affiliate of
such Person or its Subsidiaries, which employee pension benefit plan is
covered by Title IV of ERISA or is subject to the minimum funding standards
of the Code.
"Reference Lender" means any of, and "Reference Lenders" mean all
of, Citibank, N.A., National Westminster Bank Plc and CIBC, Inc.
"Register" shall have the meaning set forth in Section 7.10(g) of
this Agreement.
"S & P" has the meaning specified in Section 2.05(b)(ii)(B).
"Senior Debt" has the meaning specified in Section 2.05(b)(ii)(B).
"Series A Note" means any of, and "Series A Notes" mean all, the
respective Series A Notes of the Borrower, substantially in the form
attached hereto as Exhibit A-1, to be issued to evidence the indebtedness of
the Borrower, from time to time outstanding in respect of the A Advances, as
any such Series A Note may be replaced, amended, supplemented or otherwise
modified from time to time.
"Series B Note" means any of, and "Series B Notes" mean all, the
respective Series B Notes of the Borrower, substantially in the form
attached hereto as Exhibit A-2, to be issued to evidence the indebtedness of
the Borrower from time to time outstanding in respect of the B Advances, as
any such Series B Note may be replaced, amended, supplemented or otherwise
modified from time to time.
"Solvent" means with respect to any Person on a particular date,
that on such date (i) the fair market value of the assets of such Person is
greater than the total amount of liabilities (including the present or
expected value of contingent liabilities) of such Person, (ii) the present
fair salable value of the assets of such Person is greater than the amount
that will be required to pay the probable liabilities of such Person for its
debts as they become absolute and matured, (iii) such Person is able to
realize upon its assets and pay its debts and other liabilities, including
contingent obligations, as they mature, (iv) such Person does not have
unreasonably small capital and (v) such Person does not intend to or believe
it will incur debts beyond its ability to pay as they mature.
"Specified Subsidiary" means any of NCL and its Subsidiaries, and
"Specified Subsidiaries" mean all of NCL and its Subsidiaries.
"Subordinated Debt" has the meaning specified in Section
2.05(b)(ii)(B).
"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, or by such Person and one or
more other Subsidiaries, or a combination thereof.
"Swaps Documents" mean the Swaps Agreement, the Swaps Guaranty and
the Swaps Security Agreement as defined in the March 30, 1990 Loan
Agreement.
"Tangible Net Worth" means for any Person at any time (a) the sum,
to the extent shown on such Person's 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.
"Termination Date" means December 17, 2001 or the earlier date of
termination of all the Commitments pursuant to Section 2.11 or 6.01 hereof.
"Termination Event" means (i) 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 (ii) the withdrawal of the
Borrower 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 Borrower
or any ERISA Affiliate under Section 4064 of ERISA upon the termination of a
Multiple Employer Plan, or (iii) 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 (iv) the institution of proceedings to terminate
a Plan by the PBGC under Section 4042 of ERISA, or (v) 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 Borrower and its Subsidiaries excluding Specified Subsidiaries,
but excluding therefrom any Indebtedness or amounts due or received under
the Swaps Documents.
"Total Debt" means, at a particular date, the sum of (y) all
amounts which would, in accordance with GAAP, constitute short term debt and
long term debt of the Borrower and its Subsidiaries excluding Specified
Subsidiaries as of such date and (z) the amount of any Indebtedness
outstanding on such date and not included in the amounts specified in clause
(y), singly or in the aggregate, in excess of Fifty Million Dollars
($50,000,000), of any Person other than the Borrower or any of its
Subsidiaries excluding Specified Subsidiaries, which Indebtedness (i) has
been and remains guaranteed on such date by the Borrower or any of its
Subsidiaries excluding Specified Subsidiaries or is otherwise the legal
liability of the Borrower or any of its Subsidiaries excluding Specified
Subsidiaries (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 Lien on any
property or asset owned or held by the Borrower or any of its Subsidiaries
excluding Specified Subsidiaries, regardless of whether the obligation
secured thereby shall have been assumed or is a personal liability of the
Borrower or any of its Subsidiaries excluding Specified Subsidiaries,
provided, that the foregoing shall not be interpreted to include any
Indebtedness under the Swaps Documents.
"Transaction" means the extension of credit contemplated by the
Loan Documents.
"Type" shall mean, with respect to an Advance, a Base Rate Advance
or a LIBOR Rate Advance.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistently applied.
SECTION 1.03. Governing Language. All documents, notices and
demands and financial statements to be delivered by any Person to the Agent
or any Lender pursuant to this Agreement shall be in the English language.
SECTION 1.04. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and each of the
words "to" and "until" means "to but excluding".
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Upon the terms and subject to the
conditions set forth in this Agreement, each Lender agrees severally, but
not jointly, to make A Advances to the Borrower from time to time on any
Business Day during the period from the Closing Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount
set opposite such Lender's name on the signature pages hereof or, if
applicable, the signature pages of any relevant amendment hereto or, if such
Lender has entered into any Assignment and Acceptance, set forth for such
Lender in the Register maintained by the Agent, as such amount may be
reduced or increased pursuant to Sections 2.11 or 2.12, respectively (such
Lender's "Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used and reduced from time to
time to the extent of the aggregate amount of the B Advances then
outstanding and such deemed use and reduction of the aggregate amount of the
Commitments shall be applied to the Lenders ratably according to their
respective Commitments (such deemed use and reduction of the aggregate
amount of the Commitments being a "B Reduction"). Each A Borrowing shall be
in an aggregate amount not less than Ten Million Dollars ($10,000,000) and
an integral multiple of One Million Dollars ($1,000,000) if in excess
thereof and shall consist of A Advances of the same Type made on the same
day by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may from time to
time borrow, prepay pursuant to Section 2.06(a) and reborrow under this
Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall
be made on notice, given not later than 11:00 A.M. (New York City time) on
the third Business Day (on the first Business Day in the case of a Base Rate
Advance) prior to the date of the proposed A Borrowing, by the Borrower to
the Agent, which shall give to each Lender prompt notice thereof by
telecopier, telex or cable. Each such Borrower's notice of an A Borrowing
(a "Notice of A Borrowing") shall be by telecopier, telex or cable,
confirmed immediately in writing, substantially in the form of Exhibit B-1
hereto, specifying therein the requested (i) Drawdown Date of such A
Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii)
aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing
comprised of LIBOR Rate Advances, the initial Interest Period for each such
A Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the
date of such A Borrowing, make available for the account of its Applicable
Lending Office to the Agent at its address referred to in Section 8.02, in
same day funds, such Lender's ratable portion of such A Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's aforesaid address.
(b) The total amount of each A Advance to be made available by
each Lender shall never exceed the Commitment of such Lender, as adjusted by
such Lender's B Reduction, and shall be proportionate always to such
Lender's Percentage Interest set forth in the signature pages hereof or, if
applicable, in the Register.
(c) Unless the Agent shall have received written notice from a
Lender prior to the date of any A Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such A Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such A Borrowing in accordance with subsection (a) of
this Section 2.02 and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time
to A Advances comprising such A Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this
Agreement.
(d) The Borrower shall repay the principal amount of each A
Advance made by each Lender in accordance with the Series A Note payable to
such Lender, provided that the aggregate principal amount of any A Advance
outstanding on the Termination Date shall be paid on the Termination Date.
(e) The Borrower may on any Business Day, upon notice given to
the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Section 2.05, and so long as no Default or Event of Default
has occurred and is continuing, Convert all A Advances of one Type
comprising the same A Borrowing into Advances of another Type; provided,
however, that any Conversion of any LIBOR Rate Advances into Advances of
another Type shall be made on, and only on, the last day of an Interest
Period for such LIBOR Rate Advances. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into LIBOR Rate Advances, the duration of the Interest Period
for each such A Advance.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees
that the Borrower may, in the manner set forth below, make B Borrowings
under this Section 2.03 from time to time on any Business Day during the
period from the Closing Date until the thirtieth day prior to the
Termination Date; provided that, following the making of each B Borrowing,
the aggregate amount of the Advances then outstanding shall not exceed the
aggregate amount of the Commitments of the Lenders (computed without regard
to any B Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.03 by delivering to the Agent, by telecopier, telex or cable,
confirmed immediately in writing, a notice of a B Borrowing (a "Notice
of B Borrowing"), substantially in the form of Exhibit B-2 hereto,
specifying the Drawdown Date and aggregate amount of the proposed B
Borrowing, the maturity date for repayment of each B Advance to be made
as part of such B Borrowing (which maturity date may not be earlier
than seven (7) days (thirty (30) days, in the case of floating interest
rate borrowings) or later than one hundred eighty (180) days after the
date of such B Borrowing or, in any event, later than the Termination
Date), the Interest Payment Date or Dates relating thereto, and any
other terms to be applicable to such B Borrowing, not later than 12:00
Noon (New York City time) (A) at least one (1) Business Day prior to
the date of the proposed B Borrowing, if the Borrower shall specify in
the Notice of B Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum and (B) at least four (4)
Business Days prior to the date of the proposed B Borrowing, if the
Borrower shall instead specify in the Notice of B Borrowing the basis
to be used by the Lenders in determining the rates of interest to be
offered by them. The Agent shall in turn promptly notify each Lender
of each request for a B Borrowing received by it from the Borrower by
sending such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion it elects to do
so, irrevocably offer to make one or more B Advances to the Borrower as
part of such proposed B Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to the Borrower), before 9:30
A.M. (New York City time) (A) on the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to clause (A)
of paragraph (i) above and (B) three (3) Business Days before the date
of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, of the minimum
amount and maximum amount of each B Advance which such Lender would be
willing to make as part of such proposed B Borrowing (which amounts
may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such B Advance; provided that if the Agent in its capacity
as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:00 A.M. (New
York City time) on the date on which notice of such election is to be
given to the Agent by the other Lenders. If any Lender shall elect not
to make such an offer, such Lender shall so notify the Agent, before
9:30 A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any B Advance as
part of such B Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any B Advance as part of such proposed B Borrowing or result in any
liability to any party to this Agreement.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M. (New
York City time) on the date of such proposed B Borrowing, in the case
of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (B) before 11:00 A.M. (New York City time)
three (3) Business Days before the date of such proposed B Borrowing,
in the case of a Notice of B Borrowing delivered pursuant to clause (B)
of paragraph (i) above, either:
(x) cancel such B Borrowing by giving the Agent notice to
that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in the Borrower's sole
discretion, by giving notice to the Agent of the amount of each B
Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender for
such B Advance pursuant to paragraph (ii) above) to be made by
each Lender as part of such B Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving
the Agent notice to that effect.
(iv) If the Borrower notifies the Agent that such B Borrowing is
cancelled pursuant to paragraph (iii)(x) above, the Agent shall give
prompt notice thereof to the Lenders and such B Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall
in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been accepted by the
Borrower, (B) each Lender that is to make a B Advance as part of such B
Borrowing, of the amount of each B Advance to be made by such Lender as
part of such B Borrowing, and (C) each Lender that is to make a B
Advance as part of such B Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. The Agent shall allocate the
principal amount of each B Borrowing among the Lenders whose offers
were accepted by the Borrower in ascending order based upon the rate of
interest offered, from the lowest to the highest such interest rate
offered by such Lenders. Each Lender that is to make a B Advance as
part of such B Borrowing shall, before 12:00 noon (New York City time)
on the date of such B Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to the Borrower at
the Agent's aforesaid address. Promptly after each B Borrowing the
Agent will notify each Lender of the amount of the B Borrowing, the
consequent B Reduction and the dates upon which such B Reduction
commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of not less
than Ten Million Dollars ($10,000,000) and an integral multiple of One
Million dollars ($1,000,000) if in excess thereof and, following the making
of each B Borrowing, the Borrower shall be in compliance with the limitation
set forth in the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section
2.03, repay or prepay the principal of any B Borrowing pursuant to
subsection (d) below, and reborrow under this Section 2.03, provided that a
B Borrowing shall not be made within three (3) Business Days following the
date of any other B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance, or each other holder of a Series B Note,
on the maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the related
Notice of B Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Series B Note evidencing such B Advance), the then unpaid
principal amount of such B Advance, provided that, the aggregate principal
amount of any B Advance outstanding on the Termination Date shall be repaid
on the Termination Date. Except as specified in Section 2.06(d) the
Borrower shall have no right to prepay, in whole or in part, the principal
amount of any B Advance unless, and then only on the terms, if any,
specified by the Borrower for such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above and set forth in the
Series B Note evidencing such B Advance.
(e) The indebtedness of the Borrower resulting from each
B Advance made to the Borrower as part of a B Borrowing shall be evidenced
by the Series B Note of the Borrower payable to the Lender making such
B Advance.
SECTION 2.04. General Provisions. (a) The Borrower shall have no
right to borrow, and no Lender shall have any obligation to lend, any amount
whatsoever on or after the Termination Date.
(b) The failure of any Lender to advance its Commitment in
respect of any Advance shall not relieve it or any other Lender of the
obligation to advance its Commitment, but no Lender or the Agent shall be
responsible for the failure of any other Lender to advance its Commitment to
the Borrower.
(c) Each Notice of A Borrowing sent, and each notice of
acceptance of a B Borrowing given, by the Borrower shall be irrevocable and
binding on the Borrower. If for any reason on the Drawdown Date for the
Advance specified in a Notice of A Borrowing or Notice of B Borrowing, as
the case may be, the Advance is not made as a result of any failure to
fulfill on or before the Drawdown Date the applicable conditions precedent,
the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of such failure, including, without
limitation, any loss, cost or expense incurred by reasons of the liquidation
or reemployment of deposits or other funds acquired by such Lender to fund
the Advance to be made by such Lender as part of such borrowing.
SECTION 2.05. Interest and Default Interest. (a) The Borrower
shall pay interest on the unpaid principal amount of each Advance from the
Drawdown Date until the principal amount of the Advance is paid in full,
payable on each Interest Payment Date for each such Advance.
Notwithstanding the preceding sentence of this Section 2.05(a), all interest
accrued on any Advance outstanding on the Termination Date shall be paid on
the Termination Date.
(b) As long as any A Advance shall be outstanding, and payment of
the principal thereof and interest thereon shall not be in default, interest
on the A Advance shall be payable at an interest rate which shall be
adjusted, in advance at the start of the first day of each Interest Period
therefor, and which shall be determined as follows:
(i) with respect to each Base Rate Advance, the Borrower shall
pay interest thereon at the rate of interest determined by the Agent to
be the Base Rate for the relevant Interest Period as specified in the
related Notice of Borrowing, provided that if the Borrower shall fail
to elect an Interest Period in its Notice of Borrowing as herein
provided or if an Event of Default has occurred and is continuing, the
Agent shall elect the relevant Interest Period, which may be one (1)
day;
(ii) with respect to each LIBOR Rate Advance, the Borrower shall
pay interest in one or more tranches thereon at an interest rate equal
to the sum of (y) the LIBOR Rate plus (z) the applicable margin for the
relevant Interest Period, determined by the Agent and subject to
periodic adjustment, as provided below in this Section 2.05(b)(ii) or,
if the LIBOR Rate is unavailable for any such period, at the Base Rate:
(A) with respect to each Interest Period relating to a LIBOR Rate
Advance, the Borrower shall, by telecopier notice to be received by the
Agent by 11:00 A.M. New York time on a Business Day at least three (3)
Business Days prior to the commencement of each such successive period,
elect an Interest Period of one, two, three or six, and if available,
nine or twelve, months duration and one or more but no more than six
tranches in total for all outstanding LIBOR Rate Advances, provided no
tranche shall be in an amount less than Ten Million Dollars
($10,000,000); provided the Borrower shall select Interest Periods, and
if necessary shall select as the final Interest Period for each LIBOR
Rate Advance an Interest Period less than one month in duration, so
that the maturity date of each Advance shall be the last day of the
Interest Period for such Advance; provided that if the Borrower shall
fail to elect an Interest Period as herein provided, the relevant
Interest Period shall be three (3) months, provided further that so
long as any Event of Default has occurred and is continuing, the Agent
shall elect the relevant Interest Period, which may be less than one
month;
(B) the interest payable on each LIBOR Rate Advance during each
successive Interest Period shall be adjusted from time to time by the
Agent as follows. Notice of such applicable interest rate shall be
delivered by the Agent to the Borrower and the Lenders not later than
the second Business Day of each Interest Period. The Borrower shall,
not later than three (3) Business Days prior to the commencement of
each such successive Interest Period, together with its notice pursuant
to subparagraph (A) above, deliver to the Agent all then-current
ratings, if any, of the Borrower's senior unsecured debt without third
party credit enhancement and unsecured subordinated debt ("Senior Debt"
and "Subordinated Debt", respectively) given by Moody's Investors
Services, Inc. ("Moody's") and by Standard & Poor's Ratings Services
("S & P") during such Interest Period or an officer's certificate that
no such ratings were issued. If the Agent determines that on the last
Business Day of an Interest Period (or on the Business Day preceding
the Drawdown Date, in the case of the initial LIBOR Rate Advance) the
Borrower's Senior Debt was rated
(i) below BBB- by S & P or below Baa3 by Moody's, the
applicable rate for the succeeding Interest Period shall
be .40% over the LIBOR Rate,
(ii) BBB- by S & P or Baa3 by Moody's, the applicable
interest rate for the succeeding Interest Period shall
be .25% over the LIBOR Rate,
(iii) BBB by S & P or Baa2 by Moody's, the applicable
interest rate for the succeeding Interest Period shall
be .25% over the LIBOR Rate,
(iv) BBB+ by S & P or Baa1 by Moody's, the applicable
interest rate for the succeeding Interest Period shall
be .20% over the LIBOR Rate,
(v) A- by S & P or A3 by Moody's, the applicable
interest rate for the succeeding Interest Period shall
be .17% over the LIBOR Rate,
(vi) A by S & P or A2 by Moody's, the applicable
interest rate for the succeeding Interest Period shall
be .14% over the LIBOR Rate,
(vii) A+ by S & P or A1 by Moody's, the applicable interest rate
for the succeeding Interest Period shall be .14% over the LIBOR
Rate, and
(viii) at least AA- by S & P or Aa3 by Moody's, the applicable
interest rate for the succeeding Interest Period shall be .13%
over the LIBOR Rate.
In the event that S & P and Moody's provide different ratings for such
Senior Debt, the Agent shall use the higher rating in determining the
applicable interest rate. In the event the Borrower has no rated Senior
Debt but the Borrower's Subordinated Debt has been rated, for purposes of
determining the applicable interest rate, the Agent shall assume a Senior
Debt rating equivalent to one subgrade higher than the actual Subordinated
Debt rating given during such period. In the event that during any Interest
Period the Agent shall not have received notification of ratings from the
Borrower as aforesaid or if no such ratings exist during any Interest
Period, the applicable interest rate for the succeeding Interest Period
shall be one percent (1%) over the LIBOR Rate;
(C) each Reference Lender which is a Lender agrees to furnish to
the Agent timely information for the purpose of determining the LIBOR
Rate. If any one or more of the Reference Lenders shall not timely
furnish such information to the Agent for the purpose of determining
the interest rate, the Agent shall determine such interest rate on the
basis of information timely furnished by the remaining Reference
Lenders;
(D) the Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.05(b) and the applicable rate, if any, furnished
by each Reference Lender for the purpose of determining the applicable
LIBOR Rate hereunder;
(E) If, with respect to any LIBOR Rate Advances, the Majority
Lenders notify the Agent that the LIBOR Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective LIBOR Rate
Advances for such Interest Period, the Agent shall forthwith so notify
the Borrower and the Lenders, whereupon
(1) each LIBOR Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(2) the obligation of the Lenders to make, or to Convert A
Advances into, LIBOR Rate Advances shall be suspended until the
Agent shall notify the Borrower and such Lenders that the
circumstances causing such suspension no longer exist; and
(F) On the date on which the aggregate unpaid principal amount of
A Advances comprising any A Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than Ten Million Dollars
($10,000,000), such A Advances shall, if they are Advances of a Type
other than Base Rate Advances, automatically Convert into Base Rate
Advances, and on and after such date the right of the Borrower to
Convert such A Advances into Advances of a Type other than Base Rate
Advances shall terminate; provided, however, that if and so long as
each such A Advance shall be of the same Type and have the same
Interest Period as A Advances comprising another A Borrowing or other A
Borrowings, and the aggregate unpaid principal amount of all such A
Advances shall equal or exceed Ten Million Dollars ($10,000,000), the
Borrower shall have the right to continue all such A Advances as, or to
Convert all such A Advances into, Advances of such Type having such
Interest Period.
(c) As long as any B Advance shall be outstanding, and payment of
the principal thereof and interest thereon shall not be in default, interest
on the B Advance shall be paid at the rate of interest for such B Advance
specified by the Lender making such advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) of Section 2.03 above,
payable on the Interest Payment Date or Dates specified by the Borrower for
such B Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i) of Section 2.03 above, as provided in the Series B Note
evidencing such B Advance. With respect to any LIBOR Rate Advance
comprising part of a B Borrowing, the provisions of subsections (b)(ii)(A),
(C) and (D) of Section 2.05 shall apply to the selection of any Interest
Period not specified in the related Notice of B Borrowing given pursuant to
Section 2.03, and further, the provisos of such subsection (b)(ii)(A), and
subsection (b)(ii)(F) in its entirety, shall apply to each such B Borrowing.
(d) In the event that the Agent or any Lender does not receive on
the due date any sum due under this Agreement or any of the other Loan
Documents in accordance with the terms hereof or thereof, the Borrower shall
pay to the Agent and such Lenders, as the case may be, on demand, interest
on such sum, from and including the due date thereof to but not including
the date of actual payment, at a rate per annum determined by the Agent from
time to time to be the sum of (y) two per cent (2%) plus (z) the LIBOR Rate
applicable for any such period or, if the LIBOR Rate is inapplicable or
unavailable, for any such period, the Base Rate, provided that during the
occurrence and continuance of such event, each A Advance bearing interest
based on the LIBOR Rate shall be converted to a Base Rate Advance at the
end of the relevant Interest Period. Except as otherwise provided in the
following subsection (e), any such interest which is not paid when due shall
be compounded at the end of each Interest Period (both before and after any
notice of demand) by the Agent on behalf of the Lenders under this
Agreement.
(e) Notwithstanding any provision contained in any of the Loan
Documents, no Lender nor the Agent shall ever be entitled to receive,
collect, or apply, as interest on the Obligations, any amount in excess of
the maximum rate of interest permitted to be charged by applicable law, and,
in the event any Lender or the Agent ever receives, collects, or applies as
interest, any such excess, such amount which would be excessive interest
shall be applied to the reduction of the Obligations then outstanding, and,
if the Obligations then outstanding are paid in full, any remaining excess
shall forthwith be paid to the Borrower. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the
highest lawful rate, the Borrower and the Lender or the Agent, as the case
may be, shall, to the maximum extent permitted under applicable law,
(i) characterize any non-principal payment as an expense, fee, or premium
rather than as interest, (ii) exclude any voluntary prepayments and the
effects thereof, and (iii) spread the total amount of interest throughout
the entire contemplated term of the Obligations so that the interest rate is
uniform throughout the entire term of the Obligations.
SECTION 2.06. Prepayments. (a) The Borrower may, upon at least
two (2) Business Days notice to the Agent and the Lenders received by
10:00 A.M. New York time in the case of A Advances bearing interest based on
the LIBOR Rate, and upon notice to the Agent and the Lenders received by
11:00 A.M. New York time on the date of prepayment in the case of A Advances
bearing interest at the Base Rate, and subject always to the requirements of
Section 8.04(b), prepay, pro rata, the outstanding amount of each A Advance,
in whole or in part, together, in each case, with accrued interest to the
date of such prepayment on the amount prepaid, provided that no such partial
prepayment shall be in a principal amount of less than Ten Million Dollars
($10,000,000) and integral multiples of One Million Dollars ($1,000,000) if
in excess thereof.
The outstanding principal balance of A Advances owing each Lender
as of December 17, 1996 shall be prepaid in full not later than the first
Interest Payment Date of such A Advances falling after December 17, 1996.
(b) The Borrower may not, except as permitted under subsection
(d) of this Section 2.06, prepay any B Advance, except that the Borrower
shall prepay such amounts when required pursuant to the provisions of this
Agreement.
(c) If it shall become unlawful for any Lender to continue to
fund or maintain any Advance or to perform its obligations hereunder, such
Lender shall notify the Borrower and the Agent, and such Lender shall use
all reasonable efforts to change its lending office so that it can perform
its obligations hereunder; provided that such Lender shall not be obligated
to change its lending office if in its sole reasonable judgment it would be
disadvantageous to do so. If such Lender does not change its lending office
because it determines in its sole reasonable judgment that it is
disadvantageous to do so or because such change would not render such
Advance lawful, then such Lender shall notify the Agent and the Borrower,
and shall make an A Advance, and the Borrower shall borrow such A Advance,
at the Base Rate in an amount equal to the amount of the Advance currently
outstanding and made by such Lender to the Borrower if in the sole
reasonable judgment of such Lender such A Advance can lawfully be extended
at the Base Rate. Simultaneously with making such A Advance at the Base
Rate, the Advance then outstanding made available by such Lender to the
Borrower shall be repaid by the Borrower. If any Lender makes a Base Rate
Advance to the Borrower pursuant to subsection (c) of this Section 2.06, the
Borrower may prepay such Advance, without penalty, at any time upon five (5)
Business Days notice. If despite such Lender's compliance with the
preceding provisions of this Section 2.06(c), or if the Borrower shall
refuse to borrow an A Advance at the Base Rate as herein provided, and if it
shall become unlawful for any Lender to fund or maintain any Advance or
perform its obligations hereunder, upon demand by such Lender, the Borrower
shall prepay in full the outstanding Advance made by such Lender, with
accrued interest thereon and all other amounts payable by the Borrower
hereunder, and upon such demand or any notice of prepayment the obligation
of such Lender to make any Advance to the Borrower shall terminate.
(d) If at any time the Borrower shall, or may reasonably be
expected to, be required to deduct and withhold, or indemnify any Lender
with respect to, any Taxes (as defined in Section 2.09) (in each case, as
evidenced by an opinion reasonably satisfactory in form and substance to the
Agent and the Lenders from independent tax counsel reasonably satisfactory
to the Agent and the Lenders) the Borrower may, upon at least four (4)
Business Days notice to the Agent and the Lenders, prepay at any time, pro
rata, the outstanding principal amount of each Advance, in whole or in part,
together with accrued interest to the date of prepayment on the amount
prepaid and all other amounts then payable to the Lenders by the Borrower;
provided, that if such Taxes relate to payments to fewer than all the
Lenders (the "Affected Lenders"), the Borrower may, upon at least four
Business Days notice to the Agent and the Affected Lenders, prepay, in whole
or in part, pro rata (except as set forth in the following provision), the
outstanding principal amount of Advances made by the Affected Lenders, with
accrued interest thereon and all other amounts payable to the Affected
Lenders by the Borrower (without prepaying any portion of any Advance made
by any Lender that is not any Affected Lender); provided further, that if
the rate of Taxes with respect to any Affected Lender is higher than with
respect to another Affected Lender, the Borrower may prepay any portion of
the Advance made by the former Affected Lender without prepaying any portion
of the Advance made by the latter Affected Lender. The Agent shall give
prompt written notice to the Lenders of any prepayments made under this
paragraph (d).
(e) Prepayments of any A Advance shall be applied against
installments of outstanding principal in inverse order of maturity.
SECTION 2.07. Increased Costs; Additional Interest. (a) If on or
after the Closing Date due to (i) the introduction of or any change
(including, without limitation, any change by way of imposition or increase
of reserve or capital adequacy requirements, but not including a change
related to Taxes or Excluded Taxes, as such terms are defined in
Section 2.09 hereof) in, or in the interpretation of, any law or regulation,
or (ii) the compliance by any Lender with any guideline or request (not
including any guideline or request with respect to Taxes or Excluded Taxes,
but including, with respect to reserve and capital adequacy requirements,
those applicable laws, policies, guidelines and directives and
interpretations in effect on the Closing Date) from any central bank or
other governmental authority, whether or not having the force of law, there
shall be any increase in the cost to, or reduction in the return on capital
of any Lender in consequence of, any Lender of agreeing to make or making,
funding or maintaining an Advance, then the Borrower shall from time to
time, upon demand by such Lender, pay to the Lender additional amounts
sufficient to indemnify such Lender against such increased cost or reduction
in the return on capital.
(b) If any Lender shall determine in good faith that reserves
under Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time, are required to be maintained by it in
respect of, or a portion of its costs of maintaining reserves under
Regulation D is properly attributable to, one or more of its Advances, such
Lender shall give notice to the Borrower, together with a certificate as
described below in Section 2.07(c) and the Borrower shall pay to such Lender
additional interest on the unpaid principal amount of each such Advance,
payable on the same day or days on which interest is payable on such
Advance, at an interest rate per annum equal at all times during each
Interest Period for such Advance to the excess of (i) the rate obtained by
dividing the LIBOR Rate for such Interest Period by a percentage equal to
100% minus the Reserve Percentage (defined in the next sentence), if any,
applicable during such Interest Period over (ii) the LIBOR Rate for such
Interest Period. The "Reserve Percentage" for any such period, with respect
to any Advance, means the reserve percentage applicable thereto under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to (i) liabilities or
assets consisting of or including eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time, and having a term equal to any such period, or
(ii) any other category of liabilities which includes deposits by reference
to which the interest rate on such Advance is determined and which have a
term equal to any such period.
(c) A certificate as to the amount of any such increased cost,
increased interest or reduced return under this Section 2.07, submitted to
the Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error. Before making any demand under
this Section 2.07, the Lender shall designate as to itself a different
lending office if such designation would avoid the need for, or reduce the
amount of such increased cost or interest, and will not, in the sole
reasonable judgment of such Lender, be otherwise disadvantageous to it.
SECTION 2.08. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under any instrument delivered hereunder
(except as otherwise provided in any such instrument) not later than 12:00
noon New York City time on the day when due in lawful and freely
transferable United States Dollars to the Agent at the Agent's office at 399
Park Avenue, New York, New York 10043, for the account of the Lending Office
in same day funds. The Agent shall promptly disburse to the Lenders funds
of such type as it shall have received in the manner provided by this
Agreement.
(b) The Borrower hereby authorizes the Agent and each Lender, if
and to the extent payment is not made when due hereunder or under any
instrument delivered hereunder, to charge from time to time against any or
all of the Borrower's accounts with the Agent or such Lender, as the case
may be, any amount so due. The Borrower further agrees that not later than
12:00 noon (New York City time) on each day on which a payment is due
hereunder with respect to the Advance or under any Note, it will have in its
account maintained with the Agent in New York City a credit balance at least
equal to the total amount so due on such day.
(c) All computations of interest and fees shall be made by the
Agent and the Lenders on the basis of a year of 360 days (365 or 366 with
respect to Base Rate computations) for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such amount is payable.
(d) Whenever any payment to be made hereunder or under any
instrument delivered hereunder shall be stated to be due, or whenever the
last day of any Interest Period would otherwise occur on a day other than a
Business Day, such payment shall be made, and the last day of such Interest
Period shall occur, on the next succeeding Business Day, and any such
extension of time shall in all cases be taken into account in the
computation of payment of interest due hereunder or otherwise; provided,
however, if such extension would extend the maturity date of any Advance or
would cause such payment to be made, or the last day of any Interest Period
relating to a LIBOR Rate Advance to occur, in a new calendar month, payment
shall be made, and the last day of any such Interest Period shall occur, on
the next preceding Business Day.
SECTION 2.09. Taxes. (a) Any and all payments made by the
Borrower hereunder or under any instrument delivered hereunder shall be made
free and clear of and without deduction for any present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all liabilities
with respect thereto, excluding (i) taxes imposed on net income by, and
other franchise taxes of, the United States or any political subdivision
thereof (including, without limitation, branch profits taxes imposed by the
United States under Section 884(a) of the Code or any successor provision
thereto, or similar taxes imposed by any political sub-division or taxing
authority thereof or therein, including Puerto Rico), other than any such
taxes that would not have been imposed but for the Borrower's incorporation
or residence in the jurisdiction imposing the tax or the situs of any
property securing the Notes in the jurisdiction imposing the tax, (ii) taxes
imposed on net income by any other jurisdiction (other than solely by reason
of the Borrower's incorporation or residence in such jurisdiction or the
situs of any property securing the Notes in such jurisdiction), (iii) in the
case of any payment to any entity not organized under the laws of the United
States, any taxes imposed by the United States under Section 871 or 881 of
the Code or any successor provision thereto or by means of withholding at
the source, and (iv) in the case of any payment to the Agent or any Lender,
taxes (including taxes imposed by means of withholding at the source)
imposed by any jurisdiction other than the United States which would not
have been imposed but for the failure of the Agent or such Lender (as the
case may be) to execute and return to the Borrower any form of notification,
certification, statement or other document which the Borrower shall have
delivered to the Agent or such Lender (as the case may be) a reasonable
period of time before such payment is due and which the Agent or such Lender
(as the case may be) is able to execute and return to the Borrower in good
faith without incurring any additional costs, risks or other disadvantages;
provided, however, that clause (iii) shall not apply if such tax would not
be imposed but for an amendment to or a change in any applicable law or
regulation or in the interpretation thereof by any regulatory authority
(including, without limitation, any change in an applicable tax treaty),
which amendment or change is enacted, promulgated or otherwise comes into
force after the Closing Date (a "Change of Law"), but only to the extent
that such Lender or Agent, as the case may be, cannot, after notice from the
Borrower, through reasonable efforts eliminate or reduce the amount of taxes
payable (without additional costs (unless the Borrower agrees to bear such
costs) or other disadvantages or risks (tax or otherwise) to such Lender or
the Agent) by reason of such Change of Law (all such excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities are hereinafter
referred to as "Excluded Taxes"; all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities are hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under such
instrument, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.09) the Lender or the Agent,
as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any
instrument delivered hereunder, or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any
instrument delivered hereunder excluding any such taxes, charges or similar
levies which arise from the execution, delivery or registration of any
instrument in accordance with Section 7.10 hereof (all such non-excluded
taxes, charges or similar levies are hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify the Agent and each Lender for the
full amount of Taxes and Other Taxes (plus any taxes imposed by any
jurisdiction on amounts payable under this Section 2.09) paid by the Agent
or such Lender, as the case may be, on any and all payments made hereunder
or on any instrument delivered hereunder and any liability (including
penalties, interest and expenses, which result from the failure of the
Borrower to perform its obligations under the Loan Documents) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted; provided, however, that the Agent or
such Lender, as the case may be, will timely notify the Borrower of the
assertion of liabilities for any such Taxes or Other Taxes and, provided
that the Borrower is not in default hereunder, shall, at the Borrower's
request and expense, contest any such asserted liability. This
indemnification shall be made within thirty (30) days from the date the
Agent or the Lender, as the case may be, makes written demand therefor with
appropriate supporting documentation.
(d) Within thirty (30) days after the date of any payment by the
Borrower of Taxes, the Borrower will deliver to the Agent and each Lender,
the original or a certified copy of a receipt evidencing payment thereof.
If no Taxes are payable in respect of any payment, then, at the reasonable
request of the Agent, the Borrower will deliver to the Agent and each Lender
a certificate from each appropriate taxing authority or any political
subdivision thereof, or an opinion of counsel reasonably acceptable to the
Agent and each Lender, in a form reasonably acceptable to the Agent and each
Lender to the effect that there is a reasonable basis to conclude that such
payment is exempt from or not subject to Taxes; provided, however, that
neither the Agent nor any other Lender shall request, and the Borrower shall
not be required to furnish, any such opinions or certificates more
frequently than annually.
(e) If the Borrower is required by law to make any deductions or
withholding from any payment made by it to the Agent or a Lender hereunder
with respect to Taxes and is further required by this Section 2.09 to pay
and pays such Taxes, or otherwise reimburses or indemnifies the Agent or a
Lender hereunder with respect to Taxes, and if such Lender or the Agent, as
the case may be, in good faith but in its sole reasonable opinion,
determines that it has received or been granted a credit against or relief
or remission for, or repayment of, any tax paid or payable by it in respect
of or calculated with reference to any Taxes paid, reimbursed or indemnified
pursuant to this Section 2.09, then such Lender or the Agent shall, to the
extent that it can do so without prejudice to the retention of the amount of
such credit, relief, remission or repayment, pay to the Borrower such amount
as such Lender or the Agent, as the case may be, shall, in good faith but in
its sole opinion, have determined to be attributable to such deduction or
withholding, reimbursement or indemnification. Any payment made by such
Lender or the Agent under this clause shall be conclusive evidence of the
amount due to the Borrower hereunder and shall be accepted by and binding
upon the Borrower in full and final settlement of its rights of
reimbursement hereunder in respect of the relevant deduction or withholding.
Nothing herein contained shall interfere with the right of any Lender or the
Agent to arrange its tax affairs in whatever manner it thinks fit and, in
particular, none of the Agent nor any Lenders shall be under any obligation
to claim credit, relief, remission or repayment from or against its
corporate profits or similar tax liability in respect of the amount of such
deduction or withholding in priority to any other claims, reliefs, credits
or deductions available to it, nor shall the Agent or any Lender be obliged
to disclose any information relating to its tax affairs or any computations
in respect hereof.
(f) Each Lender which is organized under the laws of a
jurisdiction outside the United States agrees (i) to complete and deliver to
the Borrower, on or before the first Drawdown Date (or, in the case of an
assignment pursuant to Section 7.10 on or before the effective date of such
assignment) and (so long as it remains eligible to do so) from time to time
thereafter two duly executed copies of (A) Internal Revenue Service Form
1001 (certifying that it is entitled to benefits under an income tax treaty
to which the United States is a party) or (B) Internal Revenue Service Form
4224 (certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States) or (C) Internal Revenue Service Form W-8 (certifying that it is a
foreign person), together with a tax certificate, substantially in the form
of Attachment III to Exhibit C hereto, as appropriate, and (ii) to complete
and deliver to the Borrower from time to time, so long as it is eligible to
do so, any successor or additional forms required in order to secure an
exemption from, or reduction in the rate of, U.S. withholding tax. Each
Lender represents that each such form delivered on or before the date hereof
is, and covenants that each such form delivered after the date hereof shall
be, true, correct, and complete with respect to all amounts payable to such
Lender pursuant to this Agreement, and covenants that such form shall remain
true, correct, and complete with respect to all amounts payable to such
Lender pursuant to this Agreement unless and until such Lender notifies the
Borrower otherwise in writing.
(g) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in subsections (a) through (d) of this Section 2.09, and the
agreements and obligations of the Agent and the Lenders contained in
subsections (e) and (f) of this Section 2.09, shall survive the payment in
full of the Obligations and the expiry of the Loan Documents.
SECTION 2.10. Fees. (a) [Reserved.]
(b) On each Fee Payment Date, the Borrower shall pay the Agent,
solely for the account of each Lender, a non-refundable facility fee (as to
each Lender, its "Facility Fee"), of .06% per annum of each such Lender's
respective Commitment (such Commitment, irrespective whether drawn or
undrawn, but subject to reduction by a notice of termination of Commitments
delivered by the Borrower pursuant to Section 2.11 hereof, as to each
Lender, the "Facility"), payable from the Closing Date, in arrears, on the
average amount of the Facility, subject to adjustment as herein provided.
The applicable percentage rate per annum (the "Facility Rate") used to
calculate the Facility Fee shall be adjusted from time to time by the Agent
as follows. Notice of the Facility Rate as adjusted shall be delivered by
the Agent to the Lenders and the Borrower not later than the fifth Business
Day of each calendar quarter. If the Agent determines that on the last
Business Day of a calendar quarter the Borrower had Senior Debt rated
(i) below BBB- by S & P or below Baa3 by Moody's, the Facility
Rate for the succeeding quarter shall be .25%,
(ii) BBB- by S & P or Baa3 by Moody's, the Facility Rate for the
succeeding quarter shall be .125%,
(iii) BBB by S & P or Baa2 by Moody's, the Facility Rate for the
succeeding quarter shall be .125%,
(iv) BBB+ by S & P or Baa1 by Moody's, the Facility Rate for the
succeeding quarter shall be .10%,
(v) A- by S & P or A3 by Moody's, the Facility Rate for the
succeeding quarter shall be .07%,
(vi) A by S & P or A2 by Moody's, the Facility Rate for the
succeeding quarter shall be .06%,
(vii) A+ by S & P or A1 by Moody's, the Facility Rate for the
succeeding quarter shall be .06%, and
(viii) at least AA- by S & P or Aa3 by Moody's, the Facility Rate
for the succeeding quarter shall be .055%.
In the event that S & P and Moody's provide different ratings for such
Senior Debt, the Agent shall use the higher rating in determining the
Facility Rate. In the event the Borrower has no rated Senior Debt but the
Borrower's Subordinated Debt has been rated, for purposes of determining the
Facility Rate, the Agent shall assume a Senior Debt rating equivalent to one
subgrade higher than the actual Subordinated Debt rating given during such
period. In the event the Agent shall not have received ratings from the
Borrower pursuant to Section 2.05(b)(ii)(B) or 5.01(c)(vi) or if no such
ratings exist during any such quarter, the Facility Rate for the succeeding
quarter will be .375%. Notwithstanding anything to the contrary contained
in this Agreement or any other agreement, each Lender's Facility Fee shall
be solely for the account of such Lender.
(c) The Borrower shall pay the Agent for its own account on the
earlier of the Closing Date or the Drawdown Date, and not later than the
anniversary of such date of each year thereafter so long as any Commitment
or amount payable by the Borrower hereunder remains outstanding, an annual
administration fee in an amount mutually agreed between them.
SECTION 2.11. Borrower's Termination of Commitments. So long as
no Event of Default has occurred and is continuing, the Borrower may by
notice delivered to the Agent terminate the Commitment of the Lenders,
ratably, in any aggregate amount not less than Ten Million Dollars
($10,000,000) and integral multiples of One Million Dollars ($1,000,000) if
in excess thereof, provided that no such termination shall be effective
until three (3) Business Days following receipt by the Agent of such
notice. Each notice of termination given pursuant to this Section 2.11
shall be irrevocable and binding when given and shall permanently reduce the
Commitment of each Lender ratably in accordance with its Percentage
Interest. No amount of the Commitment for which a notice of termination has
been given by the Borrower shall be available for borrowing under this
Agreement. The Agent shall give each Lender prompt notice of each notice of
termination of Commitment received from the Borrower.
SECTION 2.12. Borrower's Increase of Commitments. (a) The
Borrower may at any time, by notice to the Agent, propose that the aggregate
amount of the Commitments be increased (a "Commitment Increase"), effective
as at a date (the "Increase Date") that shall be (i) prior to the
Termination Date and (ii) at least three Business Days after the date
specified in such notice on which agreement as to increased Commitments is
to be reached (the "Commitment Date"); provided, however, that (w) the
Borrower may not propose more than one Commitment Increase per calendar
year, (x) the minimum proposed Commitment Increase per notice shall be an
amount not less than One Hundred Million Dollars ($100,000,000), and in no
event shall the aggregate amount of the Commitments at any time exceed One
Billion Five Hundred Million Dollars ($1,500,000,000), (y) the Borrower's
long-term senior unsecured non-credit enhanced debt ratings from Moody's and
S&P are and upon giving effect to the proposed Commitment Increase shall be
better than or equal to Baa2 and BBB, respectively, and (z) no Default or
Event of Default has occurred and is continuing or will result upon giving
effect to the Commitment Increase. The Agent shall notify the Lenders
promptly upon its receipt of any such notice. The Agent agrees that it will
cooperate with the Borrower in discussions with the Lenders and potential
Lenders (which shall be Eligible Assignees) with a view to arranging the
proposed Commitment Increase through the increase of the Commitments of one
or more of the Lenders and the addition of one or more Eligible Assignees
acceptable to the Agent and the Borrower as Assuming Banks and as parties to
this Agreement; provided, however, that the minimum Commitment of each such
Assuming Bank that becomes a party to this Agreement pursuant to this
Section 2.12 shall be at least equal to Ten Million Dollars ($10,000,000).
Each Lender shall decide in its sole discretion whether to agree to increase
its Commitment pursuant to this Section 2.12. If agreement is reached on or
prior to the Commitment Date with the Lenders proposing to increase their
respective Commitments hereunder (the "Increasing Lenders"), if any (whose
allocations will be based on the ratio of each existing Lender's Commitment
Increase to the aggregate of all Commitment Increases), and the Assuming
Banks, if any, as to a Commitment Increase (which may be less than that
specified in the applicable notice from the Borrower), such agreement to be
evidenced by a notice in reasonable detail from the Borrower to the Agent on
or prior to the Commitment Date, the Assuming Banks, if any, shall become
Lenders hereunder as of the Increase Date and the Commitments of such
Increasing Lenders and such Assuming Banks shall become or be, as the case
may be, as of the Increase Date the amounts specified in such notice (and
the Agent shall give notice thereof to the Lenders (including such Assuming
Banks) in accordance with section (e) below); provided, however, that:
(x) the Agent shall have received on or prior to 9:00 A.M. (New
York City time) on the Increase Date (A) a duly executed (1) Series A
Note for each Assuming Bank and each Increasing Lender, in each case in
an amount equal to the Commitment of each such Assuming Bank and each
such Increasing Lender after giving effect to such Commitment Increase,
and (2) Series B Note for each Assuming Bank and each Increasing
Lender, and (B) opinions of the Borrower's general counsel and special
Panamanian counsel in substantially the forms of Exhibits E-1 and E-2
hereto, dated such Increase Date, together with (C) a copy, certified
on the Increase Date by the Secretary, an Assistant Secretary or a
comparable official of the Borrower, of the resolutions adopted by the
Board of Directors of the Borrower, authorizing such Commitment
Increase (with copies for each Lender, including each Assuming Bank)
and (D) evidence of the good standing of the Borrower in the Republic
of Panama, dated as of a recent date;
(y) with respect to each Assuming Bank, the Agent shall have
received, on or prior to 9:00 A.M. (New York City time) on the Increase
Date, an appropriate Assumption Agreement in substantially the form of
Exhibit F hereto, duly executed by the Borrower and such Assuming Bank,
together with the Agent's processing and recordation fee of $3000; and
(z) each Increasing Lender that proposes to increase its
Commitment in connection with such Commitment Increase shall have
delivered, on or prior to 9:00 A.M. (New York City time) on the
Increase Date, confirmation in writing satisfactory to the Agent as to
its increased Commitment.
(b) Upon its receipt of notice from a Lender that it is
increasing its Commitment hereunder, together with the appropriate Notes and
opinions referred to in clause (x) above, the Agent shall (i) record the
information contained therein in the Register and (ii) give prompt notice
thereof to the Borrower. Upon its receipt of an Assumption Agreement
executed by an Assuming Bank representing that it is an Eligible Assignee,
together with the appropriate Notes, and opinions referred to in clause (x)
above, and its fee referred to in clause (y) above, the Agent shall, if such
Assumption Agreement has been completed and is in substantially the form of
Exhibit F hereto, (i) accept such Assumption Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(c) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assumption Agreement delivered to and accepted
by it and record in the Register the names and addresses of the Assuming
Banks and of the Increasing Lenders and the Commitment of, and principal
amount of the Advances owing to, each such Assuming Bank and each such
Lender from time to time. The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement.
(d) In the event that the Agent shall not have received notice
from the Borrower as to such agreement on or prior to the Commitment Date or
the Borrower shall, by notice to the Agent prior to the Commitment Date,
withdraw such proposal or any of the actions provided for in clauses (x)
through (z) above shall not have occurred by the Increase Date, such
proposal by the Borrower shall be deemed not to have been made. In such
event, the actions theretofore taken under clauses (x) through (z) above
shall be deemed to be of no effect, and all the rights and obligations of
the parties shall continue as if no such proposal had been made.
(e) In the event that the Agent shall have received notice from
the Borrower as to such agreement on or prior to the Commitment Date and the
action provided for in clauses (x) through (z) above shall have occurred by
9:00 A.M. (New York City time) on the Increase Date, the Agent shall notify
the Lenders (including the Assuming Banks) of the occurrence of the Increase
Date promptly and in any event by 10:00 A.M. (New York City time) on such
date by telecopier, telex or cable. Each Increasing Lender and each
Assuming Bank shall, before 11:00 A.M. ( New York City time) on the Increase
Date, make available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02, in same day funds, an
amount equal to such Increasing Lender's or Assuming Bank's ratable portion
of the A Borrowings then outstanding (calculated based on its Commitment as
a percentage of the aggregate Commitments outstanding after giving effect to
the relevant Commitment Increase). After the Agent's receipt of such funds,
the Agent will promptly thereafter cause to be distributed like funds to the
Lenders for the account of their respective Applicable Lending Offices in an
amount to each Lender such that the aggregate amount of the outstanding
Advances owing to each Lender after giving effect to such distribution
equals such Lender's ratable portion of the A Borrowings then outstanding
(calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment
Increase). If the Increase Date shall occur on a date that is not the last
day of the Interest Period of all A Advances then outstanding bearing
interest based on the LIBOR Rate, (a) the Borrower shall pay any amounts
owing pursuant to Section 8.04(b) as a result of the distributions to
Lenders under this Section 2.11(e) and (b) for each outstanding A Borrowing
comprised of LIBOR Rate Advances, the respective Advances made by the
Increasing Lenders and the Assuming Banks pursuant to this Section 2.11(e)
shall be Base Rate Advances until the last day of the then existing Interest
Period for such A Borrowing.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances to be Made
On or After December 17, 1996. The obligation of each Lender (other than
the Designated Bidders) to make its initial Advance on or after December 17,
1996 is subject to the condition precedent that the Agent shall have
received on or before the Drawdown Date of such initial Borrowing the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(a) The Series A Notes and the Series B Notes payable to the
Lenders, respectively, in the forms attached as Exhibit A-1, and A-2,
respectively, to this Agreement as amended and restated, exchanged for
the Series A and Series B Notes dated prior to December 17, 1996.
(b) Certified copies of the resolutions of the Board of Directors
of the Borrower approving this Agreement as amended and restated and
the Notes, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement as amended and restated and the Notes.
(c) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement as amended and
restated and the Notes and the other documents to be delivered
hereunder.
(d) A favorable opinion of Arnaldo Perez, general counsel of the
Borrower, and of Messrs. Tapia, Linares y Alfaro, special Panamanian
counsel to the Borrower, substantially in the form of Exhibits E-1 and
E-2 to this Agreement, respectively, referring however to this
Agreement as amended and restated, the Notes issued in respect of such
initial Borrowing on or after December 17, 1996, and as to such other
matters as any Lender through the Agent may reasonably request. The
Borrower hereby instructs each such counsel to deliver its opinion to
the Agent and the Lenders.
(e) A favorable opinion of Messrs. Haight, Gardner, Poor &
Havens, special New York counsel to the Agent, as to such matters as
any Lender through the Agent may reasonably request.
(f) A letter from the Process Agent, referred to and defined in
Section 8.07 of this Agreement, in which it agrees to act as Process
Agent for the Borrower and to deliver forthwith to the Borrower all
process received by it as such Process Agent.
(g) Evidence of the good standing of the Borrower in the Republic
of Panama, dated as of a recent date.
(h) An irrevocable notice, effective on or before the Drawdown
Date of such Borrowing, from the Borrower terminating the Commitment
(as therein defined) pursuant to the terms of Section 2.11 of the
U.S.$250,000,000 Revolving Credit Agreement dated as of December 5,
1995 by and among the Borrower, the agent and the banks named therein,
and repayment in full prior to the such Drawdown Date of all notes
issued thereunder.
(i) All corporate or other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by the Loan Documents and the Transaction shall be
reasonably satisfactory in form and substance to each of the Lenders
(other than the Designated Bidders) and the Agent and their counsel.
(j) Upon the execution and delivery of this Agreement as amended
and restated, the Agent shall supplement Schedule I hereto by adding
thereto as to each Lender first becoming a party to this Agreement as
of such date, the name, address and other information required in
Schedule I in respect of each Lender's Domestic Lending Office and
Eurodollar Lending Office.
(k) Evidence of payment by the Borrower of all applicable
documentary stamp taxes (if any) payable in connection with the
authorization, execution and delivery of each of the
Loan Documents, and the performance of the transactions
hereby or thereby contemplated, or an opinion of counsel
that no such taxes are payable.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial A Borrowing) shall be subject to the
further conditions precedent that on the Drawdown Date of such A Borrowing
(a) the following statements shall be true, and the Agent shall have
received for the account of such Lender a certificate signed by a duly
authorized officer of the Borrower, effective as of the date of such A
Borrowing, stating that (and each of the giving of the applicable Notice of
A Borrowing and the acceptance by the Borrower of the proceeds of such A
Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such A Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such A Borrowing, before and after
giving effect to such A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except that
the representation set forth in the last sentence of Section 4.01(e)
shall be made only (y) on the occasion of the initial A Borrowing on or
after December 17, 1996 and (z) on the occasion of each A Borrowing
resulting in an aggregate outstanding principal amount of A Advances
greater than such amount outstanding immediately prior to such A
Borrowing, and
(ii) No Default or Event of Default has occurred and is
continuing, or would result from such A Borrowing or from the
application of the proceeds therefrom;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender (other than the Designated Bidders) through the
Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of a
B Borrowing (including the initial B Borrowing) to make such B Advance as
part of such B Borrowing is subject to the conditions precedent that (i) the
Agent shall have received the written confirmatory Notice of B Borrowing
with respect thereto and (ii) on the Drawdown Date of such B Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of B Borrowing and the acceptance by the Borrower of the proceeds of
such B Borrowing shall constitute representation and warranty by the
Borrower that on the date of such B Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
are correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(b) No Default or Event of Default has occurred and is
continuing, or would result from such B Borrowing or from the
application of the proceeds therefrom, and
(c) No event has occurred and no circumstance exists as a result
of which the information concerning the Borrower that has been provided
to the Agent and each Lender by the Borrower in connection herewith
would include an untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Due Existence; Compliance. The Borrower 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 Loan
Documents, to which it is, or will be, a party. Each of the Borrower
and its Subsidiaries excluding Specified Subsidiaries is duly qualified
or licensed to do business as a foreign corporation 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,
and the conduct of its business upon consummation of the Transaction,
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 Borrower and its Subsidiaries
excluding Specified Subsidiaries or the ability of any such Person to
perform its obligations under any of the Loan Documents to which it is
or may be a party. Each of the Borrower and its Subsidiaries excluding
Specified Subsidiaries is in compliance in all material respects with
all applicable laws, rules, regulations and orders.
(b) Corporate Authorities; No Conflicts. The execution, delivery
and performance by the Borrower of this Agreement and the other Loan
Documents to which it is or will be, a party are within its corporate
powers and have been duly authorized by all necessary corporate and
stockholder approvals and (i) do not contravene its charter or by-laws
or any law, rule, regulation, judgment, order or decree applicable to
or binding on the Borrower or its Subsidiaries excluding Specified
Subsidiaries and (ii) do not contravene, and will not result in the
creation of any Lien under, any provision of any contract, indenture,
mortgage or agreement to which any of the Borrower or its Subsidiaries
excluding Specified Subsidiaries is a party, or by which it or any of
its properties are bound.
(c) Government Approvals and Authorizations. No authorization 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 the Borrower of the Loan Documents (except such as
have been duly obtained or made and remain in full force and effect).
(d) Legal, Valid and Binding. Each of the Loan Documents is, or
upon delivery will be, the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms
(except as enforcement may be limited by bankruptcy, moratorium,
insolvency, reorganization or similar laws generally affecting
creditors' rights as well as the award by courts of relief in lieu of
specific performance of contractual provisions).
(e) Financial Information. Each of the consolidated annual
audited balance sheet of the Borrower as at November 30, 1995, and the
consolidated quarterly unaudited balance sheet of the Borrower as at
August 31, 1996, and the related statements of operations and
statements of cash flows of the Borrower and its Subsidiaries for the
fiscal year or fiscal quarter then ended, as the case may be, copies of
which have been furnished heretofore by the Borrower to the Agent,
fairly present the consolidated financial condition of the Borrower and
its Subsidiaries as at such date and the results of the operations of
the Borrower and its Subsidiaries for the period ended on such date,
all in accordance with GAAP consistently applied (subject, in the case
of the August 31, 1996 statements to normal year-end audit
adjustments). Since November 30, 1995, there has been no material
adverse change in the business, operations, properties or condition
(financial or otherwise) of the Borrower or any of its Subsidiaries
excluding Specified Subsidiaries.
(f) Litigation. There is not pending nor, to the knowledge of
the Borrower upon due inquiry and investigation, threatened any action
or proceeding affecting any of the Borrower or its Subsidiaries, by or
before any court, governmental agency or arbitrator, which reasonably
could be expected (i) to materially adversely affect the assets,
business, properties, prospects, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, or
(ii) to prohibit, limit in any way or materially adversely affect the
consummation of the Transaction contemplated by the Loan Documents,
including, without limitation, the ability of the Borrower to perform
its obligations under this Agreement or any Note.
(g) Immunities. Neither the Borrower nor any of its
Subsidiaries, nor the property of any of them, 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 its organization.
(h) No Taxes. There is no tax, levy, impost, deduction, charge
or withholding or similar item imposed (i) by Panama or the States of
Florida or New York, or by any political subdivision of any of the
foregoing, 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 Note or any other document to be
furnished hereunder or thereunder, provided with respect to Florida
that each Note is executed outside Florida and, subsequent to its
execution outside Florida, that it is not brought into Florida at any
time, or (ii) by Panama or the States of Florida or New York, or by any
political subdivision of any of the foregoing, on any payment to be
made by the Borrower pursuant to this Agreement or any Note, other than
taxes on or measured by net income imposed by any such jurisdiction in
which the Lender has its situs of organization or a fixed place of
business.
(i) No Filing. To ensure the legality, validity, enforceability
or admissibility in evidence of this Agreement or any Note in each of
Panama and the States of Florida and New York, it is not necessary that
this Agreement or any Note, or any other document related to any
thereof, be filed or recorded with any court or other authority in such
jurisdiction, or that any stamp or similar tax be paid on or with
respect to this Agreement or any Note except to the extent provided in
(h) above.
(j) No Defaults. There does not exist (i) 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 to which any of the Borrower
or any of its Subsidiaries 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 Borrower and
its Subsidiaries taken as a whole, or would materially adversely affect
their ability to perform their respective obligations under this
Agreement or any Note, or (ii) any event which is or would result in a
Default or Event of Default.
(k) Margin Regulations. No part of the proceeds of the Loan will
be used for any purpose that violates the provisions of any of
Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
None of the Borrower nor any of its Subsidiaries 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.
(l) Investment Company Act. The Borrower 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,
as amended).
(m) Taxes Paid. (i) Each of the Borrower and its Subsidiaries
excluding Specified Subsidiaries (A) 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 (B) 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 GAAP have been provided on its
books); and (ii) 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 subdivisions (i)(A) and (i)(B) of this paragraph (m)
with respect to HAL and the HAL Subsidiaries acquired on or about
January 17, 1989 are limited to tax returns required to be filed with
respect to the period from and after January 1, 1989.
(n) Disclosure. No representation, warranty or statement made or
document or financial statement provided by the Borrower or any
Affiliate or Subsidiary thereof, in or pursuant to this Agreement or
any Note, or in any other document furnished in connection therewith,
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.
(o) Good Title. The Borrower has good title to its properties
and assets, except for (i) as permitted under this Agreement, existing
or future Liens, security interests, mortgages, conditional sales
arrangements and other encumbrances either securing Indebtedness or
other liabilities of the Borrower or any of its Subsidiaries, or which
the Borrower in its reasonable business judgment has determined would
not be reasonably expected to materially interfere with the business or
operations of the Borrower and its Subsidiaries as conducted from time
to time, and (ii) minor irregularities therein which do not materially
adversely affect their value or utility.
(p) ERISA. (i) 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 March 30,
1990) in which the Borrower or any of its Subsidiaries excluding
Specified Subsidiaries is a participant.
(ii) None of the Borrower nor any ERISA Affiliate excluding
Specified Subsidiaries has incurred, or is reasonably expected to
incur, any Withdrawal Liability to any Multiemployer Plan.
(iii) None of the Borrower nor any ERISA Affiliate excluding
Specified Subsidiaries has received any notification that any
Multiemployer Plan in which it is a participant is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated within the meaning of Title IV of ERISA.
ARTICLE V
COVENANTS OF THE BORROWER.
SECTION 5.01. Affirmative Covenants. So long as an Advance or
any other Obligation shall remain unpaid or any Lender shall have any
Commitment under this Agreement, the Borrower shall, unless the Agent on
behalf of the Lenders shall otherwise consent in writing in accordance with
Section 7.04, comply with each of the following affirmative covenants:
(a) Compliance with Laws. The Borrower shall comply, and cause
each of its Subsidiaries to comply, in all material respects with all
applicable laws, rules, regulations and orders, and to pay when due all
taxes, assessments and governmental charges imposed upon it or upon its
property, except to the extent contested in good faith by appropriate
proceedings and for which adequate reserves in conformity with GAAP
have been provided.
(b) Use of Proceeds. The Borrower shall use all proceeds of the
Notes for such general corporate purposes as may be permitted under
applicable law, including support for its commercial paper programs, if
any, except that subject to receipt by the Agent from the Borrower of
written notice, the Borrower may use proceeds of the Notes up to the
Dollar amount specified in the Borrower's said notice to the Agent
solely to satisfy the Borrower's payment obligations as described in
such notice, provided that neither the Agent nor any Bank shall have
any responsibility as to the use of such proceeds.
(c) Financial Information; Defaults.
(i) The Borrower shall promptly inform the Agent of any event
which is or may become a default or breach of the Borrower's
obligations under the Loan Documents or result in a Default
or Event of Default, or any event which materially adversely
affects its ability fully to perform any of its obligations
under any Loan Document, or any event of default which has
occurred and is continuing under any material agreement to
which the Borrower or any of its Subsidiaries is a party;
(ii) As soon as the same become available, but in any event within
120 days after the end of each of its fiscal years, the
Borrower shall deliver to the Agent on behalf of the Lenders
(A) audited consolidated financial statements of (1) the
Borrower and (2) NCL, formerly known as Kloster Cruise
Limited, if required other than by the Agent or the Lenders
and (B) unaudited consolidated financial statements of NCL if
audited financial statements are not so required. All such
audited consolidated financial statements of the Borrower
shall set forth, in comparative form the corresponding
figures for the preceding fiscal year (excluding, as to any
Subsidiary acquired after the Closing Date, corresponding
information for the period preceding its acquisition); all
such audited consolidated financial statements shall be
accompanied by an opinion thereon of independent certified
public accountants of recognized national standing acceptable
to the Agent, which opinion shall state that said financial
statements fairly present the consolidated financial
condition and results of operations of each of (1) the
Borrower and (2) NCL, if required other than by the Agent or
the Lenders, as at the end of, and for, such fiscal year;
(iii) As soon as the same become available and in any event
within 75 days after the end of each fiscal quarter of
each of its fiscal years, the Borrower shall deliver to
the Agent on behalf of the Lenders (A) unaudited
consolidated statements of income, retained earnings and
cash flow of (1) the Borrower, and (2) NCL, in each case
for each such quarterly period and for the period from
the beginning of its then current fiscal year to the end
of such period, and (B) related unaudited consolidated
balance sheets of (1) the Borrower and (2) NCL, in each
case as at the end of each such quarterly period.
Delivery of the Borrower's quarterly financial
statements containing information required to be filed
with the Securities and Exchange Commission on Form 10-Q
(as in effect on the Closing Date) shall satisfy the
requirements of the first sentence of this Section
5.01(c)(iii) insofar as they relate to the Borrower on a
consolidated basis, provided however that such
requirements shall not be satisfied if the Borrower
makes no such filings or if there is a material change
after the Closing Date in the form or substance of
financial disclosures and financial information required
to be set forth in Form 10-Q. All such unaudited
consolidated financial statements shall be accompanied
by a certificate of a senior financial officer of the
Borrower, which certificate shall state that such
financial statements fairly present the consolidated
financial condition and results of the operations of
each of (1) the Borrower and (2) NCL, as at the end of,
and for, such period (subject to normal year end audit
adjustments) in accordance with GAAP, consistently
applied;
(iv) Together with the financial statements to be delivered to the
Agent on behalf of the Lenders from time to time pursuant to
clauses (ii) and (iii) of this Section 5.01(c), the Borrower
shall deliver to the Agent a certificate of a senior
financial officer of the Borrower, which certificate shall
(A) state that the consolidated financial condition and
operations of the Borrower and its Subsidiaries are such as
to be in compliance with all of the provisions of
Sections 5.01(d) and 5.02(a) and (f) of this Agreement,
(B) set forth in reasonable detail the computations necessary
to determine whether the provisions of Sections 5.01(d) and
5.02(a) and (f) have been complied with, and (C) state that
no Default or Event of Default has occurred and is
continuing;
(v) [Reserved.]
(vi) Promptly upon their becoming available, the Borrower shall
deliver to the Agent copies of all registration statements
and periodic reports which each of the Borrower and NCL shall
have filed with the Securities and Exchange Commission or any
national securities exchange or market and any ratings (and
changes thereto) of its debt by Standard & Poor's Ratings
Services and Moody's Investors Services, Inc.;
(vii) Promptly upon the mailing thereof to its shareholders,
the Borrower shall deliver to the Agent copies of all
financial statements and reports so mailed;
(viii) As soon as reasonably possible, the Borrower shall
deliver to the Agent copies of all reports and notices
which it or any of its Subsidiaries 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 it or any of its Subsidiaries receives
from the PBGC or the sponsor of a Multiemployer Plan
related to (a) any Termination Event and (b) with
respect to a Multiemployer Plan, (x) any Withdrawal
Liability, (y) any actual or expected reorganization
(within the meaning of Title IV of ERISA), or (z) any
termination of a Multiemployer Plan (within the meaning
of Title IV of ERISA);
(ix) From time to time on request, the Borrower shall furnish the
Agent and any of the Lenders with such information and
documents, and provide access to the books, records and
agreements of the Borrower, or any Subsidiary or Affiliate of
the Borrower, as the Agent or any of the Lenders may
reasonably require. All certificates, materials and
documents to be furnished by the Borrower under this Section
5.01(c) shall be provided to the Agent in such number of
copies as the Agent may reasonably request and shall be
furnished promptly by the Agent to the Lenders; and
(x) Notwithstanding the other terms of this Section 5.01(c), the
Borrower shall have no obligation to provide the materials
and information required by this Section 5.01(c) respecting
NCL or any other Specified Subsidiary in the event such
Person is not a Subsidiary of the Borrower.
(d) Financial Covenants. The Borrower shall ensure that:
(i) the ratio of its Total Debt to Total Capital, tested
quarterly, shall be at all times less than fifty percent
(50%); and
(ii) at the end of each fiscal quarter, the amount of its
Consolidated Cash Flow shall be, as at the end of each of the
four fiscal quarters immediately preceding covenant testing,
at least 125% of the sum of (i) the aggregate amount of (x)
dividend payments, (y) scheduled principal loan repayments
and (z) scheduled Capital Lease payments made, in respect of
the Borrower, on a consolidated basis excluding the Specified
Subsidiaries, in the four fiscal quarters immediately
preceding covenant testing.
(e) Corporate Existence, Mergers. The Borrower shall preserve
and maintain in full force and effect its corporate existence and
rights and those of its Subsidiaries, and not merge or consolidate with
or into, or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets of, any Person or permit
any of its Subsidiaries to do so, except that (v) any Subsidiary of the
Borrower other than a Specified Subsidiary may merge or consolidate
with or into the Borrower if the surviving entity is the Borrower, or
transfer assets to, or acquire assets of the Borrower so long as such
assets do not constitute all or substantially all of the assets of the
Borrower, (w) any Subsidiary of the Borrower other than a Specified
Subsidiary may merge or consolidate with or into, or transfer assets
to, or acquire assets of, any other Subsidiary of the Borrower other
than a Specified Subsidiary, (x) the Borrower and its Subsidiaries may
acquire all or substantially all of the assets of any Person if the
surviving entity is the Borrower or such Subsidiary, as the case may
be, (y) any Specified Subsidiary may merge or consolidate with or into,
or transfer assets to, the Borrower or any of its Subsidiaries,
provided that the Borrower or such Subsidiary other than a Specified
Subsidiary is the surviving entity and (z) the Borrower may cause the
change of its jurisdiction by way of merger or otherwise, upon consent
of the Majority Lenders, which consent shall not unreasonably be
denied. Notwithstanding the foregoing, neither Windstar Sail Cruises
Ltd., nor any of its Subsidiaries shall (y) acquire any of the assets
of the Borrower or any of its other Subsidiaries or (z) merge or
consolidate with or into the Borrower or any of its other Subsidiaries
unless the resulting entity is the Borrower or one of the Borrower's
Subsidiaries other than Windstar Sail Cruises Ltd. or any of its
Subsidiaries.
(f) Insurance. The Borrower 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 Lenders and as are usually and customarily insured
by companies engaged in a similar business with respect to properties
of a similar character.
(g) Actions Respecting Certain Excess Sale Proceeds. In the
event that during the period from and including December 17, 1996 to
and including the Termination Date, the Borrower or its Subsidiaries
shall sell or otherwise dispose of, in one or more transactions (but
excluding any sale or disposition permitted by Section 5.01(e) or any
sale or disposition of any or all of the assets or capital stock of NCL
or Windstar Sail Cruises Ltd. or any of their respective Subsidiaries)
"assets" (as hereinafter defined) with an aggregate book value in
excess of One Billion Five Hundred Million Dollars ($1,500,000,000),
the Borrower shall apply all proceeds of such sale or disposition in an
amount at least equal to the amount (the "Excess Amount") in excess of
One Billion Five Hundred Million Dollars ($1,500,000,000), first, to
the prepayment, pro rata, of the outstanding amount of each A Advance,
second to establish cash collateral with the Agent for the payment when
due on a pro rata basis of the outstanding amount of each B Advance,
and third the balance, if any, to such general corporate purposes as
may be permitted under applicable law provided however that the
Borrower shall terminate the Commitment of the Lenders in an amount at
least equal to such balance. For purposes of testing covenant
compliance under this Section 5.01(g), "assets" shall mean only such
assets having a book value at the time of sale or disposition greater
than Ten Million Dollars ($10,000,000).
(h) Further Assurances. The Borrower shall, from time to time
upon the request of any Lender, accept for cancellation any Note or
Notes held by and payable to such Lender, and thereupon the Borrower
shall execute and deliver to such Lender, payable to it and its
registered assigns, a substitute Note or Notes in like form and total
aggregate amount as the canceled Note or Notes, but in any denomination
not smaller than Ten Million Dollars ($10,000,000) or such lesser
amount as such Lender may request (but not less than Five Million
Dollars ($5,000,000)) as shall constitute the outstanding principal of
all outstanding Notes held by such Lender. The Borrower shall do all
things necessary to maintain each of the Loan Documents as legal, valid
and binding obligations, enforceable in accordance with their
respective terms by the Agent and the Lenders. The Borrower shall take
such other actions and deliver such instruments as may be necessary or
advisable, in the opinion of the Agent on behalf of the Lenders to
protect the rights and remedies of the Agent and the Lenders under the
Loan Documents.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation shall remain unpaid or any Lender shall have any
Commitment, the Borrower shall not, unless the Agent on behalf of the
Lenders shall otherwise consent in writing in accordance with Section 7.04:
(a) Sale of Assets. Unless permitted by Section 5.01(e), or in
compliance with Section 5.01(g), sell or otherwise dispose of, or
permit any of its Subsidiaries to sell or dispose of, in one or more
transactions, (but excluding any sale or disposition of any or all of
the assets or capital stock of NCL or Windstar Sail Cruises Ltd. or
any of their respective Subsidiaries), (i) during any fiscal year,
"assets" (as hereinafter defined) with an aggregate book value in
excess of Five Hundred Million Dollars ($500,000,000), or (ii) during
the period from and including December 17, 1996 to and including the
Termination Date, "assets" (as hereinafter defined) with a book value
in excess of One Billion Five Hundred Million Dollars ($1,500,000,000).
For purposes of testing covenant compliance under this Section 5.02(a),
"assets" shall mean only such assets having a book value at the time of
sale or disposition greater than Ten Million Dollars ($10,000,000).
(b) Limitation on Payment Restrictions Affecting Subsidiaries.
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 this Agreement or the
other Loan Documents, including those contained in documents existing
on the Closing Date evidencing Indebtedness permitted by any of the
foregoing) on the ability of any Subsidiary to (i) pay dividends or
make any other distributions on such Subsidiary's capital stock or pay
any Indebtedness owed to the Borrower or any of its Subsidiaries,
(ii) make loans or advances to the Borrower or any of its Subsidiaries,
or (iii) transfer any of its property or assets to the Borrower or any
of its Subsidiaries.
(c) Transactions with Officers, Directors and Shareholders.
Enter or permit any of its Subsidiaries to enter into any transaction
or agreement, including but not limited to 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 Borrower
or of any such Subsidiary or Affiliate, or any record or known
beneficial owner of equity securities of any such Subsidiary, any known
record or beneficial owner of equity securities of any such Affiliate
or the Borrower, or any record or beneficial owner of at least five
percent (5%) of the equity securities of the Borrower, except on terms
that are no less favorable to the Borrower or the relevant Subsidiary
than those that could have been obtained in a comparable transaction by
the Borrower or such Subsidiary with an unrelated Person and except
between Subsidiaries which are consolidated for financial reporting
purposes with the Borrower.
(d) Compliance with ERISA. 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 the Borrower or its Subsidiary).
(e) Investment Company. Be or become an investment company
subject to the registration requirements of the Investment Company Act
of 1940, as amended, or permit any Subsidiary to do so.
(f) Liens. Create or incur, or suffer to be created or incurred
or come to exist, any Lien in respect of Indebtedness on any vessel or
other of its properties or assets of any kind, real or personal,
tangible or intangible, included in the Borrower's consolidated balance
sheet excluding Specified Subsidiaries in accordance with GAAP, nor
shall the Borrower permit any of its Subsidiaries excluding Specified
Subsidiaries to do any of the foregoing. Solely for purposes of the
preceding sentence the term "Lien" shall not include (i) Liens with
respect to Indebtedness under the Swaps Documents and (ii) other Liens
in respect of Indebtedness up to an amount not greater than 40% of the
amount of total assets of the Borrower as shown on its consolidated
balance sheet excluding Specified Subsidiaries (but excluding the value
of any intangible assets) for the relevant period.
(g) Organizational Documents. Amend its articles of
incorporation (or similar charter documents) or by-laws (except for
such amendments as shall not adversely affect the rights and remedies
of the Agent or any Lender).
ARTICLE VI
DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any Facility Fee, or any
installment of principal of an Advance, when due, or shall fail to pay
any interest on any such Advance or fee within two (2) days after such
interest shall become due; or
(b) Any representation or warranty made by or on behalf of the
Borrower under or in connection with this Agreement or any of the other
Loan Documents shall prove to have been incorrect in any material
respect when made; or
(c) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement or any of the other
Loan Documents on its part to be performed or observed and, in each
case, any such failure shall remain unremedied for fifteen (15) days
after written notice thereof shall have been given to the Borrower by
the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries excluding Specified
Subsidiaries shall fail to pay any amount or amounts due in respect of
Indebtedness in the aggregate amount in excess of Fifty Million Dollars
($50,000,000) (but excluding Indebtedness resulting from the Advances)
of the Borrower or such Subsidiary when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness;
or any other default under one or more agreements or instruments
relating to Indebtedness in the aggregate amount in excess of Fifty
Million Dollars ($50,000,000) (but excluding Indebtedness resulting
from the Advances) of the Borrower or such Subsidiary, or any other
event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or
(e)(1) The Borrower or any of its Subsidiaries excluding
Specified Subsidiaries shall (A) generally not pay its debts as such
debts become due, (B) threaten to stop making payments generally, (C)
admit in writing its inability to pay its debts generally, (D) make a
general assignment for the benefit of creditors, (E) not be Solvent or
(F) be unable to pay its debts;
(2) Any proceeding shall be instituted in any jurisdiction by or
against the Borrower or any of its Subsidiaries excluding Specified
Subsidiaries (A) seeking to adjudicate it a bankrupt or insolvent, (B)
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or (C) seeking the entry of 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, provided,
that, in the case of any such proceeding instituted against but not by
the Borrower or any of its Subsidiaries excluding Specified
Subsidiaries, such proceeding shall remain undismissed or unstayed for
a period of forty-five (45) days or any of the relief sought in such
proceeding (including, without limitation, the entry of an order for
relief against it or the appointment of a receiver, trustee, custodian
or other similar official for it or any substantial part of its
property) shall be granted; or
(3) (A) The Borrower or any of its Subsidiaries excluding
Specified Subsidiaries shall take any corporate action to authorize any
of the actions set forth above in subparagraph (e)(2) of this Section
6.01, or (B) any director, or if one or more directors are elected and
acting, any two directors of the Borrower or any of its Subsidiaries
excluding Specified Subsidiaries, or any Person owning directly, or
indirectly, shares of capital stock of the Borrower or any of its
Subsidiaries excluding Specified Subsidiaries in a number sufficient to
elect a majority of directors of the Borrower or any of its
Subsidiaries, shall take any preparatory or other steps to convene a
meeting of any kind of the Borrower or any of its Subsidiaries
excluding Specified Subsidiaries, or any meeting is convened or any
other preparatory steps are taken, for the purposes of considering or
passing any resolution or taking any corporate action to authorize any
of the actions set forth above in subparagraph (e)(2) of this Section
6.01; or
(f) One or more judgments or orders for the payment of money,
singly or in the aggregate, in excess of an amount equal to Fifty
Million Dollars ($50,000,000) shall be rendered against the Borrower or
any of its Subsidiaries excluding Specified Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall have elapsed any period
of fifteen (15) 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; or
(g) [Reserved.]
(h) Any Person, singly or acting in concert with one or more
other Persons, shall directly or indirectly, own, control or have
Options respecting shares of capital stock of the Borrower entitled to
elect directors in a number of such shares greater than the number of
such shares owned, directly or indirectly, by Micky Arison or Ted
Arison (or, in the event of his death, a member of his immediate family
or another Person reasonably acceptable to the Lenders); or
(i) Any material provision of any of the Loan Documents after
delivery thereof shall for any reason cease to be valid and binding on
the parties thereto (other than the Lenders and the Agent), or any
party thereto (other than a Lender or the Agent) shall so state in
writing;
then, and in any such event, the Agent on direction of the Majority Lenders
(i) shall, by notice to the Borrower, declare the Commitment to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall, by
notice to the Borrower, declare each Advance and the Notes, and all interest
thereon and all other amounts payable under this Agreement, to be forthwith
due and payable (except that no notice shall be required upon the occurrence
of an Event of Default described in paragraph (e) of this Section 6.01)
whereupon each Advance, each Note, all such interest and all such amounts
shall become and be forthwith due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
RELATION OF LENDERS; ASSIGNMENTS, DESIGNATIONS
AND PARTICIPATIONS
SECTION 7.01. Lenders and Agent. The general administration of
this Agreement and the Loan Documents shall be by the Agent, and each Lender
hereby authorizes and directs the Agent to take such action (including
without limitation retaining lawyers, accountants, surveyors or other
experts) or forbear from taking such action as in the Agent's reasonable
opinion may be necessary or desirable for the administration hereof (subject
to any direction of the Majority Lenders and to the other requirements of
Section 7.04 hereof). The Agent shall inform each Lender, and each Lender
shall inform the Agent, of the occurrence of any Event of Default promptly
after obtaining knowledge thereof; however, unless it has actual knowledge
of an Event of Default, each of the Agent and the Lenders may assume that no
Event of Default has occurred.
SECTION 7.02. Pro Rata Sharing. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the A Advances made by it (other
than pursuant to Section 2.06(c), 2.07 or 2.09) in excess of its ratable
share of payments on account of the A Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such
participations in the A Advances made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment
is thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. Any Lender so purchasing a participation from another Lender
pursuant to this Section 7.02 may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 7.03. Setoff. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for
the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement
and any Note held by such Lender, whether or not such Lender shall have made
any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after
any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
SECTION 7.04. Approvals. Upon any occasion requiring or
permitting an approval of any amendment or modification or any consent,
waiver, declaring an Event of Default or taking any action thereafter, or
any other action on the part of the Agent or the Lenders under any of the
Loan Documents, (1) action may (but shall not be required to) be taken by
the Agent for and on the behalf or for the benefit of all Lenders, provided
(A) that no other direction of the Majority Lenders shall have been
previously received by the Agent, and (B) that the Agent shall have received
consent of the Majority Lenders to enter into any written amendment or
modification of the provisions of any of the Loan Documents, or to consent
in writing to any material departure from the terms of any Loan Documents by
the Borrower or any other party thereto or (2) action shall be taken by the
Agent upon the direction of the Majority Lenders, and any such action shall
be binding on all Lenders; provided further, however, that unless all of the
Lenders (other than the Designated Bidders) agree in writing thereto, no
amendment, modification, waiver, consent or other action with respect to
this Agreement or any of the Series A Notes shall be effective which
(a) increases the Commitment or increases the Percentage Interest of any of
the Lenders, except as permitted under Section 2.12, (b) reduces any
commission, fee, the principal or interest owing to any Lender in respect of
the Series A Notes hereunder or the method of calculation of any thereof,
(c) extends the Termination Date or the date on which any sum in respect of
the Series A Notes is due hereunder, (d) releases any collateral, guaranty
or other security, (e) amends the provisions of this Section 7.04 or the
definition of Majority Lenders, or (f) waives any condition for Borrowing
set forth in Article III.
SECTION 7.05. Exculpation. The Agent shall not be liable or
answerable for anything whatsoever in connection with any of the Loan
Documents or other instrument or agreement required hereunder or thereunder,
including responsibility in respect of the execution, delivery, construction
or enforcement of any of the Loan Documents or any such other instrument or
agreement, or for any action taken or not taken by the Agent in any case
involving exercise of any power or authority conferred upon the Agent under
any thereof, except for its wilful misconduct or gross negligence, and the
Agent shall have no duties or obligations other than as provided herein and
therein. The Agent shall be entitled to rely on any opinion of counsel
(including counsel for the Borrower or any of its Subsidiaries) in relation
to any of the Loan Documents or any other instrument or agreement required
hereunder or thereunder and upon writings, statements and communications
received from the Borrower or any of its Subsidiaries (including any
representation made in or in connection with any Loan Document), or from any
other party to any of the Loan Documents or any documents referred to
therein or any other Person, firm or corporation reasonably believed by it
to be authentic, and the Agent shall not be required to investigate the
truth or accuracy of any writing or representation, nor shall the Agent be
liable for any action it has taken or omitted in good faith on such
reliance.
SECTION 7.06. Indemnification. Each Lender (other than any
Designated Bidder) agrees to indemnify the Agent, except to the extent
reimbursed by the Borrower and except in the case of any suit by any Lender
against the Agent resulting in a final judgment against the Agent, ratably
according to the aggregate principal amount of the Series A Notes then held
by it (or if no Series A Notes are outstanding or if any such Series A Notes
are held by Persons which are not Lenders, ratably according to the amount
of its Commitment) against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever (except to the extent the foregoing results
from the Agent's gross negligence or wilful misconduct) which may be imposed
on, incurred by or asserted against the Agent in any way relating to or
arising out of (y) any of the Loan Documents or any other instrument or
agreement contemplated hereunder or thereunder or (z) any action taken or
omitted by the Agent under any of the Loan Documents or such other
instrument or agreement.
SECTION 7.07. Agent as Lender. The Agent shall, in its
individual capacity, have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not an agent; the term
"Lenders" shall include the Agent in its individual capacity to the extent
of its Percentage Interest. The Agent and its Subsidiaries and Affiliates
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Borrower and its Subsidiaries and
Affiliates, as if it were not the Agent.
SECTION 7.08. Notice of Transfer; Resignation; Successor Agent.
(a) The Agent may deem and treat a Lender party to this Agreement as the
owner of such Lender's interest in any Loan and any other instrument or
agreement contemplated hereunder or thereunder for all purposes hereof
unless and until a written notice of the assignment or transfer thereof,
executed by such Lender and otherwise in compliance with the requirements of
Section 7.10 hereof, shall have been received and accepted by the Agent.
The Agent shall resign if directed by the Majority Lenders for any reason.
The Agent may not resign at any time, except that, upon written notice to
the Lenders and the Borrower, the Agent may resign if in its judgment there
exist or may occur reasons related to conflict of interest, a change in, or
violation of, law or regulation or interpretation thereof, or such other
occurrence that may prevent or impede the Agent in discharging its duties
hereunder faithfully and effectively in accordance with their terms.
(b) Any successor Agent shall be appointed by the Majority
Lenders and shall be a bank or trust company reasonably satisfactory to the
Borrower (so long as no Event of Default shall have occurred and be
continuing) and the Majority Lenders. If no successor Agent shall have been
so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lender's removal of the Agent, then such
retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement.
SECTION 7.09. Credit Decision; Not Trustee. Each Lender
represents that it has made, and agrees that it shall continue to make, its
own independent investigation of the financial condition and affairs of the
Borrower and its Subsidiaries, and its own appraisal of the creditworthiness
of the Borrower and its Affiliates and Subsidiaries in connection with the
making and performance of this Agreement. The Agent has and shall have no
duty or responsibility whatsoever on the date hereof or, except as otherwise
expressly provided in this Agreement at any time hereafter, to provide any
Lender with any credit or other information. Nothing herein shall (nor
shall it be construed so as to) constitute the Agent a trustee for the
Borrower or its Subsidiaries or impose on it any duties or obligations other
than those for which express provision is made in this Agreement or under
the other Loan Documents.
SECTION 7.10. Assignments, Designations and Participation.
(a) Each Lender (other than the Designated Bidders) may assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of constant, and
not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make B Advances, B Advances owing to it or Series B
Notes), (ii) unless the Borrower shall otherwise agree with the assigning
Lender, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) that is not to a
then existing Lender hereunder, or to a Designated Bidder designated by a
then existing Bank hereunder shall in no event be less than Ten Million
Dollars ($10,000,000) (and in increments of One Million Dollars ($1,000,000)
in excess thereof) or such lesser amount as shall constitute all of such
assigning Bank's Commitment and the outstanding principal of Notes payable
to it, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and deliver to the Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,000; provided further, however, that
each such assignment that is not to a then existing Lender hereunder, or to
a Designated Bidder designated by a then existing Bank hereunder, (x) shall
be subject to the consent of the Borrower, which consent shall not
unreasonably be denied and which consent shall be deemed given unless the
Borrower gives the assigning Lender and the Agent written notice of and a
reasonable basis for its denial not later than five (5) Business Days
following (i) telex, telecopy or cable notice given to the Borrower by the
assigning Lender or the Agent of the name of the proposed transferee, the
amount of Commitment to be assigned and such information as the Borrower may
reasonably request for purposes of making an informed judgment, and, if the
proposed transferee is organized under the laws of a jurisdiction outside
the United States, (ii) transmission to the Borrower by telecopy of any one
of the following documents, properly completed and executed by the proposed
transferee: Internal Revenue Service Form 1001 (or any successor form),
certifying that the proposed transferee is entitled to benefits under an
income tax treaty which will exempt from United States Federal income tax
the income receivable by the proposed transferee pursuant to this Agreement,
or Internal Revenue Service Form 4224 (or any successor form), certifying
that the income receivable by the proposed transferee pursuant to this
Agreement will be effectively connected with the conduct of a trade or
business in the United States, or Internal Revenue Service Form W-8 (or any
successor form) certifying that it is a foreign person together with a tax
certificate, substantially in the form of Attachment III to the Assignment
and Acceptance, as appropriate. Any consent to assignment untimely or
unreasonably denied by the Borrower shall be void and of no effect, and
shall not preclude or bar any assignment otherwise permitted by this Section
7.10(a). Any assignment or purported assignment not in compliance with this
Section shall be void and of no effect. Without regard to any of the other
terms of this Agreement or of any other agreement, any Lender may (i)
assign, as collateral or otherwise, any of its rights (including, without
limitation, rights to payments of principal and/or interest on the Notes)
under this Agreement to any Federal Reserve Bank of the United States
without notice to or consent of the Borrower, the Agent or any other Person,
and (ii) with notice to the Agent and the Borrower, assign all or part of
its rights under this Agreement and the other Loan Documents to any of its
affiliates. In case of any assignment pursuant to this Section 7.10(a), the
assignee shall not be entitled to receive the portion (if any) of any amount
otherwise payable under Section 2.07 or 2.09 hereof which exceeds the amount
which would have been payable under Section 2.07 or 2.09 (as the case may
be) to the assignor with respect to the rights and obligation so assigned.
In the case of a transfer of any Note from the accounting records of the
office of a Lender where such Note was originally recorded to the accounting
records of any other office of such Lender, or a change in the location of
the Lending Office from that designated as of the Closing Date, such Lender
or the Agent, as the case may be, shall not be entitled to receive the
portion (if any) of any amount otherwise payable under Section 2.07 or 2.09
hereof which exceeds the amount which would have been payable under
Section 2.07 or 2.09 (as the case may be) to such Lender or the Agent, as
the case may be, if such transfer or change had not been made. In the case
of a change in location, from the Closing Date, of the Lending Office,
unless the Borrower shall consent to such change, the Borrower shall not be
required to remit to the Agent pursuant to Section 2.07 or 2.09 hereof any
amount that exceeds the amount which would have been payable under
Section 2.07 or 2.09 (as the case may be) if such change in location had not
occurred. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, and
delivery of the tax forms and other documents referred to in Section 2.09
hereof, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance and subject to the foregoing,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Borrower or its Subsidiaries or the
performance or observance by any of the Borrower or its Subsidiaries of any
of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received
a copy of this Agreement, together with copies of the financial statements
referred to herein Sections 4.01(e) and 5.01(c), and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated
to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto and has
attached thereto the forms referred to in paragraph 3(vii) thereof,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register (including the transfer of Notes to such
Eligible Assignee by the assigning Lender) and (iii) give prompt notice and
an execution counterpart thereof to the Borrower. Within five (5) Business
Days after its receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Agent in exchange for the surrendered Note
or Notes a new Note or new Notes, as the case may be, of the same Series to
the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and a new Series B
Note in substantially the form of Exhibit A-2 hereto, as the case may be,
and if the assigning Lender has retained a Commitment hereunder, a new
Series A Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Series A Note or Series A
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Series A Note or Series A Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 hereto.
(d) In addition each Lender (other than the Designated Bidders)
may designate one or more banks or other entities to have a right to make B
Advances as a Lender pursuant to Section 2.03; provided, however, that (i)
no such Lender shall be entitled to make more than two such designations
with respect to any particular B Borrowing, (ii) each such Lender making one
or more of such designations shall retain the right to make B Advances as a
Lender pursuant to Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, a Designation Agreement. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in
each Designation Agreement, the designee thereunder shall be a party hereto
with a right to make B Advances as a Lender pursuant to Section 2.03 and the
obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm
and agree with each other and the other parties hereto as follows: (i) such
Lender makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any of the Borrower or its
Subsidiaries or the performance or observance by any of the Borrower or its
Subsidiaries of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such designee
confirms that it has received a copy of this Agreement, together with copies
of the financial statements referred to in Section 4.01(e) and 5.01(c) and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into the Designation
Agreement; (iv) such designee will, independently and without reliance upon
the Agent, such designating Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement; (v) such designee confirms that it is a Designated Bidder; (vi)
such designee appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated
Bidder, the Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
(5) Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Agent a new Series B Note to the
order of such Designated Bidder in substantially the form of Exhibit A-2
hereto.
(g) The Agent shall maintain at its address referred to in
Section 8.02 of this Agreement a register for the recordation of the names
and addresses of the Lenders and, with respect to Lenders other than
Designated Bidders, the Commitment of, and principal amount of the Advances
owing and each Note payable to, each Lender from time to time and a copy of
each Assignment and Acceptance and Designation Agreement delivered to and
accepted by it (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable
prior notice and each shall be entitled to make copies thereof at its
expense.
(h) Each Lender and the Agent may grant participations to one or
more banks or other entities in or to all or any part of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Advances owing to it); provided, however,
that, notwithstanding the grant of any such participation by any Lender,
such participation, and the right to grant such a participation, shall be
expressly subject to the following conditions and limitations: (i) such
Lender's obligations under this Agreement (including without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder
of any such Note and Advances for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) such Lender shall continue to be able
to agree to any modification or amendment of this Agreement or any waiver
hereunder without the consent, approval or vote of any such participant or
group of participants, other than modifications, amendments, and waivers
which (a) postpone the Termination Date or any date fixed for any payment
of, or reduce any payment of, principal of or interest on such Lender's
Advances or any fees or other amounts payable under this Agreement, or
(b) increase the amount of such Lender's Commitment, or (c) change the
interest rate payable under this Agreement, or (d) release all or
substantially all of any collateral or guaranty, provided that if a Lender
agrees to any modification or waiver relating to items (a) through (d), the
Borrower, the Agent and each other Lender may conclusively assume that such
Lender duly received any necessary consent of each of its participants and
(vi) except as contemplated by the immediately preceding clause (v), no
participant shall be deemed to be or to have any of the rights or
obligations of a "Lender" hereunder.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 7.10, disclose to the assignee,
Designated Bidder or participant, or proposed assignee, designated bidder or
participant, any information relating to the Borrower or its Subsidiaries
furnished to such Lender by or on behalf of the Borrower, provided that the
Person receiving such information undertakes not to disclose it to a third
party except pursuant to, and subject to the conditions provided in, this
Section 7.10.
SECTION 7.11 Managing Agent; Co-Agent. Each of the Managing
Agents and Co-Agents shall have no duties, responsibilities, rights or
liabilities as Managing Agent or Co-Agent, as the case may be, under this
Agreement or any of the other Loan Documents and, other than as a Lender,
shall not be liable or answerable for anything whatsoever in connection with
any of the Loan Documents or other instrument or agreement required
hereunder or thereunder, including responsibility in respect of the
execution, delivery, construction or enforcement of any of the Loan
Documents or any such other instrument or agreement, or for any action taken
or not taken by any Person with respect thereto. Each of the Managing
Agents and Co-Agents has and shall have no duty or responsibility whatsoever
on the date hereof or at any time hereafter, to provide any Bank with any
credit or other information. Nothing herein shall (nor shall it be
construed so as to) constitute any Managing Agent or Co-Agent a trustee for
the Borrower or its Subsidiaries or impose on it any duties or obligations
whatsoever under this Agreement, the other Loan Documents, or otherwise.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments. No amendment, supplement or
modification to this Agreement shall be enforceable against the Borrower
unless the same shall be in writing and signed by the Borrower. No
amendment or waiver of any provision of this Agreement or any instrument
delivered hereunder, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and
signed by the Agent and, to the extent required by Section 7.04 hereof, the
Majority Lenders or each Lender, as the case may be, and then such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 8.02. Notices. All notices, demands and other
communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed, telexed, telecopied or telegraphed or
delivered, if to the Borrower at its address set forth below its signature
herein written; and if to a Lender other than the Agent, at its address set
forth below its signature herein written; or, as to each party, at such
other address as shall be designated by such party in a notice to the other
parties hereto. All such notices and communications shall, when mailed,
telexed, telecopied, or telegraphed, be effective upon the earliest of (i)
actual receipt, (ii) seven days from the date when deposited in the mails,
or (iii) when (on a Business Day and during normal business hours at the
addressee's address) transmitted by telecopy or telex or delivered to the
telegraph company, respectively, except that notices and communications to
the Agent or any Lender pursuant to Article II hereof shall not be effective
until received by the Agent or such Lender.
SECTION 8.03. No Waiver; Remedies. Regardless of any fact known
or investigation undertaken by the Agent or any Lender, no failure on the
part of the Agent or any Lender to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses, Fees and Indemnities. (a) The
Borrower agrees to pay on demand (i) in connection with the preparation,
execution, and delivery of this Agreement and the instruments and other
documents to be delivered hereunder, (y) the reasonable fees and out-of-
pocket expenses of Messrs. Haight, Gardner, Poor & Havens, as special
counsel for the Agent (and any local counsel retained by such firm) with
respect to the closing of the Transaction and (z) all other costs and
expenses of the Lenders and the Agent (other than any other legal fees and
related expenses incurred by them) and (ii) after the Closing Date, all
costs and expenses in connection with the administration of this Agreement
and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket
expenses of any counsel for the Agent or the Lenders in connection with
advice given the Agent or the Lenders, from time to time, as to their rights
and responsibilities under this Agreement and such instruments and
documents. The Borrower shall not be liable to any Lender in respect of any
costs or expenses incurred in connection with any assignment or grant of
participation under Section 7.10 hereof. The Borrower further agrees to pay
on demand all losses, costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement of this Agreement and the instruments and other documents
delivered hereunder, including, without limitation, losses, costs and
expenses sustained as a result of a Default by the Borrower in the
performance of its obligations contained in this Agreement or any instrument
or document delivered hereunder.
(b) If, for any reason, including maturity or demand of the Loan
under Article VI, or prepayment of the Loan, in whole or in part, the Agent
or any of the Lenders receives payment of principal of or interest an
Advance on any day other than the last day of the Interest Period for such
Advance permitted under this Loan Agreement the Borrower shall pay to the
Agent on behalf of the Lenders on demand any amounts required to compensate
the Lenders for any breakage costs (including cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds in
respect of such payment) and any additional losses, costs or expenses which
any Lender may incur as a result of such payment, provided that the Lender
shall have delivered to the Agent and the Borrower, as the case may be, a
certificate as to the amount of such breakage costs, additional losses,
costs or expenses, which certificate shall be binding, absent manifest
error, except that the failure of the Lender to provide such certificate
shall in no way relieve the Borrower of its obligations under this
Section 8.04(b).
(c) The Borrower agrees to indemnify and hold harmless each of
the Lenders and the Agent, and its and their respective Affiliates,
directors, officers, employees, agents, representatives, counsel and
advisors (each an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and disbursements of counsel and the costs of investigation
and defense thereof) which may be incurred by or asserted or awarded against
any Indemnified Party, in each case based upon, arising out of or in
connection with or by reason of, the Transaction, including, without
limitation, any act or failure to act by the Agent where such act or failure
to act was taken pursuant to the Borrower's request or any transaction
contemplated by this Agreement or any Loan Document, whether or not any
Advance hereunder is made, except to the extent that such claim, damage,
loss, liability or expense results from the gross negligence or willful
misconduct of such Indemnified Party. The indemnities of this Agreement
shall survive the termination of this Agreement and the other Loan
Documents.
SECTION 8.05. [Reserved.]
SECTION 8.06. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or
under any instrument delivered hereunder in United States Dollars into
another currency, the parties hereto agree, to the fullest extent permitted
by law, that the rate of exchange used shall be that at which in accordance
with normal banking procedures the Agent or the Lender, as the case may be,
could purchase United States Dollars with such other currency on the
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from
it to the Agent or any Lender hereunder or under such instrument shall,
notwithstanding any judgment in a currency other than United States Dollars,
be discharged only to the extent that on the Business Day following receipt
by the Agent or such Lender of any sum adjudged to be so due in such other
currency the Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase United States Dollars with such
other currency; if the United States Dollars so purchased are less than the
sum originally due to the Agent or such Lender, as the case may be, in
United States Dollars, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agent or such Lender, as
the case may be, against such loss, and if the United States Dollars so
purchased exceed the sum originally due to the Agent or such Lender in
United States Dollars, the Agent or such Lender shall remit such excess to
the Borrower.
SECTION 8.07. Consent to Jurisdiction; Waiver of Immunities. (a)
The Borrower hereby irrevocably submits to the jurisdiction of any New York
State court sitting in New York County and to the jurisdiction of the United
States District Court for the Southern District of New York in any action or
proceeding arising out of or relating to this Agreement or the Notes, and
the Borrower hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State or
Federal court. The Borrower hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower hereby irrevocably
appoints C T Corporation System (the "Process Agent"), with an office on the
date hereof at 1633 Broadway, New York, New York 10019, United States, as
its agent to receive on behalf of itself and its property service of copies
of the summons and complaint and any other process which may be served in
any such action or proceeding. Such service may be made by mailing or
delivering a copy of such process to the Borrower in care of the Process
Agent (or any successor thereto, as the case may be) at such Process Agent's
above address (or the address of any successor thereto, as the case may be),
and the Borrower hereby irrevocably authorizes and directs the Process Agent
(and any successor thereto) to accept such service on its behalf. The
Borrower shall appoint a successor agent for service of process should the
agency of C T Corporation System terminate for any reason, and further shall
at all times maintain an agent for service of process in New York, New York,
so long as there shall be outstanding any Obligations under the Loan
Documents. The Borrower shall give notice to the Agent of any appointment
of successor agents for service of process, and shall obtain from each
successor agent a letter of acceptance of appointment and promptly deliver
the same to the Agent. As an alternative method of service, the Borrower
also irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to it at its
address specified in Section 8.02 hereof. Without waiver of its rights of
appeal permitted by relevant law, the Borrower agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law.
(b) Nothing in this Section 8.07 shall affect the right of the
Agent or any Lender to serve legal process in any other manner permitted by
law, or affect the right of the Agent or any Lender to bring any action or
proceeding against the Borrower or its properties in the courts of any other
jurisdiction.
(c) To the extent that the Borrower has or hereafter may acquire
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) with respect to itself or its
property, the Borrower hereby irrevocably waives such immunity in respect of
its obligations under this Agreement and the Notes.
SECTION 8.08. Binding Effect; Merger; Severability; GOVERNING
LAW. (a) This Agreement shall become effective when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Bank that such Bank has executed it and thereafter this
Agreement shall be binding upon, and shall inure to the benefit of the
Borrower, the Agent and each Lender, and their respective successors and
assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein. Each Lender may, to the extent
permitted under this Agreement, assign to any other financial institution
all or any part of, or any interest in, the Lender's rights and benefits
hereunder and under any instrument delivered hereunder, and to the extent of
such assignment such assignee shall have the same rights and benefits
against the Borrower as it would have had if it were the Lender hereunder.
(b) The Loan Documents, together with all attachments and
exhibits to each of them and all other documents referenced herein and
therein, and delivered hereunder and thereunder and pursuant hereto and
thereto, constitute the entire agreement among the parties with respect to
the subject matter hereof and thereof, and supersede all prior and
contemporaneous written and oral understandings and agreements related
thereto among the parties.
(c) If any word, phrase, sentence, paragraph, provision or
section of the Loan Documents shall be held, declared, pronounced or
rendered invalid, void, unenforceable or inoperative for any reason by any
court of competent jurisdiction, governmental authority, statute, or
otherwise, such holding, declaration, pronouncement or rendering shall not
adversely affect any other word, phrase, sentence, paragraph, provision or
section of the Loan Documents, which shall otherwise remain in full force
and effect and be enforced in accordance with their respective terms.
(d) This Agreement has been delivered in New York, New York.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND BE CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 8.09. Counterparts. This Agreement may be executed in as
many counterparts as may be deemed necessary or convenient and by each party
hereto on separate counterparts, each of which, when so executed, shall be
deemed as original, but all such counterparts shall constitute but one and
the same agreement.
SECTION 8.10. WAIVER OF JURY TRIAL. BY ITS SIGNATURE BELOW
WRITTEN EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE LOAN DOCUMENTS HEREIN DESCRIBED OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
CITIBANK, N.A., as Agent CARNIVAL CORPORATION
By:______________________________ By:___________________________
Title: Title:
Address: 399 Park Avenue Address: 3655 N.W. 87th Avenue
Shipping Department Miami, Florida 33178-2428
8th Floor Attention: Chairman and
New York, NY 10043 Chief Executive Officer
Telephone: (212) 559-5604 Telephone: (305) 599-2600
Telex: 425 727 Telex: 519206
Answerback: NY Answerback: CARNOP
Telecopy: (212) 793-3588 Telecopy: (305) 471-4700
Percentage
Interest Commitment CITIBANK, N.A.
8.50% Eighty-Five Million
Dollars
($85,000,000)
By: _________________________________
Title:
Address: 399 Park Avenue
Shipping Dept.
8th Floor
NY, NY 10043
Telephone: (212) 559-5604
Telex: 425 727
Answerback: NY AAB
Telecopy: (212) 793-3588
<PAGE>
Percentage
Interest Commitment BANCA DI ROMA-HOUSTON AGENCY
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title: Chief Manager
By: _________________________________
Title:
Address: 1100 Louisiana
Suite 4410
Houston, Texas 77002
Telephone: (713) 658-0088
Telex: 168751
Answerback: BROMA HOU
Telecopy: (713) 658-8740
<PAGE>
Percentage
Interest Commitment BANK OF HAWAII
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: 130 Merchant Street
Honolulu, Hawaii 96813
Telephone: (808) 537-8689
Telecopy: (808) 537-8301<PAGE>
Percentage
Interest Commitment BARNETT BANK, N.A.
(formerly BARNETT BANK OF SOUTH
FLORIDA, N.A.)
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title:
Address: 701 Brickell Avenue
Miami, FL 33131
Telephone: (305) 789-3054
Telex: 160047
Answerback: Barnett Banks
Telecopy: (305) 350-7005
<PAGE>
Percentage
Interest Commitment CIBC, INC.
7.00% Seventy Million
Dollars
($70,000,000)
By: _________________________________
Title:
Address: Two Paces West
Suite 1200
2727 Paces Ferry Road
Atlanta, GA 30239
Telephone: (404) 319-4908
Telex: 54-2413
Answerback: CANBANK ATL
Telecopy: (404) 319-4954
<PAGE>
Percentage
Interest Commitment CREDIT LYONNAIS,
ATLANTA AGENCY
2.00% Twenty Million
Dollars
($20,000,000)
By: _________________________________
Title:
Address: 303 Peachtree Street, N.E.
Suite 4400
Atlanta, Georgia 30308
Telephone: (404) 524-3700
Telex: 671826
Answerback: CREDATL
Telecopy: (404) 584-5249
<PAGE>
Percentage
Interest Commitment FIRST UNION NATIONAL BANK
OF FLORIDA
7.00% Seventy Million
Dollars
($70,000,000)
By: _________________________________
Title:
Address: 200 S. Biscayne Blvd.
Miami, FL 33131
Telephone: (305) 789-5073
Telex: 568452
Answerback: FST UNION JAX
Telecopy: (305) 789-5060
<PAGE>
Percentage
Interest Commitment LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: Abteilung Schiffahrt
Martensdamm 6
D-24103 Kiel
Germany
Telephone: 49 431 900 1774
Telecopy: 49 431 900 1130
Percentage
Interest Commitment MORGAN GUARANTY TRUST COMPANY OF NEW YORK
2.00% Twenty Million
Dollars
($20,000,000)
By: _________________________________
Title:
Address: 60 Wall Street
New York, NY 10260-0060
Telephone: (212) 648-3319
Telex: 177615
Answerback: MGT UT
Telecopy: (212) 648-5336
Percentage
Interest Commitment NATIONAL WESTMINSTER BANK PLC
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: 175 Water Street
New York, New York 10038
Telephone: (212) 602-5541
Telecopy: (212) 602-4500
Percentage
Interest Commitment NATIONSBANK, N.A. (SOUTH)
(formerly NATIONSBANK OF FLORIDA, N.A.)
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title:
Address: 100 S.E. 2nd St.
14th Fl.
Miami, FL 33131
Telephone: (305) 533-2428
Telecopy: (305) 533-2437
Percentage
Interest Commitment THE NORTHERN TRUST COMPANY
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: 50 South LaSalle Street
9th Floor
Chicago, IL 60675
Telephone: (312) 444-7260
Telecopy: (312) 444-3508
Percentage
Interest Commitment ROYAL BANK OF CANADA
7.00% Seventy Million
Dollars
($70,000,000)
By: _________________________________
Title:
Address: Grand Cayman
(North America No. 1) Branch
c/o New York Branch
Financial Square, 23rd Floor
New York, New York 10005-3531
Attn.: Manager, Credit Administration
Telephone: (212) 428-6311
Telecopy: (212) 428-2372
with a copy to:
Royal Bank of Canada
Financial Square, 24th Floor
New York, New York 10005-3531
Attn.: Transportation Services Group
Telephone: (212) 428-6445
Telecopy: (212) 428-6459
Percentage
Interest Commitment THE SAKURA BANK, LIMITED,
ATLANTA AGENCY
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title:
Address: 245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, GA 30303
Telephone: (404) 521-3111
Telecopy: (404) 521-1133
Percentage
Interest Commitment SUNTRUST BANK, MIAMI
NATIONAL ASSOCIATION
5.00% Fifty Million
Dollars
($50,000,000)
By: _________________________________
Title:
Address: 777 Brickell Avenue
Miami, FL 33131
Telephone: (305) 579-7380
Telecopy: (305) 579-7133
Percentage
Interest Commitment THE BANK OF NOVA SCOTIA
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: 600 Peachtree Street, N.E.
Suite 2700
Atlanta, GA 30308
Telephone: (404) 877-1505
Telecopy: (404) 888-8998
Percentage
Interest Commitment THE BANK OF TOKYO-MITSUBISHI, LTD.-
ATLANTA AGENCY
(formerly THE MITSUBISHI BANK, LIMITED-
NEW YORK BRANCH)
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title:
Address: 133 Peachtree Street
Suite 4970
Atlanta, Georgia 30303
Telephone: (404) 222-4207
Telecopy: (404) 577-1155
Percentage
Interest Commitment THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title: Joint General Manager
Address: Marquis Two Tower, Suite 2400
285 Peachtree Center Ave., N.E.
Atlanta, Georgia 30303
Telephone: (404) 581-0200
Telex: (404) 581-9657
Percentage
Interest Commitment THE FUJI BANK, LIMITED,
NEW YORK BRANCH
7.00% Seventy Million
Dollars
($70,000,000)
By: _________________________________
Title: Vice Pres. & Mgr.
Address: Two World Trade Center
79th Floor
New York, NY 10048
Telephone: (212) 898-2054
Telecopy: (212) 912-0516
Percentage
Interest Commitment THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
2.50% Twenty-Five Million
Dollars
($25,000,000)
By: _________________________________
Title:
Address: One Ninety One Peachtree Tower
191 Peachtree Street, N.E.
Suite 3600
Atlanta, GA 30303-1757
Telephone: (404) 524-8770
Telecopy: (404) 524-8509
Percentage
Interest Commitment THE SANWA BANK LIMITED,
ATLANTA AGENCY
3.50% Thirty-Five Million
Dollars
($35,000,000)
By: _________________________________
Title:
Address: Georgia Pacific Center
133 Peachtree Street
Suite 4950
Atlanta, Georgia 30303
Telephone: (404) 586-6888
Telecopy: (404) 589-1629
Percentage
Interest Commitment THE SUMITOMO BANK, LIMITED
6.00% Sixty Million
Dollars
($60,000,000)
By: _________________________________
Title:
Address: Georgia Pacific Center
133 Peachtree Street, Suite 3210
Atlanta, Georgia 30303
Telephone: (404) 526-8514
Telecopy: (404) 521-1187
Percentage
Interest Commitment THE YASUDA TRUST AND BANKING
COMPANY, LIMITED
1.50% Fifteen Million
Dollars
($15,000,000)
By: _________________________________
Title:
Address: 666 Fifth Avenue
New York, NY 10103
Telephone: (212) 373-5709
Telecopy: (212) 373-5797
Percentage
Interest Commitment UNITED STATES NATIONAL BANK
OF OREGON
2.00% Twenty Million
Dollars
($20,000,000)
By: _________________________________
Title:
Address: 555 SW Oak Street
Suite 400
Portland, OR 97204
Telephone: (503) 275-4497
Telecopy: (503) 275-4267
EXHIBIT 4.2
February 25, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
RE: Carnival Corporation
Commission File No. 1-9610
Gentlemen:
Pursuant to Item 601 (b) (4) (iii) of Regulation S-K promulgated under the
Securities Exchange Act of 1934, as amended, Carnival Corporation (the
"Company") hereby agrees to furnish copies of certain long-term debt
instruments to the Securities and Exchange Commission upon the request of
the Commission, and, in accordance with such regulation, such instruments
are not being filed as part of the Annual Report on Form 10-K of the Company
for its fiscal year ended November 30, 1996.
Very truly yours,
CARNIVAL CORPORATION
Arnaldo Perez
General Counsel
EXHIBIT 10.1
RETIREMENT AND CONSULTING AGREEMENT
AGREEMENT made this 20th day of November, 1996, between CARNIVAL
CORPORATION, having its principal place of business at 3655 N.W. 87th
Avenue, Miami, Florida 33178-2428 (the "Company") and A. Kirk Lanterman,
("Lanterman"), residing at 714 W. Galer, Seattle, Washington 98119.
RECITALS
A. Lanterman has served as President and Chief Executive Officer of
the Company's wholly-owned subsidiary, Holland America Line-Westours, Inc.
("HAL") since January 1989, and has performed exemplary service during said
years.
B. Lanterman intends to retire from active service with HAL on
January 1, 1998 ("Retirement Date").
C. The Company desires to compensate Lanterman for such exemplary
service by way of retirement pay.
D. The Company desires to retain Lanterman's consulting services
following such retirement on the terms set forth in this Agreement.
IN CONSIDERATION of past services as related above and the consulting
services related below, it is agreed as follows:
1. Compensation For Past Services and Consulting Services
1.1 From January 31, 1998 and for fifteen (15) years thereafter,
the Company shall pay to Lanterman in monthly installments of $37,570.00 an
annual compensation of $450,840.00.
1.2 In the event of Lanterman's death prior to the Retirement
Date, or prior to the fifteenth anniversary of the Retirement Date, the
unpaid balance of this total compensation ($6,762,600.00) shall be paid in
full to Lanterman's estate within 30 days of the date of his death. The
unpaid balance shall be its then present value calculated by utilization of
an interest rate of 8-1/2% per year.
2. Consulting Services
Commencing on the Retirement date and for a period of fifteen (15)
years, Lanterman agrees to perform consulting services for the Company in
regard to the business operations of HAL upon the specific written request
of the Company. Such services shall be provided during normal business
hours, on such dates, for such time and at such locations as shall be
agreeable to Lanterman. Such services shall not require more than five (5)
hours in any calendar month, unless expressly consented to by Lanterman,
which consent may be withheld for any reason whatsoever. The Company will
reimburse Lanterman for any out-of-pocket expenses incurred by him in the
performance of said consulting services.
3. Independent Contractor
Commencing on the Retirement Date, Lanterman acknowledges that he
will be solely an independent contractor and consultant. He further
acknowledges that he will not consider himself to be an employee of the
Company, and will not be entitled to any Company employment rights or
benefits.
4. Confidentiality
Lanterman will keep in strictest confidence, both during the term
of this Agreement and subsequent to termination of this Agreement, and will
not during the term of this Agreement or thereafter disclose or divulge to
any person, firm or corporation, or use directly or indirectly, for his own
benefit or the benefit of others, any confidential Company information
including, without limitation, to any trade secrets respecting the business
or affairs of the Company which he may acquire or develop in connection with
or as a result of the performance of his services hereunder. In the event
of an actual or threatened breach by Lanterman of the provisions of this
paragraph, the Company shall be entitled to injunctive relief restraining
Lanterman from the breach or threatened breach as its sole remedy. The
Company hereby waives its rights for damages, whether consequential or
otherwise.
5. Enforceable
The provisions of this Agreement shall be enforceable
notwithstanding the existence of any claim or cause of action of Lanterman
against the Company, or the Company against Lanterman, whether predicated on
this Agreement or otherwise.
6. Applicable Law
This Agreement shall be construed in accordance with the laws of
the State of Washington, and venue for any litigation concerning an alleged
breach of this Agreement shall be in King County, Washington, and the
prevailing party shall be entitled to reasonable attorney's fees and costs
incurred.
7. Entire Agreement
This Agreement contains the entire agreement of the parties
relating to the subject matter hereof. A similar agreement of November,
1994 shall become null and void upon the execution of this Agreement. Any
notice to be given under this Agreement shall be sufficient if it is in
writing and is sent by certified or registered mail to Lanterman or to the
Company to the attention of President, or otherwise as directed by the
Company, from time to time, at the addresses as they appear in the opening
paragraph of this Agreement.
8. Waiver
The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
IN WITNESS WHEREOF, the Company and Lanterman have duly executed this
agreement as of the day and year first above written.
CARNIVAL CORPORATION
By: /s/ H.S. Frank
H.S. Frank
/s/ A. Kirk Lanterman
Signature
A. Kirk Lanterman
Print Full Name
EXHIBIT 10.2
AMENDMENT TO CONSULTING AGREEMENT
This Amendment to Consulting Agreement is made as of this 5th day of
August, 1996 in Tel-Aviv, Israel by and between Carnival Corporation
(formerly known as Carnival Cruise Lines, Inc.), a company organized under
the laws of the Republic of Panama (the "Company"), and Arison Investments
Ltd., a company organized under the laws of the State of Israel
(the "Consultant").
R E C I T A L S
WHEREAS, the Company and the Consultant entered into that certain
Consulting Agreement dated as of July 31, 1992 (the "Consulting Agreement");
and
WHEREAS, the Company and the Consultant desire to modify the Consulting
Agreement as set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. Section 4.1 of the Agreement shall be amended in its entirety to
read as follows:
4.1 The initial term of this Agreement shall commence on July 31,
1992 and shall continue until November 25, 1999.
2. Section 4.3 of the Consulting Agreement shall be deleted in its
entirety.
3. Except as expressly modified by this Amendment, all terms and
conditions of the Consulting Agreement remain in full force and
effect and are hereby ratified and confirmed in all respects by
the parties hereto as if set forth herein in their entirety.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
CARNIVAL CORPORATION
By:__________________________
Howard S. Frank
Title: Vice Chairman
ARISON INVESTMENTS LTD.
By:__________________________
Print Name:___________________
Title:_________________________
DSF/sw
Exhibit A
CARNIVAL CORPORATION
AUTOMATIC DIVIDEND REINVESTMENT PLAN
OFFERING UP TO 150,000 SHARES OF COMMON STOCK
The provisions of the Carnival Corporation Automatic Dividend
Reinvestment Plan (the "Plan") are set forth below in question and answer
format. The Plan was approved by the Board of Directors of the Corporation
on October 9, 1995, and became effective as of October 9, 1995. The
Corporation has initially reserved 150,000 shares of authorized and unissued
Common Stock for issuance under the Plan. All shares of Class A Common
Stock issued and to be issued by the Corporation pursuant to the Plan have
been or will be, when issued, fully paid and nonassessable.
1. WHAT IS THE PLAN?
The Plan provides that the Corporation's eligible owners of Class A
Common Stock may reinvest their cash dividends automatically in shares of
Class A Common Stock, par value $.01 per share ("Common Stock").
2. WHAT IS THE PURPOSE OF THE PLAN AND WHAT ARE ITS ADVANTAGES?
The Plan offers a convenient and economical way for holders of record
of the Corporation's Common Stock to increase their ownership of shares of
Common Stock without incurring brokerage commissions or service charges and
without having to pay full dealer mark-ups, if any. Full investment of
funds is possible under the Plan because the Plan permits fractions of
shares, as well as full shares, to be credited to a participant's account.
Participants will be credited with dividends on full and fractions of shares
held under the Plan.
To the extent that shares purchased under the Plan are purchased from
the Corporation from its authorized and unissued shares of Common Stock, the
Corporation will use the proceeds of the sale for general corporate
purposes.
3. WHO ADMINISTERS THE PLAN AND WHAT REPORTS WILL PARTICIPANTS RECEIVE
CONCERNING THE PLAN?
First Union National Bank of North Carolina (the "Agent"), a bank
unaffiliated with the Corporation, will administer the Plan. The Agent
arranges for the custody of share certificates, keeps records, sends
statements of account to participants, and makes purchases of shares of
Common Stock under the Plan for the account of participants. The Agent will
send each participant a statement of his or her account under the Plan as
soon as practicable following each purchase of shares of Common Stock. Each
statement will show (a) any dividends credited; (b) plan shares purchased
and fractional shares allocated; (c) the cost per share of the purchased
shares and fractional shares; (d) the number of whole shares for which
certificates have been issued, if any; and (e) the beginning and ending
balances of whole shares and fractional shares. The Agent will also provide
Plan participants with copies of any amendments to the Plan and any
Prospectuses relating to the Plan together with information for reporting
dividend income for federal income tax purposes. The Agent will also serve
as custodian of shares purchased under the Plan to protect participants from
loss, theft or destruction of stock certificates.
All inquiries, notices, requests and other communications by
participants concerning the Plan should be sent to the Agent at:
First Union National Bank of North Carolina
Shareholder Services Group
230 South Tryon Street, NC1153
Charlotte, North Carolina 28288-1153
Participants may also contact the Agent by telephone at 1-800-829-8432.
Participants are required to promptly notify the Agent in writing of
any change of address. Notices or statements from the Agent may be given or
made by letter addressed to the participant at his or her last address of
record with the Agent and any such notice or statement shall be deemed given
or made when received by the participant or 5 days after mailing, whichever
occurs earlier.
The Corporation reserves the right to assume the administration of the
Plan at any time and without prior notice to Plan participants. In the
event the Agent should resign or otherwise cease to act as an agent or as
custodian of shares under the Plan, the Corporation will make such other
arrangements as it deems appropriate for administration of the Plan and the
custody of shares purchased under the Plan.
4. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
Any shareholder owning of record shares of Common Stock is eligible to
participate in the Plan. Participation in the Plan is entirely voluntary.
If any shareholder owns stock which is registered in a name other than his
or her own, such as in the name of a broker, bank nominee or trustee, and
wishes to participate in the Plan, it will be necessary for him or her to
withdraw his or her shares from "street name" or other registration and
register the stock in his or her own name.
5. HOW DOES AN ELIGIBLE STOCKHOLDER PARTICIPATE?
Any eligible shareholder may participate in the Plan at any time by
completing an authorization card and returning it to the Agent. The
authorization card authorizes the Agent to establish an account for the
participant. In addition, the authorization card will direct the Agent to
apply cash dividends on all shares of Common Stock owned of record by the
participant, or on such lesser number of shares of Common Stock as may be
designated by the participant, and all cash dividends on all shares of
Common Stock credited to his or her account under the Plan, to the purchase
of shares of Common Stock. If an authorization card is received later than
the record date for a cash dividend, the dividend will be paid to the
participant in cash and participation in the Plan will begin as of the next
dividend payment date.
The dividend record date set by the Corporation has been generally
about fourteen days prior to the dividend payment date. Dividends have
historically been paid on approximately the fourteenth day of March, June,
September and December; however, such dates are subject to change at the
discretion of the Corporation's Board of Directors. A new authorization
card, decreasing or increasing the amount of stock subject to the Plan, may
be submitted at any time.
In all cases, an authorization card must be signed by, or on behalf of,
all owners of record. When shares are held by joint tenants, all should
sign. When an authorization card is signed by an executor, administrator,
trustee or guardian, or as attorney, the capacity in which the notification
is signed must be specified. An authorization card of a corporate or other
organizational owner should be signed by an authorized officer or other
official, identified as such.
6. WHAT IS THE SOURCE OF SHARES PURCHASED UNDER THE PLAN?
Shares purchased under the Plan will come from the authorized and
unissued shares of the Common Stock or from shares purchased on the open
market by the Agent, as determined by the Corporation. Any market purchases
may be in negotiated transactions, but prices may not exceed current market
prices at the time of purchase.
Neither the Corporation nor the Agent shall have any liability to
participants in connection with the timing of purchases, the price at which
shares of the Common Stock are purchased, or the failure to make purchases
at any time in order to comply with statutory, regulatory or other legal
restrictions.
With respect to any open market purchases made under the Plan, the
Agent will have full discretion as to all matters relating to purchases,
including determination of the number of shares, if any, to be purchased on
any day, the time of day, the price paid for such shares, the markets in
which such shares are to be purchased (including on any securities exchange
or in the over-the-counter market) and the persons (including brokers or
dealers) from or through whom such purchases are made.
7. WHEN WILL FUNDS BE INVESTED UNDER THE PLAN?
If shares are purchased from the Corporation, the purchases will be
made on the dividend payment date and such shares will be credited to
participants accounts on the dividend payment date. If shares are to be
purchased in the open market, the Agent is to use its best efforts to apply
all funds received by it to the purchase of shares within 30 days of the
receipt of such funds from the Corporation, subject to any applicable
requirements under the federal securities laws relating to the timing and
manner of purchases of Common Stock under the Plan. Any funds not used
within 30 days of their receipt by the Agent to buy shares of Common Stock
will be returned to participants. No interest shall be paid to the
participant on any funds credited to his or her account.
8. WHAT IS THE PURCHASE PRICE OF THE SHARES?
If the Common Stock is purchased from the Corporation, the price per
share of Common Stock purchased with participant's cash dividends will be
the closing price for the Common Stock on the New York Stock Exchange
Composite Tape on the dividend payment date, as reported in The Wall Street
Journal or other authoritative source. In the event there are no trades in
the Common Stock on such date, the purchase price shall be the closing price
on the most recent date preceding the dividend payment date, as reported in
The Wall Street Journal or other authoritative source. The price per share
for open market purchases will be the weighted average price paid by the
Agent for all shares of Common Stock purchased by it for participants in the
Plan through negotiation with the seller. No share of Common Stock will be
purchased at a price in excess of current market prices at the time of
purchase.
9. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR A PARTICIPANT?
The number of shares to be purchased depends on the amount of the
participant's dividends and the price paid for the Common Stock. In making
purchases for the participant's account, the Agent will pool the
participant's funds with those of other participants. If funds received on
behalf of a participant are insufficient to buy a full share (or shares) the
Agent will credit the participant's account with a fractional share computed
to four decimal places.
10. ARE ANY FEES OR EXPENSES INCURRED BY PARTICIPANTS IN THE PLAN?
The Corporation shall either pay directly or reimburse the Agent for
the expenses of administering the Plan, including, but not limited to, the
costs of printing and distributing Plan literature to record holders of
Common Stock and forwarding proxy solicitation materials to participants.
Participants will not be responsible for payment of any brokerage
commissions or fees or service charges in connection with the purchase of
shares under the Plan whether their shares are newly issued or purchased on
the open market.
Any costs incurred as a result of a participant's request to sell
shares of stock in his or her account pursuant to Section 12 or 13 shall be
borne by the participant. Such costs shall include, but not be limited to,
brokerage commissions.
The Corporation has authorized the Agent to process all purchases and
sales through First Union Discount Brokerage Service, an affiliate of the
Agent. First Union Discount Brokerage Service has agreed to process all
purchases and sales of Common Stock for the Plan on a non-profit basis and
will charge the Corporation fees only to the extent necessary to cover costs
incurred by First Union Discount Brokerage Service in effecting such
transactions. No minimum fees will be applied to any transaction by First
Union Discount Brokerage Service.
11. WILL CERTIFICATES BE ISSUED TO PARTICIPANTS FOR SHARES PURCHASED?
Normally, certificates for shares purchased under the Plan will not be
issued to participants. Instead, shares purchased for each participant will
be credited to his or her account under the Plan and held for safety and
convenience by the Agent, as custodian. Shares credited to the account of a
participant under the Plan may not be assigned, pledged as collateral or
otherwise transferred. However, either the Corporation or a participant (by
written notice to the Agent) may elect to have certificates for any number
of full shares credited to the participant's account furnished to the
participant without affecting his or her participation in the Plan. No
certificates will be issued for fractional shares.
12. HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN?
A participant may withdraw from the Plan at any time by notifying the
Agent in writing. If a participant's request to withdraw is received by the
Agent at least five (5) days before a dividend record date, the amount of
the dividend which would have otherwise been applied for purchase of Common
Stock on the related dividend payment date and all subsequent dividends will
be paid in cash to the withdrawing participant unless he or she re-enrolls
in the Plan. If the request is received less than five (5) days before or
after the record date but before the dividend payment date, shares will be
purchased for the participant's account and, as a result, the procedure
outlined below for delivery of certificates, sale of shares and cash
payments will be followed.
When a participant withdraws from the Plan, a certificate for whole
shares credited to his or her account under the Plan will be issued to the
participant. The participant will receive a cash payment for any fractional
share.
Generally, it will require ten days to two weeks from the time notice
of withdrawal is received by the Agent until share certificates are mailed
to a participant. A longer time is required if the notice is received
between a dividend record date and the dividend payment date.
Notice of a participant's death also constitutes notice of withdrawal
from the Plan. Settlement will be made to the participant's duly appointed
personal legal representative after the satisfaction of any applicable
requirements of law.
An eligible shareholder may again become a participant at any time
following his or her withdrawal by following the procedures then in effect
for enrollment in the Plan.
13. HOW AND WHEN MAY A PARTICIPANT SELL SHARES HELD IN THE PLAN?
Any participant may sell some or all of his or her shares in the Plan
either by directing the Agent to sell the shares or through the
participant's broker. If the participant elects to direct the Agent to sell
the shares, the participant shall provide the Agent with an authorization
form directing such a sale, specifying the number of shares to be sold. As
soon as practicable after the receipt of the authorization form, the Agent
will sell the shares and remit the net proceeds of the sale (the total sales
price of all shares sold less the costs of the sale, including brokerage
commissions) to the participant.
If the participant elects to sell through a broker, he or she must
first request the Agent to send the participant a certificate or
certificates representing the requested number of shares in the Plan
credited to the participant's account. As soon as practicable after the
receipt of such request, the Agent will issue a certificate or certificates
representing such number of shares to the participant in his or her name as
it appears in the participant's account under the Plan, unless other
instructions are received in writing. Generally, it will require ten days
to two weeks from the time a request is received by the Agent until shares
certificates are mailed to a participant. A longer time is required if the
request is received between a dividend record date and the dividend payment
date.
A participant who wishes to sell some or all of his or her shares in
the Plan should be aware of the risk that the price of the Common Stock may
decrease between the time that the participant determines to sell shares in
the Plan and the time that the sale is completed. This risk is borne solely
by the participant.
14. WHAT HAPPENS IF THE CORPORATION ISSUES A STOCK DIVIDEND, DECLARES A
STOCK SPLIT, OR HAS A RIGHTS OFFERING?
Stock dividends in the form of Common Stock or split shares distributed
by the Corporation on shares of Common Stock held by the Agent for a
participant will be credited to the participant's Plan Account.
Certificates for stock dividends and split shares distributed on shares of
Common Stock registered in the name of the participant will be mailed
directly to the participant. In the event of a subscription rights offering
or a dividend in the form of stock other than Common Stock, such rights or
such stock will be mailed directly to a participant in the Plan in the same
manner as to holders of Common Stock not participating in the Plan.
15. WHO VOTES THE SHARES HELD IN THE PLAN?
The Agent will forward, as soon as practicable, any proxy solicitation
materials to each participant. If the proxy is returned to the Agent on a
timely basis and properly signed, the Agent will vote the whole and
fractional shares credited to the participant's account in accordance with
the instructions given or, if no instructions are given, in accordance with
the recommendations of the Corporation's management. If the signed proxy is
not returned, returned unsigned or returned late, the shares credited to the
participant's account will not be voted.
16. WHAT IS THE TAX STATUS OF REINVESTED CASH DIVIDENDS AND SHARES OF
COMMON STOCK ACQUIRED THROUGH THE PLAN?
Participants are advised to consult their own tax advisors with respect
to the tax consequences of their participation in the Plan. The
reinvestment of cash dividends does not relieve the participant of any
income tax payable on such dividends. Each year a participant will receive
from the Agent all required Internal Revenue Service Federal income tax
statements which reflect the dividends paid on shares of Common Stock
registered in the participant's name and the dividends paid on the
participant's credited shares of Common Stock under the Plan. The Agent's
statements of a participant's Plan account should be retained by the
participant to help determine the tax basis of shares of Common Stock
acquired through the Plan.
As a general matter, participants who are citizens or residents of the
United States will be taxed by the United States on dividends reinvested
under the Plan in the following manner:
(1) Participants will be treated for federal income tax purposes
as having received, on the dividend payment date, a dividend equal to
the greater of (i) the cash dividend payable on account of the
participant's shares or (ii) the fair market value on the dividend
payment date of the Common Stock purchased with reinvested dividends.
The tax basis and a participant's income attributable to Common Stock
purchased with reinvested dividends will be equal to the amount of such
dividend, increased by the participant's pro rata share of brokerage
fees paid by the Corporation, if any (see Section 10).
(2) A participant's holding period for Common Stock acquired
pursuant to the Plan will begin on the day following the purchase of
such Common Stock (see Section 7).
(3) A participant will not realize any taxable income when the
participant receives certificates for whole shares credited to the
participant's account, either upon the participant's request for the
certificates or upon withdrawal from or termination of the Plan.
(4) A participant will realize gain or loss when whole shares of
Common Stock are sold or exchanged, whether such shares are sold by the
Agent pursuant to the participant's request upon the participant's
withdrawal from the Plan, or by the participant after withdrawal from
or termination of the Plan, and, in the case of a fractional share,
when the participant receives a cash payment for a fractional share
credited to the participant's account upon withdrawal from or
termination of the Plan. The amount of such gain or loss will be the
difference between the amount the participant receives for the whole
shares or fractional share and the tax basis of the whole shares or
fractional share.
The Corporation anticipates that dividends reinvested by participants
in the Plan will not be subject to income tax by the Republic of Panama.
Because Federal tax laws change constantly and dividends reinvested
pursuant to the Plan may be subject to taxes imposed by the participant's
state of residence, participants are advised to consult their own tax
advisors with respect to the tax consequences of their participation in the
Plan, including the application of Federal, State, Local and Foreign tax
laws.
17. HOW ARE PARTICIPANTS WHO ARE NEITHER UNITED STATES CITIZENS OR
RESIDENTS TAXED ON DIVIDENDS REINVESTED IN THE PLAN?
Dividends paid by the Corporation to shareholders that are neither
United States citizens nor tax residents and gain recognized upon the sale
of Common Stock by such individuals will not be subject to United States
Federal income tax unless included as effectively connected income. Certain
individuals who are not otherwise residents of the United States may be
considered tax residents depending on their individual circumstances and
applicable treaty rules. Participants in doubt as to their status for this
purpose are urged to consult their tax advisors.
The Corporation anticipates that dividends reinvested by participants
in the Plan will not be subject to income tax by the Republic of Panama.
18. WHAT ARE THE RISKS IN PARTICIPATION IN THE PLAN?
Each participant assumes all risks inherent in any stock purchase with
respect to Common Stock purchased under the Plan, whether or not a
certificate for the Common Stock has been issued to the participant. A
participant has no guarantee against a decline in the price or value of the
Common Stock, and the Corporation assumes no obligation to repurchase any
shares purchased under the Plan. A participant has all the rights of any
other owner of the Common Stock with respect to the whole shares of Common
Stock held for him under the Plan.
19. WHAT IS THE RESPONSIBILITY OF THE CORPORATION AND AGENT UNDER THE PLAN?
Neither the Corporation nor the Agent shall be liable in administering
the Plan for any act done in good faith, or for any good faith omission to
act, including, without limitation, any claims of liability: (1) arising out
of failure to terminate the participant's Plan Account upon such
participant's death prior to receipt of notice in writing of such death; (2)
with respect to the prices at which shares of Common Stock are purchased or
sold for the participant's Plan Account and the time when such purchases or
sales are made (provided, however, that nothing herein shall be deemed to
constitute a waiver of any rights that a participant might have under the
Securities Exchange Act of 1934 or other applicable State securities laws);
and (3) for any fluctuations in the market price after purchase or sale of
shares of Common Stock.
20. WHO INTERPRETS AND REGULATES THE PLAN?
The Board of Directors of the Corporation reserves the right to
interpret and regulate the Plan. The Board of Directors may adopt rules,
regulations and procedures to resolve matters not specifically covered by
the Plan.
21. MAY THE PLAN BE AMENDED OR DISCONTINUED?
The Board of Directors of the Corporation may suspend, amend, or
terminate the Plan at any time upon 30 days' written notice to the
participants and to the Agent setting forth the effective date of the
suspension, amendment, or termination. The Board of Directors of the
Corporation, with the consent of the Agent, may also terminate or amend the
Plan at any time effective immediately upon notice to the participants in
order to correct any noncompliance of the Plan with any applicable law. Any
suspension, amendment, or termination, however, shall not affect any
participant's interest in the Plan which has accrued prior to the date of
the suspension, amendment, or termination.
In the event of termination of the Plan, the Agent shall issue to each
participant, as soon as practicable, certificates for the whole shares
credited to his or her account under the Plan and a check in the amount
equal to the cash and proceeds from the liquidation of the fractional shares
allocated to his or her account.
H:doreen/drip/drip.wpd
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 21st day of February, 1996,
between Carnival Corporation, a Panamanian corporation (the "Company") and
David Crossland, (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he has agreed to be nominated as a director of the
Company or that he is or was a director of the Company, the Company shall
indemnify the Director against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the
fullest extent and in the manner set forth in and permitted by the General
Corporation Law of the Republic of Panama and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may
be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
/s/ David Crossland
David Crossland
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 31st day of January, 1996,
between Carnival Corporation, a Panamanian corporation (the "Company") and
James M. Dubin, (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he has agreed to be nominated as a director of the
Company or that he is or was a director of the Company, the Company shall
indemnify the Director against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the
fullest extent and in the manner set forth in and permitted by the General
Corporation Law of the Republic of Panama and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may
be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
/s/ James M. Dubin
James M. Dubin
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 31st day of January, 1996,
between Carnival Corporation, a Panamanian corporation (the "Company") and
Modesto M. Maidique, (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he has agreed to be nominated as a director of the
Company or that he is or was a director of the Company, the Company shall
indemnify the Director against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the
fullest extent and in the manner set forth in and permitted by the General
Corporation Law of the Republic of Panama and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may
be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
/s/ Modesto M. Maidique
Modesto M. Maidique
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 31st day of January, 1996,
between Carnival Corporation, a Panamanian corporation (the "Company") and
Richard G. Capen, (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he has agreed to be nominated as a director of the
Company or that he is or was a director of the Company, the Company shall
indemnify the Director against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the
fullest extent and in the manner set forth in and permitted by the General
Corporation Law of the Republic of Panama and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may
be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
/s/ Richard G. Capen
Richard G. Capen
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of the 31st day of January, 1996,
between Carnival Corporation, a Panamanian corporation (the "Company") and
Shari Arison Dorsman, (the "Director").
The Company, in order to induce the Director to serve on the Company's
board of directors, wishes to indemnify the Director against certain
expenses and liabilities.
Accordingly, the parties agree as follows:
In the event that the Director is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he has agreed to be nominated as a director of the
Company or that he is or was a director of the Company, the Company shall
indemnify the Director against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding to the
fullest extent and in the manner set forth in and permitted by the General
Corporation Law of the Republic of Panama and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which such director or officer may
be entitled apart from the foregoing provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed by a duly authorized officer, as of the date
first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
Howard S. Frank, Vice Chairman
/s/ Shari Arison Dorsman
Shari Arison Dorsman
EXHIBIT 11
CARNIVAL CORPORATION
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
(In thousands, except per share data)
<TABLE>
<CAPTION>
For the Years Ended November 30,
1996 1995 1994
<S> <C> <C> <C>
Net income $566,302 $451,091 $381,765
Adjustments to net income for the
purpose of computing fully diluted
earnings per share:
Interest reduction from assumed
conversion of
4.5% Convertible Debentures 4,661 5,538 5,538
Adjusted net income $570,963 $456,629 $387,303
Weighted average shares outstanding 290,180 284,220 282,744
Adjustments to weighted average shares
outstanding for the purpose of computing
fully diluted earnings per share:
Additional shares issuable upon
conversion of 4.5% Convertible
Debentures 5,540 6,618 6,618
Adjusted weighted average shares
outstanding 295,720 290,838 289,362
Earnings per share:
Primary $1.95 $1.59 $1.35
Fully Diluted* $1.93 $1.57 $1.34
</TABLE>
* This exhibit is provided to comply with SEC regulations. In accordance
with Accounting Principles Board Opinion No. 15, the Company does not
present fully diluted EPS in its financial statements because the
convertible debentures are anti-dilutive or result in a less than 3%
dilution for the periods presented.
EXHIBIT 12
CARNIVAL CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(In thousands, except ratios)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED NOVEMBER 30,
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
Income from continuing
operations $566,302 $451,091 $381,765 $318,170 $281,773
Income tax expense 9,045 9,374 10,053 5,497 9,008
Income from continuing
operations before
income taxes $575,347 $460,465 $391,818 $323,667 $290,781
Fixed Charges:
Interest expense $ 64,092 $ 63,080 $ 51,378 $ 34,325 $ 53,792
Interest portion of
rental expense (1) 3,093 2,529 2,575 2,894 3,567
Fixed charges associated with
discontinued operations 0 0 928 1,451 1,265
Capitalized interest 25,799 18,762 21,888 24,609 21,682
Total fixed charges $ 92,984 $ 84,371 $ 76,769 $ 63,279 $ 80,306
Adjustments to Fixed Charges:
Undistributed Equity in
Income From Affiliated
Operations $(43,224)$ 0 $ 0 $ 0 $ 0
Earnings before fixed
charges $599,308 $526,074 $446,699 $362,337 $349,405
Ratio of earnings to
fixed charges 6.4 x 6.2 x 5.8 x 5.7 x 4.4 x
</TABLE>
___________________
(1) Represents one-third of rental expense, which Company management
believes to be representative of the interest portion of rental expense.
EXHIBIT 13
CARNIVAL CORPORATION
CONSOLIDATED BALANCE SHEETS
(in thousands, except par value)
<TABLE>
<CAPTION>
ASSETS NOVEMBER 30,
1996 1995
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 111,629 $ 53,365
Short-term investments 12,486 50,395
Accounts receivable 38,109 33,080
Consumable inventories, at average cost 53,281 48,820
Prepaid expenses and other 75,428 70,718
Total current assets 290,933 256,378
PROPERTY AND EQUIPMENT, net 4,099,038 3,414,823
OTHER ASSETS
Investments in and advances to affiliates 430,330 51,794
Goodwill, less accumulated amortization of
$55,274 and $48,292 219,589 226,571
Other assets 61,998 155,921
$5,101,888 $4,105,487
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt $ 66,369 $ 72,752
Accounts payable 84,748 90,237
Accrued liabilities 126,511 113,483
Customer deposits 352,698 292,606
Dividends payable 32,416 25,632
Total current liabilities 662,742 594,710
LONG-TERM DEBT 1,277,529 1,035,031
CONVERTIBLE NOTES 39,103 115,000
DEFERRED INCOME AND OTHER LONG-TERM LIABILITIES 91,630 15,873
COMMITMENTS AND CONTINGENCIES (Note 9)
SHAREHOLDERS' EQUITY
Class A Common Stock; $.01 par value; one
vote per share; 399,500 shares authorized;
239,733 and 229,839 shares issued and
outstanding 2,397 2,298
Class B Common Stock; $.01 par value; five
votes per share; 100,500 shares authorized;
54,957 shares issued and outstanding 550 550
Paid-in-capital 819,610 594,811
Retained earnings 2,207,781 1,752,140
Other 546 (4,926)
Total shareholders' equity 3,030,884 2,344,873
$5,101,888 $4,105,487
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<TABLE>
<CAPTION>
YEARS ENDED NOVEMBER 30,
1996 1995 1994
<S> <C> <C> <C>
REVENUES $2,212,572 $1,998,150 $1,806,016
COSTS AND EXPENSES
Operating expenses 1,241,269 1,131,113 1,028,475
Selling and administrative 274,855 248,566 223,272
Depreciation and amortization 144,987 128,433 110,595
1,661,111 1,508,112 1,362,342
OPERATING INCOME BEFORE INCOME FROM
AFFILIATED OPERATIONS 551,461 490,038 443,674
INCOME FROM AFFILIATED OPERATIONS 45,967
OPERATING INCOME 597,428 490,038 443,674
NONOPERATING INCOME (EXPENSE)
Interest income 18,597 14,403 8,668
Interest expense, net of
capitalized interest (64,092) (63,080) (51,378)
Other income (expense) 23,414 19,104 (9,146)
Income tax expense (9,045) (9,374) (10,053)
(31,126) (38,947) (61,909)
NET INCOME $ 566,302 $ 451,091 $ 381,765
EARNINGS PER SHARE $1.95 $1.59 $1.35
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
YEARS ENDED NOVEMBER 30,
1996 1995 1994
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $566,302 $451,091 $381,765
Adjustments:
Depreciation and amortization 144,987 128,433 110,595
Equity in income from affiliates in excess of
dividends received (43,224)
Loss on sale of Crystal Palace notes receivable 15,835
Other 3,804 7,681 2,754
Changes in operating assets and liabilities:
Increase in:
Receivables (4,432) (12,655) (2,872)
Consumable inventories (4,461) (3,698) (7,877)
Prepaid expenses and other (4,919) (20,849) (1,995)
(Decrease) increase in:
Accounts payable (5,489) 3,487 5,376
Accrued liabilities 13,028 (1,385) 20,038
Customer deposits 60,092 35,101 29,352
Net cash provided from operations 741,523 587,206 537,136
INVESTING ACTIVITIES:
Decrease in short-term investments, net 37,710 19,720 15,249
Additions to property and equipment, net (901,905) (485,097) (603,630)
Proceeds from sale of fixed assets 94,291 1,196 8,841
Proceeds from litigation settlements
applied to cost of ships 43,050 19,426
(Additions to) reductions in investments
in and advances to affiliates (187,015) 11,783 (31,340)
Decrease (increase) in other assets 94,644 (95,108) 20,691
Net cash used for investing activities (819,225) (528,080) (590,189)
FINANCING ACTIVITIES:
Proceeds from issuance of common stock 3,728 49,032 2,297
Principal payments of long-term debt (735,246) (406,600) (414,381)
Dividends paid (103,877) (85,098) (79,072)
Proceeds from long-term debt 971,361 382,800 538,071
Net cash provided from (used for)
financing activities 135,966 (59,866) 46,915
Net increase (decrease) in cash and
cash equivalents 58,264 (740) (6,138)
Cash and cash equivalents at beginning of year 53,365 54,105 60,243
Cash and cash equivalents at end of year $111,629 $ 53,365 $ 54,105
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - DESCRIPTION OF BUSINESS
Carnival Corporation and subsidiaries (the "Company") operate three
separate cruise lines under the names Carnival Cruise Lines, Holland America
Line and Windstar Cruises and a tour business, Holland America Westours.
Under the Carnival Cruise Lines name, the Company operates eleven cruise
ships primarily serving the Caribbean and the Mexican Riviera. Holland
America Line operates eight cruise ships serving primarily the Caribbean and
Alaska and Windstar Cruises operates three luxury, sail-powered vessels
which call on more exotic locations inaccessible to larger ships. Holland
America Westours markets sight-seeing tours and cruise/tour packages to
Alaska. Holland America Westours also operates 16 hotels in Alaska and the
Canadian Yukon, two luxury day boats offering tours to the glaciers of
Alaska and the Yukon River, over 290 motor coaches used for sight-seeing and
charters in the states of Washington and Alaska and in the Canadian Rockies
and 12 private domed rail cars which are run on the Alaska Railroad between
Anchorage and Fairbanks. The Company markets its services primarily in
North America.
Additionally, the Company has a 50% equity interest in two cruise
operations (Seabourn Cruise Line Limited, "Seabourn", and a joint venture
with Hyundai Merchant Marine), a 29.5% interest in Airtours plc
("Airtours"), a large publicly traded air-inclusive integrated tour company
headquartered in the United Kingdom, and a 24% interest in a hotel-casino
management company (CHC International, Inc., "CHC"). Seabourn operates
three luxury cruise vessels to worldwide destinations. The joint venture
with Hyundai Merchant Marine is developing an Asian cruise line which is
expected to begin operation with one cruise ship in the spring of 1998.
Airtours provides holidays for approximately five million people per year
primarily from the United Kingdom and Scandinavia and operates 32 hotels,
two cruise ships and 31 aircraft. CHC manages hotels and casinos in the
United States, Canada and the Caribbean.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Preparation of Financial Statements
The accompanying financial statements present the consolidated balance
sheets, statements of operations and cash flows of the Company. Preparation
of financial statements in accordance with generally accepted accounting
principles requires the use of management estimates. All material
intercompany transactions and accounts have been eliminated in
consolidation. Certain amounts in prior periods have been reclassified in
the financial statements and related notes to conform with the current
year's presentation.
Cash and Cash Equivalents and Short-term Investments
Cash and cash equivalents includes investments with original maturities
of three months or less and are stated at cost which approximates market.
Included in cash and cash equivalents at November 30, 1996 is $73 million of
certificates of deposit.
Short-term investments are primarily comprised of marketable debt
securities, including U.S. Government and corporate debt securities. These
investments are categorized as available for sale and, in accordance with
SFAS 115, are stated at their fair value. Unrealized holding gains and
losses are included as a component of shareholders' equity until realized.
Property and Equipment
Property and equipment is stated at cost. Depreciation and amortization
is computed using the straight-line method over the following estimated
useful lives:
<TABLE>
<CAPTION>
YEARS
<S> <C>
Vessels 25-30
Buildings 20-40
Equipment 2-20
Leasehold improvements shorter of the term
of lease or related
asset life
</TABLE>
The Company capitalizes interest on vessels and other capital projects
during the construction period. Interest is capitalized using rates
equivalent to the average borrowing rate of the Company's long-term debt.
Costs associated with drydocking are capitalized and charged to expense
over the lesser of 12 months or the period to the next scheduled drydocking.
The Company reviews long-lived assets, identifiable intangibles,
goodwill and reserves for impairment whenever events or changes in
circumstances indicate the carrying amount of the assets may not be fully
recoverable.
Investments in Affiliates
The Company accounts for such investments based on its ability to
exercise significant influence over financial and operating policies of the
investee and/or its relative ownership interest. The Company consolidates
affiliates in which it has control or a direct ownership interest of greater
than 50%. For affiliates where significant influence exists and/or where
the level of ownership is between 20% and 50%, the investment is accounted
for using the equity method. When the Company does not have significant
influence, the level of ownership interest is less than 20% or where the
ability to exercise control or significant influence is temporary, the cost
method of accounting is followed.
Starting in 1996, the Company began reporting equity in income from
affiliated operations as a separate line in the statements of operations due
to its increasing significance following the Company's investment in
Airtours (see Note 4). The Company's percentage share of the affiliated
companies' net income (loss), net of amortization of goodwill, as well as
any related interest income or royalty fee income from those affiliates is
recorded as "Income from Affiliated Operations" in the accompanying
statements of operations. The Company's investments in and advances to
affiliates are reported as "Investments in and Advances to Affiliates" in
the accompanying balance sheets. Also included in "Investments in and
Advances to Affiliates" is goodwill totaling $265 million which is being
amortized over periods ranging from 30 to 40 years.
Goodwill
Goodwill of $275 million resulting from the acquisition of HAL
Antillen, N.V. ("HAL"), the parent company of Holland America Line, Windstar
Cruises and Holland America Westours, is being amortized using the
straight-line method over 40 years.
Revenue Recognition
Customer cruise deposits, which represent unearned revenue, are
included in the balance sheet when received and are recognized as cruise
revenue upon completion of voyages with durations of ten days or less and
on a pro rata basis, computed using the number of days completed during the
reporting period, for voyages in excess of ten days. Revenues from tour and
related services are recognized at the time the service is performed.
Advertising Expense
The Company capitalizes and amortizes direct-response advertising and
expenses other advertising costs as incurred. Advertising expense totaled
$109 million in 1996, $98 million in 1995 and $85 million in 1994.
Financial Instruments
The Company's financial instruments include forward foreign currency
contracts and interest rate swap transactions held for purposes other than
trading. These contracts are entered into to hedge the impact of foreign
currency and interest rate fluctuations. Changes in the market value and
any discounts or premiums on forward foreign currency contracts which hedge
exposures of firm commitments related to the construction of cruise ships
are recorded when the related foreign currency payments are made with any
resulting gain or loss included in the cost of the vessel. Changes in
market value of forward agreements entered into to hedge estimated foreign
currency transactions are recognized into income currently. Discounts and
premiums related to forward agreements entered into to hedge estimated
foreign currency transactions are amortized to income over the life of the
agreement. Gains and losses on interest rate swap transactions designated
as hedges are recorded as reductions or increases in interest expense over
the life of the swap agreement.
Income Taxes
Companies are exempt from U.S. corporate income tax on U.S. source
income from international passenger cruise operations if (i) their countries
of incorporation exempt shipping operations of U.S. persons from income tax
(the "Incorporation Test"), and (ii) they meet the "CFC Test". The Company
and its subsidiaries involved in the cruise ship operations meet the
Incorporation Test because they are incorporated in countries which provide
the required exemption to U.S. persons involved in shipping operations. A
company meets the CFC Test if it is a controlled foreign corporation
("CFC"). A CFC is defined by the Internal Revenue Code as a foreign
corporation more than 50% of whose stock by voting power or value is owned
or considered as owned by U.S. persons, each of whom owns or is considered
to own 10% or more of the corporation's voting power ("10% U.S.
Shareholders"). All of the outstanding shares of Class B Common Stock of
the Company are owned by The Micky Arison 1994 "B" Trust (the "B Trust"), a
U.S. trust whose primary beneficiary is Micky Arison, the Company's Chairman
of the Board. Stock of the Company representing more than 50% of the total
combined voting power of all classes of stock is owned by the B Trust, which
is a "United States Person", and thus, the Company meets the definition of a
CFC. Accordingly, the Company believes that virtually all of its income
(with the exception of its United States source income from the operation of
transportation, hotel and tour businesses of HAL) is exempt from United
States federal income taxes. The B Trust has entered into an agreement with
the Company that is designed to ensure, except under certain limited
circumstances, that stock possessing more than 50% of the Company's voting
power will be held by ten percent shareholders until at least July 1, 1997.
If the Company or the subsidiaries involved in the cruise ship operations
were to cease to meet the CFC Test, and no other basis for exemption were
available, much of their income would become subject to taxation by the
United States at higher than normal corporate tax rates. Because the
Company is a CFC, a pro rata share of the passenger cruise operation
earnings of the Company is includable in the taxable income of any "10% U.S.
Shareholder", as defined above.
Earnings Per Share
Earnings per share computations are based on the weighted average
number of shares of Class A and B Common Stock and common equivalent shares
(related to stock options) outstanding during each of the years. Total
shares used in the computation were 290.2 million, 284.2 million and 282.7
million for fiscal 1996, 1995 and 1994, respectively.
NOTE 3 - PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
November 30,
1996 1995
(in thousands)
<S> <C> <C>
Vessels $4,269,403 $3,467,731
Vessels under construction 163,178 289,661
4,432,581 3,757,392
Land, buildings and improvements 170,466 132,183
Transportation and other equipment 204,776 174,903
Total property and equipment 4,807,823 4,064,478
Less-accumulated depreciation and amortization (708,785) (649,655)
$4,099,038 $3,414,823
</TABLE>
Interest costs associated with the construction of vessels and
buildings are capitalized during the construction period and amounted to
$25.8 million in 1996, $18.8 million in 1995 and $21.9 million in 1994.
NOTE 4 - INVESTMENTS IN AND ADVANCES TO AFFILIATES
In April 1996, the Company acquired a 29.5% equity interest in Airtours
for approximately $307 million. In connection with the Airtours
transaction, the Company entered into an unsecured five year $200 million
multi-currency revolving credit facility ("Multi-currency Revolving Credit
Facility") and funded approximately $163 million of the acquisition cost
through this facility. To fund the remaining purchase price, the Company
issued 5,301,186 shares of its Class A Common Stock valued at approximately
$144 million. As of November 30, 1996, the market value of the Company's
investment in Airtours, based on the closing price of Airtours' stock, was
approximately $465 million as compared with the book value of the Company's
investment in Airtours of $344 million. The Company is recording its equity
in Airtours' results of operations on a two month lag basis.
On December 1, 1995, the Company increased its ownership interest in
Seabourn to 50% upon conversion of its $10 million convertible note
receivable into an additional 25% interest. The Company also has a $15
million note receivable from Seabourn which is classified as "Investments in
and Advances to Affiliates" in the accompanying balance sheets.
During 1994, the Company acquired a 50% interest in CHC, a newly
created hotel and casino management company. One of the other shareholders
of CHC (the "TCC Principals") is a member of the Company's board of
directors. In December 1994, the Company sold a 25.1% interest in CHC to
the TCC Principals in exchange for $16 million of 6% notes receivable (the
"TCC Notes"). The TCC Notes contain a put option which the TCC Principals
can exercise, requiring the Company to repurchase 25.1% of CHC in exchange
for the full principal and interest due under the TCC Notes. If not
exercised, the option expires in November 1998. As of November 30, 1996,
the carrying value of the Company's CHC investment, including the TCC Notes,
is approximately $24 million and is included in "Investments in and Advances
to Affiliates" in the accompanying balance sheets. From December 1994
through November 1995, the Company accounted for its investment in CHC using
the cost method as the Company viewed its investment as temporary.
Commencing December 1, 1995, the Company began accounting for its investment
in CHC using the equity method. Further, CHC pays a royalty fee to the
Company of 1% of CHC's gross revenues, as adjusted, not to be less than
$100,000 per year, for the use of the "Carnival" name. Such fees amounted
to approximately $.4 million, $.3 million and $.1 million in fiscal years
ended November 30, 1996, 1995 and 1994, respectively. During 1996, the
Company loaned CHC $25 million in order to fund a portion of a casino
project in Canada. The loan called for interest at a rate of 30% and was
repaid in December 1996.
In September 1996, the Company and Hyundai Merchant Marine (the "Joint
Venture") signed an agreement to form a 50/50 joint venture to develop the
Asian cruise vacation market. The Company and Hyundai Merchant Marine have
each made a $4.8 million contribution to the initial capital of the Joint
Venture. In addition, in November 1996 the Company sold Carnival Cruise
Lines' cruise ship Tropicale for approximately $95.5 million cash to the
Joint Venture and chartered back the vessel from the Joint Venture until the
Joint Venture is ready to begin cruise operations in the Asian market in
March 1998. The Joint Venture borrowed the $95.5 million purchase price from
a financial institution and the Company and Hyundai Merchant Marine each
guaranteed 50% of the obligation. The sale of the vessel resulted in a gain
of approximately $58 million which is being deferred and recognized into
income over the remaining useful life of the ship. The deferred gain from
the sale is classified as "Deferred Income and Other Long-term Liabilities"
in the accompanying balance sheets.
Seabourn, CHC and the Joint Venture with Hyundai Merchant Marine are
not publicly traded entities, and as such, it is not practicable to estimate
the fair value of the Company's investment in these entities due to the lack
of information related to the value of their common stock.
Financial information for affiliated companies accounted for by the
equity method is as follows (in thousands):
Balance Sheet Data - As of End of Fiscal Year 1996:
Current assets $ 998,172
Noncurrent assets $ 898,239
Current liabilities $1,013,805
Noncurrent liabilities $ 533,672
Minority interest $ 108
Shareholders' equity $ 348,826
Income Statement Data - For the Fiscal Year Ended in 1996:
Net sales $2,877,892
Gross margin $ 444,009
Net income $ 106,605
NOTE 5 - LONG-TERM DEBT AND CONVERTIBLE NOTES
<TABLE>
<CAPTION>
Long-term debt consists of the following:
November 30,
1996 1995
(in thousands)
<S> <C> <C>
One Billion Dollar Unsecured Revolving
Credit Facility Due 2001 $ 185,000
5.39% Commercial Paper Due January 7, 1997 $ 307,298
Unsecured 5.75% Notes Due March 15, 1998 200,000 200,000
Multi-currency Revolving Credit Facility Due 2001 166,000
Mortgages and other loans payable bearing interest
at rates ranging from 8% to 9.9%, secured by
vessels maturing through 1999 140,277 208,078
Unsecured 6.15% Notes Due October 1, 2003 124,953 124,946
Unsecured 7.20% Debentures Due October 1, 2023 124,871 124,867
Unsecured 7.7% Notes Due July 15, 2004 99,913 99,902
Unsecured 7.05% Notes Due May 15, 2005 99,831 99,811
Other loans payable 80,755 65,179
1,343,898 1,107,783
Less portion due within one year (66,369) (72,752)
$1,277,529 $1,035,031
</TABLE>
Property and equipment with a net book value of $668 million at
November 30, 1996 is pledged as collateral against the mortgage
indebtedness.
In December 1996, the Company amended the terms of its revolving credit
facility primarily to combine two facilities into a single one billion
dollar unsecured revolving credit facility due 2001 (the "One Billion Dollar
Revolver"). The borrowing rate on the One Billion Dollar Revolver is a
maximum of LIBOR plus 14 basis points and the facility fee is six basis
points.
The Company initiated a commercial paper program in October 1996 which
is supported by the One Billion Dollar Revolver. Any funds outstanding
under the commercial paper program will reduce the amount available under
the One Billion Dollar Revolver. Since the commercial paper program is
supported by the One Billion Dollar Revolver, all amounts outstanding under
the program have been classified as long-term in the accompanying balance
sheets. As of November 30, 1996, the Company had $307 million outstanding
under its commercial paper program and $693 million available for borrowing
under the One Billion Dollar Revolver.
The Multi-currency Revolving Credit Facility bears interest at LIBOR
plus 14 basis points and provides for a facility fee of six basis points on
the total facility. As of November 30, 1996, the average interest rate on
the outstanding balance under the facility was 5.5% and the Company had an
undrawn balance of $34 million under the facility.
The Company has an interest rate swap agreement which converts the
fixed rate unsecured 5.75% Notes Due March 15, 1998 (the "$200 Million
Notes") to a floating rate LIBOR based loan (see Note 7).
As of November 30, 1996, the scheduled annual maturities of the
Company's long-term debt are summarized as follows (in thousands):
<TABLE>
<S> <C>
1997 $ 66,369
1998 259,400
1999 48,773
2000 1,895
2001 479,847
Thereafter 487,614
$1,343,898
</TABLE>
The Company's 4-1/2% Convertible Subordinated Notes Due July 1, 1997
(the "Convertible Notes") were convertible into 57.55 shares of the
Company's Class A Common Stock per $1,000 of notes. During the year ended
November 30, 1996 approximately $76 million of the Convertible Notes
converted into approximately 4.4 million shares of the Company's Class A
Common Stock. The Convertible Notes remaining outstanding at November 30,
1996 were converted into approximately 2.2 million shares during December
1996.
NOTE 6 - SHAREHOLDERS' EQUITY
The following represents an analysis of the changes in shareholders'
equity for the three years ended November 30, 1996:
<TABLE>
<CAPTION>
COMMON STOCK
$.01 PAR VALUE PAID-IN RETAINED
CLASS A CLASS B CAPITAL EARNINGS OTHER TOTAL
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance, November 30, 1993$2,274 $550 $541,194 $1,089,323 $(6,135) $1,627,206
Net income for the year 381,765 381,765
Cash dividends (80,499) (80,499)
Changes in securities
valuation allowance (3,313) (3,313)
Issuance of stock to
employees under
stock plans 2 3,753 (1,458) 2,297
Vested portion of common
stock under restricted
stock plan 1,478 1,478
Balance, November 30, 1994 2,276 550 544,947 1,390,589 (9,428) 1,928,934
Net income for the year 451,091 451,091
Cash dividends (89,540) (89,540)
Issuance of common stock 21 46,488 46,509
Changes in securities
valuation allowance 2,424 2,424
Issuance of stock to
employees under
stock plans 1 3,376 3,377
Vested portion of common
stock under restricted
stock plan 2,078 2,078
Balance, November 30, 1995 2,298 550 594,811 1,752,140 (4,926) 2,344,873
Net income for the year 566,302 566,302
Cash dividends (110,661) (110,661)
Changes in securities
valuation allowance (199) (199)
Foreign currency
translation adjustment 4,126 4,126
Issuance of stock upon
conversion of
Convertible Notes 44 76,250 76,294
Issuance of stock in
connection with
investment in Airtours 53 144,118 144,171
Issuance of stock to
employees under
stock plans 2 4,431 4,433
Vested portion of common
stock under restricted
stock plan 1,545 1,545
Balance, November 30, 1996$2,397 $550 $819,610 $2,207,781 $ 546 $3,030,884
</TABLE>
Each share of Class A Common Stock is entitled to one vote and each
share of Class B Common Stock is entitled to five votes, except (i) for the
election of directors, and (ii) as otherwise provided by law. Annually, the
holders of Class A Common Stock, voting as a separate class, are entitled to
elect 25% of the directors to be elected. The holders of Class B Common
Stock, voting as a separate class, are entitled to elect 75% of the
directors to be elected, so long as the number of shares of Class B Common
Stock is at least 12-1/2% of the number of outstanding shares of both
classes of Common Stock. If the number of outstanding shares of Class B
Common Stock falls below 12-1/2%, directors that would have been elected by
a separate vote of that class will instead be elected by the holders of both
classes of Common Stock, with holders of Class A Common Stock having one
vote per share and holders of Class B Common Stock having five votes per
share. At the option of the holder of record, each share of Class B Common
Stock is convertible at any time into one share of Class A Common Stock.
At November 30, 1996 there were approximately 9.7 million shares of
Class A Common Stock reserved for conversion of convertible debt, exercise
of stock options, issuance of shares under the employee stock purchase plan,
dividend reinvestment plan and restricted stock plans.
During 1996, the Company declared quarterly cash dividends aggregating
$.38 per share. In October 1996, the Board of Directors increased the
quarterly dividends from $.09 per share to $.11 per share.
NOTE 7 - FINANCIAL INSTRUMENTS
The Company estimates the fair market value of financial instruments
through the use of public market prices, quotes from financial institutions
and other available information. Considerable judgment is required in
interpreting data to develop estimates of market value and, accordingly,
amounts are not necessarily indicative of the amounts that the Company could
realize in a current market exchange.
Short-term Investments
Short-term investments, classified as available for sale at November
30, 1996 and 1995, consisted of the following debt securities (in
thousands):
<TABLE>
<CAPTION>
Gross Unrealized
Cost Losses Gains Fair Value
<S> <C> <C> <C> <C>
November 30, 1996:
U. S. Government securities $ 7,146 $ (679) $ 6,467
Mortgage backed securities 4,435 (419) $ 3 4,019
Corporate securities 2,000 2,000
$13,581 $(1,098) $ 3 $12,486
November 30, 1995:
U. S. Government securities $38,991 $(1,244) $ 114 $37,861
Mortgage backed securities 10,676 (464) 10,212
Corporate securities 2,322 2,322
$51,989 $(1,708) $ 114 $50,395
</TABLE>
The contractual maturities of short-term investments at November 30,
1996 and 1995 were as follows (in thousands):
<TABLE>
<CAPTION>
1996 1995
Cost Fair Value Cost Fair Value
<S> <C> <C> <C> <C>
Due within one year $ 2,000 $ 2,000 $27,581 $27,497
Due after one year through five years 5,146 4,771 11,732 11,154
Due after five years through ten years 2,000 1,696 2,000 1,532
Mortgage backed securities 4,435 4,019 10,676 10,212
$13,581 $12,486 $51,989 $50,395
</TABLE>
The gross realized loss from the sale of short-term investments was
$1.1 million during the fiscal year ended November 30, 1994 and was charged
against earnings. Proceeds from the sale of short-term investments for the
years ended November 30, 1996, 1995 and 1994 were approximately $38 million,
$20 million and $124 million, respectively. For the purpose of determining
gross realized gains and losses, the cost of short-term investments sold is
based upon specific identification.
Long-term Debt and Convertible Notes
The fair value of the Company's long-term debt, including the current
portion, was approximately $1.363 billion and $1.123 billion at November 30,
1996 and 1995, respectively, which is approximately $19 million and $15
million more than the carrying value at November 30, 1996 and 1995,
respectively. The fair value of the long-term debt is slightly more than
the carrying amount due to the Company's issuance of fixed rate debt
obligations in prior years at interest rates above market rates at November
30, 1996. The fair value of the Company's long-term debt is estimated based
on the quoted market price for the same or similar issues or on the
applicable year end rates offered to the Company for debt of similar terms
and maturity. At November 30, 1996 and 1995, the carrying amount of the
Convertible Notes was approximately $29 million and $53 million,
respectively, less than the fair value primarily due to increases in the
price of the Company's Class A Common Stock.
Foreign Currency and Interest Rate Swap Agreements
The Company enters into forward foreign currency contracts to reduce
its exposures relating to changes in foreign currency rates. These
instruments are subject to gain or loss from changes in foreign currency
rates; however, any realized gain or loss would generally be offset by gains
or losses on the actual foreign currency transaction. The Company also
enters into interest rate swap agreements to adjust the relationship between
the amount of the Company's fixed and floating rate debt. Certain exposures
to credit losses related to counter party nonperformance exist; however, the
Company does not anticipate nonperformance by the counter parties as they
are primarily large, well-established financial institutions. The fair
values of the Company's forward and swap hedging instruments discussed below
are based on prices quoted by financial institutions for these or similar
instruments, adjusted for maturity differences.
Several of the Company's contracts for the construction of cruise
vessels are stated in foreign currencies. The Company entered into forward
foreign currency contracts to fix the price of the vessels into U.S. dollars
(see Note 9). As of November 30, 1996 and 1995, these forward contracts
were in a gain position of approximately $114 million and $42 million,
respectively. At the expiration of the forwards, which coincide with the
payments related to vessels under construction, any gains or losses will be
included in the cost of the vessel. In addition, the Company prices some
products in Canadian dollars and entered into foreign currency contracts
totaling approximately U.S. $52 million to reduce the impact of changes in
exchange rates. The Company also has some expenses in foreign currencies
and entered into foreign currency contracts totaling approximately $25
million to reduce the impact of changes in exchange rates. As of November
30, 1996, there were no significant gains or losses related to the Canadian
currency transactions or other currency transactions entered into to hedge
estimated expenses.
The Company has hedged the interest rate on the $200 Million Notes
through the utilization of interest rate swap agreements (see Note 5). As
of November 30, 1996 and 1995, the interest rate swaps were in an unrealized
loss position of approximately $.9 million and $.7 million, respectively.
These swap agreements effectively convert the $200 Million Notes into a
floating rate facility.
NOTE 8 - RELATED PARTY TRANSACTIONS
The Company utilizes Carnival Air Lines, an airline owned by a trust,
the primary beneficiary of which is the Company's Chairman of the Board, to
transport a limited number of the Company's cruise passengers. During the
fiscal years ended November 30, 1996, 1995 and 1994 approximately $2
million, $3 million and $4 million, respectively, was paid to the airline
for transportation services. The Company also earned license fees for the
use of the "Carnival" name totaling approximately $.5 million, $.4 million
and $.4 million during fiscal years ended November 30, 1996, 1995 and 1994,
respectively. The Company also receives license fees from CHC (see Note 4).
A director of the Company is employed by an investment banking firm.
The investment banking firm assisted the Company in connection with
issuances of notes and Class A Common Stock to the public during the fiscal
years ended November 30, 1995 and 1994. The Company paid the investment
banking firm approximately $300,000 in underwriting fees in each of fiscal
years ended November 30, 1995 and 1994.
A director of the Company is a partner in a law firm. The law firm
acted as the Company's primary outside counsel and provided services to the
Company in connection with various litigation, corporate and other matters
during fiscal years ended November 30, 1996, 1995 and 1994. The Company
paid the law firm $1.0 million, $6.2 million and $1.3 million in fiscal
years ended November 30, 1996, 1995 and 1994, respectively.
The Company has a consulting agreement with a corporation affiliated
with the Company's founder to provide services related to the construction
of cruise ships through November 1999. Under the consulting agreement, the
Company paid a fee of $500,000 per year plus travel expenses. The Company's
founder also utilized an airplane leased by the Company and reimbursed the
Company approximately $.3 million in each of the fiscal years ended November
30, 1996 and 1995. The Company's founder also has certain demand and piggy-
back registration rights with respect to shares of Class A Common Stock
beneficially owned by him. The Company incurred approximately $200,000 in
expenses during fiscal 1996 in connection with the registration rights
agreement.
The owner of a travel agency located in Seattle, Washington is the wife
of the Chief Executive Officer of HAL who is also a director of the Company.
The travel agency sells cruises and other similar products, including the
Company's products, and receives a commission based on the amount of sales
generated. During the years ended November 30, 1996, 1995 and 1994, the
travel agency generated revenues for the Company of approximately $7
million, $5 million and $6 million, respectively and received commissions
from the Company related to such revenues of approximately $1.2 million, $.8
million and $1 million, respectively.
Pursuant to an agreement between the Company and certain irrevocable
trusts, the beneficiaries of which are the children of the Company's founder
and certain others, the Company has granted to the trusts certain
registration rights with respect to 14,277,028 shares of Class A Common
Stock held for investment by the trusts. The Company has agreed to prepare
and file with the SEC a registration statement and pay all expenses relating
to such registration, except for fees and disbursements of counsel for the
trusts, selling costs, underwriting discounts and applicable filing fees.
NOTE 9 - COMMITMENTS AND CONTINGENCIES
Capital Expenditures
The following table provides a description of ships currently under
contract for construction (in millions, except berth data):
<TABLE>
<CAPTION>
Expected Number Estimated Remaining
Service Contract of Lower Total Cost to be
Vessel Date Denomination Berths Cost Paid
Holland America Line:
<S> <C> <C> <C> <C> <C>
Rotterdam VI 10/97 Lire 1,320 $ 270 $ 199
HAL Newbuild 3/99 Lire 1,440 300 286
HAL Newbuild 10/99 Lire 1,440 300 286
Carnival Cruise Lines:
Elation 3/98 U. S. Dollar 2,040 300 281
Paradise 12/98 U. S. Dollar 2,040 300 283
Carnival Triumph 7/99 Lire 2,640 400 372
Carnival Newbuild* 8/00 U. S. Dollar 2,640 430 430
13,560 $2,300 $2,137
</TABLE>
* On January 30, 1997 the Company entered into an agreement to construct the
new vessel. See Note 13 - Subsequent Event for more information.
Contracts denominated in foreign currencies have been fixed into U.S.
Dollars through the utilization of forward currency contracts (see Note 7).
In connection with the vessels under contract for construction described
above, the Company has paid $163 million through November 30, 1996,
anticipates paying $270 million in fiscal 1997 and approximately $1,867
million beyond fiscal 1997.
Litigation
In April 1996 and October 1996, four complaints were filed in the Circuit
Court of the Eleventh Judicial Circuit, Dade County, Florida, against the
Company (the "Florida Actions"). In April 1996, a complaint was filed in
the Superior Court of Washington for King County against Holland America
Westours (the "Washington Action"). In November 1996, a complaint was filed
against the Company in the 18th Judicial District Court, Parish of
Iberville, Louisiana (the "Louisiana Action"). These actions (collectively
the "Port Charges Complaints"), brought on behalf of purported classes of
persons who traveled on a Company ship and paid port charges to the Company,
allege that statements made by the Company in advertising and promotional
materials concerning port charges were false and misleading.
The Florida Actions allege claims of negligent misrepresentation,
unjust enrichment, violation of the Florida Deceptive and Unfair Trade
Practices Act, fraud, negligence, breach of fiduciary duties, breach of
implied covenants of good faith and fair dealing, fraudulent
misrepresentations and/or omission, restitution, conversion, money had and
received, resulting trust and constructive trust. The Washington Action
alleges claims of negligent misrepresentation, unjust enrichment and
violation of the Washington Consumer Protection Act. The Louisiana Action
alleges violation of the Louisiana Unfair Trade Practices and Consumer
Protection Law, fraud and breach of express contractual obligations. The
Company has removed the Louisiana Action to federal court, and a hearing on
the Company's motion to dismiss is presently scheduled for August 1997.
In one of the Florida Actions, Sutton v. Carnival, the plaintiffs seek
damages "in excess of fifteen thousand dollars, (but less than $50,000 per
individual class member)" for each of eight separate grounds for relief.
The remaining Port Charges Complaints seek unspecified compensatory damages
on behalf of the purported class (or, alternatively, refunds of port charges
allegedly in excess of certain charges levied by governmental authorities),
attorneys' fees, costs, punitive damages and injunctive relief.
In June and August 1996, respectively, two complaints were filed
against both the Company and Holland America Westours in the Superior Court
for the State of California, Los Angeles County (the "California Actions")
and in January 1997, a complaint was filed against the Company in the Fourth
Judicial District Court, Hennepin County, Minnesota (the "Minnesota
Action"). These actions (collectively the "Travel Agent Complaints"),
brought on behalf of purported classes of all travel agencies who during the
past four years (California Actions) or the past six years (Minnesota
Action) booked a cruise with the Company, contain allegations that the
Company's advertising practices regarding port charges resulted in an
improper and concealed form of commission bypass. The Travel Agent
Complaints allege claims of breach of contract, negligent misrepresentation,
unjust enrichment, unlawful business practices and common law fraud and seek
unspecified compensatory damages (or alternatively, the payment by the
Company of usual and customary commissions on port charges in excess of
certain charges levied by government authorities), an accounting, attorneys'
fees and costs, punitive damages and injunctive relief.
The Port Charges Complaints and the Travel Agent Complaints are in
preliminary stages and it is not now possible to determine the ultimate
outcome of the lawsuits. Management believes that the Company has
substantial and meritorious defenses to the claims and intends to vigorously
defend the lawsuits. Management understands that purported class action
lawsuits similar to the Port Charges Complaints and the Travel Agent
Complaints have been filed against five other cruise lines.
Wartsila Marine Industries Incorporated ("Wartsila") operated a Finnish
shipyard and had contracted to build three ships for the Company in the late
1980's. Wartsila filed for bankruptcy in 1989 without completing
construction of the vessels, causing the Company to incur incremental costs
to complete the ships and to lose profits because of the delay in their
delivery. During 1995, the Company received $40 million in cash from the
settlement of litigation with Metra Oy, the former parent company of
Wartsila, related to losses suffered in connection with the construction of
three of the Company's cruise ships. Of the $40 million received, $6.2
million was used to pay related legal fees, $14.4 million was recorded as
other income and $19.4 million was used to reduce the cost basis of certain
ships which had been the subject of the Company's lawsuit against Metra Oy.
On June 25, 1996, the Company reached an agreement with the trustees of
Wartsila and creditors for the bankruptcy which resulted in a cash payment
of approximately $80 million. Of the $80 million received, $5 million was
used to pay certain costs, $32 million was recorded as other income and $43
million was used to reduce the cost basis of certain ships which had been
affected by the bankruptcy.
In the normal course of business, various other claims and lawsuits
have been filed or are pending against the Company. The majority of these
claims and lawsuits are covered by insurance. Management believes the
outcome of any such suits which are not covered by insurance would not have
a material adverse effect on the Company's financial condition or results of
operations.
Operating Leases
Rental expense for all operating leases for the years ended November
30, 1996, 1995 and 1994 was approximately $9.3 million, $7.6 million and
$7.7 million, respectively. As of November 30, 1996, minimum annual rentals
for all operating leases, with initial or remaining terms in excess of one
year, were as follows (in thousands):
<TABLE>
<S> <C>
1997 $ 8,226
1998 6,723
1999 4,582
2000 4,566
2001 3,324
Thereafter 18,511
$45,932
</TABLE>
Guaranty
The Company guaranteed 50% of a $95.5 million obligation incurred by
the joint venture with Hyundai Merchant Marine. See Note 4 for additional
information.
Recent Events
In December 1996, the Company and Airtours signed a letter of intent to
acquire up to 100% of the outstanding equity securities of Costa Crociere
SpA, a publicly traded cruise company headquartered in Italy. The cost of
acquisition, if all of the outstanding equity securities are acquired, would
be approximately $300 million cash with the Company and Airtours each
contributing approximately 50% of that amount. The letter of intent
provides that the acquisition is conditioned upon the successful conclusion
of a due diligence review by the Company and Airtours, the signing of a
definitive agreement with the controlling shareholders of Costa Crociere
SpA, the receipt of all corporate and regulatory and government approvals
and other customary conditions found in transactions of this type.
NOTE 10 - SEGMENT INFORMATION
The Company's cruise segment currently operates 19 passenger cruise
ships and three luxury sailing vessels. Cruise revenues are comprised of
sales of tickets and other revenues from on-board activities. A tour
business operated by HAL, consisting of 16 hotels, two luxury day boats,
over 290 motor coaches and 12 private domed rail cars comprise the assets
that generate revenue for the tour segment. The corporate segment is
primarily comprised of equity investments and includes the Company's
investments in and advances to affiliates and its portion of the results of
operations of affiliates accounted for using the equity method of
accounting. Intersegment revenues primarily represent charges for the
cruise portion of a tour when a cruise is sold as a part of a tour package.
Segment information for the three years ended November 30, 1996 was as
follows:
<TABLE>
<CAPTION>
YEARS ENDED NOVEMBER 30,
1996 1995 1994
(in thousands)
<S> <C> <C> <C>
REVENUES
Cruise $2,003,458 $1,800,775 $1,623,069
Tour 263,356 241,909 227,613
Intersegment revenues (54,242) (44,534) (44,666)
$2,212,572 $1,998,150 $1,806,016
GROSS OPERATING PROFIT
Cruise $ 913,880 $ 810,736 $ 726,808
Tour 57,423 56,301 50,733
$ 971,303 $ 867,037 $ 777,541
DEPRECIATION AND AMORTIZATION
Cruise $ 135,694 $ 119,381 $ 100,191
Tour 8,317 8,129 9,449
Corporate 976 923 955
$ 144,987 $ 128,433 $ 110,595
OPERATING INCOME
Cruise $ 535,814 $ 470,592 $ 427,256
Tour 21,252 24,168 18,084
Corporate 40,362 (4,722) (1,666)
$ 597,428 $ 490,038 $ 443,674
IDENTIFIABLE ASSETS
Cruise $4,514,675 $3,910,243 $3,461,190
Tour 150,851 138,313 138,096
Corporate 436,362 56,931 70,537
$5,101,888 $4,105,487 $3,669,823
CAPITAL EXPENDITURES
Cruise $ 841,871 $ 456,920 $ 582,243
Tour 14,964 8,747 9,963
Corporate 1,810 5,006
$ 858,645 $ 465,667 $ 597,212
</TABLE>
NOTE 11 - EMPLOYEE BENEFIT PLANS
Stock Option Plans
The Company has stock option plans, applicable to Class A Common Stock,
for certain key employees. The plans are administered by a committee of
three directors of the Company (the "Committee") who determine the employees
and directors eligible to participate, the number of shares for which
options are to be granted and the amounts that any employee or director may
exercise within a specified year or years. The maximum number of shares
available to be granted as of November 30, 1996 and 1995 was 1,689,000 and
1,774,000, respectively. Under the terms of the plans, the option price per
share is established by the Committee as an amount between 50% and 100% of
the fair market value of the shares of Class A Common Stock on the date the
option is granted. Options may be extended for such periods as may be
determined by the Committee but only for so long as the optionee remains an
employee of the Company. The status of options in the stock option plans
was as follows:
<TABLE>
<CAPTION>
Price Number of Shares
Per Share Years Ended November 30,
1996 1995 1994
<S> <C> <C> <C> <C>
Unexercised Options-
Beginning of Year $3.88 - $23.88 2,474,736 2,433,236 730,526
Options Granted $19.78 - $29.94 90,000 1,564,000 1,764,000
Options Exercised $3.88 - $24.63 (123,996) (90,100) (61,290)
Options Canceled $14.09 - $22.50 (4,800) (1,432,400)
Unexercised Options-
End of Year $3.88 - $29.94 2,435,940 2,474,736 2,433,236
</TABLE>
Upon the adoption of Statement of Financial Accounting Standards No.
123 in fiscal 1997, "Accounting for Stock-Based Compensation", the Company
intends to retain the intrinsic value method of accounting for stock-based
compensation which it currently uses.
Restricted Stock Plans
The Company has restricted stock plans under which certain key
employees are granted restricted shares of the Company's Class A Common
Stock. Shares are awarded in the name of each of the participants, who have
all the rights of other Class A stockholders, subject to certain restriction
and forfeiture provisions. Unearned compensation is recorded at the date of
award based on the market value of the shares on the date of grant.
Unearned compensation is amortized to expense over the vesting period. As
of November 30, 1996 there were 1,896,032 shares issued under the plans of
which 255,821 remain to be vested.
Defined Contribution Plans
HAL has two defined contribution plans available to substantially all
U.S. and Canadian employees. HAL contributes to these plans based on
employee contributions and salary levels. Total expense relating to these
plans in fiscal year ended November 30, 1996, 1995 and 1994 was
approximately $2.4 million, $2.4 million and $2.1 million, respectively.
Defined Benefit Pension Plans
The Company adopted two pension plans (qualified and non-qualified)
effective January 1, 1989 which together cover all full-time employees of
Carnival Corporation working in the United States, excluding HAL employees.
Employees will vest in the pension plans 100% after five years of service,
will be eligible to receive benefits at age 65 and, upon completion of 15
years of service, become eligible to receive benefits at age 55. The
benefits are based on years of service and the employee's highest average
compensation over five consecutive years during the last ten years of
employment. Carnival Corporation's funding policy for the qualified plan is
to annually contribute at least the minimum amount required under the
applicable labor regulations. The weighted average discount rate, 7.5% in
1996 and 1995 and 8.5% in 1994, and a 5.0% rate of increase in future
compensation levels were used in determining the projected benefit
obligation. The expected long-term rate of return on assets was 8.5%.
Pension costs for the qualified and non-qualified defined benefit plans
were approximately $2.2 million, $1.6 million and $2.0 million for the years
ended November 30, 1996, 1995 and 1994, respectively.
The funded status of the defined benefit pension plans at November 30,
1996 and 1995 was as follows:
<TABLE>
<CAPTION>
Qualified Non-Qualified
(in thousands) (in thousands)
1996 1995 1996 1995
<S> <C> <C> <C> <C>
Accumulated benefit obligation:
Vested $5,014 $4,082 $5,376 $4,832
Non-vested 329 346 145 153
$5,343 $4,428 $5,521 $4,985
Projected benefit obligation $8,449 $6,933 $8,049 $6,886
Plan assets (6,737) (4,821)
Unfunded accumulated benefits 1,712 2,112 8,049 6,886
Unrecognized prior service cost (322) (406) (174) (317)
Unrecognized losses (1,789) (1,885) (1,390) (1,048)
(Prepaid) accrued pension obligation $ (399) $ (179) $6,485 $5,521
</TABLE>
NOTE 12 - SUPPLEMENTAL CASH FLOW INFORMATION
<TABLE>
<CAPTION>
YEARS ENDED NOVEMBER 30,
1996 1995 1994
<S> <C> <C> <C>
(in thousands)
Cash paid during the year for:
Interest (net of amount capitalized) $ 68,337 $ 62,868 $ 48,501
Income taxes $ 8,752 $ 8,671 $ 6,871
Noncash investing and financing activities:
Class A Common Stock issued for various
stock plans $ 1,102 $ 854 $ 1,458
Class A Common Stock issued for conversion
of Convertible Notes (see Note 5) $ 76,294
Class A Common Stock issued for acquisition
of an interest in Airtours (see Note 4) $144,171
</TABLE>
NOTE 13 - SUBSEQUENT EVENT (Unaudited)
On January 30, 1997, the Company entered into a memorandum of agreement
for the construction of a Destiny class cruise ship for the Carnival Cruise
Lines fleet for delivery in July 2000. The vessel is expected to cost
approximately $430 million.
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of
Carnival Corporation
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations and of cash flows present
fairly, in all material respects, the financial position of Carnival
Corporation and its subsidiaries at November 30, 1996 and 1995, and the
results of their operations and their cash flows for each of the three years
in the period ended November 30, 1996, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of
the Company's management; our responsibility is to express an opinion on
these financial statements based on our audits. We conducted our audits of
these statements in accordance with generally accepted auditing standards
which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICE WATERHOUSE LLP
Miami, Florida
January 15, 1997
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Carnival Corporation and its subsidiaries (the "Company") earns its
cruise revenues primarily from (i) the sale of passenger tickets, which
include accommodations, meals, most shipboard activities and in many cases
airfare, and (ii) the sale of goods and services on board its cruise ships,
such as casino gaming, liquor sales, gift shop sales and other related
services. The Company also derives revenues from the tour and related
operations of HAL Antillen N.V. ("HAL").
For selected segment information related to the Company's revenues,
gross operating profit, operating income and other financial information,
see Note 10 in the accompanying financial statements. The following table
presents operations data expressed as a percentage of total revenues and
selected statistical information for the periods indicated:
<TABLE>
<CAPTION>
YEARS ENDED NOVEMBER 30,
1996 1995 1994
<S> <C> <C> <C>
REVENUES 100% 100% 100%
COSTS AND EXPENSES:
Operating expenses 56 57 57
Selling and administrative 12 12 12
Depreciation and amortization 7 6 6
OPERATING INCOME BEFORE INCOME
FROM AFFILIATED OPERATIONS 25 25 25
INCOME FROM AFFILIATED OPERATIONS 2
OPERATING INCOME 27 25 25
NONOPERATING INCOME (EXPENSE) (1) (2) (4)
.
NET INCOME 26% 23% 21%
SELECTED STATISTICAL INFORMATION:
Passengers carried 1,764,000 1,543,000 1,354,000
Passenger cruise days 10,583,000 9,201,000 8,102,000
Occupancy percentage 107.6% 105.0% 104.0%
</TABLE>
GENERAL
The growth in the Company's revenues during the last three fiscal years
has primarily been a function of the expansion of its fleet capacity.
Fixed costs, including depreciation, fuel, insurance and crew costs
represent more than one-third of the Company's operating expenses and do not
significantly change in relation to changes in passenger loads and aggregate
passenger ticket revenue.
The Company's different businesses experience varying degrees of
seasonality. The Company's revenue from the sale of passenger tickets for
Carnival Cruise Lines' ("Carnival") ships is moderately seasonal.
Historically, demand for Carnival cruises has been greater during the
periods from late June through August and lower during the fall months. HAL
cruise revenues are more seasonal than Carnival's cruise revenues. Demand
for HAL cruises is strongest during the summer months when HAL ships operate
in Alaska and Europe for which HAL obtains higher pricing. Demand for HAL
cruises is lower during the winter months when HAL ships sail in more
competitive markets. The Company's tour revenues are extremely seasonal
with a majority of tour revenues generated during the late spring and summer
months in conjunction with the Alaska cruise season.
In April 1996 the Company made an investment in Airtours which it
records using the equity basis of accounting. Starting with the Company's
quarter ending August 31, 1996, the Company's portion of Airtours' operating
results are being recorded by the Company on a two month lag basis.
Airtours' earnings are very seasonal due to the seasonal nature of the
European leisure travel industry. During the last two fiscal years,
Airtours' third and fourth fiscal quarters, ending June 30 and September 30,
respectively, have been profitable, with the fourth quarter being its most
profitable quarter. During this same period, Airtours experienced seasonal
losses in its first and second fiscal quarters ending on December 31 and
March 31, respectively.
Average capacity is expected to increase approximately 11.7% during
fiscal 1997 as a result of the introduction into service of the Inspiration
in March 1996, the Veendam in May 1996, the Carnival Destiny in November
1996 and the Rotterdam VI in October 1997. The existing Rotterdam V is
scheduled to discontinue service in September 1997.
Fiscal Year Ended November 30, 1996 Compared
To Fiscal Year Ended November 30, 1995
Revenues
The increase in total revenues of $214.4 million, or 10.7%, from 1995
to 1996 was comprised primarily of a $202.7 million, or 11.3%, increase in
cruise revenues for the period. The increase in cruise revenues was
primarily the result of a 12.2% increase in capacity for the period
resulting from the introduction into service of Carnival's cruise ships
Imagination in July 1995 and Inspiration in March 1996 and Holland America
Line's cruise ship Veendam in May 1996 less the removal from service from
the Carnival Cruise Lines fleet of the Festivale in April 1996. Occupancy
rates were up 2.5% and gross revenue per passenger cruise day was down 3.3%
resulting in a decrease of .9% in gross yield (total revenue per lower
berth). Gross revenue per passenger cruise day decreased primarily due to a
reduction in the percentage of passengers electing the Company's air program
and due to slightly lower pricing in the cruise market. When a passenger
elects to purchase his/her own air transportation, rather than use the
Company's air program, both the Company's cruise revenues and operating
expenses decrease by approximately the same amount. Also affecting cruise
revenues in 1995 were lost revenues caused by the shipboard incident
described under the section below entitled "Nonoperating Income (Expense)-
Fiscal Year Ended November 30, 1995 Compared To Fiscal Year Ended November
30, 1994".
Revenues from the Company's tour operations increased $21.4 million, or
8.9%, to $263.4 million in 1996 from $241.9 million in 1995. The increase
was primarily the result of an increase in the tour and transportation
revenues due to an increase in the number of tour passengers.
Costs and Expenses
Operating expenses increased $110.2 million, or 9.7%, from 1995 to
1996. Cruise operating costs increased by $99.5 million, or 10.1%, to
$1,089.6 million in 1996 from $990.0 million in 1995, primarily due to
additional costs associated with the increased capacity in 1996. Tour
operating expenses increased $20.3 million, or 11.0%, from 1995 to 1996
primarily due to an increase in tour passengers.
Selling and administrative costs increased $26.3 million, or 10.6%,
primarily due to an 11.6% increase in advertising expenses and an increase
in payroll and related costs associated with the increase in capacity during
1996 as compared with 1995.
Depreciation and amortization increased by $16.6 million, or 12.9%, to
$145.0 million in 1996 from $128.4 million in 1995 primarily due to the
addition of the Imagination, the Inspiration and the Veendam.
Affiliated Operations
During fiscal 1996, the Company recorded $46.0 million of earnings from
affiliated operations. A significant portion of such earnings are
attributable to the Company's investment in Airtours. The Company acquired
its 29.5% interest in Airtours in April 1996 and is recording its share of
Airtours' earnings on a two month lag basis. During 1996, the Company's
share of earnings for Airtours was recorded for Airtours' six months ended
September 30, 1996 which amounted to $35.7 million excluding the Company's
capital costs incurred in connection with the investment. Airtours'
operations are seasonal and historically have resulted in losses for the
first half of its fiscal year. Had the Company recorded its equity in
Airtours' earnings for Airtours' entire fiscal year ended September 30,
1996, the Company's share of Airtours' earnings would have been $22.2
million instead of the $35.7 million recorded by the Company in 1996. See
Note 4 in the accompanying financial statements for more information
regarding the Company's equity investments.
Nonoperating Income (Expense)
Interest income increased $4.2 million primarily due to the Company's
holding of 13 percent senior secured notes (which were redeemed in April
1996) of Norwegian Cruise Line, Ltd. and, to a lesser degree, increases in
cash balances. Cash balances, up to the closing of the Airtours transaction
in April 1996, increased due to United Kingdom regulatory requirements
applicable to the Company's tender offer to acquire its interest in Airtours
(see Note 4 in the accompanying financial statements for more information
related to the Airtours acquisition). Gross interest expense (excluding
capitalized interest) increased $8.0 million primarily as a result of
additional borrowings required in connection with the Company's investment
in Airtours. Capitalized interest increased $7.0 million due to higher
investment levels in vessels under construction.
Other income increased to $23.4 million in 1996 primarily as a result
of a $32.0 million gain from settlement of bankruptcy claims against
Wartsila (see Note 9 - Litigation in the accompanying financial statements)
less a loss of $15.8 million on the sale of the notes receivable generated
from the sale of Carnival's Crystal Palace Hotel and Casino. Other income of
$19.1 million in 1995 is described in the section below entitled
"Nonoperating Income (Expense)-Fiscal Year Ended November 30, 1995 Compared
To Fiscal Year Ended November 30, 1994".
Fiscal Year Ended November 30, 1995 Compared
To Fiscal Year Ended November 30, 1994
Revenues
The increase in total revenues of $192.1 million from 1994 to 1995 was
comprised primarily of a $177.7 million, or 10.9%, increase in cruise
revenues for the period. The increase in cruise revenues was primarily the
result of a 12.5% increase in capacity for the period resulting from the
addition of Carnival's cruise ship Fascination in July 1994, HAL's Ryndam in
October 1994, and Carnival's Imagination in July 1995, partially offset by
the discontinuation of the FiestaMarina division in September 1994.
Occupancy rates were up 1.0% and gross revenue per passenger cruise day was
down 2.3% resulting in a decrease of 1.4% in gross yield. Gross revenue per
passenger cruise day decreased primarily due to a reduction in the
percentage of passengers electing the Company's air program. Also affecting
cruise revenues in 1995 and 1994 were lost revenues caused by the incidents
described under the section below entitled "Nonoperating Income (Expense)".
Revenues from the Company's tour operations increased $14.3 million, or
6.3%, to $241.9 million in 1995 from $227.6 million in 1994. The increase
was primarily the result of an increase in the tour and transportation
revenues generated by the Company's tour business and Gray Line of Alaska
tour and motorcoach operations.
Costs and Expenses
Operating expenses increased $102.6 million, or 10.0%, from 1994 to
1995. Cruise operating costs increased by $93.8 million, or 10.5%, to
$990.0 million in 1995 from $896.3 million in 1994, primarily due to
additional costs associated with the increased capacity in 1995. Tour
operating expenses increased $8.7 million, or 4.9%, from 1994 to 1995
primarily due to an increase in tour passengers.
Selling and administrative costs increased $25.3 million, or 11.3%,
primarily due to a 14.6% increase in advertising expenses and an increase in
payroll and related costs during 1995 as compared with the same period of
1994.
Depreciation and amortization increased by $17.8 million, or 16.1%, to
$128.4 million in 1995 from $110.6 million in 1994 primarily due to the
addition of the Ryndam, the Fascination and the Imagination.
Nonoperating Income (Expense)
Interest income increased $5.7 million primarily due to the recognition
of interest income on notes received from the sale of Carnival's Crystal
Palace Hotel and Casino and higher investment balances. Interest expense
increased to $81.9 million in 1995 from $73.2 million in 1994 primarily as a
result of increased average debt levels and higher interest rates on
variable rate debt. The increased debt levels were the result of
expenditures made in connection with the ongoing construction and delivery
of new cruise ships. Capitalized interest decreased to $18.8 million in
1995 from $21.9 million in 1994 due to lower levels of investments in
vessels under construction.
Other income increased to $19.1 million in 1995 primarily as a result
of a $14.4 million gain from the settlement of litigation with Metra Oy and
a gain from the sale of the Company's entire interest in Epirotiki Cruise
Line. These gains were partially offset by the loss from the Celebration
incident discussed below and certain other non-related, non-recurring items.
In June 1995, a fire, which was quickly extinguished, broke out in the
engine control room on Carnival's Celebration. There were no injuries to
passengers or crew, however, there was damage to one of the vessel's
electrical control panels. The time necessary to complete repairs to the
Celebration as a result of this incident caused the cancellation of four
one- week cruises. Costs associated with repairs to the ship, passenger
handling and various other expenses, net of estimated insurance recoveries,
amounted to $3.0 million and were included in other expenses. In addition,
the Company estimates the loss of revenue, net of related variable expenses,
from the Celebration being out of service reduced operating income and net
income by an additional $7.3 million in 1995.
Other expenses of $9.1 million in 1994 were primarily the result of
two events. In September 1994, the Company discontinued its FiestaMarina
division because of lower than expected passenger occupancy levels which
resulted in a charge of $3.2 million to other expenses. In August 1994,
HAL's Nieuw Amsterdam ran aground in Alaska resulting in the cancellation of
three one-week cruises. Costs associated with repairs to the ship,
passenger handling and various other expenses, net of estimated insurance
recoveries, amounted to $6.4 million and were included in other expenses.
In addition, the Company estimates the loss of revenue, net of related
variable expenses, from the Nieuw Amsterdam being out of service during that
three-week period, reduced operating income and net income by an additional
$4.5 million in 1994.
LIQUIDITY AND CAPITAL RESOURCES
Sources and Uses of Cash
The Company's business provided $741.5 million of net cash from
operations during the year ended November 30, 1996, an increase of 26.3%
compared to the corresponding period in 1995. The increase between periods
was primarily the result of an increase in net income, an increase in
customer deposits resulting from increased capacity and other less
significant changes in other working capital accounts.
In April 1996, the Company acquired 29.5% of Airtours for $307 million.
The Company paid approximately $163 million of the purchase price in cash
and funded the remaining purchase price of approximately $144 million
through the issuance of 5,301,186 shares of the Company's Class A Common
Stock.
In April 1996, the Company received approximately $81 million in
connection with the redemption of the 13% Senior Secured Notes Due 2003 of
Kloster Cruise Limited.
During the year ended November 30, 1996, the Company expended
approximately $902 million on capital projects, of which $819 million was
spent in connection with its ongoing shipbuilding program and $36 million
was spent on the expansion of the Company's shore side operations facilities
located in Miami, Florida. The remainder was spent on vessel
refurbishments, tour assets and other equipment. Amounts expended on the
shipbuilding program included final payments related to Carnival Cruise
Lines' Inspiration and Carnival Destiny which entered service in March 1996
and late November 1996, respectively, and Holland America Line's Veendam
which entered service in May 1996.
The Company made scheduled principal payments totaling approximately
$68 million under various individual vessel mortgage loans and repaid the
outstanding balance of the one billion dollar revolving credit facility due
2001 (the "One Billion Dollar Revolver") during the year ended November 30,
1996. The Company borrowed $168 million under a $200 Million Multi-currency
Revolving Credit Facility Due 2001 (the "$200 Million Multi-currency
Revolver") which was used largely to fund the Airtours investment described
above. In addition, the Company initiated a commercial paper program during
the fourth quarter of fiscal 1996 that is supported by the One Billion
Dollar Revolver. A total of $307 million was borrowed under the commercial
paper program primarily to fund the final payment on the Carnival Destiny.
Future Commitments
The Company has contracts for the delivery of seven new vessels over
the next four years. The Company will pay approximately $270 million during
the twelve month period ending November 30, 1997 relating to the
construction and delivery of those new cruise ships and approximately $1,867
million beyond November 30, 1997. In addition, the Company has $1.3 billion
of long-term debt of which $66 million is due during the twelve month period
ending November 30, 1997. The Company also enters into forward foreign
currency contracts and interest rate swap agreements to hedge the impact of
foreign currency and interest rate fluctuations.
In December 1996, the Company and Airtours signed a letter of intent to
acquire up to 100% of the outstanding equity securities of Costa Crociere
SpA ("Costa"). Costa is a publicly traded cruise company headquartered in
Italy. The cost of acquisition, if all of the outstanding equity securities
are tendered, would be approximately $300 million cash with the Company and
Airtours each contributing approximately 50% of that amount. The letter of
intent provides that the acquisition is conditioned upon the successful
conclusion of a due diligence review by the Company and Airtours, the
signing of a definitive agreement with the controlling shareholders of Costa
Crociere SpA, the receipt of all corporate and regulatory and government
approvals and other customary conditions found in transactions of this type.
Funding Sources
Cash from operations is expected to be the Company's principal source
of capital to fund its debt service requirements, ship construction costs
and potential Costa acquisition. In addition, the Company may fund a
portion of the construction cost of new ships or the proposed investment in
Costa from borrowings under its One Billion Dollar Revolver or commercial
paper program and/or through the issuance of long-term debt in the public or
private markets. As of November 30, 1996, the Company had $693 million
available for borrowing under its One Billion Dollar Revolver and $34
million available under the $200 Million Multi-currency Revolver.
To the extent that the Company should require or choose to fund future
capital commitments from sources other than operating cash or from
borrowings under its revolving credit facilities, the Company believes that
it will be able to secure such financing from banks or through the offering
of debt and/or equity securities in the public or private markets. In this
regard, the Company has filed two Registration Statements on Form S-3 (the
"Shelf Registration") relating to a shelf offering of up to $500 million
aggregate principal amount of debt or equity securities. At November 30,
1996, a balance of $270 million aggregate principal amount of debt or equity
securities remains available for issuance under the Shelf Registration.
SELECTED FINANCIAL DATA
The selected financial data presented below for the fiscal years ended
November 30, 1992 through 1996 and as of the end of each such fiscal year
are derived from the financial statements of the Company and should be read
in conjunction with such financial statements and the related notes.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED NOVEMBER 30,
1996 1995 1994 1993 1992
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total revenues $2,212,572 $1,998,150 $1,806,016 $1,556,919 $1,473,614
Operating income
before income from
affiliated
operations $ 551,461 $ 490,038 $ 443,674 $ 347,666 $ 324,896
Operating income $ 597,428 $ 490,038 $ 443,674 $ 347,666 $ 324,896
Net income $ 566,302 $ 451,091 $ 381,765 $ 318,170 $ 276,584
Earnings per share (1) $1.95 $1.59 $1.35 $1.13 $ .98
Dividends declared
per share (1) $.380 $.315 $.285 $.280 $.280
Passenger cruise days 10,583 9,201 8,102 7,003 6,766
Percent of total
capacity(2) 107.6% 105.0% 104.0% 105.3% 105.3%
AS OF NOVEMBER 30,
1996 1995 1994 1993 1992
(in thousands)
BALANCE SHEET DATA:
Total assets $5,101,888 $4,105,487 $3,669,823 $3,218,920 $2,645,607
Long-term debt and
convertible notes$1,316,632 $1,150,031 $1,161,904 $1,031,221 $ 776,600
Total shareholders'
equity $3,030,884 $2,344,873 $1,928,934 $1,627,206 $1,384,845
</TABLE>
- ----------------------------------
(1) All per share amounts have been adjusted to reflect a two-for-one stock
split effective November 30, 1994.
(2) In accordance with cruise industry practice, total capacity is
calculated based upon two passengers per cabin even though some cabins can
accommodate three or four passengers. The percentages in excess of 100%
indicate that more than two passengers occupied some cabins.
MARKET PRICE FOR CAPITAL STOCK
The following table sets forth for the periods indicated the high and
low market prices for the Class A Common Stock on the New York Stock
Exchange:
<TABLE>
<CAPTION>
SALES PRICE
HIGH LOW
<S> <C> <C>
Fiscal Year ended November 30, 1996:
First Quarter $29.000 $22.750
Second Quarter $30.125 $26.125
Third Quarter $31.500 $24.500
Fourth Quarter $31.875 $27.375
Fiscal Year ended November 30, 1995:
First Quarter $23.750 $19.125
Second Quarter $26.625 $22.125
Third Quarter $24.250 $20.375
Fourth Quarter $27.125 $20.625
</TABLE>
As of January 17, 1997, there were approximately 3,740 holders of
record of the Company's Class A Common Stock. All of the issued and
outstanding shares of Class B Common Stock are held by The Micky Arison 1994
"B" Trust, a United States Trust, whose primary beneficiary is Micky Arison,
the Chairman of the Board of the Company. While no tax treaty currently
exists between the Republic of Panama and the United States, under current
law, the Company believes that distributions to its shareholders are not
subject to taxation under the laws of the Republic of Panama.
SELECTED QUARTERLY FINANCIAL DATA (unaudited)
Quarterly financial results for the year ended November 30, 1996 are as
follows:
<TABLE>
<CAPTION>
FOR THE QUARTER
FIRST SECOND THIRD FOURTH
(in thousands, except per share data)
<S> <C> <C> <C> <C>
Total revenues $448,788 $516,836 $771,989 $474,959
Gross profit $185,092 $214,292 $375,794 $196,125
Operating income before income
from affiliated operations $ 80,975 $110,230 $267,155 $ 93,101
Operating income $ 80,972 $110,396 $279,948 $126,112
Net income $ 77,065 $106,283 $268,131 $114,823
Earnings per share $.27 $.37 $.92 $.39
</TABLE>
Quarterly financial results for the year ended November 30, 1995 are as
follows:
<TABLE>
<CAPTION>
FOR THE QUARTER
FIRST SECOND THIRD FOURTH
(in thousands, except per share data)
<S> <C> <C> <C> <C>
Total revenues $419,820 $452,826 $672,598 $452,906
Gross profit $172,591 $186,879 $320,463 $187,104
Operating income $ 76,912 $ 96,268 $224,120 $ 92,738
Net income $ 67,552 $ 89,769 $209,542 $ 84,228
Earnings per share $.24 $.32 $.74 $.30
</TABLE>
FORWARD-LOOKING STATEMENTS
Certain statements under the headings "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and elsewhere in
this Annual Report constitute "forward-looking statements" within the
meaning of the reform act. Such forward-looking statements involve known
and unknown risks, uncertainties and other factors, which may cause the
actual results, performances or achievements of the Company to be materially
different from any future results, performances or achievements expressed or
implied by such forward-looking statements. Such factors include, among
others, the following: general economic and business conditions which may
impact levels of disposable income of consumers and pricing and passenger
yields for the Company's cruise products; increases in cruise industry
capacity in the Caribbean and Alaska; changes in tax laws and regulations
(especially any change affecting the Company's status as a "controlled
foreign corporation" as defined in Section 957(a) of the Internal Revenue
Code); the ability of the Company to implement its shipbuilding program and
to expand its business outside the North American market where it has less
experience; delivery of new vessels on schedule and at the contracted price;
weather patterns in the Caribbean; unscheduled ship repairs and drydocking;
incidents involving cruise vessels at sea; and changes in laws and
government regulations applicable to the Company (including the
implementation of the "Safety of Life at Sea Convention" and changes in
Federal Maritime Commission surety and guaranty arrangements).
<PAGE>
EXHIBIT 23
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectuses
constituting part of the Registration Statements on Forms S-3 (No. 33-50947,
No. 33-53136 and No.33-48756) of Carnival Corporation of our report dated
January 15, 1997 appearing on page 37 of the Annual Report to Shareholders
which is incorporated in this Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
February 25, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER>1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> NOV-30-1996
<PERIOD-END> NOV-30-1996
<CASH> 111,629
<SECURITIES> 12,486
<RECEIVABLES> 38,109
<ALLOWANCES> 0
<INVENTORY> 53,281
<CURRENT-ASSETS> 290,933
<PP&E> 4,807,823
<DEPRECIATION> 708,785
<TOTAL-ASSETS> 5,101,888
<CURRENT-LIABILITIES> 662,742
<BONDS> 1,316,632
<COMMON> 2,947
0
0
<OTHER-SE> 3,027,937
<TOTAL-LIABILITY-AND-EQUITY> 5,101,888
<SALES> 0
<TOTAL-REVENUES> 2,212,572
<CGS> 0
<TOTAL-COSTS> 1,241,269
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 89,891
<INCOME-PRETAX> 575,347
<INCOME-TAX> 9,045
<INCOME-CONTINUING> 566,302
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 566,302
<EPS-PRIMARY> 1.95
<EPS-DILUTED> 1.93
</TABLE>
