SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Third Amended and Restated
Schedule 13D
Under the Securities Exchange Act of 1934
Carnival Corporation
(Name of Issuer)
Common Stock ($.01 par value)
(Title of Class of Securities)
143658 10 2
(CUSIP Number)
Arnaldo Perez, Esq.
General Counsel
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
(305) 599-2600
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
October 14, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
ESTATE OF TED ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Israel
Number of 7) Sole Voting Power: 111,386,032
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 111,386,032
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
111,386,032
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 18.1%
14) Type of Reporting Person (See Instructions): IN
Page 2
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
TAMMS INVESTMENT COMPANY, LIMITED PARTNERSHIP
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 3,653,168
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 3,653,168
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
3,653,168
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.6%
14) Type of Reporting Person (See Instructions): OO
Page 3
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
TAMMS MANAGEMENT CORPORATION
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 3,653,168
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 365,316
ing Person
With 10) Shared Dispositive Power: 3,287,852
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
3,653,168
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.6%
14) Type of Reporting Person (See Instructions): CO
Page 4
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE CONTINUED TRUST FOR MICKY ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 1,959,010
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 1,959,010
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
1,959,010
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.3%
14) Type of Reporting Person (See Instructions): OO
Page 5
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE MICKY ARISON 1997 HOLDINGS TRUST
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: 4,622,708
Owned by
Each Report- 9) Sole Dispositive Power: 4,622,708
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
4,622,708
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.8%
14) Type of Reporting Person (See Instructions): OO
Page 6
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MA 1997 HOLDINGS, L.P.
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: 4,622,708
Owned by
Each Report- 9) Sole Dispositive Power: 4,622,708
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
4,622,708
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.8%
14) Type of Reporting Person (See Instructions): PN
Page 7
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MA 1997 HOLDINGS, INC.
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: 4,622,708
Owned by
Each Report- 9) Sole Dispositive Power: 4,622,708
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
4,622,708
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.8%
14) Type of Reporting Person (See Instructions): CO
Page 8
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE MICKY ARISON 1994 "B" TRUST
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 108,114,284
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 108,114,284
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
108,114,284
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 17.6%
14) Type of Reporting Person (See Instructions): OO
Page 9
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MA 1994 B SHARES, L.P.
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 108,114,284
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 108,114,284
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
108,114,284
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 17.6%
14) Type of Reporting Person (See Instructions): PN
Page 10
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MA 1994 B SHARES, INC.
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 108,114,284
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 108,114,284
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
108,114,284
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 17.6%
14) Type of Reporting Person (See Instructions): CO
Page 11
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MICKY ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: United States
Number of 7) Sole Voting Power: 110,138,284
Shares Bene-
ficially 8) Shared Voting Power: 4,622,708
Owned by
Each Report- 9) Sole Dispositive Power: 110,198,284
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
114,760,992
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
13) Percent of Class Represented by Amount in Row (11): 18.7%
14) Type of Reporting Person (See Instructions): IN
Page 12
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE CONTINUED TRUST FOR MICHAEL ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 4,000,000
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 4,000,000
ing Person
With 10) Shared Dispositive Power: 759,010
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
4,759,010
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.8%
14) Type of Reporting Person (See Instructions): OO
Page 13
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE SHARI ARISON IRREVOCABLE GUERNSEY TRUST
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Guernsey, Channel Islands
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 7,102,708
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
7,102,708
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 1.2%
14) Type of Reporting Person (See Instructions): OO
Page 14
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE CONTINUED TRUST FOR SHARI ARISON DORSMAN
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 4,000,000
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 4,000,000
ing Person
With 10) Shared Dispositive Power: 759,010
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
4,759,010
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.8%
14) Type of Reporting Person (See Instructions): OO
Page 15
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE TED ARISON 1994 IRREVOCABLE TRUST FOR SHARI NO. 1
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Jersey, Channel Islands
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 30,085,716
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
30,085,716
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 4.9%
14) Type of Reporting Person (See Instructions): OO
Page 16
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
SHARI ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: United States and Israel
Number of 7) Sole Voting Power: 6,000,000
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 6,000,000
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
6,000,000
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 1.0%
14) Type of Reporting Person (See Instructions): IN
Page 17
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
THE MARILYN B. ARISON IRREVOCABLE DELAWARE TRUST
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 2,400,000
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 2,400,000
ing Person
With 10) Shared Dispositive Power: 1,000,000
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
3,400,000
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.6%
14) Type of Reporting Person (See Instructions): OO
Page 18
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MBA I, LLC
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: 2,400,000
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 2,400,000
ing Person
With 10) Shared Dispositive Power: 1,000,000
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
3,400,000
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 0.6%
14) Type of Reporting Person (See Instructions): OO
Page 19
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
MARILYN B. ARISON
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: United States and Israel
Number of 7) Sole Voting Power: 1,032,440
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: 1,032,440
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
1,032,440
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [X]
13) Percent of Class Represented by Amount in Row (11): 0.2%
14) Type of Reporting Person (See Instructions): IN
Page 20
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
A.H.W. LIMITED
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Guernsey, Channel Islands
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: -0-
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 7,102,708
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
7,102,708
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 1.2%
14) Type of Reporting Person (See Instructions): CO
Page 21
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
TAF MANAGEMENT COMPANY
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Delaware
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: 14,877,028
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 14,877,028
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
14,877,028
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 2.4%
14) Type of Reporting Person (See Instructions): CO
Page 22
<PAGE>
CUSIP No. 143658 10 2
A. Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
KENTISH LIMITED
B. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
C. SEC Use Only
D. Source of Funds (See Instructions): Not Applicable
E. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
F. Citizenship or Place of Organization: Isle of Man, United Kingdom
Number of G. Sole Voting Power: 30,085,716
Shares Bene-
ficially H. Shared Voting Power: -0-
Owned by
Each Report- I. Sole Dispositive Power: -0-
ing Person
With J. Shared Dispositive Power: 30,085,716
K. Aggregate Amount Beneficially Owned by Each Reporting Person:
30,085,716
L. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
M. Percent of Class Represented by Amount in Row (11): 4.9%
N. Type of Reporting Person (See Instructions): CO
Page 23
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
ANDREW H. WEINSTEIN
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: United States
Number of 7) Sole Voting Power: 30,085,716
Shares Bene-
ficially 8) Shared Voting Power: 126,263,060
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: 52,065,452
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
163,451,484
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 26.6%
14) Type of Reporting Person (See Instructions): IN
Page 24
<PAGE>
CUSIP No. 143658 10 2
1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
BOAZ NAHIR
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only
4) Source of Funds (See Instructions): Not Applicable
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
6) Citizenship or Place of Organization: Israel
Number of 7) Sole Voting Power: -0-
Shares Bene-
ficially 8) Shared Voting Power: 111,386,032
Owned by
Each Report- 9) Sole Dispositive Power: -0-
ing Person
With 10) Shared Dispositive Power: -0-
11) Aggregate Amount Beneficially Owned by Each Reporting Person:
111,386,032
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11): 18.1%
14) Type of Reporting Person (See Instructions): IN
Page 25
<PAGE>
CUSIP No. 143658 10 2
A. Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
JMD DELAWARE, INC.
B. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
C. SEC Use Only
D. Source of Funds (See Instructions): Not Applicable
E. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
F. Citizenship or Place of Organization: Delaware
Number of G. Sole Voting Power: -0-
Shares Bene-
ficially H. Shared Voting Power: 4,622,708
Owned by
Each Report- I. Sole Dispositive Power: 4,622,708
ing Person
With J. Shared Dispositive Power: -0-
K. Aggregate Amount Beneficially Owned by Each Reporting Person:
4,622,708
L. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
M. Percent of Class Represented by Amount in Row (11): 0.8%
N. Type of Reporting Person (See Instructions): CO
Page 26
<PAGE>
CUSIP No. 143658 10 2
A. Names of Reporting Persons S.S. or I.R.S. Identification Nos. of
Above Persons:
JAMES M. DUBIN
B. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
C. SEC Use Only
D. Source of Funds (See Instructions): Not Applicable
E. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) [ ]
F. Citizenship or Place of Organization: United States
Number of G. Sole Voting Power: -0-
Shares Bene-
ficially H. Shared Voting Power: 4,622,708
Owned by
Each Report- I. Sole Dispositive Power: 4,622,708
ing Person
With J. Shared Dispositive Power: -0-
K. Aggregate Amount Beneficially Owned by Each Reporting Person:
4,622,708
L. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) [ ]
M. Percent of Class Represented by Amount in Row (11): 0.8%
N. Type of Reporting Person (See Instructions): IN
Page 27
<PAGE>
The joint statement on Schedule 13D, dated December 18, 1987, as
amended and restated on October 19, 1993 and June 4, 1996, as further amended by
Amendment No. 1, dated December 6, 1996, as further amended by Amendment No. 2,
dated February 3, 1997, as further amended by Amendment No. 3, dated August 5,
1997, and as further amended by Amendment No. 4, dated March 2, 1998, of the
Estate of Ted Arison, TAMMS Investment Company, Limited Partnership, TAMMS
Management Corporation, the Continued Trust for Micky Arison, the Micky Arison
1997 Holdings Trust, MA 1997 Holdings, L.P., MA 1997 Holdings, Inc., the Micky
Arison 1994 "B" Trust, MA 1994 B Shares, L.P., MA 1994 B Shares, Inc., Micky
Arison, the Continued Trust for Michael Arison, the Shari Arison Irrevocable
Guernsey Trust, the Continued Trust for Shari Arison Dorsman, the Ted Arison
1994 Irrevocable Trust for Shari No. 1, Shari Arison, the Marilyn B. Arison
Irrevocable Delaware Trust, MBA I, LLC, Marilyn B. Arison, A.H.W. Limited, TAF
Management Company, Kentish Limited, Andrew H. Weinstein, Boaz Nahir, JMD
Delaware, Inc. and James M. Dubin is hereby amended and restated in its entirety
as follows:
1. Security and Issuer
This statement relates to the Common Stock, par value $.01 per
share (the "Common Stock"), of Carnival Corporation, a Panamanian corporation
(the "Issuer"). The Issuer maintains its principal executive offices at 3655
N.W. 87th Avenue, Miami, Florida 33178-2428.
2. Identity and Background
(a) This statement is filed by: (i) the Estate of Ted Arison; (ii)
TAMMS Investment Company, Limited Partnership ("TAMMS L.P."); (iii) TAMMS
Management Corporation ("TAMMS Corp."); (iv) the Continued Trust for Micky
Arison (the "Micky Arison Continued Trust"); (v) the Micky Arison 1997 Holdings
Trust ("Micky Arison 1997 Trust"); (vi) MA 1997 Holdings, L.P. ("MA 1997,
L.P."); (vii) MA 1997 Holdings, Inc. ("MA 1997, Inc."); (viii) the Micky Arison
1994 "B" Trust (the "B Trust"); (ix) MA 1994 B Shares, L.P. ("B Shares, L.P.");
(x) MA 1994 B Shares, Inc. ("B Shares, Inc."); (xi) Micky Arison; (xii) the
Continued Trust for Michael Arison (the "Michael Arison Continued Trust");
(xiii) the Shari Arison Irrevocable Guernsey Trust (the "Shari Arison Guernsey
Trust"); (xiv) the Continued Trust for Shari Arison Dorsman (the "Shari Arison
Continued Trust"); (xv) the Ted Arison 1994 Irrevocable Trust for Shari No. 1, a
Jersey trust (the "Shari Arison Trust No. 1"); (xvi) Shari Arison; (xvii) the
Marilyn B. Arison Irrevocable Delaware Trust (the "Marilyn Arison Delaware
Trust"); (xviii) MBA I, LLC ("MBA"); (xix) Marilyn B. Arison; (xx) A.H.W.
Limited ("A.H.W. Limited"); (xxi) TAF Management Company ("TAF Management");
(xxii) Kentish Limited ("Kentish"); (xxiii) Andrew H. Weinstein; (xxiv) Boaz
Nahir; (xxv) JMD Delaware, Inc. ("JMD Delaware"); and (xxvi) James M. Dubin
(such entities and persons being sometimes hereinafter referred to as the
"Reporting Persons").
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<PAGE>
Micky Arison is the Chairman, Chief Executive Officer and a
Director of the Issuer, President and Treasurer of TAMMS Corp. and beneficiary
of the Micky Arison Continued Trust, the Micky Arison 1997 Trust and the B
Trust. Shari Arison is a Director of the Issuer and the beneficiary of the Shari
Arison Guernsey Trust, the Shari Arison Continued Trust and the Shari Arison
Trust No. 1. Marilyn Arison is the beneficiary of the Marilyn Arison Delaware
Trust. Micky Arison and Shari Arison are the children of Ted Arison. Marilyn
Arison is the widow of Ted Arison. Andrew H. Weinstein is one of two temporary
administrators of the Estate of Ted Arison and the sole shareholder and officer
of (i) TAF Management, the trustee of the Michael Arison Continued Trust, the
Shari Arison Continued Trust, the Micky Arison Continued Trust, and the Marilyn
Arison Delaware Trust, (ii) A.H.W. Limited, the trustee of the Shari Arison
Guernsey Trust, and (iii) Kentish, the protector of the Shari Arison Trust No.
1. Boaz Nahir is the other temporary administrator of the Estate of Ted Arison.
James M. Dubin is a sole shareholder and officer of JMD Delaware, the corporate
trustee of the Micky Arison 1997 Trust and the B Trust.
(b) and (c)(i) The Estate of Ted Arison has two temporary
administrators, which were named as such on October 14, 1999. Such temporary
administrators are Andrew H. Weinstein and Boaz Nahir. Mr. Weinstein is a
partner at the law firm of Holland & Knight LLP, and his business address is
Holland & Knight LLP, 701 Brickell Avenue, 30th Floor, Miami, FL 33131. Mr.
Nahir is an attorney in Israel. His business address is I. Gornitzky & Co., 45
Rothschild Boulevard, Tel Aviv, 61291, Israel.
(c)(ii) TAMMS L.P. is a Delaware limited partnership formed for the
purpose of, among other things, investing in, owning, selling, acquiring,
managing and exercising the voting rights associated with marketable securities,
including securities issued by the Issuer. The principal business office of
TAMMS L.P. is located at 1201 North Market Street, 18th Floor, Wilmington,
Delaware 19899. The general partners and limited partners of TAMMS L.P. are as
follows:
(1) TAMMS Corp., the Managing General Partner of TAMMS L.P.,
has approximately a 0.89% interest in the Common Stock held by TAMMS L.P.
(2) The Shari Arison Continued Trust, a Class A Limited
Partner of TAMMS L.P., has approximately a 20.78% interest in the Common Stock
held by TAMMS L.P.
(3) The Michael Arison Continued Trust, a Class A Limited
Partner of TAMMS L.P., has approximately a 20.78% interest in the Common Stock
held by TAMMS L.P.
(4) The Shari Arison Guernsey Trust, a Class A Limited Partner
of TAMMS L.P., has approximately a 30.18% interest in the Common Stock held by
TAMMS L.P.
Page 29
<PAGE>
(5) MBA, a Class A Limited Partner of TAMMS L.P., has
approximately a 27.37% interest in the Common Stock held by TAMMS L.P.
(c)(iii) TAMMS Corp. is a Delaware corporation, the principal
business of which is acting as Managing General Partner of TAMMS L.P. Its
business address is c/o Pacheco Coto, P.O. Box 6610-1000, San Jose, Costa Rica.
The name, residence or business address and principal occupation or employment
of each director, executive officer and controlling person of TAMMS Corp. are as
follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
Marilyn B. Arison Marcaz Golda Center, 23 Shaul Investor
Hamelech Boulevard
Tel-Aviv 64367
Israel
Micky Arison 3655 N.W. 87th Avenue Chairman of the
Miami, FL 33178-2428 Board and Chief
Executive Officer of
the Issuer
Johannes R. Kramer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell Morris, Nichols,
1201 N. Market Street Arsht & Tunnell
Wilmington, DE 19899 ("MNA&T")
Walter C. Tuthill Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Denison H. Hatch, Jr. Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Arnaldo Perez 3655 N.W. 87th Avenue Vice President,
Miami, FL 33178-2428 Secretary and General
Counsel of the Issuer
Henry Eckstein Properties of Hamilton, Inc. Real Property
555 N.E. 34th Street Manager and Advisor
Suite 201
Miami, FL 33137
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<PAGE>
(c)(iv) The Micky Arison Continued Trust is a Delaware trust
established for the benefit of Micky Arison. The business address of the Micky
Arison Continued Trust is 1201 North Market Street, Wilmington, Delaware 19899-
1347. The sole trustee of the Continued Trust for Micky Arison is TAF
Management. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of TAF
Management are set forth in Item 2(c)(xii).
(c)(v) The Micky Arison 1997 Trust is a Delaware trust formed for
the benefit of Micky Arison and his heirs. The business address of the Micky
Arison 1997 Trust is 1201 North Market Street, Wilmington, Delaware 19899-1347.
The sole trustee of the Micky Arison 1997 Trust is JMD Delaware, a Delaware
corporation whose principal purpose is to serve as trustee for certain trusts
established for the benefit of members of the Arison family. The name, residence
or business address and principal occupation or employment of each director,
executive officer and controlling person of JMD Delaware are as follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
James M. Dubin Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Jonathan R. Bell Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Denison H. Hatch, Jr. Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Johannes R. Krahmer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Walter C. Tuthill Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
(c)(vi) MA 1997, L.P. is a Delaware limited partnership whose
principal purpose is to hold and manage investments for the benefit of members
of the Arison family. The business address of MA 1997, L.P. is 1201 North Market
Street,
Page 31
<PAGE>
Wilmington, Delaware 19899-1347. The general partner of MA 1997, L.P. is MA
1997, Inc., a Delaware corporation which is wholly owned by the Micky Arison
1997 Trust. The sole limited partner of MA 1997, L.P. is the Micky Arison 1997
Trust. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of MA
1997, Inc. are as follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
James M. Dubin Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Jonathan R. Bell Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Denison H. Hatch, Jr. Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Johannes R. Krahmer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Walter C. Tuthill Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
(c)(vii) MA 1997, Inc. is a Delaware corporation whose principal
purpose is to serve as the general partner for MA 1997, L.P. The business
address of MA 1997, Inc. is 1201 North Market Street, Wilmington, Delaware
19899-1347. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of MA
1997, Inc. are set forth in Item 2(c)(vi).
(c)(viii) The B Trust is a Delaware trust formed for the benefit of
Micky Arison and his heirs. The business address of the B Trust is 1201 North
Market Street, Wilmington, Delaware 19899-1347. The sole trustee of the B Trust
is JMD Delaware, a Delaware corporation whose principal purpose is to serve as
trustee for certain trusts established for the benefit of members of the Arison
family. The name, residence or business address and principal occupation or
employment of each
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<PAGE>
director, executive officer and controlling person of JMD Delaware are set forth
in Item 2(c)(v).
(c)(ix) B Shares, L.P. is a Delaware limited partnership whose
principal purpose is to hold and manage investments for the benefit of members
of the Arison family. The business address of B Shares, L.P. is 1201 North
Market Street, Wilmington, Delaware 19899-1347. The general partner of B Shares,
L.P. is MA 1994 B Shares, Inc., a Delaware corporation which is wholly owned by
the B Trust. The sole limited partner of B Shares, L.P. is the B Trust. The
name, residence or business address and principal occupation or employment of
each director, executive officer and controlling person of B Shares, Inc. are as
follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
James M. Dubin Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Jonathan R. Bell Paul, Weiss, Rifkind, Wharton Attorney-at-Law at
& Garrison Paul, Weiss, Rifkind,
1285 Avenue of the Americas Wharton & Garrison
New York, New York 10019
Denison H. Hatch, Jr. Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Johannes R. Krahmer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Walter C. Tuthill Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
(c)(x) B Shares, Inc. is a Delaware corporation whose principal
purpose is to serve as the general partner of B Shares, L.P. The business
address of B Shares, Inc. is 1201 North Market Street, Wilmington, Delaware
19899-1347. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of B
Shares, Inc. are set forth in Item 2(c)(ix).
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<PAGE>
(c)(xi) Micky Arison is the Chairman of the Board, Chief Executive
Officer and a Director of the Issuer. Mr. Arison's business address is 3655
N.W. 87th Avenue, Miami, Florida 33178-2428.
(c)(xii) The Michael Arison Continued Trust is a Delaware trust
established for the benefit of Michael Arison. The business address of the
Michael Arison Continued Trust is 1201 North Market Street, Wilmington, Delaware
19899- 1347. The sole trustee of the Michael Arison Continued Trust is TAF
Management, a Delaware corporation whose principal purpose is to serve as
trustee for certain trusts established for the benefit of members of the Arison
family. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of TAF
Management are as follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
Andrew H. Weinstein Holland & Knight LLP Attorney-at-Law at
701 Brickell Ave., 30th Floor Holland & Knight
Miami, FL 33131 LLP
Johannes R. Krahmer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Thomas R. Pulsifer Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
Denison H. Hatch, Jr. Morris, Nichols, Arsht & Attorney-at-Law at
Tunnell MNA&T
1201 N. Market Street
Wilmington, DE 19899
(c)(xiii) The Shari Arison Guernsey Trust is a Guernsey trust
established for the benefit of Shari Arison. The business address of the Shari
Arison Guernsey Trust is c/o Barings (Guernsey) Limited, P.O. Box 71, Arnold
House, St. Julian's Avenue, St. Peter Port, Guernsey, Channel Islands. The sole
trustee of the Shari Arison Guernsey Trust is A.H.W. Limited. The name,
residence or business address and principal occupation or employment of each
director, executive officer and controlling person of A.H.W. Limited are set
forth in Item 2(c)(xx).
(c)(xiv) The Shari Arison Continued Trust is a Delaware trust
established for the benefit of Shari Arison. The business address of the Shari
Arison Continued Trust is 1201 North Market Street, Wilmington, Delaware
19899-1347. The sole trustee of the Shari Arison Continued Trust is TAF
Management. The
Page 34
<PAGE>
name, residence or business address and principal occupation or employment of
each director, executive officer and controlling person of TAF Management are
set forth in Item 2(c)(xii).
(c)(xv) The Shari Arison Trust No. 1 is a Jersey trust established
for the benefit of Shari Arison. The address of the trust is c/o Cititrust
(Jersey) Limited, P.O. Box 728, 38 Esplanade, St. Helier, Jersey, Channel
Islands. The sole trustee of the trust is Cititrust (Jersey) Limited, which is a
company organized under the laws of Jersey, Channel Islands, the principal
business of which is the provision of trustee company services.
(c)(xvi) Shari Arison is an investor. Ms. Arison's business address
is Marcaz Golda Center, 23 Shaul Hamelech Blvd., Tel-Aviv 64367 Israel.
(c)(xvii) The Marilyn Arison Delaware Trust is a Delaware trust
established for the benefit of Marilyn B. Arison. The business address of the
Marilyn Arison Delaware Trust is 1201 North Market Street, Wilmington, Delaware
19899- 1347. The sole trustee of the Marilyn Arison Delaware Trust is TAF
Management. The name, residence or business address and principal occupation or
employment of each director, executive officer and controlling person of TAF
Management are set forth in Item 2(c)(xii).
(c)(xviii) MBA is a Delaware limited liability company whose
principal purpose is to hold and manage the investments previously held directly
by the Marilyn B. Arison Irrevocable Delaware Trust (the "Marilyn Arison
Trust"). The business address of MBA is 1201 North Market Street, Wilmington,
Delaware 19899-1347. The two members of MBA are the Marilyn Arison Trust and
MDT I, Inc., a Delaware corporation which is wholly owned by the Marilyn Arison
Trust. The principal purpose of MDT I, Inc. is to serve as a member of certain
limited liability companies established by the Marilyn Arison Trust.
(c)(xix) Marilyn B. Arison is an investor. Ms. Arison's business
address is Marcaz Golda Center, 23 Shaul Hamelech Blvd., Tel-Aviv 64367 Israel.
(c)(xx) A.H.W. Limited is a Guernsey corporation the principal
business of which is to carry on the business of an executor or trustee company
generally. The address of A.H.W. Limited is c/o Baring Trustees (Guernsey)
Limited, P.O. Box 71, Arnold House, St. Julian's Avenue, St. Peter Port,
Guernsey, Channel Islands. The name, residence or business address and principal
occupation
Page 35
<PAGE>
or employment of each director, executive officer and controlling person of
A.H.W. Limited are as follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
Andrew H. Weinstein Holland & Knight LLP Attorney-at-Law at
701 Brickell Ave., 30th Floor Holland & Knight
Miami, FL 33131 LLP
Nigel Peter de la Rue P.O. Box 71 Banker & Company
Arnold House Director
St. Julian's Avenue
St. Peter Port
Guernsey GY1 3DA
Channel Islands
James Colin Trott P.O. Box 71 Banker & Company
Arnold House Director
St. Julian's Avenue
St. Peter Port
Guernsey GY1 3DA
Channel Islands
Robert James Banfield P.O. Box 71 Banker & Company
Arnold House Director
St. Julian's Avenue
St. Peter Port
Guernsey GY1 3DA
Channel Islands
(c)(xxi) TAF Management is a Delaware corporation whose principal
purpose is to serve as trustee for certain trusts established for the benefit of
members of the Arison family. The name, residence or business address and
principal occupation or employment of each director, executive officer and
controlling person of TAF Management are set forth in Item 2(c)(xii).
(c)(xxii) Kentish Limited is an Isle of Man Corporation, the
principal business of which is to serve as a protector of certain trusts. The
address of the corporation is St. Jame's Chambers, Athol Street, Douglas, Isle
of Man. The corporation is the protector of the Shari Arison Guernsey Trust and
Shari Arison Trust No. 1 and has certain voting and dispositive rights with
respect to the Common
Page 36
<PAGE>
Stock held by such trusts. The name, residence or business address and principal
occupation or employment of each director, executive officer and controlling
person of Kentish are as follows:
Residence or Principal Occupation
Name Business Address or Employment
---- ---------------- -------------
Alan Crowther 30 Cronk Drean Trust Administrator,
Douglas, Isle of Man Barings (Isle of Man)
Limited
Philip Peter Scales Manderley Managing Director
31 Selborne Drive and Chartered
Douglas, Isle of Man Secretary, Barings
(Isle of Man) Limited
Andrew H. Weinstein Holland & Knight LLP Attorney-at-Law at
701 Brickell Ave., 30th Floor Holland & Knight
Miami, FL 33131 LLP
(c)(xxiii) Andrew H. Weinstein is a partner at the law firm of
Holland & Knight LLP. Mr. Weinstein's business address is Holland & Knight LLP,
701 Brickell Avenue, 30th Floor, Miami, Florida 33131.
(c)(xxiv) Boaz Nahir is a partner at I. Gornitzky & Co. in Israel.
His business address is I. Gornitzky & Co., 45 Rothschild Boulevard, Tel Aviv,
61291, Israel.
(c)(xxv) JMD Delaware is a Delaware corporation whose principal
purpose is to serve as trustee for certain trusts established for the benefit of
members of the Arison family. The business address of JMD Delaware is 1201 North
Market Street, Wilmington, Delaware 19899-1347. The name, residence or business
address and principal occupation or employment of each director, executive
officer and controlling person of JMD Delaware are set forth in Item 2(c)(v).
(c)(xxvi) James M. Dubin is a partner at the law firm of Paul,
Weiss, Rifkind, Wharton & Garrison. Mr. Dubin is the sole stockholder of JMD
Delaware, a Delaware corporation whose principal purpose is to serve as trustee
for certain trusts established for the benefit of members of the Arison family.
Mr. Dubin's business address is Paul, Weiss, Rifkind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019-6064.
(d) During the last five years, none of the Reporting Persons nor
any of their respective general partners, executive officers, directors or
controlling persons was convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
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<PAGE>
(e) During the last five years, none of the Reporting Persons nor
any of their respective general partners, executive officers, directors or
controlling persons was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction resulting in or being subject to a
judgment, decree or final order enjoining such person from future violations of
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation of such laws by any such person.
(f) The natural persons who are Reporting Persons or officers,
directors or controlling persons of the Reporting Persons have the following
citizenship:
Madeleine Arison, Marilyn Arison, Micky Arison, Jonathan R. Bell,
James M. Dubin, Henry Eckstein, Denison H. Hatch, Jr., Johannes R.
Krahmer, Thomas R. Pulsifer, Walter C. Tuthill, Arnaldo Perez and
Andrew H. Weinstein: United States;
Boaz Nahir: Israel;
Shari Arison: Israel and United States; and
R.J. Banfield, Alan Crowther, Nigel Peter de la Rue, Philip Peter
Scales and James Colin Trott: British.
3.. Source and Amount of Funds or Other Consideration
N/A
4.. Purpose of Transaction.
The joint statement on Schedule 13D, dated December 18, 1987, as
amended and restated on October 19, 1993 and June 4, 1996, as further amended by
Amendment No. 1, dated December 6, 1996, as further amended by Amendment No. 2,
dated February 3, 1997, as further amended by Amendment No. 3, dated August 5,
1997, and as further amended by Amendment No. 4, dated March 2, 1998, was
originally filed to report beneficial ownership of the outstanding Common Stock
of the Issuer.
Since the date of the last report, the Reporting Persons have
disposed of 2,000,000 shares of Common Stock and acquired 884,000 shares of
Common Stock. These changes were accomplished by: (a) the gift by MA 1997, L.P.
of 2,000,000 shares of Common Stock to the Arison Foundation, Inc. on December
21, 1998, which the Arison Foundation, Inc. immediately sold; (b) the vesting on
May 30, 1998 of 400,000 options, on May 30, 1999 of 400,000 options and on
January 12, 1999 of 24,000 options granted to Micky Arison exercisable as to a
total of 824,000 shares of Common Stock at a purchase price for 800,000 shares
of $11.25
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<PAGE>
per share and a purchase price for 24,000 shares of $26.41 per share; and (c)
the acquisition of 60,000 shares of Common Stock by Micky Arison on January 11,
1999, and the subsequent transfer of such shares to MA 1997, L.P. on February
10, 1999.
In addition, upon the death of Ted Arison two temporary
administrators were appointed over the shares beneficially owned by the Estate
of Ted Arison.
None of the Reporting Persons have any current plans to change the
management or operations of the Issuer.
Item 5. Interest in Securities of the Issuer.
The Estate of Ted Arison beneficially owns 111,386,032 shares of
Common Stock (approximately 18.1% of the total number of shares of Common Stock
reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ending
August 31, 1999 to be outstanding as of October 14, 1999). Ted Arison passed
away on October 1, 1999. It is expected that Ted Arison's will shall be admitted
for probate in both Israel in The Court for Family Matters and the Isle of Man
in The High Court of Justice within the next several months; thereafter, the
shares held by the Estate of Ted Arison will be transferred pursuant to his
will. Andrew Weinstein and Boaz Nahir have been appointed temporary
administrators of the Estate of Ted Arison until his will is probated. As
temporary administrators, Messrs. Weinstein and Nahir have voting power over the
shares held by the estate. Pursuant to Ted Arison's will and as stated in an
Israeli court order, Micky Arison may advise Messrs. Weinstein and Nahir as to
voting the shares of Common Stock held by the estate, but Messrs. Weinstein and
Nahir ultimately have sole voting power over such shares.
TAMMS L.P. may be deemed to own beneficially 3,653,168 shares of
Common Stock (approximately 0.6% of the total number of shares of Common Stock
reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ending
August 31, 1999 to be outstanding as of October 14, 1999). TAMMS L.P. has sole
voting power and sole dispositive power over the 3,653,168 shares of Common
Stock held by TAMMS L.P.
TAMMS Corp. is the Managing General Partner of TAMMS L.P. and as
such is entitled, pursuant to the Limited Partnership Agreement, to exercise all
voting rights with respect to the Common Stock held by TAMMS L.P. Marilyn B.
Arison is the sole shareholder of TAMMS Corp. TAMMS Corp. may be deemed to own
beneficially all the 3,653,168 shares of Common Stock (approximately 0.6% of the
total number of shares of Common Stock reported in the Issuer's Quarterly Report
on Form 10-Q for the quarter ending August 31, 1999 to be outstanding as of
October 14, 1999) beneficially owned by TAMMS L.P. TAMMS Corp. has sole voting
power over the 3,653,168 shares of Common Stock directly held by TAMMS L.P.
Pursuant to the Limited Partnership Agreement, the Managing General Partner of
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TAMMS L.P. can dispose of up to 10% in value of the property of TAMMS L.P. To
dispose of a greater amount of the property, consent of a majority interest of
the partners in TAMMS L.P. is needed. Thus, TAMMS Corp. has sole dispositive
power over 365,316 shares of Common Stock held by TAMMS L.P. and shares
dispositive power over the remaining 3,287,852 shares of Common Stock held by
TAMMS L.P.
The Micky Arison Continued Trust beneficially owns an aggregate of
1,959,010 shares of Common Stock (approximately 0.3% of the total number of
shares of Common Stock reported in the Issuer's Quarterly Report on Form 10-Q
for the quarter ending August 31, 1999 to be outstanding as of October 14,
1999), all of which it holds directly. The Micky Arison Continued Trust has sole
voting power and dispositive power with respect to 1,959,010 of the shares of
Common Stock held by it.
The Micky Arison 1997 Trust beneficially owns 4,622,708 shares of
Common Stock (approximately 0.8% of the total number of shares reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to
be outstanding as of October 14, 1999), by virtue of being the sole stockholder
of MA 1997, Inc. The Micky Arison 1997 Trust has shared voting power and sole
dispositive power with respect to all such shares of Common Stock.
MA 1997, L.P. beneficially owns an aggregate of 4,622,708 shares of
Common Stock (approximately 0.8% of the total number of shares reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to
be outstanding as of October 14, 1999), all of which it holds directly. MA 1997,
L.P. has shared voting and sole dispositive power with respect to all such
shares of Common Stock that it holds directly.
MA 1997, Inc. beneficially owns an aggregate of 4,622,708 shares of
Common Stock (approximately 0.8% of the total number of shares reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to
be outstanding as of October 14, 1999), by virtue of being the general partner
of MA 1997, L.P. MA 1997, Inc. has shared voting and sole dispositive power with
respect to all such shares of Common Stock.
The B Trust beneficially owns 108,114,284 shares of Common Stock
(approximately 17.6% of the total number of shares reported in the Issuer's
Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to be
outstanding as of October 14, 1999), by virtue of being the sole stockholder of
B Shares, Inc. The B Trust has sole voting power and dispositive power with
respect to all such shares of Common Stock held by B Shares, L.P.
B Shares, L.P. beneficially owns an aggregate of 108,114,284 shares
of Common Stock (approximately 17.6% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be
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outstanding as of October 14, 1999), which its holds directly. B Shares, L.P.
has sole voting and dispositive power with respect to all such shares of Common
Stock.
B Shares, Inc. beneficially owns an aggregate of 108,114,284 shares
of Common Stock (approximately 17.6% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be outstanding as of October 14, 1999), by virtue of being the general
partner of B Shares, L.P. B Shares, Inc. has sole voting and dispositive power
with respect to all such shares of Common Stock.
Micky Arison beneficially owns an aggregate of 114,760,992 shares
of Common Stock (approximately 18.7% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be outstanding as of October 14, 1999), 2,024,000 shares of which are
underlying vested options which he holds directly, 4,622,708 shares with respect
to which he has a beneficial interest by virtue of the interest and authority
granted to him under the trust instrument for the Micky Arison 1997 Trust and
108,114,284 shares with respect to which he has a beneficial interest by virtue
of the interest and authority granted to him under the trust instrument for the
B Trust. Micky Arison shares voting power and has sole dispositive power with
respect to the 4,622,708 shares of Common Stock indirectly held by the Micky
Arison 1997 Trust and has sole voting and dispositive power with respect to the
108,114,284 shares of Common Stock indirectly held by the B Trust.
Because of his status as President and Treasurer of TAMMS Corp.,
Micky Arison may be deemed to share voting power with respect to the 3,653,168
shares of Common Stock beneficially owned by TAMMS L.P. Micky Arison disclaims
beneficial ownership of the 3,653,168 shares of Common Stock owned by TAMMS L.P.
which are beneficially owned by the partners of TAMMS L.P. Accordingly, Micky
Arison has not reported beneficial ownership of any of the shares of Common
Stock held by TAMMS L.P.
The Michael Arison Continued Trust beneficially owns an aggregate
of 4,759,010 shares of Common Stock (approximately 0.8% of the total number of
shares of Common Stock reported in the Issuer's Quarterly Report on Form 10-Q
for the quarter ending August 31, 1999 to be outstanding as of October 14,
1999), 4,000,000 of which it holds directly and 759,010 of which it holds
beneficially by virtue of its interest in TAMMS L.P. The Michael Arison
Continued Trust has sole voting and dispositive power with respect to the
4,000,000 shares of Common Stock held by it and shares dispositive power over
the 759,010 shares of Common Stock held by TAMMS L.P.
The Shari Arison Guernsey Trust beneficially owns an aggregate of
7,102,708 shares of Common Stock (approximately 1.2% of the total number of
shares reported in the Issuer's Quarterly Report on Form 10-Q for the quarter
ending August 31, 1999 to be outstanding as of October 14, 1999), 6,000,000 of
which it
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owns directly and 1,102,708 of which it holds beneficially by virtue of its
interest in TAMMS L.P. The Shari Arison Guernsey Trust has shared dispositive
power over all 7,102,708 shares of Common Stock.
The Shari Arison Continued Trust beneficially owns an aggregate of
4,759,010 shares of Common Stock (approximately 0.8% of the total number of
shares of Common Stock reported in the Issuer's Quarterly Report on Form 10-Q
for the quarter ending August 31, 1999 to be outstanding as of October 14,
1999), 4,000,000 of which it holds directly and 759,010 of which it holds
beneficially by virtue of its interest in TAMMS L.P. The Shari Arison Continued
Trust has sole voting and dispositive power with respect to the 4,000,000 shares
of Common Stock held by it and shares dispositive power over the 759,010 shares
of Common Stock held by TAMMS L.P.
The Shari Arison Trust No. 1 beneficially owns the 30,085,716
shares of Common Stock for which it exercises shared dispositive power
(approximately 4.9% of the total number of shares reported in the Issuer's
Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to be
outstanding as of October 14, 1999). Kentish is the protector of the Shari
Arison Trust No. 1 and pursuant to the terms of the trust instrument for such
trust has certain voting and dispositive powers in respect of the 30,085,716
shares of Common Stock held by it. Accordingly, Kentish may be deemed to
beneficially own such shares for which it exercises sole voting and shared
dispositive power. Kentish disclaims beneficial ownership of such shares.
Shari Arison beneficially owns 6,000,000 shares of Common Stock
(approximately 1.0% of the total number of shares reported in the Issuer's
Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to be
outstanding as of October 14, 1999) directly held by the Shari Arison
Irrevocable Guernsey Trust. Shari Arison has sole voting power with respect to
6,000,000 shares directly held by the Shari Arison Irrevocable Guernsey Trust
and shared dispositive power with respect to such shares.
The Marilyn Arison Delaware Trust beneficially owns an aggregate of
3,400,000 shares of Common Stock (approximately 0.6% of the total number of
shares of Common Stock reported in the Issuer's Quarterly Report on Form 10-Q
for the quarter ending August 31, 1999 to be outstanding as of October 14,
1999), 2,400,000 of which it holds beneficially by virtue of its interest in MBA
and 1,000,000 of which it holds beneficially by virtue of the limited
partnership interest of MBA in TAMMS, L.P. The Marilyn B. Arison Delaware Trust
has sole voting and dispositive power with respect to the 2,400,000 shares of
Common Stock held by MBA and exercises shared dispositive power over the
1,000,000 shares of Common Stock held by TAMMS L.P.
MBA beneficially owns an aggregate of 3,400,000 shares of Common
Stock (approximately 0.6% of the total number of shares reported in the Issuer's
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Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to be
outstanding as of October 14, 1999), 2,400,000 shares of which it holds directly
and 1,000,000 shares of which it owns beneficially by virtue of its interest in
TAMMS L.P. MBA has sole voting and dispositive power over the 2,400,000 shares
it holds directly and exercises shared dispositive power over the 1,000,000
shares of Common Stock held by TAMMS L.P.
Marilyn B. Arison beneficially owns an aggregate of 1,032,440
shares of Common Stock (approximately 0.2% of the total number of shares
reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ending
August 31, 1999 to be outstanding as of October 14, 1999). Because of her
controlling interest in TAMMS L.P. (through TAMMS Corp.), Marilyn B. Arison may
be deemed to share dispositive and voting power over, and to beneficially own,
the 3,653,168 of such shares of Common Stock (approximately 0.6% of the total
number of shares reported in the Issuer's Quarterly Report on Form 10-Q for the
quarter ending August 31, 1999 to be outstanding as of October 14, 1999)
beneficially owned by TAMMS L.P.; however, Marilyn B. Arison disclaims
beneficial ownership of 2,620,728 of such shares which are beneficially owned by
certain other partners of TAMMS L.P. Accordingly, Marilyn B. Arison has only
reported beneficial ownership of 1,032,440 shares of Common Stock held by TAMMS
L.P.
A.H.W. Limited beneficially owns an aggregate of 7,102,708 shares
of Common Stock (approximately 1.2% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be outstanding as of October 14, 1999), by virtue of being the trustee
of the Shari Arison Irrevocable Guernsey Trust. A.H.W. Limited has shared
dispositive power over 6,000,000 shares of Common Stock directly held by the
Shari Arison Irrevocable Guernsey Trust and also over 1,102,708 shares of Common
Stock held by TAMMS L.P. A.H.W. Limited disclaims beneficial ownership of all
such TAMMS L.P.
shares.
TAF Management beneficially owns an aggregate of 14,877,028 shares
of Common Stock (approximately 2.4% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be outstanding as of October 14, 1999), by virtue of being the trustee
of the Michael Arison Continued Trust, the Shari Arison Continued Trust, the
Micky Arison Continued Trust and the Marilyn Arison Delaware Trust. TAF
Management may be deemed to share voting and dispositive power with respect to
all such shares of Common Stock. TAF Management disclaims beneficial ownership
of all such shares of Common Stock.
Andrew H. Weinstein beneficially owns an aggregate of 163,451,484
shares of Common Stock (approximately 26.6% of the total number of shares
reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ending
August 31, 1999 to be outstanding as of October 14, 1999), by virtue of being
one of
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two temporary administrators of the Estate of Ted Arison and the sole
shareholder of (i) TAF Management, the trustee of the Michael Arison Continued
Trust, the Shari Arison Continued Trust, the Micky Arison Continued Trust and
the Marilyn Arison Delaware Trust, (ii) A.H.W. Limited, the trustee of the Shari
Arison Guernsey Trust, and (iii) Kentish Limited, the protector of the Shari
Arison Trust No. 1. As such, Mr. Weinstein may be deemed to share voting and
dispositive power with respect to all of the shares of Common Stock held by the
trusts listed in clause (i) above, to have shared dispositive power with respect
to the shares of Common Stock held by the trust listed in clause (ii) above, and
to have sole voting power and shared dispositive power with respect to the
shares of Common Stock held by the trust listed in clause (iii) above, and to
have shared voting power over the shares of Common Stock for which he is
temporary administrator. Mr. Weinstein disclaims beneficial ownership of all
such shares of Common Stock.
Boaz Nahir beneficially owns an aggregate of 111,386,032 shares of
Common Stock (approximately 18.1% of the total number of shares reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to
be outstanding as of October 14, 1999), by virtue of being one of two temporary
administrators of the Estate of Ted Arison. Mr. Nahir disclaims beneficial
ownership of all such shares of Common Stock.
JMD Delaware beneficially owns an aggregate of 4,622,708 shares of
Common Stock (approximately 0.8% of the total number of shares reported in the
Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31, 1999 to
be outstanding as of October 14, 1999), by virtue of being the trustee of the
1997 MA Trust. JMD Delaware may be deemed to have shared voting and sole
dispositive power with respect to the 4,562,708 shares of Common Stock
indirectly held by the Micky Arison 1997 Trust. JMD Delaware disclaims
beneficial ownership of all such shares of Common Stock.
James M. Dubin beneficially owns an aggregate of 4,622,708 shares
of Common Stock (approximately 0.8% of the total number of shares reported in
the Issuer's Quarterly Report on Form 10-Q for the quarter ending August 31,
1999 to be outstanding as of October 14, 1999), by virtue of being the sole
shareholder of JMD Delaware, the trustee of the Micky Arison 1997 Trust. Mr.
Dubin may be deemed to have shared voting and sole dispositive power with
respect to the 4,562,708 shares of Common Stock indirectly held by the Micky
Arison 1997 Trust. Mr. Dubin disclaims beneficial ownership of all such shares
of Common Stock.
The Reporting Persons, as a group, beneficially own an aggregate of
274,807,750 shares of Common Stock (approximately 44.78% of the total number of
shares reported in the Issuer's Quarterly Report on Form 10-Q for the quarter
ending August 31, 1999 to be outstanding as of October 14, 1999). The Reporting
Persons, as a group, have sole voting and dispositive power over such shares of
Common Stock.
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Other than the Reporting Persons, no person has the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of these shares of Common Stock.
Except for the foregoing, the Reporting Persons have effected no
transactions in shares of Common Stock during the past 60 days.
Item 6. Contracts, Arrangements, Understanding or Relationships with
Respect to Securities of the Issuer
The Limited Partnership Agreement, among TAMMS Corp. as Managing
General Partner and each of the Shari Arison Continued Trust, the Michael Arison
Continued Trust, Micky Arison, The Shari Arison Guernsey Trust and MBA as
limited partners was formed for the purposes described in Item 2 above. Pursuant
to the Limited Partnership Agreement, the Managing General Partner is
specifically authorized to, among other things, (i) exercise the voting rights
associated with the Common Stock owned by TAMMS L.P., and (ii) sell, exchange or
convey the shares of Common Stock owned by TAMMS L.P., provided that the
Managing General Partner may not sell, lease, transfer, assign, pledge or
encumber 10% or more in value of the property of TAMMS L.P. (including Common
Stock) without the consent of partners holding in the aggregate a majority
interest in TAMMS L.P. (except in the case of withdrawal of a partner or
dissolution of TAMMS L.P.). This description of the Limited Partnership
Agreement is qualified in its entirety by reference to the Limited Partnership
Agreement which was previously filed and is incorporated herein by reference.
On May 30, 1995, Micky Arison was granted options by the Issuer to
acquire 2,000,000 shares of Common Stock at an exercise price of $11.25 per
share (the "Stock Options"). The Stock Options vest and become exercisable at
the rate of 400,000 shares on the date of the grant and on each of the first
through fourth anniversary dates of the grant.
On January 1, 1998, Micky Arison entered into an Executive Long-
Term Compensation Agreement with the Issuer pursuant to which, among other
things, Micky Arison shall receive on an annual basis 60,000 restricted shares
of the Issuer, contingent upon satisfactory performance. These shares vest on
the fifth anniversary of the date of the annual grant.
B Shares, L.P. entered into a guaranty and pledge agreement, as
amended, with Citibank, N.A., dated as of May 20, 1998, pursuant to which B
Shares, L.P. initially pledged 7,137,710 shares of Common Stock. As of August
31, 1999, 4,464,618 shares of Common Stock remain pledged. This pledge secured
the B Shares, L.P. obligation under a guarantee of approximately $83,400,000.
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The Continued Trust for Michael Arison pledged 300,000 shares of
Common Stock pursuant to a collateral agreement, dated as of April 12, 1999,
relating to a $5,000,000 loan by The Chase Manhattan Bank.
Ted Arison entered into a security agreement with The Chase
Manhattan Bank, dated as of June 15, 1999, pursuant to which Ted Arison pledged
to the bank 3,050,000 shares of Common Stock as security for a promissory note
for $60,000,000. As a result of Ted Arison's death, the Estate of Ted Arison is
now liable for the obligations of Ted Arison under this security agreement.
The Continued Trust for Michael Arison entered into a pledge
agreement with Citibank, N.A., dated as of July 10, 1999, as amended on October
1, 1999. The Continued Trust for Michael Arison pledged to the bank 100,000
shares of Common Stock as security for a $2,000,000 loan.
B Shares, L.P. entered into a pledge agreement with Citibank, N.A.,
dated as of October 22, 1999, pursuant to which B Shares, L.P. pledged that
number of shares of Common Stock equal to two times the outstanding principal
amount under a credit facility for up to $100,000,000. The initial pledge under
this pledge agreement was 370,000 shares of Common Stock.
Item 7. Material to be Filed as Exhibits
Exhibit 1 TAMMS Investment Company, Limited Partnership, Amended and
Restated Limited Partnership Agreement, dated as of January 31,
1992 ("Limited Partnership Agreement") (previously filed).
Exhibit 2 Amendment No. 1 to Limited Partnership Agreement dated July 7,
1993 (previously filed).
Exhibit 3 Nonqualified Stock Option Agreement, dated as of June 6, 1995,
between Carnival Corporation and Micky Arison (previously filed).
Exhibit 4 Executive Long-Term Compensation Agreement, dated as of January
1, 1998, between Carnival Corporation and Micky Arison.
Exhibit 5 Guaranty and Pledge Agreement, dated as of May 20, 1998, between
MA 1994 B Shares, L.P. and Citibank, N.A.
Exhibit 6 Amendment No. 1 to the Guaranty and Pledge Agreement, dated as of
August 16, 1999, between MA 1994 B Shares, L.P. and Citibank,
N.A.
Exhibit 7 Collateral Agreement, dated as of April 12, 1999, relating to a
loan by The Chase Manhattan Bank.
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Exhibit 8 Security Agreement, dated as of June 15, 1999, between Ted Arison
and The Chase Manhattan Bank.
Exhibit 9 Pledge Agreement, dated as of July 10, 1999, between The
Continued Trust for Michael Arison and Citibank, N.A.
Exhibit 10 Amendment No. 1 to Pledge Agreement, dated as of October 1, 1999,
between The Continued Trust of Michael Arison and Citibank, N.A.
Exhibit 11 Pledge Agreement, dated as of October 22, 1999, between MA 1994 B
Shares, L.P. and Citibank, N.A.
Exhibit 12 Joint Filing Agreement, dated as of November 19, 1999, among the
Estate of Ted Arison, TAMMS L.P., TAMMS Corp., the Micky Arison
Continued Trust, the Micky Arison 1997 Trust, MA 1997, L.P., MA
1997, Inc., the B Trust, B Shares, L.P., B Shares, Inc., Micky
Arison, the Michael Arison Continued Trust, the Shari Arison
Irrevocable Trust, the Shari Arison Continued Trust, the Shari
Arison Trust No. 1, Shari Arison, the Marilyn Arison Delaware
Trust, MBA I LLC, Marilyn B. Arison, A.H.W. Limited, Andrew H.
Weinstein, Boaz Nahir, TAF Management, Kentish Limited, JMD
Delaware and James M. Dubin.
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SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct.
Date: November 19, 1999
ESTATE OF TED ARISON
By: /s/ Andrew H. Weinstein
- ---------------------------
Andrew H. Weinstein,
Temporary Administrator
By: /s/ Boaz Nahir
- ------------------
Boaz Nahir,
Temporary Administrator
TAMMS INVESTMENT COMPANY,
LIMITED PARTNERSHIP
By: TAMMS MANAGEMENT
CORPORATION, MANAGING
GENERAL PARTNER
By: /s/ Micky Arison
- --------------------
Micky Arison, President
TAMMS MANAGEMENT
CORPORATION
By: /s/ Micky Arison
- --------------------
Micky Arison, President
CONTINUED TRUST FOR MICKY
ARISON, TAF MANAGEMENT
COMPANY, TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
MICKY ARISON 1997 HOLDINGS
TRUST, JMD DELAWARE, INC.,
TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary of Corporate Trustee
MA 1997 HOLDINGS, L.P., MA 1997
HOLDINGS, INC., GENERAL
PARTNER
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr., Secretary
MA 1997 HOLDINGS, INC.
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr., Secretary
MICKY ARISON 1994 "B" TRUST,
JMD DELAWARE, INC., TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary of Corporate Trustee
MA 1994 B SHARES, L.P., MA 1994 B
SHARES, INC., GENERAL PARTNER
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary
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<PAGE>
MA 1994 B SHARES, INC.
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary
/s/ Micky Arison
- ----------------
Micky Arison
CONTINUED TRUST FOR MICHAEL
ARISON, TAF MANAGEMENT
COMPANY, TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
SHARI ARISON IRREVOCABLE
GUERNSEY TRUST, A.H.W.
LIMITED, TRUSTEE
By: /s/ R.J. Banfield
- ---------------------
R.J. Banfield, Director
CONTINUED TRUST FOR SHARI
ARISON DORSMAN, TAF
MANAGEMENT COMPANY,
TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
TED ARISON 1994 IRREVOCABLE
TRUST FOR SHARI NO. 1,
CITITRUST (JERSEY) LIMITED,
TRUSTEE
By: /s/ Debbie Sebire
- ---------------------
Debbie Sebire, Director
By: /s/ Michael Rossiter
- ------------------------
Michael Rossiter, Secretary
/s/ Shari Arison
- ----------------
Shari Arison
MARILYN B. ARISON IRREVOC
ABLE DELAWARE TRUST, TAF
MANAGEMENT COMPANY,
TRUSTEE
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
MBA I LLC
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
/s/ Marilyn B. Arison
- ---------------------
Marilyn B. Arison
A.H.W. LIMITED
By: /s/ R.J. Banfield
- ---------------------
R.J. Banfield, Director
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TAF MANAGEMENT COMPANY
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
KENTISH LIMITED
By: /s/ Philip Scales
- ---------------------
Philip Scales
/s/ Andrew H. Weinstein
- -----------------------
Andrew H. Weinstein
/s/ Boaz Nahir
- --------------
Boaz Nahir
JMD DELAWARE, INC.
By: /s/ Denison H. Hatch, Jr.
- -----------------------------
Denison H. Hatch, Jr.
Secretary
/s/ James M. Dubin
- ------------------
James M. Dubin
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INDEX TO EXHIBITS
Exhibits
1 TAMMS Investment Company, Limited Partnership, Amended and
Restated Limited Partnership Agreement, dated as of January 31,
1992 ("Limited Partnership Agreement") (previously filed).
2 Amendment No. 1 to Limited Partnership Agreement dated
July 7, 1993 (previously filed).
3 Nonqualified Stock Option Agreement, dated as of June 6, 1995,
between Carnival Corporation and Micky Arison (previously filed).
4 Executive Long-Term Compensation Agreement, dated as of
January 1, 1998, between Carnival Corporation and Micky
Arison.
5 Guaranty and Pledge Agreement, dated as of May 20, 1998, between
MA 1994 B Shares, L.P. and Citibank. N.A.
6 Amendment No. 1 to the Guaranty and Pledge Agreement,
dated as of August 16, 1999, between MA 1994 B Shares,
L.P. and Citibank. N.A.
7 Collateral Agreement, dated as of April 12, 1999, relating to a
loan by The Chase Manhattan Bank.
8 Security Agreement, dated as of June 15, 1999, between Ted Arison
and The Chase Manhattan Bank.
9 Pledge Agreement, dated as of July 10, 1999, between The Continued
Trust for Michael Arison and Citibank, N.A.
10 Amendment No. 1 to Pledge Agreement, dated as of October
1, 1999, between The Continued Trust of Michael Arison and
Citibank, N.A.
Page 51
<PAGE>
Exhibits
11 Pledge Agreement, dated as of October 22, 1999, between MA 1994 B
Shares, L.P. and Citibank, N.A.
12 Joint Filing Agreement, dated as of November 19, 1999, among the
Estate of Ted Arison, TAMMS L.P., TAMMS Corp., the Micky Arison
Continued Trust, the Micky Arison 1997 Trust, MA 1997, L.P., MA
1997, Inc., the B Trust, B Shares, L.P., B Shares, Inc, Micky
Arison, the Michael Arison Continued Trust, the Shari Arison
Irrevocable Trust, the Shari Arison Continued Trust, the Shari
Arison Trust No. 1, Shari Arison, the Marilyn Arison Delaware
Trust, MBA I LLC, Marilyn B. Arison, A.H.W. Limited, Andrew H.
Weinstein, Boaz Nahir, TAF Management, Kentish Limited, JMD
Delaware and James M. Dubin.
Page 52
EXECUTIVE LONG-TERM COMPENSATION AGREEMENT
THIS EXECUTIVE LONG-TERM COMPENSATION AGREEMENT is entered into this
11th day of January, 1999, to be effective as of the 1st day of January, 1998,
by and between CARNIVAL CORPORATION ("Carnival") with its principal place of
business located at 3655 N.W. 87th Avenue, Miami, Florida 33178, and MICKY
ARISON (the "Individual").
R E C I T A L S
WHEREAS, the Individual is currently employed as the Chairman and Chief
Executive Officer of Carnival;
WHEREAS, Carnival wishes to provide long-term incentive and reward to
the Individual for the continuation of his full-time employment with Carnival,
in addition to the Individual's annual compensation consisting of a base salary
and annual bonus; and
WHEREAS, the Individual desires to continue in the employ of Carnival
until his retirement in consideration for Carnival's payment of compensation for
his services during the period prior to retirement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Carnival shall continue to employ the Individual as Chairman and
Chief Executive Officer and the Individual shall continue to serve Carnival in
such executive capacity until such employment is terminated by either party.
2. Subject to the provisions of this Agreement, Carnival shall pay the
Individual as long-term compensation, beginning January 1, 1998 and continuing
during the term of his employment with Carnival, the stock compensation benefit
described as follows ("Stock Compensation Benefit"):
<PAGE>
(A) Pursuant to the terms of Carnival's 1992 Stock Option Plan,
the Individual shall receive in January of each year during
the term of his employment (commencing effective January of
1998) an option to purchase 120,000 1/ shares of Carnival
Corporation Common Stock (the "Stock Option Benefit"). For
purposes of this Agreement, the exercise price of the options
shall be the average of the high and low sales price of Common
Stock on the New York Stock Exchange Corporate Tape on the
date of the quarterly Board of Directors meeting held in
January of each year (the "Grant Date"). Said options shall
vest ratably over a five (5) year period as more particularly
set forth in a Nonqualified Stock Option Agreement to be
entered into annually substantially in the form attached
hereto as Exhibit A.
(B) Pursuant to the terms of Carnival's 1993 Restricted Stock
Plan, the Individual shall receive annually on the Grant Date
60,000 2/ restricted shares of Carnival Corporation Common
Stock (the "Restricted Stock Benefit"). Except as otherwise
provided in Section 3 hereof, these shares shall vest on the
fifth anniversary of the date of such annual grant.
3. Notwithstanding anything herein to the contrary, no payment of any
Stock Compensation Benefit shall be made, and all unvested options and
restricted stock issued hereunder and all rights under the Agreement shall be
forfeited, if any of the following events shall occur:
- ---------------
1 The number of shares has been adjusted to reflect the 2-for-1 stock
split effective June 12, 1998.
2 The number of shares has been adjusted to reflect the 2-for-1 stock
split effective June 12, 1998.
2
<PAGE>
(A) The Individual's employment with Carnival is terminated for
cause. For purposes of this Agreement, "for cause" shall be
defined as any action or inaction by the Individual which
constitutes fraud, embezzlement, misappropriation, dishonesty,
breach of trust, a felony or moral turpitude, as determined by
its Board of Directors;
(B) The Individual voluntarily terminates his employment with
Carnival prior to attaining sixty (60) years of age unless
such voluntary termination is directly related to the
Individual being diagnosed with a terminal medical condition;
(C) The Individual shall engage in competition, as more
particularly described in Section 6 hereof, either (i) during
the term of his employment with Carnival; (ii) following the
Individual's voluntary termination of his employment with
Carnival; or (iii) following Carnival's termination of the
Individual's employment with Carnival either for cause, as
defined in (A) above, or other than for cause; or
(D) The Individual violates the nondisclosure provisions set forth
in Section 7 hereof.
In the event the Individual voluntarily terminates his employment
either (a) following attaining the age of sixty (60) or (b) prior to attaining
the age of sixty (60) as a direct result of the Individual being diagnosed with
a terminal medical condition, then all unvested options and restricted stock
previously granted hereunder will not be forfeited by the Individual and will
continue to vest as scheduled, unless and until the Individual engages in
competition in violation of Section 6 hereof or violates the nondisclosure
provisions set forth in Section 7 hereof.
In the event Carnival terminates the Individual's employment with
Carnival for a reason other than for cause, as defined in Section 3(A) above,
then, unless and until the Individual engages in competition in violation of
Section 6 hereof or violates the nondisclosure provisions set forth in Section 7
hereof, (i) each annual grant of the Stock Option Benefit shall continue to vest
as scheduled; and (ii) each annual grant of the Restricted Stock Benefit shall
vest and shall continue to vest in accordance with the alternative vesting
schedule set forth on Exhibit B ("Alternative Vesting Schedule I").
3
<PAGE>
In the event the Individual voluntarily terminates his employment with
Carnival within 14 days of his receipt of notice that Carnival's Board of
Directors or appropriate committee of the Board, has determined that the
Individual's annual grant of the Restricted Stock Benefit will be reduced by
more than 25% in any one year, then (i) all unvested options issued hereunder
shall be forfeited; (ii) each annual grant of the Restricted Stock Benefit shall
be subject to the alternative vesting schedule set forth on Exhibit C
("Alternative Vesting Schedule II"); and (iii) all unvested restricted stock
issued hereunder, after application of Alternative Vesting Schedule II, and all
rights under this Agreement shall be forfeited. Notwithstanding the foregoing,
this paragraph of Section 3 shall be null and void once the Individual attains
the age of sixty (60).
4. Intentionally Deleted.
5. Each annual grant of the Stock Compensation Benefit is contingent on
the Individual's satisfactory performance of his duties as determined by
Carnival's Board of Directors or appropriate committee of the Board.
6. The services of the Individual are unique, extraordinary and
essential to the business of Carnival, particularly in view of the Individual's
access to Carnival's confidential information and trade secrets. Accordingly, in
consideration of the Stock Compensation Benefits payable hereunder, the
Individual agrees that he will not, without the prior written approval of the
Board of Directors, at anytime during the term of his employment with Carnival
and (except as provided below) for five (5) years following the date on which
the Individual's employment with Carnival terminates, directly or indirectly,
within the United States or its territories, engage in any business activity
directly or indirectly competitive with the business of Carnival, or its
subsidiaries or divisions, or serve as an officer, director, owner, consultant,
or employee of any organization then in competition with Carnival or any of its
subsidiaries or divisions. In addition, the Individual agrees that during such
five (5) year period following his employment with Carnival, he will not
solicit, either directly or indirectly, any employee of Carnival, its
subsidiaries or division, who was such at the time of the Individual's
separation from employment hereunder. In the event that the provisions of this
Section 6 should ever be adjudicated to exceed the time, geographic or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic or other limitations permitted by applicable law.
4
<PAGE>
Notwithstanding the foregoing, the provisions of this Section 6 shall
be null and void if, prior to attaining the age of sixty (60), the Individual
voluntarily terminates his employment with Carnival within 14 days of his
receipt of notice that Carnival's Board of Directors or appropriate committee of
the Board, has determined that the Individual's annual grant of the Restricted
Stock Benefit will be reduced by more than 25% in any one year.
7. The Individual expressly agrees and understands that Carnival owns
and/or controls information and material which is not generally available to
third parties and which Carnival considers confidential, including, without
limitation, methods, products, processes, customer lists, trade secrets and
other information applicable to its business and that it may from time to time
acquire, improve or produce additional methods, products, processes, customers
lists, trade secrets and other information (collectively, the "Confidential
Information"). The Individual hereby acknowledges that each element of the
Confidential Information constitutes a unique and valuable asset of Carnival,
and that certain items of the Confidential Information have been acquired from
third parties upon the express condition that such items would not be disclosed
to Carnival and its officers and agents other than in the ordinary course of
business. The Individual hereby acknowledges that disclosure of Carnival's
Confidential Information to and/or use by anyone other than in Carnival's
ordinary course of business would result in irreparable and continuing damage to
Carnival. Accordingly, the Individual agrees to hold the Confidential
Information in the strictest secrecy, and covenants that, during the term of his
employment with Carnival or at any time thereafter, he will not, without the
prior written consent of the Board of Directors, directly or indirectly, allow
any element of the Confidential Information to be disclosed, published or used,
nor permit the Confidential Information to be discussed, published or used,
either by himself or by any third parties, except in effecting Individual's
duties for Carnival in the ordinary course of business. The Individual agrees to
keep all such records in connection with the Individual's employment as Carnival
may direct, and all such records shall be the sole and absolute property of
Carnival. The Individual further agrees that, within five (5) days of Carnival's
request, he shall surrender to Carnival any and all documents, memoranda, books,
papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen
records, customer lists, activity reports, video or audio recordings, computer
programs and any and all other data and information and any and all copies
thereof relating to Carnival's business or any Confidential Information.
8. Except as otherwise provide in Section 6 hereof, the restrictive
covenants contained in Sections 6 and 7 herein shall survive the termination or
expiration of this Agreement and any termination of the Individual's employment.
5
<PAGE>
9. Nothing herein shall be construed as conferring upon the Individual
the right to continue in the employ of Carnival as an executive or in any other
capacity.
10. The Stock Compensation Benefit payable under this Agreement shall
not be deemed salary or other compensation to the Individual for the purpose of
computing benefits to which such Individual may be entitled under any pension or
profit sharing plan or other arrangement of Carnival for the benefit of its
employees.
11. The Compensation Committee of Carnival's Board of Directors shall
have the full power and authority to interpret, construe and administer this
Agreement. No officer or director of Carnival shall be liable to any person for
any action taken or omitted in connection with the interpretation and
administration of this Agreement unless such action or omission is attributable
to his own willful misconduct or lack of good faith.
12. This Agreement shall not be, nor shall it be construed to
constitute an employment agreement between the Individual and Carnival.
13. This Agreement shall be governed by, and shall be construed and
interpreted in accordance with, the laws of the State of Florida and the parties
agree to submit to the jurisdiction of the United States District Court for the
Southern District of Florida for the resolution of any disputes arising under
this Agreement.
14. In the event that any party to this Agreement institutes suit
against the other party to this Agreement to enforce any of its rights
hereunder, the "prevailing party" in such action shall be entitled to recover
from the other party all reasonable costs incurred in pursuing such action,
including reasonable attorneys' fees. For purposes of this Agreement,
"prevailing party" shall mean the party recovering judgment in the case and not
being liable on any counterclaim brought in the case.
15. This Agreement constitutes the entire agreement between Carnival
and the Individual with respect to the long-term compensation of the Individual
as described herein and supersedes all prior negotiations, agreements,
understandings and arrangements, both oral and written, between Carnival and the
Individual with respect to such subject matter. This Agreement may not be
modified in any way, except by a written instrument executed by each of Carnival
and the Individual.
6
<PAGE>
16. This Agreement shall be for the benefit of, and shall be binding
upon, each of Carnival and the Individual and their respective heirs, personal
representatives, legal representatives, successors and assigns.
17. The invalidity of any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law. In the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid by a court of competent
jurisdiction, then, in any such event, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, or section or sections had not been inserted.
18. The waiver by either party of a breach or violation of any term or
provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach or violation of any provision of
this Agreement nor of any other right or remedy.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement as of the date first above written.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
-----------------------
Howard S. Frank
Title: Vice Chairman and Chief
Operating Officer
/s/ Micky Arison
----------------
Micky Arison
7
<PAGE>
EXHIBIT A
CARNIVAL CORPORATION
1992 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Carnival Corporation, f/k/a Carnival Cruise Lines, Inc. (the
"Company"), having heretofore adopted the Carnival Corporation 1992 Stock Option
Plan (the "Plan") and entered into that certain Executive Long-Term Compensation
Agreement effective as of January 1, 1998 between the Company and Micky Arison
(the "Compensation Agreement"), hereby irrevocably grants to MICKY ARISON (the
"Optionee"), effective _______________ (the "Grant Date"), the right and option
(the "Option" ) to purchase One Hundred Twenty Thousand (120,000) shares of
Common Stock on the following terms and conditions:
1. Each defined term used in this Agreement and not otherwise defined
herein shall have the meaning assigned to it in the Plan.
2. This Option shall not be exercisable, in whole or in part, except as
follows:
a) Exercisable as to Twenty Four Thousand (24,000) shares of Common
Stock on or after the first anniversary of the Grant Date;
b) Exercisable as to an additional Twenty Four Thousand (24,000) shares
of Common Stock on or after the second anniversary of the Grant Date;
c) Exercisable as to an additional Twenty Four Thousand (24,000) shares
of Common Stock on or after the third anniversary of the Grant Date;
d) Exercisable as to an additional Twenty Four Thousand (24,000) shares
of Common Stock on or after the fourth anniversary of the Grant Date;
e) Exercisable as to an additional Twenty Four Thousand (24,000) shares
of Common Stock on or after the fifth anniversary of the Grant Date.
3. Notwithstanding the provisions of paragraph 2, if Optionee's
employment by the Company or any Subsidiary shall terminate by reason of his
death or Disability, this Option shall become immediately exercisable in full in
respect of the aggregate number of shares of Common Stock covered hereby.
4. Unless otherwise provided in the Compensation Agreement, the
unexercised portion of this Option shall automatically and without notice
terminate and become null and void at the time of the earliest of the following
to occur:
<PAGE>
a) the expiration of ten (10) years from the Grant Date;
b) the expiration of one (1) year from the date the Optionee's
employment with the Company or any of its Subsidiaries shall terminate by reason
of Disability; provided, however, that if the Optionee shall die during such
one-year period, the provisions of subparagraph (c) below shall apply;
c) the expiration of one (1) year from the date of the Optionee's
death, if such death occurs either during employment by the Company or any of
its Subsidiaries or during the one-year period described in subparagraph (b)
above;
d) the date the Company terminates the Optionee's employment with the
Company or any of its Subsidiaries "for cause" (as defined in the Compensation
Agreement);
e) the date on which the Optionee voluntarily terminates his employment
with the Company or any of its Subsidiaries prior to attaining sixty (60) years
of age, unless such voluntary termination is directly related to the Optionee
being diagnosed with a terminal medical condition; and
f) the violation by the Optionee of noncompete and/or nondisclosure
provisions set forth in Sections 6 and 7 of the Compensation Agreement.
5. The purchase price for each of the shares of Common Stock purchased
pursuant to this Option shall be ___________ and ____/100 Dollars ($______).
This Option is not intended to be an "incentive stock option" within the meaning
of Section 422(b) of the Internal Revenue Code of 1986, as amended.
6. Unless Optionee utilizes a cashless exercise program, if available
and authorized by the Company from time to time, this Option shall be deemed
exercised when the Optionee (a) delivers written notice to the Company at its
principal business office, directed to the attention of its Secretary, of the
decision to exercise, specifying the number of shares with respect to which this
Option is exercised and the price per share designated in this Option, and (b)
concurrently tenders to the Company full payment for the shares of Common Stock
to be purchased pursuant to such exercise. Full payment for shares of Common
Stock purchased by the Optionee shall be made at the time of any exercise, in
whole or in part, of this Option, and certificates for such shares shall be
delivered to the Optionee as soon thereafter as is reasonably possible. No
shares of Common Stock shall be transferred to the Optionee until full payment
therefor has been made, and the Optionee shall have none of the rights of a
shareholder with respect to any shares of Common Stock subject to this Option
until a certificate for such shares shall have been issued and delivered to the
Optionee. Such payment shall be made in cash or by check or money order payable
to the Company, in each case payable in U.S. Currency. (In the Committee's
discretion, such payment may be made by delivery of shares of Common Stock
having a fair market value [determined as of the date this Option is so
exercised in whole or in part] that, when added to the value of any cash, check,
promissory note or money order satisfying the foregoing requirements, will equal
the aggregate purchase price.)
<PAGE>
7. This Option and the rights evidenced hereby are not transferable in
any manner other than by will or by the laws of descent and distribution and
during the Optionee's lifetime shall be exercisable only by the Optionee (or the
Optionee's court-appointed legal representative).
8. The Company's obligation to deliver shares of Common Stock upon the
exercise of this Option shall be subject to all applicable federal, state and
local withholding requirements, including the payment by the Optionee of any
applicable federal, state and local withholding tax. The Company may withhold
delivery of shares of Common Stock until the Optionee pays to the Company the
amount of tax it is required to withhold under any applicable law. If the
Optionee fails to remit to the Company such tax, the Company may sell such
portion of the shares of Common Stock as are sufficient to satisfy the Company's
obligation to withhold such tax.
9. The Company's obligation to deliver shares of Common Stock in
respect of this Option shall be subject to all applicable laws, rules and
regulations and such approvals by any governmental agency as may be required.
10. The Optionee, by his acceptance hereof, represents and warrants to
the Company that his purchase of shares of Common Stock upon the exercise of
this Option shall be for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof; provided, however, that
this representation and warranty shall be inoperative if, in the opinion of
counsel to the Company, a proposed sale or distribution of such shares is
pursuant to an applicable effective registration statement under the Securities
Act of 1933, as amended, and any applicable state "blue sky" or other securities
laws or is exempt from registration thereunder. The Company will endorse an
appropriate legend referring to the foregoing restriction upon the certificate
or certificates representing any shares of Common Stock issued or transferred to
the Optionee upon the exercise of this Option.
11. This Agreement shall be subject to all the terms and provisions of
the Plan and the Compensation Agreement, which are incorporated by reference
herein and are made a part hereof, including without limitation the provisions
<PAGE>
of paragraph 13 of the Plan generally relating to adjustments to the number of
shares of Common Stock subject to this Option and to the Option purchase price
on certain changes in capitalization and the effects of certain reorganizations
and other transactions. In the event there is any inconsistency between the
provisions of this Agreement and the Plan, the provisions of the Plan shall
govern. By entering into this Agreement, the Optionee agrees and acknowledges
his receipt of a copy of the Plan.
12. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
IN WITNESS WHEREOF, the Company has caused these presents to be signed
by its duly authorized officer as of the _____ day of January, _____.
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
-----------------------
Howard S. Frank
Title: Vice Chairman and Chief Operating Officer
ACCEPTED AND AGREED THIS _____
DAY OF JANUARY, ______.
- ------------------------------
Micky Arison
Optionee
<PAGE>
EXHIBIT B
ALTERNATIVE VESTING SCHEDULE I
1. Vest as to 20% of the Restricted Stock Benefit on the first anniversary
of the grant date thereof;
2. Vest as to 40% of the Restricted Stock Benefit on the second
anniversary of the grant date thereof;
3. Vest as to 60% of the Restricted Stock Benefit on the third anniversary
of the grant date thereof;
4. Vest as to 80% of the Restricted Stock Benefit on the fourth
anniversary of the grant date thereof; and
5. Vest as to 100% of the Restricted Stock Benefit on the fifth
anniversary of the grant date thereof.
8
<PAGE>
EXHIBIT C
ALTERNATIVE VESTING SCHEDULE II
1. Vested as to 0% of the Restricted Stock Benefit if termination occurs
between the grant date and the first anniversary of the grant date
thereof;
2. Vested as to 20% of the Restricted Stock Benefit if termination occurs
between the first and second anniversaries of the grant date thereof;
3. Vested as to 40% of the Restricted Stock Benefit if termination occurs
between the second and third anniversaries of the grant date thereof;
4. Vested as to 60% of the Restricted Stock Benefit if termination occurs
between the third and fourth anniversaries of the grant date thereof;
5. Vested as to 80% of the Restricted Stock Benefit if termination occurs
between fourth and fifth anniversaries of the grant date thereof; and
6. Vested as to 100% of the Restricted Stock Benefit if termination occurs
after the fifth anniversary of the grant date thereof.
9
================================================================================
------------------------------
GUARANTY AND PLEDGE AGREEMENT
Dated as of May 20, 1998
------------------------------
MA 1994 B SHARES, L.P.
As Guarantor
CITIBANK, N.A.
As Trustee
------------------------------
================================================================================
<PAGE>
Table Of Contents
Page
----
ARTICLE 1. DEFINITIONS AND INCORPORATION
BY REFERENCE...............................................1
Section 1.1 Definitions..........................................1
Section 1.2 Incorporation by Reference...........................6
Section 1.3 Rules of Construction................................6
ARTICLE 2. GUARANTY...................................................7
Section 2.1 Guaranty of the Guaranteed Obligations...............7
Section 2.2 Liability of Guarantor...............................9
Section 2.3 Waivers by Guarantor................................10
Section 2.4 Subordination of Other Obligations..................11
Section 2.5 Authority of Guarantor, BPL, MHLP, Etc..............11
Section 2.6 Rights Cumulative...................................12
Section 2.7 Bankruptcy; Reinstatement of Guaranty...............12
Section 2.8 Subordinated Loans..................................13
Section 2.9 Reduction of Cost Overrun Guaranty..................13
ARTICLE 3. SECURITY..................................................16
Section 3.1 Grant of Security Interest..........................16
Section 3.2 Delivery of Guarantor Collateral,
Certificates; Custodial Agent.......................16
Section 3.3 Maintenance of Perfected Security Interest..........16
Section 3.4 Maintenance of Collateral Coverage Ratio............17
Section 3.5 Registration........................................18
Section 3.6 Voting Rights.......................................18
Section 3.7 Dividends and Distributions.........................18
Section 3.8 Care of Guarantor Collateral........................18
Section 3.9 Power of Attorney...................................18
Section 3.10 Partial Release of Guarantor Collateral............19
Section 3.11 Return of Guarantor Collateral.....................19
Section 3.12 Consents, Notices, Reports under Custody Agreement.19
ARTICLE 4. REPRESENTATIONS AND WARRANTIES............................20
Section 4.1 Existence; Compliance with Law......................20
Section 4.2 Power; Authorization; Enforceable Obligations.......20
Section 4.3 Financial Condition.................................20
Section 4.4 No Legal Bar........................................21
Section 4.5 No Material Litigation..............................21
Section 4.6 No Guaranty Default.................................21
Section 4.7 Organizational Documents............................21
Section 4.8 Taxes...............................................21
Section 4.9 Representations and Warranties Respecting the
Guarantor Collateral................................22
Section 4.10 Net Worth..........................................22
Section 4.11 Unencumbered Liquid Assets.........................22
i
<PAGE>
Page
----
ARTICLE 5. AFFIRMATIVE COVENANTS.....................................22
Section 5.1 Financial Statements................................22
Section 5.2 Certificates; Other Information.....................23
Section 5.3 Payment of Obligations..............................23
Section 5.4 Compliance with Applicable Law
and Contractual Obligations.........................23
Section 5.5 Legal Existence of Guarantor........................23
Section 5.6 Title Curative Proceedings..........................24
Section 5.7 Notices.............................................24
Section 5.8 Covenants Respecting the Guarantor Collateral.......24
Section 5.9 Fees of Custodial Agent.............................24
ARTICLE 6. NEGATIVE COVENANTS........................................24
Section 6.1 Net Worth...........................................24
Section 6.2 Unencumbered Liquid Assets..........................25
Section 6.3 Liens...............................................25
ARTICLE 7. DEFAULTS AND REMEDIES.....................................25
Section 7.1 Events of Default...................................25
Section 7.2 Remedies in General.................................26
Section 7.3 Procedures With Respect to Sale
of the Guarantor Collateral.........................27
Section 7.4 Expenses and Interest...............................27
ARTICLE 8. MISCELLANEOUS.............................................28
Section 8.1 Further Assurances..................................28
Section 8.2 No Subrogation......................................28
Section 8.3 Authority of Trustee................................28
Section 8.4 No Waiver...........................................29
Section 8.5 Notices.............................................29
Section 8.6 Governing Law.......................................30
Section 8.7 Submission To Jurisdiction, Waivers.................30
Section 8.8 Successors and Assigns..............................31
Section 8.9 Severability........................................31
Section 8.10 Counterpart Originals..............................31
Section 8.11 Table of Contents, Headings, etc...................32
Section 8.12 Amendments.........................................32
Exhibit A - Form of Guarantor Subordinated Loan Certificate
Exhibit B - Form of Release Certificate
Exhibit C - Form of Guaranteed Amount Certificate
Schedule 4.3(c) - Change in Financial Condition
ii
<PAGE>
GUARANTY AND PLEDGE AGREEMENT
This Guaranty and Pledge Agreement dated as of May 20, 1998 is
entered into by MA 1994 B SHARES, L.P., a Delaware limited partnership
("Guarantor"), in favor of CITIBANK, N.A. (the "Trustee"), a national banking
association, as Trustee for the Holders (as defined below) pursuant to the
Indenture (as defined below).
Basketball Properties, Ltd., a Florida limited partnership ("BPL"),
has issued its 6.65% Senior Term Notes due 2025 (Series A-1-A) in the aggregate
principal amount of $90,200,000, its 6.65% Senior Term Notes due 2025 (Series
A-1-B) in the aggregate principal amount of $30,000,000, its 6.80% Senior Term
Notes due 2025 (Series A-2) in the aggregate principal amount of $50,000,000 and
its 6.21 % Senior Notes due 2005 (Series B) in the aggregate principal amount of
$14,697,000 (collectively, the "Notes") pursuant to that certain Indenture dated
as of May 20, 1998 (the "Indenture").
The Notes and certain other obligations of BPL under the Indenture
and the other Note Documents (as defined below) have been guaranteed by Miami
Heat Limited Partnership, a Florida limited partnership ("MHLP"), on the terms
set forth in the Indenture.
In connection with the Notes, MBIA Insurance Corporation, a New York
stock insurance corporation ("MBIA"), is issuing the Note Insurance Policies,
the County Payment Surety Bond and the Debt Service Reserve Surety Bond, each as
defined in the Indenture.
Guarantor has agreed to guarantee certain obligations of BPL and
MHLP to the Trustee and the Holders on the terms and conditions set forth in
this Agreement.
Guarantor agrees as follows for the benefit of the Trustee and MBIA
and for the equal and ratable benefit of the Holders:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions.
"Additional Known Costs" means, as of any date of determination, the
cost of all work and other items, other than Punch List Items, that must be
accomplished in order to fully and finally complete the construction and
equipping of the Project in accordance with the Plans and Specifications, the
requirements of the NBA and Applicable Law.
"Agreement" means this Guaranty and Pledge Agreement.
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"BPL Delay Debt Service" means principal of and interest on the
Series A-1 Notes and the Series A-2 Notes accruing from and including February
1, 2000 and through the earlier of February 1, 2001 and the date of Substantial
Completion (as defined in the Construction Contract).
"BPL Delay Debt Service Drawing" means a claim made under this
Agreement in respect of the BPL Delay Debt Service Obligations pursuant to
Section 10.04 of the Deposit and Disbursement Agreement.
"BPL Delay Debt Service Obligations" means, as of any date of
determination, all obligations of BPL to pay BPL Delay Debt Service reduced by
the amount AMEC PLC and Construtora Norberto Odebrecht are obligated to pay, as
of such date of determination, in respect of principal and interest on the Notes
under the Contractor Delay Debt Service Guaranty.
"Carnival Corporation" means Carnival Corporation, a corporation
organized and existing under the laws of the Republic of Panama.
"Cash or Cash Equivalents" means (a) cash on hand; (b)
dollar-denominated demand deposits maintained in the United States with any
commercial bank and dollar-denominated time deposits maintained in the United
States with, or certificates of deposits having, a maturity of one year or less
issued by any commercial bank which has its head office in the United States and
which has a combined capital and surplus of at least $100,000,000; (c) direct
obligations of, or obligations unconditionally guaranteed by, the United States
of America and having a maturity of one year or less; (d) readily marketable
commercial paper having a maturity of one year or less, issued by any
corporation organized and existing under the laws of the United States or any
state thereof or the District of Columbia and rated by S&P or Moody's (or, if
neither such organization shall rate such commercial paper at any time, rated by
any nationally recognized rating organization in the United States) with the
highest rating assigned by such organization; (e) repurchase agreements which
(i) are callable at any time or have a maturity date of one year or less, (ii)
are entered into with any commercial bank which has its head office in the
United States and has a combined capital and surplus of at least $100,000,000
and (iii) are secured by direct obligations of, or obligations unconditionally
guaranteed by, the United States and having a maturity of one year or less; and
(f) mutual funds which invest exclusively in direct obligations of, or
obligations unconditionally guaranteed by, the United States and having a
maturity of one year or less.
"COI Drawing" means a claim made under this Agreement in respect of
the COI Obligations pursuant to Section 10.03(c) of the Deposit and Disbursement
Agreement.
"COI Obligations" means an amount owing under the Notes and the
other Note Documents equal, as of any date of determination, to the COI
Requirement.
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"Collateral Coverage Call" means a notice pursuant to Section 7(c)
of the Custody Agreement that the Collateral Coverage Ratio is less than 1.5 to
1.0.
"Collateral Coverage Ratio" means, on any date of determination, the
ratio of (a) the Market Value to (b) the Guaranteed Amount.
"Contingency Amount" has the meaning specified in the last paragraph
of Section 2.9(b).
"Cost Overrun Drawing" means a claim made under this Agreement in
respect of the Cost Overrun Obligations pursuant to Section 10.03(b) of the
Deposit and Disbursement Agreement.
"Cost Overrun Obligations" means (a) all obligations of BPL to
deposit cash with the Trustee pursuant to Section 5.01(b)(ii) of the Deposit and
Disbursement Agreement, whether in respect of Construction Costs, costs of
environmental remediation in connection with the Project, liabilities arising
under the Environmental Indemnity or otherwise and (b) the obligation of BPL to
pay the principal of and interest on the Notes that is due after the last day on
which BPL Delay Debt Service is payable.
"Custodial Agent" means Prudential Securities Incorporated, a
Delaware corporation, acting in its capacity as Custodian pursuant to, and as
the term "Custodian" is defined in, the terms of the Custody Agreement, and its
successors in such capacity.
"Custody Agreement" means that certain Custody Agreement dated as of
the Closing Date between the Trustee and the Custodial Agent, as it may be
amended or supplemented from time to time.
"Equity Obligations" means the obligation of BPL to deliver the
Remaining Cash Equity (excluding payments under Sections 5.1.2 and 5.1.3 of the
Naming Rights Agreement) to the Trustee for deposit pursuant to the Deposit and
Disbursement Agreement.
"Equity Drawing" means a claim made under this Agreement in respect
of the Equity Obligations pursuant to Section 10.03(a) of the Deposit and
Disbursement Agreement.
"Forecasted Project Costs" means, as of any date of determination,
BPL's forecasted amount necessary for the construction of the Arena determined
on the basis used for determining the forecasted project costs set forth in the
forecasted sources and uses of funds Section of the Offering Memorandum for the
Notes dated May 15, 1998.
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"Guaranteed Amount" means an amount equal, as of any date of
determination, to the amount determined pursuant to Section 2.1(c) or (d).
"Guaranteed Amount Certificate" has the meaning specified for that
term in Section 5.2(c).
"Guaranteed Obligations" means the Equity Obligations, the BPL Delay
Debt Service Obligations, the Cost Overrun Obligations and the COI Obligations.
"Guarantor" has the meaning specified for that term in the preamble
to this Agreement.
"Guarantor Collateral" means all of the following property of
Guarantor, whether now owned or hereafter acquired:
(a) The shares of the Class A common stock of Carnival
Corporation which have been deposited by Guarantor with the Custodial Agent to
be held by the Custodial Agent for the Trustee pursuant to the Custody Agreement
and for the benefit of MBIA and for the equal and ratable benefit of the Holders
together with stock powers executed in blank covering such shares (collectively
the "Initial Guarantor Collateral");
(b) any securities accounts or securities entitlements
relating to the foregoing; and
(c) subject to Section 3.7, all dividends, distributions,
money and other property of any kind paid or distributed in respect of or in
exchange for, and all other proceeds of, any or all of the foregoing.
"Guarantor Subordinated Loan" has the meaning specified for that
term in Section 2.8.
"Guarantor Subordinated Loan Certificate" has the meaning specified
for that term in Section 2.8.
"Guaranty Default" means any event that is, or with the passage of
time or the giving of notice or both would be, a Guaranty Event of Default.
"Guaranty Event of Default" has the meaning set forth in Section 7.1
hereof.
"Indenture" means that certain Indenture dated as of the Closing
Date and providing for the issuance of the Notes.
"Initial Guarantor Collateral" has the meaning specified for that
term in the definition of "Guarantor Collateral."
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"Market Value" has the meaning specified for that term in the
Custody Agreement.
"Material Adverse Effect" means any material adverse effect on the
validity, perfection or priority of the Liens of the Trustee on the Guarantor
Collateral.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation.
"Net Worth" means, with respect to Guarantor, as of any date of
determination, the market value of the publicly-traded securities owned by
Guarantor on such date plus all Cash or Cash Equivalents owned by Guarantor as
of such date.
"Notes" has the meaning specified for that term in the preamble to
this Agreement.
"Officer's Certificate" means a certificate signed on behalf of
Guarantor by the President, any Vice President or Chief Financial Officer of the
general partner of Guarantor; provided, however, that any Officer's Certificate
required to be delivered pursuant to Section 5.2 shall be signed on behalf of
the Chief Financial Officer of such general partner.
"Permitted Liens" means Liens in favor of the Trustee created by
this Agreement.
"Punch List Items" means all items listed on the "punch list"
referred to in clause (a) of the definition of Construction Completion in the
Indenture and described in the Officer's Certificate referred to in clause (b)
of the definition of Construction Completion.
"Qualified Carnival Stock" means, with respect to Guarantor, shares
of Carnival Corporation's Class A common stock which (a) have been held at all
times, for purposes of satisfying Rule 144 promulgated under the Securities Act,
by Guarantor for more than two (2) years prior to the date such stock is
deposited with the Custodial Agent pursuant to the terms of this Agreement; (b)
the full purchase price or other consideration therefor was paid or given by
such Guarantor more than two (2) years prior to the date such stock is deposited
with the Custodial Agent pursuant to the terms of this Agreement, all within the
meaning of, and as required by, Rules 144(d) and 144(k) promulgated under the
Securities Act; and (c) subject to no restrictions other than the restrictions
imposed by Rule 144 solely by reason of Guarantor being an affiliate (as defined
in Rule 144) of Carnival Corporation.
"Release Certificate" has the meaning specified for that term in
Section 3.11.
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"S&P" means Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc., a New York corporation.
"Termination Date" means the first date on which the Guaranteed
Amount has been reduced to zero pursuant to Section 2.1.
"Trustee" has the meaning specified for that term in the Indenture.
"UCC" means the Uniform Commercial Code or any successor thereto, as
now or hereafter in effect under the law applicable to this Agreement.
"Unencumbered Liquid Assets" means (a) Qualified Carnival Stock, (b)
Cash and Cash Equivalents and (c) other readily marketable securities acceptable
to MBIA in its sole discretion, which, in the case of any of the foregoing, as
of any date of determination, are (i) owned by Guarantor, (ii) not subject to
any Lien or claim (including restrictions on transferability or assignability
other than any restrictions on transfer by Guarantor imposed under Rule 144
promulgated under the Securities Act solely by reason of a Guarantor being an
affiliate (as defined in such Rule 144) of the issuer of any such securities) of
any kind, (iii) not subject to any agreement which limits the ability of
Guarantor to create, incur, assume or suffer to exist any Lien upon any of such
assets, and (iv) not subject to any agreement which entitles any Person to the
benefit of any Lien on such assets or which would entitle any Person to the
benefit of any Lien on any such assets upon the occurrence of any contingency.
The Guarantor Collateral shall not constitute Unencumbered Liquid Assets.
"Unfunded Additional Known Costs" has the meaning specified in
Section 2.9(b)(ii).
Section 1.2 Incorporation by Reference.
Capitalized terms used in this Agreement and not otherwise defined
have the meanings given to those terms in the Indenture.
Section 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in Accordance with GAAP;
(c) words in the singular include the plural, and in the plural
include the singular;
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(d) provisions apply to successive events and transactions; and
(e) references to sections of or rules under the Securities Act, UCC
and other statutes shall be deemed to include substitute, replacement or
successor sections or rules promulgated by the SEC or any other applicable
Governmental Authority from time to time.
(f) the words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall, unless otherwise expressly
specified, refer to this Agreement as a whole and not to any particular
provision of this Agreement, and all references to Sections shall be references
to Sections of this Agreement unless otherwise expressly specified;
(g) unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement, contract or
document in the form (including all amendments, schedules, exhibits, appendices,
attachments, clarification letters and the like relating thereto) delivered to
the Trustee on the Closing Date, if so delivered, as the same may thereafter be
amended, supplemented or otherwise modified from time to time in accordance with
the terms of such agreement, contract or document, this Agreement and the other
Note Documents;
(h) unless otherwise stated, any reference in this Agreement to any
Person shall include its permitted successors and assigns and, in the case of
any Governmental Authority, any Person succeeding to its functions and
capacities;
(i) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(j) the words "include," "includes" and "including" shall not be
limiting, and shall be deemed in all instances to be followed by the phrase
"without limitation"; and
(k) references to "days" shall mean calendar days, unless otherwise
indicated.
ARTICLE 2.
GUARANTY
Section 2.1 Guaranty of the Guaranteed Obligations.
(a) Guarantor hereby irrevocably and unconditionally guarantees,
until the Termination Date, the due and punctual payment in fill of all
Guaranteed Obligations when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of Bankruptcy
Law).
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(b) Drawings may be made by the Trustee under this Agreement
pursuant to and subject to the terms of Article 10 of the Deposit and
Disbursement Agreement.
(c) As of the Closing Date, the amount guaranteed hereunder (the
"Guaranteed Amount") is $83,385,850.21, calculated as follows:
Equity Obligations $46,863,665.53
BPL Delay Debt Service Obligations 6,021,184.68
Cost Overrun Obligations 30,501,000.00
COI Obligations 0.00
Guaranteed Amount $83,385,850.21
(d) After the Closing Date, the Guaranteed Amount shall be subject
to reduction from time to time as follows:
(i) The Equity Obligations shall be reduced, as of any date of
determination, (A) to an amount equal to (x) the amount of Remaining Cash Equity
as of such date minus (y) the amount of payments due under Sections 5.1.2 and
5.1.3 of the Naming Rights Agreement that have not been paid as of such date and
(B) by the amount of each Equity Drawing (but without duplication of any amounts
taken into account in the reduction of Remaining Cash Equity).
(ii) The BPL Delay Debt Service Obligations shall be reduced
by (A) each payment of BPL Delay Debt Service made by BPL and (B) the amount of
each BPL Delay Debt Service Drawing (but without duplication of any amounts
taken into account in the foregoing clause (A)).
(iii) The Cost Overrun Obligations shall be reduced by (i) by
the amount of each Cost Overrun Drawing, (ii) any amount thereof which has been
paid to the Trustee in respect of Cost Overrun Obligations from the proceeds of
Subordinated Loans as certified by the Guarantor to the Trustee in a
Subordinated Loan Certificate and (iii) any amount by which the Cost Overrun
Obligations have been reduced pursuant to Section 2.9.
(iv) The COI Obligations shall be reduced (A) to equal the
amount of the COI Requirement as of any date of determination and (B) by the
amount of any COI Drawing.
A reduction in the Guaranteed Amount shall be deemed to take effect at such time
as Guarantor has delivered the Guaranteed Amount Certificate pursuant to Section
5.2(c) or, in the case of the Cost Overrun Obligations, the certificates
required pursuant to Section 2.9(a), (b), (c) or (d), as applicable. Upon any
reduction of the Guaranteed
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9
Amount, the Trustee shall deliver to the Custodial Agent and MBIA written notice
of the new Guaranteed Amount, as so reduced.
Section 2.2 Liability of Guarantor.
Guarantor agrees that Guarantor's obligations under this Agreement
are irrevocable, absolute, independent and unconditional and shall not be
affected by any circumstance which constitutes a legal or equitable discharge of
a guarantor or a surety other than the occurrence of the Termination Date. In
furtherance of the foregoing and without limiting the generality thereof,
Guarantor agrees as follows:
(a) This Agreement is an absolute and unconditional guaranty of
payment when due and not of collectibility.
(b) The obligations of Guarantor hereunder are independent of the
obligations of BPL and MHLP under the Notes, the Indenture and the other Note
Documents and of the obligations of any other guarantor of, or any other party
liable for, the Guaranteed Obligations or any part thereof, and a separate
action or actions may be brought and prosecuted against Guarantor whether or not
any action is brought against BPL, MHLP or any such other guarantor or other
party and whether or not BPL, MHLP or any such other guarantor or other party is
joined in any such action or actions.
(c) Guarantor's payment of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge Guarantor's
liability for any portion of the Guaranteed Obligations which has not been paid
in full.
(d) Upon such terms as it deems appropriate, without notice or
demand, and without affecting the validity or enforceability of this Agreement
or giving rise to any reduction, limitation, impairment, discharge or
termination of Guarantor's liability hereunder, the Trustee, at the direction or
with the consent of the Majority Holders, as applicable, may from time to time
(i) renew, extend, accelerate, or otherwise change the time, place, manner or
terms of payment of the Guaranteed Obligations, (ii) settle, compromise, release
or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other
obligations, (iii) request and accept other guaranties of the Guaranteed
Obligations and take and hold security for the payment of this Agreement or the
Guaranteed Obligations, (iv) release, surrender, exchange, substitute, fail to
perfect, compromise, settle, rescind, waive, alter, subordinate or modify, with
or without consideration, any security for payment of the Guaranteed
Obligations, any other guaranties of the Guaranteed Obligations, or any other
obligation of any person or entity with respect to the Guaranteed Obligations
and (v) exercise any other rights available under the Notes, the Indenture, the
other Note Documents or Applicable Law.
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(e) This Agreement and the obligations of Guarantor hereunder shall
be valid and enforceable and shall not be subject to any impairment, discharge,
delay or termination for any reason (other than the limitations and reductions
provided for in this Agreement), including without limitation the occurrence of
any of the following, whether or not Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce, or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or enforcement
of, any claim or demand or any right, power or remedy (whether arising under the
Notes, the Indenture, the other Note Documents, at law, in equity or otherwise)
with respect lo the Guaranteed Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment of the
Guaranteed Obligations, (ii) any rescission, waiver, amendment or modification
of, or any consent to departure from, any of the terms or provisions (including
without limitation provisions relating to events of default) of any of the
Notes, the Indenture, the other Note Documents, or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the terms
of the Notes, the Indenture, the other Note Documents, or any agreement relating
to such other guaranty or security, (iii) the consent by the Trustee, MBIA or
the Holders, to the change, reorganization or termination of the organizational
structure or existence of BPL or MHLP or to any corresponding restructuring of
the Guaranteed Obligations, (iv) any amendment or waiver of, any consent given
under or any action taken or any omission to act with respect to any of the
terms or provisions of the Note Documents, and (v) any other act or thing or
omission, or delay to do any other act or thing, which might in any manner or to
any extent vary the risk of Guarantor as an obligor in respect of the Guaranteed
Obligations.
Section 2.3 Waivers by Guarantor.
Except as specifically provided to the contrary in this Agreement,
Guarantor waives, for the benefit of the Trustee, the Custodial Agent, MBIA and
the Holders:
(a) any right to require the Trustee, the Custodial Agent, MBIA or
the Holders, as a condition of payment or performance by Guarantor, to (i)
except as otherwise provided in the Deposit and Disbursement Agreement, proceed
against BPL, MHLP, any other guarantor of or party liable for the Guaranteed
Obligations, or any other person or entity, (ii) proceed against or exhaust any
security held from BPL, MHLP, any other guarantor of or other party liable for
the Guaranteed Obligations, or any other Person, or (iii) pursue any other
remedy in the power of the Trustee, the Custodial Agent, MBIA or the Holders
whatsoever against any Person;
(b) any defense Guarantor may have based upon any election of
remedies by the Trustee, the Custodial Agent, MBIA or the Holders which destroys
Guarantor's subrogation rights or rights to proceed against BPL, MHLP or any
other Person for reimbursement, including without limitation, any loss of rights
Guarantor
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may suffer by reason of any rights, powers or remedies of BPL or MHLP in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging BPL's or MHLP's indebtedness or Guarantor's remedies against RPL,
MHLP or any other Person;
(c) any defense based upon the acts or omissions of the Trustee, the
Custodial Agent, MBIA or the Holders in the administration of the Guaranteed
Obligations, including but not limited to any act or omission which directly or
indirectly results in or contributes to the discharge of any of the Guaranteed
Obligations;
(d) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Agreement and any legal
or equitable discharge of Guarantor's obligations hereunder, (ii) any rights to
offsets or recoupments and (iii) promptness, diligence and any requirement that
the Trustee, the Custodial Agent, MBIA or the Holders, protect, secure, perfect
or insure any Lien or any property subject thereto;
(e) notices (except those expressly provided for in this Agreement),
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Agreement, or
any agreement or instrument related thereto, and notices of any of the matters
referred to in Section 2.2 and any right to consent to any thereof; and
(f) to the fullest extent permitted by Applicable Law, any defenses
or benefits that may be derived from or afforded by Applicable Law which limit
the liability of or exonerate guarantors or sureties, or which may conflict with
the terms of this Agreement.
Section 2.4 Subordination of Other Obligations.
Any and all indebtedness of BPL, MHLP or any other Person liable for
any of the Guaranteed Obligations now or hereafter held by Guarantor (including
all Subordinated Loans and all rights of subrogation, indemnity, reimbursement
and contribution) is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness of BPL, MHLP or any such other Person to
Guarantor collected or received by a Guarantor after a Guaranty Event of Default
has occurred and is continuing shall be held in trust for the Trustee and shall
promptly be paid over to the Trustee, but without affecting, impairing or
limiting in any manner the liability of Guarantor under any other provision of
this Agreement.
Section 2.5 Authority of Guarantor, BPL, MHLP, Etc.
It is not necessary for the Trustee, the Custodial Agent or the
Holders to inquire at any time into the capacity or powers of Guarantor, BPL,
MHLP, any
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trustee or beneficiary of Guarantor, or the partners, officers, directors or any
agents acting or purporting to act on behalf of any of the foregoing.
Section 2.6 Rights Cumulative.
The rights, powers and remedies given to the Trustee, the Custodial
Agent, MBIA and the Holders by this Agreement and the Custody Agreement are
cumulative and shall be in addition to and independent of all rights, powers and
remedies given to any thereof by virtue of any Applicable Law or in any of the
Notes, the Indenture or the other Note Documents. Any forbearance or failure to
exercise, and any delay by the Trustee, the Custodial Agent, MBIA or the Holders
in exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
Section 2.7 Bankruptcy; Reinstatement of Guaranty.
(a) So long as any Guaranteed Obligations remain outstanding,
Guarantor shall not, without the prior written consent of MBIA, commence or join
with any other person or entity in commencing any bankruptcy, reorganization or
insolvency proceedings of or against BPL or MHLP. The obligations of Guarantor
under this Agreement shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of BPL or MHLP or by any defense which BPL or MHLP may have by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.
(b) The Guaranteed Obligations and the Guaranteed Amount shall be
determined without regard to any Applicable Law which may relieve BPL, MHLP or
any other Person of any portion of the Guaranteed Obligations.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by BPL, MHLP or any other Person prior to the Termination
Date, the obligations of Guarantor under this Agreement, including but not
limited to Articles 2, 3, 4 and 5, shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part
of such payment or payments are rescinded or recovered directly or indirectly
from the Trustee, the Custodial Agent, MBIA or the Holders, as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guaranteed Obligations for all purposes under this
Agreement.
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Section 2.8 Subordinated Loans.
(a) Guarantor may make to, or obtain for, BPL or MHLP Subordinated
Loans ("Guarantor Subordinated Loan") for the purpose of providing funds with
which to pay some or all of the Guaranteed Obligations.
(b) Upon making or obtaining any Guarantor Subordinated Loan, the
purpose of which is to fund payment by BPL of Cost Overrun Obligations,
Guarantor shall provide the Trustee with an Officer's Certificate in the form of
Exhibit A attached hereto (a "Guarantor Subordinated Loan Certificate").
Section 2.9 Reduction of Cost Overrun Guaranty.
(a) At any time on or after the date the AGMP (as defined in the
Construction Contract) has been established pursuant to the terms of the
Construction Contract, Guarantor may request that the Cost Overrun Guaranteed
Amount be reduced pursuant to this Section 2.9(a) by delivering to the Trustee
and MBIA the following:
(i) a written request for such a reduction which request shall
refer specifically to this Section 2.9(a);
(ii) an Officer's Certificate from BPL (A) stating that the
AGMP has been established pursuant to the terms of the Construction Contract and
setting forth the amount of the AGMP, together with a letter or certificate from
the Contractor to the same effect and (B) specifying the amount of Forecasted
Project Costs as of the date of such Officer's Certificate (taking the AGMP into
account) and containing an itemization thereof in reasonable detail; and
(iii) a letter or certificate from the Construction Consultant
stating that, in its professional opinion, such Forecasted Project Costs are
reasonable.
Upon satisfaction of the foregoing conditions, the Cost Overrun
Guaranteed Amount shall be reduced to an amount equal to fifteen percent (15%)
of the amount of such Forecasted Project Costs.
(b) At the time of Construction Completion, Guarantor may request
that the Cost Overrun Guaranteed Amount be reduced pursuant to this Section
2.9(b) by delivering or causing to be delivered to the Trustee and MBIA the
following (which shall be in addition to those items set forth in the definition
of Construction Completion in the Indenture that are required to be delivered as
conditions to Construction Completion):
(i) a written request for such a reduction which request shall
refer specifically to this Section 2.9(b); and
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(ii) an Officer's Certificate from BPL setting forth (A) a
description of all Additional Known Costs, if any, (B) an estimate of the amount
of money needed to pay for the same and (C) the amount of money on deposit in
the Construction Account that is available to pay for the same (which amount
shall be in addition to all other amounts required to be reserved against Punch
List Items or other costs as a condition to Construction Completion) and, if
such amount is less than 100% of the Additional Known Costs, the amount of such
deficiency (the "Unfunded Additional Known Costs"), together with a letter from
each of the Architects and the Construction Consultant stating that in their
professional judgment such Officer's Certificate is reasonable.
If MBIA has either (i) delivered written confirmation to the
Guarantor and the Trustee stating that the foregoing conditions have been
satisfied, or (ii) the Guarantor has, by written notice to the Trustee and MBIA,
requested such written confirmation and MBIA has not, within 30 days provided
written notice to the Guarantor and the Trustee that it is denying such written
confirmation which notice shall specify the reasons therefor, the Cost Overrun
Guaranteed Amount shall be reduced by an amount equal to the amount by which the
Cost Overrun Guaranteed Amount exceeds the sum of (x) the amount of Unfunded
Additional Known Costs set forth in the Officer's Certificate referred to in the
foregoing clause (ii) and (y) $2,500,000 (the "Contingency Amount").
(c) At any time after Construction Completion (but no more
frequently than once during every 60-day period thereafter) until the date on
which the conditions set forth in Section 5.08 of the Deposit and Disbursement
Agreement have been satisfied, Guarantor may request that the Cost Overrun
Guaranteed Amount be reduced pursuant to this Section 2.9(c) by delivering or
causing to be delivered to the Trustee and MBIA the following:
(i) a written request for such reduction which request shall
refer specifically to this Section 2.9(c);
(ii) an Officer's Certificate from BPL stating the aggregate
cost of the Punch List Items that have been paid from the Construction Account
from the date of the previous request delivered pursuant to Section 2.9(b) or
2.9(c) and the aggregate estimated costs of the Punch List Items that have not
been completed;
(iii) an Officer's Certificate from BPL (A) stating that an
amount equal to 200% of the costs for the Punch List Items remaining unpaid as
set forth in the Officer's Certificate referred to in the foregoing clause (ii)
is on deposit in the Construction Account, (B) that no claims exist against BPL,
the County or the Project out of which a Lien based on furnishing labor or
material exists or might ripen, except any claim that is not due and payable and
any claim out of which a Lien exists or might ripen in the event that BPL
intends to contest such claim, in which event any such claim or claims shall be
described in reasonable detail, and (C) that any claims referred to in the
foregoing clause (B) are fully bonded against or funds
<PAGE>
15
are on deposit in the Construction Account in an amount equal to 125% of the
amount of the claims;
(iv) an Officer's Certificate from BPL setting forth (A) a
description of all Additional Known Costs, (B) an estimate of the amount of
money needed to pay for the same and (C) the amount of money on deposit in the
Construction Account that is available to pay for the same (which amount shall
be in addition to all other amounts required to be reserved against Punch List
Items or other costs as a condition to Construction Completion) and, if such
amount is less than 100% of the Additional Known Costs, the amount of such
Unfunded Additional Known Costs; and
(v) a certificate of the Construction Consultant stating that
the Officer's Certificates described in clauses (ii) through (iv) above are
reasonable.
If MBIA has either (i) delivered written confirmation to the
Guarantor and the Trustee stating that the foregoing conditions have been
satisfied, or (ii) the Guarantor has, by written notice to the Trustee and MBIA,
requested such written confirmation and MBIA has not, within 15 days provided
written notice to the Guarantor and the Trustee that it is denying such written
confirmation which notice shall specify the reasons therefor, the Cost Overrun
Guaranteed Amount shall be reduced by an amount equal to the amount by which the
Cost Overrun Guaranteed Amount exceeds the sum of (x) the amount of Unfunded
Additional Known Costs set forth in the Officer's Certificate referred to in the
foregoing clause (ii) and (y) the Contingency Amount.
(d) At any time after the date on which the conditions set forth in
Section 5.08 of the Deposit and Disbursement Agreement have been satisfied, the
Cost Overrun Guaranteed Amount shall be reduced to zero. Pursuant to this
Section 2.9(d) the Guarantor shall also deliver or cause to be delivered to the
Trustee and MBIA the following:
(i) a written request for such reduction which request shall
refer specifically to this Section 2.9(d);
(ii) an Officer's Certificate from BPL certifying that all
conditions set forth in Section 5.08 of the Deposit and Disbursement Agreement
have been satisfied; and
(iii) a certificate of the Construction Consultant stating
that the Officer's Certificate described in clause (ii) above is accurate.
<PAGE>
16
ARTICLE 3.
SECURITY
Section 3.1 Grant of Security Interest.
As collateral security for the due and punctual payment, performance
and observance of all obligations of Guarantor under this Agreement and the
Guarantor pledges to the Trustee, and grants to the Trustee, for the benefit of
MBIA and for the equal and ratable benefit of the Holders, a security interest
in and Lien upon all of the Guarantor Collateral.
Section 3.2 Delivery of Guarantor Collateral, Certificates; Custodial
Agent.
(a) Concurrently with the execution and delivery of this Agreement,
Guarantor shall deliver the Initial Guarantor Collateral (and thereafter shall
deliver all other portions of the Guarantor Collateral capable of being so held)
to the Custodial Agent, to be held by the Custodial Agent as Guarantor
Collateral hereunder pursuant to the terms of the Custody Agreement. Guarantor
consents to the terms of the Custody Agreement and to all provisions thereof and
agrees to pay (or reimburse the Trustee for) all fees of the Custodial Agent for
acting as Custodial Agent under this Agreement and the Custody Agreement and all
other amounts for which the Trustee may become obligated under the Custody
Agreement, including the indemnification obligations under Section 9(b) thereof.
The Custodial Agent shall hold only readily marketable securities on behalf of
the Trustee and shall not hold cash or other property on its behalf.
(b) Guarantor shall promptly, and in any event within three days
after receipt thereof, deliver to the Trustee, for the benefit of MBIA and for
the equal and ratable benefit of the Holders (a) any original certificates or
other instruments or documents, if any, evidencing any Guarantor Collateral and
(b) concurrently with the delivery to the Trustee of any certificate or other
instrument or document representing such Guarantor Collateral, Guarantor shall
deliver an undated stock power covering such certificate, duly executed in blank
by Guarantor with, if the Trustee so requests, signature guaranteed.
Section 3.3 Maintenance of Perfected Security Interest.
Guarantor will take or cause to be taken, at Guarantor's expense,
all action required to perfect, maintain, preserve and protect the security
interests in, and Liens on, the Guarantor Collateral granted by this Agreement,
including, without limitation, (i) the filing of financing statements,
continuation statements, collateral assignments and any instruments of further
assurance, in such manner and in such places as may be required by law to
preserve and protect fully the rights of the Trustee, MBIA and the Holders under
this Agreement, (ii) the delivery of entitlement orders or instructions to any
securities intermediary (as defined in the UCC) as may be required to preserve
and protect the rights of the Holders, the Trustee, MBIA and
<PAGE>
17
the Custodial Agent under this Agreement and the Custody Agreement, and (iii)
the delivery of such documents and instruments as may be necessary or
appropriate in the reasonable discretion of the Trustee, the Custodial Agent or
MBIA to perfect any security interest or Lien granted by this Agreement.
Section 3.4 Maintenance of Collateral Coverage Ratio.
(a) Guarantor shall at all times while this Agreement remains in
effect maintain a Collateral Coverage Ratio of not less than 1.5 to 1.0.
(b) Upon receipt by the Trustee from the Custodial Agent of a
Collateral Coverage Call, the Trustee shall promptly notify Guarantor by
telephone of such Collateral Coverage Call and deliver such Collateral Coverage
Call to Guarantor. Upon receipt by Guarantor of a Collateral Coverage Call,
Guarantor shall deliver to the Custodial Agent, to be held as Guarantor
Collateral pursuant to this Agreement for benefit of MBIA and for the equal and
ratable benefit of the Holders, Qualified Carnival Stock in an amount which,
taken together with the other Guarantor Collateral, shall be sufficient to cause
the Collateral Coverage Ratio to be not less than 2 to 1. If the Collateral
Coverage Call is received by Guarantor prior to 11:00 a.m. (Eastern Time) on any
Business Day, Guarantor shall deposit such Qualified Carnival Stock with the
Custodial Agent no later than 3:00 p.m. (Eastern Time) on the second succeeding
Business Day. If the Collateral Coverage Call is received by Guarantor on a day
which is not a Business Day, or after 11:00 a.m. (Eastern Time) on a Business
Day, Guarantor shall deposit such Qualified Carnival Stock with the Custodial
Agent no later than 3:00 p.m. (Eastern Time) on the third succeeding Business
Day.
(c) In the event that Guarantor fails fully and timely to deliver
all Qualified Carnival Stock to the Custodial Agent as required by this Section
3.4, the Trustee shall direct the Custodial Agent to sell such Guarantor
Collateral as the Trustee may direct in its sole discretion in such amount as
will produce proceeds (net of the costs and expenses of sale and of any accrued
and unpaid fees of the Custodial Agent) that as closely as reasonably possible
approximate the Guaranteed Amount, which proceeds shall thereafter be held by
the Trustee in a segregated account as Guarantor Collateral hereunder. No such
sale shall limit any obligation of Guarantor under this Agreement whether
existing at the time of such sale or arising thereafter except to the extent
that the proceeds of such a sale shall be credited to payment of any of the
Guaranteed Obligations.
(d) If at any time Guarantor deposits more Qualified Carnival Stock
with the Trustee or the Custodial Agent in response to a Collateral Coverage
Call than is required under the terms of this Agreement on the date of such
deposit (whether due to Guarantor's inability to obtain a certificate for the
appropriate number of shares of stock to be deposited or otherwise), the Trustee
shall, in accordance with the written directions of Guarantor, promptly return
or cause to be returned to Guarantor the amount of such excess Qualified
Carnival Stock.
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18
Section 3.5 Registration.
At any time and from time to time after the occurrence and during
the continuance of a Guaranty Event of Default, the Trustee may cause all or any
of the Guarantor Collateral to the extent not already held in "street name" to
be transferred to or registered in its name or the name of its nominee or
nominees.
Section 3.6 Voting Rights.
With respect to all Qualified Carnival Stock held as Guarantor
Collateral hereunder, Guarantor, be entitled to exercise, as it shall think fit,
the voting power with respect to such Guarantor Collateral, and for that purpose
the Trustee shall (if such Guarantor Collateral shall be registered in street
name) execute or cause to be executed from time to time, at the expense of
Guarantor, such proxies or other instruments in favor of Guarantor or its
nominee, in such form and for such purposes as shall reasonably be required by
Guarantor and shall be specified in a written request therefor, to enable
Guarantor to exercise such voting power with respect to such Guarantor
Collateral.
Section 3.7 Dividends and Distributions.
Unless a Guaranty Event of Default has occurred and is continuing,
Guarantor shall be entitled to receive and retain all dividends and
distributions made upon or with respect to the Guarantor Collateral. At any time
while a Guaranty Event of Default has occurred and is continuing, Guarantor
shall pay or deliver all dividends and distributions received upon or with
respect to the Guarantor Collateral to the Trustee promptly and in any event
within three Business Days of its receipt thereof and the same shall thereafter
be held by the Trustee as Guarantor Collateral hereunder.
Section 3.8 Care of Guarantor Collateral.
The Trustee's duties as to the care of Guarantor Collateral shall be
the standard of care set forth in the Indenture. The duties of and standard of
care applicable to the Custodial Agent are set forth in the Custody Agreement.
Section 3.9 Power of Attorney.
Guarantor hereby appoints the Trustee as Guarantor's
attorney-in-fact, effective upon the occurrence and during the continuance of a
Guarantor Event of Default, for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Trustee may deem necessary or advisable to accomplish the purposes hereof. The
power of attorney granted hereunder is coupled with an interest and is
irrevocable until the Termination Date.
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19
Section 3.10 Partial Release of Guarantor Collateral.
In the event that the Collateral Coverage Ratio is at least 2.50 to
1 for four (4) consecutive months, and so long as no Guaranty Event of Default
has occurred and is continuing, upon the written request of Guarantor delivered
to the Trustee and accompanied by a properly completed Officer's Certificate in
the form attached hereto as Exhibit B (a "Release Certificate), the Trustee
shall release, or shall direct the Custodial Agent to release, the Lien
hereunder as to an amount of Qualified Carnival Stock such that, after giving
effect to such release, the Collateral Coverage Ratio is not less than 2.50 to
1. Any Guarantor Collateral as to which the Lien hereunder is so released shall
promptly be returned to Guarantor and, thereafter, shall no longer constitute
Guarantor Collateral.
Section 3.11 Return of Guarantor Collateral.
Subject to Section 7.7, all obligations of Guarantor under this
Agreement shall terminate on the Termination Date. Promptly after the
Termination Date, the Trustee shall return, or cause to be returned, all
Guarantor Collateral held by it or by the Custodial Agent to Guarantor. The
return by the Trustee of such Guarantor Collateral shall be without
representation or warranty of any nature whatsoever and wholly without recourse;
provided, however, that such Guarantor Collateral shall be returned free of any
Lien created by the Trustee or the Custodial Agent and of any Lien created by
this Agreement or the other Note Documents.
Section 3.12 Consents, Notices, Reports under Custody Agreement.
(a) Promptly after the receipt thereof, the Trustee shall deliver to
Guarantor and MBIA copies of all notices, statements and other written
communications received by the Trustee from the Custodian under the Custody
Agreement.
(b) Without the prior written consent of Guarantor, the Trustee
shall not consent to the appointment of a temporary custodian pursuant to
Section 12(c), consent to any amendment or waiver of any provision of the
Custody Agreement, consent to the assignment by the Custodial Agent of any of
its rights or obligations under the Custody Agreement, disclose any information
pursuant to Section 15 or otherwise approve or consent to any act or request
under the Custody Agreement.
<PAGE>
20
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Guarantor hereby represents and warrants that:
Section 4.1 Existence; Compliance with Law.
Guarantor (a) is duly organized, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property and to conduct the activities in which it is currently
engaged, and (c) is in compliance with all Applicable Laws except to the extent
that the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 4.2 Power; Authorization; Enforceable Obligations.
Guarantor has the power and authority, and the legal right, to
execute, deliver and perform this Agreement and the Custody Agreement. Guarantor
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the Custody Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required (other than those which
have been obtained and remain in full force and effect) in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
or the Custody Agreement. This Agreement and each of the Custody Agreement has
been duly executed and delivered on behalf of Guarantor. This Agreement and each
Custody Agreement constitutes a legal, valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
Section 4.3 Financial Condition.
(a) The statement of net assets of Guarantor as at December 31,
1997, and audited by Price Waterhouse LLP, a copy of which has heretofore been
furnished to the Trustee and MBIA presents fairly in all material respects the
financial condition of Guarantor as at such date.
(b) Except as set forth on Schedule 4.3(c), during the period from
the date of Guarantor's statement of net assets described in Section 4.3(a) to
and including the Closing Date, there has been no (i) sale, transfer or other
disposition by Guarantor of any material part of its property, (ii) purchase or
other acquisition by Guarantor of any property material in relation to
Guarantor's financial condition, or (iii) development or event which has had or
could reasonably be expected to have a Material Adverse Effect.
<PAGE>
21
Section 4.4 No Legal Bar.
The execution, delivery and performance of this Agreement and the
Custody Agreement will not violate any Applicable Law or any Contractual
Obligation of Guarantor and will not result in, or require, the creation or
imposition of any Lien other than Permitted Liens on any of its properties or
revenues pursuant to any such Applicable Law or Contractual Obligation.
Section 4.5 No Material Litigation.
No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
Guarantor, threatened in writing by or against Guarantor or against any of its
properties or revenues which could reasonably be expected to have a Material
Adverse Effect.
Section 4.6 No Guaranty Default.
Guarantor is not in default, nor to its knowledge is there any event
or condition which with the passage of time or the giving of notice would ripen
into a default, under or with respect to any of its Contractual Obligations
except to the extent that any of the foregoing could not reasonably be expected
to have a Material Adverse Effect. No Guaranty Default or Guaranty Event of
Default has occurred and is continuing.
Section 4.7 Organizational Documents.
The Agreement of Limited Partnership of MA 1994 B Shares, L.P. dated
as of December 29, 1997 is in full force and effect and has not been modified or
terminated. MA 1994 B Shares, Inc., a Delaware corporation, is the sole general
partner in the Limited Partnership. JMD Delaware, Inc., as trustee of the Micky
Arison 1994 "B" Trust established pursuant to that certain trust agreement dated
as of September 27, 1994, is the sole limited partner in Guarantor and the sole
shareholder of MA 1994 B Shares, Inc.
Section 4.8 Taxes.
Guarantor has filed or caused to be filed all tax returns which, to
the knowledge of such Guarantor, are required to be filed and has paid all taxes
shown to be due and payable on such returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of such Guarantor). No tax Lien has been
filed, and, to the knowledge of Guarantor, no claim is being asserted, with
respect to any such tax, fee or other charge.
<PAGE>
22
Section 4.9 Representations and Warranties Respecting the Guarantor
Collateral.
(a) The Initial Guarantor Collateral is, and all other Guarantor
Collateral hereafter delivered to the Trustee will be, owned by the Guarantor
delivering the same to the Trustee, free and clear of all Liens except Permitted
Liens.
(b) The security interest created pursuant to this Agreement will
constitute a valid, perfected first-priority security interest in the Initial
Guarantor Collateral, enforceable in accordance with its terms against all
creditors of Guarantor and any Persons purporting to purchase any Guarantor
Collateral from Guarantor, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(c) All of the Initial Guarantor Collateral is Qualified Carnival
Stock.
Section 4.10 Net Worth.
As of the date hereof, Guarantor has a Net Worth of One Billion
Dollars ($1,000,000,000) or more.
Section 4.11 Unencumbered Liquid Assets.
As of the date hereof, Guarantor own Unencumbered Liquid Assets of
Three Hundred Million Dollars ($300,000,000) or more.
ARTICLE 5.
AFFIRMATIVE COVENANTS
Section 5.1 Financial Statements.
Guarantor will finish to the Trustee and MBIA, as soon as available,
but in any event within 120 days after the end of each Fiscal Year, the
statement of net assets of Guarantor as at the end of such Fiscal Year, prepared
on an accounting basis comparable to that on which the statement of net assets
described in Section 4.3 were prepared and audited by independent certified
public accountants of nationally recognized standing.
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23
Section 5.2 Certificates; Other Information.
Guarantor will finish to the Trustee and MBIA:
(a) within thirty (30) days after the end of each quarterly fiscal
period of each Fiscal Year, an Officer's Certificate of Guarantor (i) stating
that during such period Guarantor has observed or performed all of its covenants
and other agreements, and satisfied every condition contained in this Agreement
to be observed, performed or satisfied by it, (ii) stating that the officer
executing such certificate has obtained no knowledge of any Guaranty Default or
Guaranty Event of Default except as specified in such Officer's Certificate,
setting forth the amounts of Guarantor's Net Worth and Unencumbered Liquid
Assets as at the end of such quarter, and (iv) stating that the stock powers
delivered in connection with all Qualified Carnival Stock remain effective to
effect the transfer of such Qualified Carnival Stock.
(b) within 30 days after the end of each quarterly fiscal period of
each Fiscal Year, an Officer's Certificate of Guarantor in the form attached as
Exhibit C to this Agreement (a "Guaranteed Amount Certificate"), containing a
calculation of the Guaranteed Amount as at the end of such quarterly fiscal
period.
Section 5.3 Payment of Obligations.
Guarantor will duly pay and discharge, as the same shall become due
and payable and before the same shall become delinquent, all its obligations of
whatever nature, including all taxes and other charges lawfully levied and
imposed by any Governmental Authority upon such Guarantor or its properties,
provided, however, that nothing contained in this Section shall be construed as
a waiver of any statutory exemption from or abatement of taxation nor to require
Guarantor to pay, acquire or make provision for any such tax, assessment, lien
or charge so long as Guarantor in good faith shall diligently contest the
validity thereof and reserves in conformity with GAAP with respect thereto have
been provided on the books of Guarantor.
Section 5.4 Compliance with Applicable Law and Contractual Obligations.
Guarantor will comply with all provisions of any Applicable Law.
Section 5.5 Legal Existence of Guarantor.
Guarantor will at all times maintain its legal existence under the
laws of the State of Delaware and will duly procure any necessary renewals and
extensions thereof, will maintain, preserve and renew all the rights, powers,
privileges and franchises necessary or desirable in the normal course of its
business or other activities.
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24
Section 5.6 Title Curative Proceedings.
Guarantor will promptly take such actions as may be necessary or
proper to remedy or cure any defect in or cloud upon the title to the Guarantor
Collateral or any part thereof, whether now existing or hereafter developing.
Section 5.7 Notices.
Promptly upon receiving notice thereof, Guarantor will give, or
cause to be given, prompt written notice of (a) any Guaranty Default or Guaranty
Event of Default and (b) any actions, proceedings or notices adversely affecting
the Lien of the Trustee in the Guarantor Collateral.
Section 5.8 Covenants Respecting the Guarantor Collateral.
(a) Guarantor shall maintain the security interests created by this
Agreement as first priority, perfected security interests and shall defend such
security interests against claims and demands of all Persons whomsoever. At any
time and from time to time, upon the written request of the Trustee or the
Custodial Agent, and at the sole expense of Guarantor, Guarantor will promptly
and duly execute and deliver such further instruments and documents and take
such further actions as the Trustee or the Custodial Agent may reasonably
request for the purposes of obtaining or preserving the benefits of this
Agreement and of the rights and powers herein granted.
(b) Guarantor shall pay, and save the Trustee, MBIA, the Custodial
Agent and the Holders, harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Guarantor Collateral or in connection with any of the transactions
contemplated by this Agreement.
Section 5.9 Fees of Custodial Agent.
Guarantor shall timely pay (or reimburse the Trustee for upon
demand) all fees of the Custodial Agent charged pursuant to the terms of the
Custody Agreement.
ARTICLE 6.
NEGATIVE COVENANTS
Section 6.1 Net Worth.
Guarantor will not permit its Net Worth at any time to be less than
One Billion Dollars ($1,000,000,000).
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Section 6.2 Unencumbered Liquid Assets.
Guarantor will not at any time permit its Unencumbered Liquid Assets
to be less than Three Hundred Million Dollars ($300,000,000).
Section 6.3 Liens.
Guarantor will not directly or indirectly, create, assume, incur or
suffer to exist upon the Guarantor Collateral or any part thereof any Lien
except Permitted Liens.
ARTICLE 7.
DEFAULTS AND REMEDIES
Section 7.1 Events of Default.
A "Guaranty Event of Default " occurs if:
(a) Guarantor defaults in the payment when due of any of the
Guaranteed Obligations as provided in this Agreement and such default continues
without being waived in writing by the Majority Holders for a period of five (5)
Business Days;
(b) Guarantor defaults in the payment of any other amount payable to
the Trustee under this Agreement and such default continues without being waived
in writing by the Majority Holders for a period of five (5) Business Days;
(c) Guarantor fails to timely deliver any required Acceptable
Guarantor Collateral in response to a Collateral Coverage Call as provided in
Section 3.4;
(d) Guarantor defaults in the observance or performance of any other
agreement contained in this Agreement and such default continues without being
waived in writing by the Majority Holders for a period of 60 days;
(e) any representation or warranty made by Guarantor in this
Agreement shall prove to have been inaccurate in any material respect on or as
of the date made and such inaccuracy shall have a Material Adverse Effect;
(f) this Agreement, at any time and for any reason, ceases to be
valid, binding and enforceable or Guarantor contests or denies the validity or
enforceability thereof;
(g) Guarantor, pursuant to or within the meaning of any Bankruptcy
Law:
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26
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability to pay its debts as they
become due;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against Guarantor, in an involuntary case,
(ii) appoints a Custodian of Guarantor or for all or
substantially all of the property of Guarantor, or
(iii) orders the liquidation of Guarantor,
and the order or decree remains unstayed and in effect for 60 consecutive days;
Section 7.2 Remedies in General.
(a) If a Guaranty Event of Default described in Section 7.1(a) or
(b) occurs and is continuing, the Trustee may direct the Custodial Agent to sell
such Guarantor Collateral as the Trustee may direct in its sole discretion in
such amount as will produce proceeds (net of the costs and expenses of sale and
of any accrued and unpaid fees of the Custodial Agent) (i) in the case of a
Guaranty Event of Default described in Section 7.1(c), that as closely as
reasonably possible approximates the Guaranteed Amount and (ii) in the case of a
Guaranty Event of Default described in Section 7.1 (a) or (b) that as closely as
reasonably possible approximates the amount of the payment which Guarantor was
required, but failed, to make. In the case of a sale pursuant to clause (i) of
the foregoing sentence, the Trustee may hold the proceeds of such sale as
Guarantor Collateral hereunder, and in the case of a sale pursuant to clause
(ii) of the foregoing sentence, the Trustee may apply the proceeds of such sale
to the payment which Guarantor was required, but failed to make. No such sale
shall limit any obligation of Guarantor under this Agreement whether existing at
the time of such sale or arising thereafter.
(b) If a Guaranty Event of Default other than a Guaranty Event of
Default described in Section 7.1(a) or (b) occurs and is continuing, the Trustee
may
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27
pursue any remedy available under this Agreement or Applicable Law to collect
the payment of any amount owing by Guarantor under the terms of this Agreement
or to enforce the performance of any provision of this Agreement. A delay or
omission by the Trustee in exercising any right or remedy accruing upon a
Guaranty Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Guaranty Event of Default. All remedies are
cumulative to the extent permitted by Applicable Law.
Section 7.3 Procedures With Respect to Sale of the Guarantor Collateral.
(a) If a Guaranty Event of Default shall occur and be continuing,
the Trustee, on behalf of the Holders and MBIA, without obligation to resort to
other security, may exercise in respect of the Guarantor Collateral, in addition
to all other rights and remedies provided for in this Agreement or the Custody
Agreement or otherwise available to it, all the rights and remedies of a secured
party under the UCC.
(b) The remedies provided herein in favor of the Trustee for the
benefit of MBIA and for the equal and ratable benefit of the Holders shall not
be deemed exclusive, but shall be cumulative, and shall be in addition to all
other remedies in favor of the Trustee and the Holders in this Agreement and
otherwise existing by contract or under Applicable Law.
Section 7.4 Expenses and Interest.
(a) In the event that the Trustee prevails in any dispute relating
to the interpretation, enforcement or performance of this Agreement, the Trustee
shall be entitled to collect from Guarantor on demand all reasonable fees and
expenses incurred in connection therewith, including but not limited to fees and
disbursements of attorneys, accountants, consultants, expert witnesses,
arbitrators, mediators and court reporters. Without limiting the generality of
the foregoing, Guarantor shall pay all such costs and expenses incurred in
connection with proceedings under any Bankruptcy Law with respect to Guarantor.
(b) Guarantor will reimburse the Trustee for any and all reasonable
expenditures by the Trustee for (a) the maintenance, protection and preservation
of the Collateral or the Trustee's security interests in the Collateral; (b) the
sale or other disposition of or realization upon the Collateral; and (c) costs
and expenses incurred by the Trustee in taking (or otherwise in connection with)
any action which Guarantor is required, but fails, to take under the terms of
this Agreement.
(c) All costs, fees and expenses described, in this Section 7.4
shall be due and payable on written demand (accompanied by reasonable supporting
information), shall bear interest from the date of such demand until paid at the
highest rate borne by any of the Notes Outstanding and shall be secured hereby.
<PAGE>
28
ARTICLE 8.
MISCELLANEOUS
Section 8.1 Further Assurances.
Guarantor shall, upon request of the Trustee, duly execute and
deliver, or cause to be duly executed and delivered, to the Trustee such further
instruments and take and cause to be taken such further actions as may be
necessary or proper in the reasonable opinion of the Trustee to carry out more
effectively the provisions and purposes of this Agreement.
Section 8.2 No Subrogation.
Notwithstanding any payment or payments made by Guarantor hereunder,
or any setoff or application of funds of Guarantor by the Trustee, MBIA or any
Holder, or the receipt of amounts by any of such parties with respect to any of
the Guarantor Collateral, except as expressly permitted in any Subordination
Agreement in effect among Guarantor, the Trustee and BPL or MHLP, until the
Termination Date, Guarantor shall not be entitled to be subrogated to any of the
rights of the Trustee, MBIA or any Holder against any guarantor (including a
guarantor in its role as debtor or guarantor) or against any other collateral
security held by the Trustee for payment of the Guaranteed Obligations and the
other obligations secured hereby, nor shall Guarantor seek any reimbursement
from BPL or MHLP in respect of payments made by Guarantor in connection with the
Guarantor Collateral, or amounts realized by the Trustee in connection with the
Guarantor Collateral. If any amount shall be paid to Guarantor on account of
such subrogation rights at any time when not permitted under the foregoing
sentence, such amount shall be held by such Guarantor in trust for the Trustee,
segregated from other funds of such Guarantor, and shall forthwith upon receipt
by Guarantor, be turned over to the Trustee in the exact form received by
Guarantor (duly endorsed by such Guarantor to the Trustee, if required) to be
applied against the Guaranteed Obligations and the other obligations secured
hereby, whether matured or unmatured.
Section 8.3 Authority of Trustee.
Guarantor acknowledges that the rights and responsibilities of the
Trustee under this Agreement with respect to any action taken by the Trustee or
the exercise or non-exercise by the Trustee of any option, voting right,
request, judgment or other right or remedy provided for in this Agreement or
resulting or arising out of this Agreement shall, as between the Trustee, MBIA
and the Holders, be governed by the Indenture and by such other agreements with
respect thereto as may exist from time to time between them, but, as between the
Trustee and Guarantor, the Trustee shall be conclusively presumed to be acting
as agent for the Holders with full and valid authority so to act or refrain from
acting, and guarantor nor any issuer of any of the Guarantor Collateral shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
<PAGE>
29
Section 8.4 No Waiver.
No act, omission or delay by the Trustee or course of dealing
between the Trustee and Guarantor shall constitute a waiver of the rights and
remedies of the Trustee hereunder. No single or partial waiver by the Trustee or
any Holder of any Guaranty Default or Guaranty Event of Default or right or
remedy which it may have shall operate as a waiver of any other Guaranty
Default, Guaranty Event of Default, right or remedy or of the same Guaranty
Default, Guaranty Event of Default, right or remedy on a future occasion.
Guarantor hereby waives presentment, notice of dishonor and protest of all
instruments included in or evidencing any of the Guaranteed Obligations or
Guarantor Collateral, and all other notices and demands whatsoever (except as
expressly provided herein).
Section 8.5 Notices.
Any notice, request, instruction, order or other communication by
Guarantor or the Trustee to the other is duly given only if in writing and
delivered in person, by telecopier or by overnight air courier guaranteeing next
day delivery, to the other's address as follows:
If to Guarantor:
c/o Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: James M. Dubin, Esq.
Telecopier: (212) 373-2315
Telephone: (212) 373-3000
If to Trustee:
Citibank, N.A.
Corporate Agency and Trust
111 Wall Street
5th Floor, Zone #2
New York, New York 10043
Attention: Structured Finance Team
Telecopier: (212) 657-3862 or (212) 675-3872
Telephone: (212) 657-6342
<PAGE>
30
With a copy to:
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio Management - PF
Telecopier: (914) 765-3799
Telephone: (914) 273-4545
Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and other communications under this Agreement shall be
deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt); (b) sent by telecopier (with written or electronic
confirmation of receipt), provided that a copy is also sent on the same day by
hand- delivery or by a nationally-recognized overnight delivery service (such as
Federal Express) guaranteeing delivery on the next Business Day; or (c) received
by the addressee, if sent by a nationally-recognized overnight delivery service
(such as Federal Express) guaranteeing delivery on the next Business Day.
Section 8.6 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS AGREEMENT.
Section 8.7 Submission To Jurisdiction, Waivers.
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE NOTE DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF.
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN, OR TRANSFERRED TO, SUCH COURTS AND WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR
<PAGE>
31
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD
OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO GUARANTOR AT ITS ADDRESS REFERRED TO IN SECTION 8.8 OR AT SUCH
OTHER ADDRESS OF WHICH THE TRUSTEE SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
OR SHALL LIMIT THE RIGHT OF THE TRUSTEE TO SUE IN ANY OTHER JURISDICTION;
(E) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL
ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES; AND
(F) WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER SOUNDING IN CONTRACT OR IN TORT,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING
HEREUNDER.
Section 8.8 Successors and Assigns.
All agreements of Guarantor or the Trustee in this Agreement shall
bind, and inure to the benefit of, their respective successors and permitted
assigns.
Section 8.9 Severability.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions, or of such provision in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 8.10 Counterpart Originals.
The parties may sign any number of copies of this Agreement. Each
signed copy shall be an original but all of them together represent the same
agreement.
<PAGE>
32
Section 8.11 Table of Contents, Headings, etc.
The Table of Contents and Headings of the Articles and Sections of
this Agreement have been inserted for convenience of reference only, are not to
be considered a part of this Agreement and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 8.12 Amendments.
No waiver, amendment, modification or termination of any provision
of this Agreement, or consent to any departure by Guarantor therefrom, shall in
any event be effective without the written concurrence of the Trustee and MBIA
and none of the Guarantor Collateral shall be released, except as expressly
provided herein, without the written consent of the Trustee and MBIA. Any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
MA 1994 B SHARES, L.P., a Delaware limited
partnership
By: MA 1994 B SHARES, INC., a Delaware
corporation, its sole general partner
<PAGE>
EXHIBIT A
FORM OF
GUARANTOR SUBORDINATED LOAN CERTIFICATE
Reference is made to that certain Guaranty and Pledge Agreement (the
"Guaranty and Pledge Agreement") dated as of May 20, 1998 between MA 1994 B
Shares, L.P., a Delaware limited partnership ("Guarantor"), in favor of
Citibank, N.A. (the "Trustee"), a national banking association, as Trustee for
the Holders of the series of notes issued by Basketball Properties, Ltd., a
Florida limited partnership ("BPL"), pursuant to that certain Indenture dated as
of May 20, 1998.
This Certificate is provided to the Trustee pursuant to Section 2.8
of the Guaranty and Pledge Agreement. Capitalized terms used in this Certificate
and not otherwise defined have the meanings given to those terms in the Guaranty
and Pledge Agreement.
Guarantor hereby certifies to the Trustee as follows:
1. On the date hereof, Guarantor has made, or obtained, a
Subordinated Loan to BPL in the principal amount of $______________________ for
the sole purpose of funding payment by BPL of Cost Overrun Obligations.
2. Delivered to the Trustee herewith is the original of each
promissory note or other instrument evidencing BPL's obligations to repay the
Subordinated Loan described above, indorsed to the order of the Trustee for
security purposes.
3. The Subordinated Loan described above is subordinated to all
obligations of BPL to the Trustee and the Holders pursuant to the terms of a
Subordination Agreement (as defined in the Indenture).
DATED this day of , .
MA 1994 B SHARES, L.P.,
a Delaware limited partnership
By: MA 1994 B SHARES, INC.,
a Delaware corporation, its sole
general partner
By:
Its:
<PAGE>
EXHIBIT B
FORM OF
RELEASE CERTIFICATE
Reference is made to that certain Guaranty and Pledge Agreement (the
"Guaranty and Pledge Agreement") dated as of May 20, 1998 between MA 1994 B
Shares, L.P., a Delaware limited partnership ("Guarantor"), in favor of
Citibank, N.A. (the "Trustee"), a national banking association, as Trustee for
the Holders of the series of notes issued by Basketball Properties, Ltd., a
Florida limited partnership ("BPL"), pursuant to that certain Indenture dated as
of May 20, 1998.
This Certificate is provided to the Trustee pursuant to Section 3.11
of the Guaranty and Pledge Agreement. Capitalized terms used in this Certificate
and not otherwise defined have the meanings given to those terms in the Guaranty
and Pledge Agreement.
Guarantor hereby certifies to the Trustee as follows:
1. This Certificate is submitted to the Trustee together with a
written request for the release of the liens held by the Trustee under the
Guaranty and Pledge Agreement as to ____________ shares of the Class A common
stock of Carnival Corporation held by the Trustee or its nominee as Guarantor
Collateral pursuant to the terms of the Guaranty and Pledge Agreement.
2. The Collateral Coverage Ratio has been at least 2.5 to 1 for at
least the four (4) months immediately preceding the date of this Certificate and
after the release of the shares described above from the lien of the Guaranty
and Pledge Agreement, the Collateral Coverage Ratio will be at least 2.5 to 1.
3. No Guaranty Event of Default has occurred and is continuing.
DATED this day of , .
MA 1994 B SHARES, L.P.,
a Delaware limited partnership
By: MA 1994 B SHARES, INC.,
a Delaware corporation, its sole
general partner
By:
Its:
<PAGE>
EXHIBIT C
FORM OF
GUARANTEED AMOUNT CERTIFICATE
Reference is made to that certain Guaranty and Pledge Agreement (the
"Guaranty and Pledge Agreement") dated as of May 20, 1998 between MA 1994 B
Shares, L.P., a Delaware limited partnership ("Guarantor"), in favor of
Citibank, N.A. (the "Trustee"), a national banking association, as Trustee for
the Holders of the series of notes issued by Basketball Properties, Ltd., a
Florida limited partnership ("BPL"), pursuant to that certain Indenture dated as
of May 20, 1998.
This Certificate is provided to the Trustee pursuant to Section
5.2(c) of the Guaranty and Pledge Agreement. Capitalized terms used in this
Certificate and not otherwise defined have the meanings given to those terms in
the Guaranty and Pledge Agreement.
Guarantor hereby certifies to the Trustee that, as of the date of
this Certificate, the Guaranteed Amount is $ ________________________ calculated
as follows:
Equity Obligations $ ____________________________
BPL Delay Debt Service Obligations ____________________________
Cost Overrun Obligations ____________________________
COI Obligations ____________________________
Guaranteed Amount $ ____________________________
DATED this day of , .
MA 1994 B SHARES, L.P.,
a Delaware limited partnership
By: MA 1994 B SHARES, INC.,
a Delaware corporation, its sole
general partner
By:
Its:
<PAGE>
SCHEDULE 4.3(c)
Change in Financial Condition
1. In February 1998, MA 1994 B Shares, L.P. sold 900,000 shares of Carnival
Corporation Class A common stock for approximately $53 million.
2. MA 1994 B Shares, L.P. holds 8,000,000 shares (the "Shares") of Pan Am
corporation common stock. As of December 31, 1997, the Shares of Pan Am
common stock traded at $2 5/16 per share, for a total market value of the
Shares of $18 million. As of April 30, 1998, the Shares of Pan Am common
stock traded at $.50 per share, for a total market value of the Shares of
$4 million.
<PAGE>
ADDENDUM TO GUARANTY
AND PLEDGE AGREEMENT
Addendum to Guaranty and Pledge Agreement (the "Guaranty") dated as
of May 20, 1998 between MA 1994 B Shares, L.P., a Delaware limited partnership
("Guarantor"), and Citibank, N.A., a national banking association, as Trustee
(the "Trustee"), for the holders of the series of Notes issued by Basketball
Properties, Ltd., a Florida limited partnership.
Guarantor agrees as follows for the benefit of the Trustee and MBIA
and for the equal and notable benefit of the Holders:
1. This Addendum is attached to and forms a part of the Guaranty.
2. Guarantor agrees that, until the Contractor Delay Debt Service
Guaranty has been delivered to the Trustee together with the legal opinions of
counsel to the guarantors under the Contractor Delay Debt Service Guaranty, the
BPL Delay Debt Service Obligations shall be $14,021,184.68; provided, however,
that (a) Guarantor shall be required to maintain the Collateral Coverage Ratio
with respect to $8,000,000 thereof only if such Contractor Delay Debt Service
Guaranty and such legal opinions have not been received by the Trustee on or
before June 3, 1998; and (b) upon the Trustee's receipt of such Contractor Delay
Debt Service Guaranty and legal opinions, the BPL Delay Debt Service Obligations
shall be reduced automatically and immediately to $6,021,184.68.
DATED this 20th day of May, 1998.
MA 1994 B SHARES, L.P.,
a Delaware limited partnership
By: MA 1994 B SHARES, INC.,
a Delaware corporation, its sole
general partner
By:
Name:
Title:
AMENDMENT NO. 1 TO GUARANTY
AND PLEDGE AGREEMENT
Amendment No. 1 to the Guaranty and Pledge Agreement (the "Amendment"),
dated as of August 16, 1999, made by MA 1994 B Shares, L.P., a Delaware limited
partnership ("Guarantor"), in favor of Citibank, N.A., a national banking
association, as Trustee (the "Trustee") for the holders of the series of Notes
issued by Basketball Properties, Ltd., a Florida limited partnership ("BPL").
WHEREAS, the Guarantor executed a Guaranty and Pledge Agreement, dated
as of May 20, 1998 (the "Guaranty and Pledge Agreement"), as modified by
Addendum No. 1 thereto, pursuant to which the Guarantor agreed to guarantee
certain of the obligations of BPL and MHLP with respect to the Notes.
WHEREAS, BPL II, LLC, a Florida limited liability company ("BPL II"),
expects to purchase certain equipment and fixtures (the "Leased Equipment") for
subsequent lease to BPL pursuant to a structure under which BPL II's purchase of
such equipment and fixtures is intended to constitute a sale for resale purposes
under the laws of the State of Florida (the "Lease Structure").
WHEREAS, MBIA, by execution of its consent of even date herewith, and
in its capacity as the Majority Holders, has consented to the Lease Structure
and to the disbursement of funds to BPL II from the Construction Account for the
purchase of the Leased Equipment.
WHEREAS, the Guarantor now desires to amend the Guaranty and Pledge
Agreement as set forth below.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Guaranty and Pledge Agreement. Guarantor agrees
<PAGE>
2
as follows for the benefit of the Trustee and MBIA and for the equal and notable
benefit of the Holders:
Section 1. Amendment. Section 2.9 of the Guaranty and Pledge Agreement
shall be amended to include the following paragraph (e):
(e) (i) Anything to the contrary contained herein
notwithstanding, the Cost Overrun Obligations shall not be
less than one million six hundred forty-eight thousand dollars
($1,648,000) or such lesser amount equal to the amount of any
sales and use taxes that would have been payable by BPL upon a
direct purchase by BPL of the Leased Equipment actually
purchased by BPL II (such amount, the "Capped Amount") until
the earlier of (i) the receipt by the Trustee and MBIA of an
opinion of counsel to BPL reasonably satisfactory to MBIA that
the statute of limitations under Section 95.091, Florida
Statutes and those amendments contained in Chs. 99-239 and
99-208, L.O.F. (Laws of Florida) or under any other applicable
statute (if any) regarding sales and use taxes of the State of
Florida applicable to the Lease Structure, has expired and
(ii) the receipt by the Trustee and MBIA of a certificate of
the general partner of BPL reasonably satisfactory to MBIA
certifying that the Florida Department of Revenue has issued
an advisement, directive or other similar ruling approving the
use of the Lease Structure (such earlier date, the "End
Date"). For purposes of this Section 2.9, the term Cost
Overrun Obligations shall include any sales and use tax
declared by the Florida Department of Revenue to be due and
payable by BPL in respect of the Leased Equipment as a result
of a determination by the State of Florida that the Lease
Structure is invalid ("Sales Tax Due"); provided, that the
terms Cost Overrun Obligations and Sales Tax Due shall exclude
in all cases any sales and use taxes that are payable by BPL
or BPL II in respect of the lease of the Leased Equipment
under the Master Lease Agreement, dated August [ ], 1999,
between BPL and BPL II.
(ii) Notwithstanding anything to the contrary contained herein
or in the Deposit and Disbursement Agreement, following the
Construction Completion Date and prior to the End Date (A) the
Trustee may deliver to the Guarantor a written notice
specifying the amount of any Sales Tax Due and requesting
payment thereof and (B) the Guarantor shall, within fifteen
Business Days following receipt of such notice, pay (or cause
to be paid) to the Trustee an amount equal to the lesser of
(x) the Capped Amount and (y) the amount by which the Sales
Tax Due specified in such notice exceeds the sum of (1) the
amounts on deposit in the Construction Account not required to
satisfy the requirements of Section 5.07(a) through (d) of the
Deposit and Disbursement Agreement plus (2) prior to the first
Net Cash Distribution Date (as defined in the Deposit and
Disbursement Agreement), the
<PAGE>
3
amounts deposited in the Arena Cash Receipts Account (as
defined in the Deposit and Disbursement Agreement) pursuant to
Section 7.01(a)(i) of the Deposit and Disbursement Agreement
plus (3) on or following the first Net Cash Distribution Date,
the amount by which the amounts deposited in the Arena Cash
Receipts Account pursuant to Section 7.01(a)(i) of the Deposit
and Disbursement Agreement exceed the Arena Distributable Net
Cash Amount (as defined in the Deposit and Disbursement
Agreement), in the case of each of subclauses (1), (2) and (3)
as notified in writing by BPL to the Guarantor and the
Trustee. The Trustee shall deposit into the Arena Cash
Receipts Account any amounts so paid (or caused to be paid) by
the Guarantor.
(iii) For the avoidance of doubt, the Guarantor shall have no
obligation to make any payments in respect of any Sales Tax
Due which exceed, in the aggregate, the Capped Amount and all
obligations of the Guarantor to make any payments in respect
of any Sales Tax Due shall terminate on the End Date.
The Guaranty and Pledge Agreement, as amended hereby, shall remain in
full force and effect.
Section 2. Governing Law. The internal laws of the State of New York
shall govern and used to construe this Amendment without regard to the conflict
of laws principles of such State.
Section 3. Counterparts. The parties may sign any number of copies of
this Amendment. Each signed copy shall be an original but all of them together
represent the same agreement.
<PAGE>
4
IN WITNESS WHEREOF, the Guarantor has executed this Amendment as of the
date first above written.
MA 1994 B SHARES, L.P.,
a Delaware limited partnership
By: MA 1994 B Shares, Inc., a
Delaware corporation, its
sole general partner
By: /s/ Jonathan R. Bell
------------------------
Name: Jonathan R. Bell
Title: Vice President
Accepted and Agreed to on the date first above written:
CITIBANK, N.A.
By: /s/ Peter M. Pavlyshin
- --------------------------
Name: Peter M. Pavlyshin
Title: Senior Trust Officer
COLLATERAL AGREEMENT
[Third Party]
In consideration of one or more loans, letters of credit or other
financial accommodations extended by THE CHASE MANHATTAN BANK or any of its
subsidiaries or affiliates (the "Bank"), to MELCHIZEDEK DEVELOPMENTS LTD, a
Jamaican entity (the "Obligor"), the undersigned and the Bank agree as follows:
1. Definitions.
"Collateral" means: (i) the Deposits, Securities and Account Assets (as
defined below) that are listed on Exhibit A; (ii) all additions to, and
proceeds, renewals, investments, reinvestments, and substitutions of, the
foregoing, whether or not listed on Exhibit A; (iii) all certificates, receipts
and other instruments evidencing any of the foregoing. Notwithstanding anything
to the contrary in this Agreement, "Collateral" shall not include any securities
issued by an affiliate of the Bank, including any of the VISTA family of funds.
"Deposits" means the deposits of the undersigned with the Bank (whether
or not held in trust, or in any custody, subcustody, safekeeping, investment
management accounts, or other accounts of the undersigned with the Bank).
"Securities" means the stocks, bonds and other instruments and
securities, whether or not held in trust or in any custody, subcustody,
safekeeping, investment management accounts or other accounts of the undersigned
with the Bank or any other custodian, trustee or Clearing System or held by any
party as a financial intermediary or securities intermediary (the
"Intermediary").
"Account Assets" means all Deposits, Securities, securities
entitlements and any other assets held in trust, or in any custody, subcustody,
safekeeping, investment management accounts, or other accounts of the
undersigned with the Bank or any other custodian, trustee or Clearing System or
held by any Intermediary (all of which shall be considered "financial assets"
under the UCC).
"Clearing System" means the Depository Trust Company ("DTC") Cedel
Bank, societe anonyme, the Euroclear system and such other clearing or
safekeeping system that may from time to time be used in connection with
transactions relating to or the custody of any Securities, and any depository
for any of the foregoing.
"Liabilities" means indebtedness, obligations and liabilities of any
kind of the Obligor or of the undersigned to the Bank, now or in the future,
absolute or contingent, direct or indirect, joint or several, due or not due,
arising by
<PAGE>
2
operation of law or otherwise, and costs and expenses incurred by the Bank in
connection with the Collateral, this Agreement or any Liability Document.
"Liability Document" means any instrument, agreement or document
evidencing or delivered in connection with the Liabilities, including, but not
limited to, joint and several guaranties of Michael Arison, TAF Management
Company as Successor Trustee ("Trustee") of the Declaration of Continued Trust
for Michael Arison, dated December 26, 1991, as amended by Order, dated December
21, 1992, as further amended by Order, dated March 16, 1999 ("Trust"), Jeffrey
Everton Myrie and Lana Elizabeth Myrie.
"UCC" means the Uniform Commercial Code in effect in the State of New
York. Unless the context otherwise requires, all terms used in this Agreement
which are defined in the UCC will have the meanings stated in the UCC.
2. Grant of Security Interest. As security for the payment of all the
Liabilities, the undersigned pledges, transfers and assigns to the Bank and
grants to the Bank a security interest in and right of setoff against, the
Collateral.
3. Agreements of the Undersigned and Rights of the Bank. The
undersigned agrees as follows and irrevocably authorizes the Bank to exercise
the rights listed below, at its option, for its own benefit, either in its own
name or in the name of the undersigned, and appoints the Bank as its
attorney-in-fact to take all action permitted under this Agreement.
(a) Deposits. The Bank may: (i) renew the Deposits on terms and for
periods the Bank deems appropriate; (ii) demand, collect, and receive payment of
any monies or proceeds due or to become due under the Deposits; (iii) execute
any instruments required for the withdrawal or repayment of the Deposits; (iv)
in all respects deal with the Deposits as the owner; provided that, as to (ii)
through (iv), until the occurrence of a Default, the Bank will only take that
action if, in its judgment, failure to take that action would impair its rights
under this Agreement.
(b) Securities. The Bank may: (i) transfer to the account of the Bank
any Securities whether in the possession of, or registered in the name of, any
Clearing System or held otherwise; (ii) transfer to the account of the Bank with
any Federal Reserve Bank any Securities held in book entry form with any such
Federal Reserve Bank; and (iii) transfer to the name of the Bank or its nominee
any Securities registered in the name of the undersigned and held by the Bank
and complete and deliver any necessary stock powers or other transfer
instruments; provided that until the occurrence of a Default, the Bank will only
take that action if, in its judgment, failure to take that action would impair
its rights under this Agreement or if such Securities are held in a custody,
investment management or similar account.
<PAGE>
3
The undersigned grants to the Bank an irrevocable proxy to vote any and
all Securities and give consents, waivers and ratifications in connection with
those Securities; provided that until the occurrence of a Default the Bank will
only take that action if, in its judgment, failure to take that action would
impair its rights under this Agreement.
All payments, distributions and dividends in securities, property or
cash shall be paid directly to and, at the discretion of the Bank, retained by
the Bank and held by it, until applied as provided in this Agreement, as
additional Collateral; provided that until the occurrence of a Default, interest
on Deposits and cash dividends on Securities paid in the ordinary course will be
paid to the undersigned.
(c) General. The Bank may, in its name, or in the name of the
undersigned: (i) execute and file financing statements under the UCC or any
other filings or notices necessary or desirable to create, perfect or preserve
its security interest, all without notice (except as required by applicable law
and not waivable) and without liability except to account for property actually
received by it; (ii) demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for, or make any
compromise or settlement deemed desirable with respect to, any item of the
Collateral (but shall be under no obligation to do so); (iii) make any
notification (to the issuer of any certificate or Security, or otherwise,
including giving any notice of exclusive control to the Intermediary) or take
any other action in connection with the perfection or preservation of its
security interest or any enforcement of remedies, and retain any documents
evidencing the title of the undersigned to any item of the Collateral; (iv)
issue entitlement orders with respect to any of the Collateral.
The undersigned agrees that it will not file or permit to be filed any
financing or like statement with respect to the Collateral in which the Bank is
not named as the sole secured party, consent or be a party to any securities
account control agreement or other similar agreement with any Intermediary (an
"Account Control Agreement") to which the Bank is not also a party or sell,
assign, or otherwise dispose of, grant any option with respect to, or pledge, or
otherwise encumber the Collateral. At the request of the Bank the undersigned
agrees to do all other things which the Bank may deem necessary or advisable in
order to perfect and preserve the security interest and to give effect to the
rights granted to the Bank under this Agreement or enable the Bank to comply
with any applicable laws or regulations. Notwithstanding the foregoing, the Bank
does not assume any duty with respect to the Collateral and is not required to
take any action to collect, preserve or protect its or the undersigned's rights
in any item of the Collateral. The undersigned releases the Bank and agrees to
hold the Bank harmless from any claims, causes of action and demands at any time
arising with respect to this Agreement, the use or disposition of any item of
the Collateral or any action taken or omitted to be taken by the Bank with
respect thereto.
<PAGE>
4
The rights granted to the Bank pursuant to this Agreement are in
addition to the rights granted to the Bank in any custody, investment
management, trust, Account Control Agreement or similar agreement. In case of
conflict between the provisions of this Agreement and of any other such
agreement, the provisions of this Agreement will prevail.
4. Loan Value of the Collateral. The undersigned agrees that at all
times the amount of the Liabilities may not exceed fifty percent (50%) of the
aggregate Loan Value of the Collateral. The undersigned will, at the Bank's
option, either supplement the Collateral or make, or cause to be made, any
payment under the Liabilities to the extent necessary to ensure compliance with
this provision or the Bank may liquidate Collateral to the extent necessary to
ensure compliance with this provision. "Loan Value" means the value assigned by
the Bank from time to time, in its sole reasonable discretion, to each item of
the Collateral.
5. Currency Conversion. For calculation purposes, any currency in which
the Collateral is denominated (the "Collateral Currency") will be converted into
the currency of the Liabilities (the "Liability Currency") at the spot rate of
exchange for the purchase of the Liability Currency with the Collateral Currency
quoted by the Bank at such place as the Bank deems appropriate (or, if no such
rate is quoted on any relevant date, estimated by the Bank on the basis of the
Bank's last quoted spot rate) or another prevailing rate that the Bank deems
more appropriate.
6. Representations and Warranties. The undersigned represents and
warrants:
(a) the undersigned is the sole owner of the Collateral;
(b) the Collateral is free of all encumbrances except for the security
interest in favor of the Bank created by this Agreement;
(c) no authorizations, consents or approvals and no notice to or filing
with any governmental authority or regulatory body is required for the execution
and delivery of this Agreement or the exercise by the Bank of its rights and
remedies;
(d) the execution, delivery and performance of this Agreement will not
violate any provisions of applicable law, regulation or order and will not
result in the breach of, or constitute a default, or require any consent under,
any agreement, instrument or document to which the undersigned is a party or by
which it or any of its property may be bound or affected;
(e) as to Deposits and Account Assets, the undersigned has not
withdrawn, canceled, been repaid or redeemed all or any part of any Deposits or
Account Assets and there is no such pending application;
<PAGE>
5
(f) as to Securities, the Securities have been duly authorized and are
fully paid and non-assessable, there are no restrictions on pledge of the
Securities by the undersigned nor on sale of the Securities by the Bank (whether
pursuant to securities laws or regulations or shareholder, lock-up or other
similar agreements) and the Securities are fully marketable by the Bank as
pledgee, without regard to any holding period, manner of sale, volume
limitation, public information or notice requirements (subject in the case of
this Section 6(f) to the Bank's not being an affiliate of the issuer of the
Securities at the time of sale or within three (3) months thereof);
(g) the Trust is a valid and existing common law trust governed, as to
matters of trust administration, by the laws of the State of Delaware; TAF
Management Company is the sole trustee of the Trust ("Trustee") and has been
duly appointed as such;
(h) Trustee has delivered to the Bank a true, complete and accurate
copy of the Trust Agreement, to which there have been no amendments or
modifications since December 21, 1992 nor has the Trust been terminated;
(i) the Trustee has the legal capacity and full power and authority to
execute, deliver, and perform its obligations under, and to bind the Trust to
perform its obligations under, the Liability Documents, and to execute and
deliver any and all documents and instruments in connection therewith;
(j) the Liability Documents have been duly executed and delivered by
the Trustee and constitute the legal, valid and binding obligation of the
Trustee and the Trust, enforceable against the Trustee and the Trust in
accordance with their terms, except as enforcement hereof and thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to the applicability of
general principles of equity;
(k) the execution, delivery and performance by the Trustee of the
Liability Documents and all other documents contemplated hereby or thereby, do
not and will not (i) conflict with or constitute a breach of, or default under,
the Trust Agreement or other organizational documents of the Trust; or (ii)
conflict with or constitute a breach of, or default under, or require any
consent under, or result in the creation of any lien, charge or encumbrance upon
the property or assets of the Trust pursuant to any other agreement or
instrument (other than any pledge of or security interest granted in any
collateral pursuant to any Liability Document) to which the Trustee is a party
or is bound or by which its properties may be bound or affected; or (iii)
violate any provision of any law, rule, regulation (including, without
limitation, Regulation U of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Trustee or the Trust;
<PAGE>
6
(l) there are no actions, suits, investigations or proceedings pending
or threatened at law, in equity, in arbitration or by or before any other
authority involving or affecting: (i) the Trustee or the Trust that, if
adversely determined, are likely to have a material adverse effect on the
prospects or condition of the Trustee or the Trust; (ii) any material part of
the assets or properties of the Trust or any part of the collateral (if any)
under any Liability Document, or (iii) any of the transactions contemplated in
Liability Documents. There are currently no material judgments entered against
the Trustee or the Trust and the Trustee and the Trust are not in default with
respect to any judgment, writ, injunction, order, decree or consent of any court
or other judicial authority, which default is likely to have or has had a
material adverse effect on the prospects or condition of the Trustee or the
Trust.
7. Default. Each of the following is a default ("Default"): (i) any sum
payable on any of the Liabilities is not paid when due; (ii) any representation
and warranty of the undersigned or any party liable on or for any of the
Liabilities (including but not limited to the Obligor, a "Liability Party") in
this Agreement or in any Liability Document shall prove to have been incorrect
in any material respect on or after the date hereof; (iii) the undersigned or
any Liability Party fails to perform or observe any term, covenant, or condition
under this Agreement or under any Liability Document; (iv) any indebtedness of
the undersigned or any Liability Party or interest or premium thereon is not
paid when due (whether by scheduled maturity, acceleration, demand or
otherwise); (v) the undersigned or any Liability Party: (a) is generally not, or
is unable to, or admits in writing its inability to, pay its debts as its debts
become due; (b) makes an assignment for the benefit of creditors, or petitions
or applies to any tribunal for the appointment of a custodian, receiver or
trustee for its or a substantial part of its assets; (c) commences any
proceeding under any law relating to bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation; (d) has any such petition
filed, or any such proceeding has been commenced against it, in which an
adjudication is made or order for relief is entered or which remains undismissed
for a period of 30 days; (e) has a receiver, custodian or trustee appointed for
all or a substantial part of its property; or (f) takes any action effectuating,
approving or consenting to any of the events described in this section (v); (vi)
the undersigned or any Liability Party shall die, dissolve or for any reason
cease to be in existence or merge or consolidate; or if the undersigned or any
Liability Party is a partnership, limited liability partnership or limited
liability company, any general partner, partner or member, respectively, shall
die, dissolve or for any reason cease to be in existence or cease to be a
partner or member, as the case may be, or shall merge or consolidate; provided,
however, the death of Michael Alan Arison, a guarantor of the repayment of the
Liabilities, shall not constitute an Event of Default so long as, prior to the
expiration of any estate claims period, his heirs or personal representative
shall pay off the Liabilities or, in the absolute discretion of the Bank, are
permitted to assume the payment of the Liabilities; (vii) the undersigned or any
Liability Party is involved in a proceeding relating to, or which may result in,
a forfeiture of all or a substantial part of the undersigned's or any Liability
Party's assets or a material judgment is entered against
<PAGE>
7
the undersigned or any Liability Party; (viii) there is, in the opinion of the
Bank, a material adverse change in the business, prospects or financial
condition of the undersigned or any Liability Party; then, unless and to the
extent that the Bank otherwise elects, the Bank will be entitled to exercise any
of the rights and remedies under this Agreement.
8. Remedies. On a Default, the Bank will have the rights and remedies
under the UCC and the other rights granted to the Bank under this Agreement and
may exercise its rights without regard to any premium or penalty from
liquidation of any Collateral and without regard to the undersigned's basis or
holding period for any Collateral.
The Bank may sell in the Borough of Manhattan, New York City, or
elsewhere, in one or more sales or parcels, at the price as the Bank deems best,
for cash or on credit or for other property, for immediate or future delivery,
any item of the Collateral, at any broker's board or at public or private sale,
in any reasonable manner permissible under the UCC (except that, to the extent
permissible under the UCC, the undersigned waives any requirements of the UCC)
and the Bank or anyone else may be the purchaser of the Collateral and hold it
free from any claim or right including, without limitation, any equity of
redemption of the undersigned, which right the undersigned expressly waives.
The Bank may also, in its sole discretion: (i) convert any part of the
Collateral Currency into the Liability Currency; (ii) hold any monies or
proceeds representing the Collateral in a cash collateral account in the
Liability Currency or other currency that the Bank reasonably selects; (iii)
invest such monies or proceeds on behalf of the undersigned; and (iv) apply any
portion of the Collateral, first, to all costs and expenses of the Bank, second,
to the payment of interest on the Liabilities and any fees or commissions to
which the Bank may be entitled, third, to the payment of principal of the
Liabilities, whether or not then due, and fourth, to the undersigned.
The undersigned will pay to the Bank all expenses (including reasonable
attorneys' fees and legal expenses incurred by the Bank and the allocated costs
of its in-house counsel) in connection with the exercise of any of the Bank's
rights or obligations under this Agreement or the Liability Documents. The
undersigned will take any action requested by the Bank to allow it to sell or
dispose of the Collateral. Notwithstanding that the Bank may continue to hold
Collateral and regardless of the value of the Collateral, the applicable
Liability Party will remain liable for the payment in full of any unpaid balance
of the Liabilities.
9. Jurisdiction. The undersigned consents to the non-exclusive
jurisdiction of the State and Federal courts sitting in the City of New York and
agrees that suit may be brought against the undersigned in those courts or in
any other jurisdiction where the undersigned or any of its assets may be found,
and the
<PAGE>
8
undersigned irrevocably submits to the jurisdiction of those courts. The
undersigned consents to the service of process by mailing copies of process to
the undersigned at its most recent mailing address in the records of the Bank.
The undersigned further agrees that any action or proceeding brought against the
Bank may be brought only in a New York State or United States Federal court
sitting in New York County.
The undersigned agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit or proceeding in such state and hereby waives any defense on the basis of
an inconvenient forum. Nothing herein shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Bank to bring any action or proceeding against the undersigned or its
property in the courts of any other jurisdiction.
10. Waiver of Jury Trial. THE UNDERSIGNED AND THE BANK EACH WAIVE ANY
RIGHT TO JURY TRIAL.
11. Notices. Unless otherwise agreed in writing, notices may be given
to the Bank and the undersigned at their telecopier numbers (confirmed by
telephone to their telephone numbers) or addresses listed on the signature page
of this Agreement, or such other telecopier (and telephone) number or addresses
communicated in writing by either party to the other. Notices to the Bank are
effective on receipt.
12. Unconditional Obligations. The undersigned's obligations under this
Agreement are unconditional without regard to: (i) any lack of validity or
enforceability of any of the Liabilities or any agreement or instrument relating
to the Liabilities; (ii) any change in the time, manner or place of payment of,
or in any other term of any of the Liabilities or any other amendment or waiver
of, any agreement or instrument relating to the Liabilities; (iii) any release,
exchange, perfection or non-perfection of any item of the Collateral or any
release or amendment or waiver of any guaranty, subordination or other credit
support for any of the Liabilities; (iv) the release or discharge in full or in
part of any Obligor; (v) any other circumstance that might otherwise constitute
a defense or discharge of the Obligor or a guarantor of the Liabilities or a
party agreeing to subordinate its claim to the Liabilities; or (vi) any law,
regulation or order now or later in effect affecting the Liabilities or any
agreement or instrument relating to any of the Liabilities.
13. Miscellaneous. (a) The Bank may assign any of the Collateral and
any of its interests in this Agreement (and may assign the Liabilities to any
party) and will be fully discharged from all responsibility as to the assigned
Collateral. That assignee will have all the powers and rights of the Bank
hereunder, but only as to the assigned Collateral.
<PAGE>
9
(b) No amendment or waiver of any provision of this Agreement nor
consent to any departure by the undersigned will be effective unless it is in
writing and signed by the undersigned and the Bank and will be effective only in
that specific instance and for that specific purpose. No failure on the part of
the Bank to exercise, and no delay in exercising, any right will operate as a
waiver or preclude any other or further exercise or the exercise of any other
right.
(c) The rights and remedies in this Agreement are cumulative and not
exclusive of any rights and remedies which the Bank may have under law or under
other agreements or arrangements with the undersigned or any Liability Party.
(d) The provisions of this Agreement are intended to be severable. If
for any reason any provision of this Agreement is not valid or enforceable in
whole or in part in any jurisdiction, that provision will, as to that
jurisdiction, be ineffective to the extent of that invalidity or
unenforceability without in any manner affecting the validity or enforceability
in any other jurisdiction or the remaining provisions of this Agreement.
(e) The term "undersigned" will include all signatories, if more than
one, and the terms, covenants and conditions and the representations and
warranties will be joint and several. The term "undersigned" will also include
the heirs, executors, administrators, assigns and successors of the undersigned.
(f) The undersigned hereby waives presentment, notice of dishonor and
protest of all instruments included in or evidencing the Liabilities or the
Collateral and any other notices and demands, whether or not relating to those
instruments.
(g) This Agreement is governed by and construed according to the laws
of the State of New York.
14. Year 2000. The undersigned represents that: Any reprogramming
required to permit the proper functioning, in and following the year 2000, of
(i) the undersigned's computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
undersigned's systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by June 1, 1999. The cost to
the undersigned of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the undersigned (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) will not result in a default under any Liability Document or a
material adverse change in the undersigned's business, prospects or financial
condition. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the undersigned are and, with
<PAGE>
10
ordinary course upgrading and maintenance, will continue to be, sufficient to
permit the undersigned to conduct their respective business without a material
adverse effect in such business, or the prospects or financial condition of such
business.
IN WITNESS WHEREOF, the undersigned has signed this Agreement as of the
12th day of April, 1999.
TAF Management Company, as Successor
Trustee under Declaration of
Continued Trust for Michael Arison,
dated December 26, 1991 as amended
by Order, dated December 21, 1992
By: /s/ Denison H. Hatch, Jr.
-------------------------
Denison H. Hatch, Jr., Vice President
Address for notices:
1201 North Market Street
Wilmington, Delaware 19899-1347
Attn: Denison H. Hatch, Jr.
Telecopier: (302) 658-3989
Telephone: (302) 658-9200
ACCEPTED:
The Chase Manhattan Bank
By:
Name:
Title:
Address for notices to the Bank:
The Chase Manhattan Bank
1211 Avenue of the Americas
New York, New York 10036
Attn: Arnold Wells
Telecopier: (212) 596-3064
Telephone: (212) 899-7313
<PAGE>
11
EXHIBIT A
DESCRIPTION OF THE COLLATERAL
1. Deposits
<TABLE>
<CAPTION>
Type of Location
Deposit (NY, Maturity
(CD, TD, IBF-NY, Contract or Opening
etc.) etc.) Certificate No. Date Date Amount
- ----------------------- ----------------------- ----------------------- ----------------------- ------------------- ----------------
<S> <C> <C> <C> <C> <C>
</TABLE>
2. Stocks, Bonds and Other Instruments and Securities
<TABLE>
<CAPTION>
Nature of Security Number Face Amount Certificate
or Obligation Name of Issuer of Units (if Applicable) Number
- ----------------------- ----------------------- -------------- ----------------------- -----------------------
<S> <C> <C> <C> <C>
Class A Carnival Corporation 100,000 CC5611
Common Stock 100,000 CC5612
100,000 CC5613
</TABLE>
3. All Assets Held or To Be Held in the Following Custody or Subcustody
Accounts, Safekeeping Accounts, Investment Management Accounts and/or
Other Account with Intermediary
Type of Account Account Number Entity/Location
- ----------------------- ----------------------- -----------------------
SECURITY AGREEMENT
This Security Agreement, dated as of June 15, 1999 (as the
same may be supplemented, renewed, extended, modified, amended, restated or
replaced from time to time in the manner provided herein, this "Agreement"), is
by and between Ted Arison, an individual currently residing in the State of
Israel and currently having an address at Europe House, 37 Shaul Hemelech
Boulevard, Tel Aviv 64928, Israel (the "Borrower"), and The Chase Manhattan Bank
, a New York state chartered banking corporation currently having an address at
its Private Banking Division, 1211 Avenue of the Americas, New York, New York
10036, U.S.A. (the "Bank").
In order to induce the Bank to establish credit and make and
continue loans or other accommodations, the Borrower has agreed to secure the
obligations of the Borrower with certain securities, investments and other
collateral, all upon the terms and provisions and subject to the conditions
hereinafter set forth. Accordingly, in consideration of the foregoing and the
mutual covenants and agreements herein-after set forth, and other good and
valuable consideration (the receipt and adequacy of which is hereby acknowledged
by the Borrower), the parties hereto hereby agree as follows:
Section 1. Certain Defined Terms. Capitalized terms used and
not otherwise defined in this Agreement shall have the meanings respectively
assigned to them in the Note or other relevant Loan Instrument (as such terms
are hereinafter defined). Each use of a neuter, masculine, feminine or plural
pronoun shall be deemed to refer to the form of pronoun appropriate to the
circumstance. Definitions shall be applicable equally to the singular and plural
forms of the terms defined.
"Applicable Law" shall mean any applicable law, including
(without limi-tation) any: (a) federal, state, territorial, county, municipal or
other govern-mental or quasi-governmental law, statute, ordinance, rule,
regulation, requirement or use or disposal classification or restriction,
whether domestic or foreign; (b) judicial, admin-istrative or other governmental
or quasi-governmental order, injunction, writ, judg-ment, decree, ruling,
interpretation, finding or other directive, whether domestic or foreign; (c)
common law or other legal or quasi-legal precedent; or (d) arbitrator's,
mediator's or referee's decision, finding, award or recommendation.
"Authority" shall mean any governmental or quasi-governmental
authority, including (without limitation) any federal, state, territorial,
county, municipal or other government or governmental or quasi-governmental
agency, board, branch, bureau, commission, court, department or other
instrumentality or political unit or subdivision, whether domestic or foreign.
"Business Day" shall mean any day during which the Bank is
open for business in New York, New York, other than any Saturday, Sunday or
other applicable legal holiday, provided, however, that for the purposes of
particular Fixed Rate elections or transactions (excluding payments) involving a
foreign jurisdiction, "Business Day" shall be further limited to one during
which dealings are carried on in the relevant interbank market.
"Carnival" shall mean Carnival Corporation, a corporation
organized under the laws of Panama.
"Carnival Certificates" shall respectively mean any one or
more of the stock certificates representing Carnival Shares delivered to the
Bank or its affiliates pursuant hereto.
<PAGE>
"Carnival Shares" shall mean shares of common stock issued by
Carnival.
"Collateral" shall have the meaning assigned to it in Section
2 hereof.
"Collateral Account" shall mean Account No. 806216 of the Bank
maintained in Geneva, Switzerland, with its affiliate, The Chase Manhattan
Private Bank (Switzerland), or any successor collateral account(s) with the Bank
or any of its affiliates, wherever such account may be located or deemed located
from time to time, established for the Interest Reserve.
"Custody Agreement" shall mean the Investment Management
Agreement dated as of June 15, 1999, between the Borrower and the Bank, with
respect to the Interest Reserve and other Collateral in the possession of the
Bank and held in the Bank's Collateral Account, as the same may be supplemented,
modified, amended, restated or replaced from time to time in the manner provided
therein.
"Custody Document" shall mean the Custody Agreement, the
Investment Management Agreement, the Swiss Agreement or any other instrument,
indenture, agreement, policy or other document or any statutory equivalent
respecting the investment or custody any of the Pledged Securities with or by
any holder thereof, in each case whether now or hereafter existing, and
irrespective of whether reduced to writing, and as each has been and hereafter
may be supplemented, modified, amended, restated or replaced from time to time
in the manner provided therein.
"Default" shall mean any event that, with the giving of notice
or the passage of time (or both) would consti-tute an Event of Default.
"Event of Default" shall mean any "Event of Default" under
(and as defined in) the Note.
"Investment" shall mean, with respect to any referenced person
or account, any stock, warrant, option, put, call, bond, deben-ture, commercial
paper, governmental obligation, note, certificate of deposit, partnership
interest (general or limited), limited liability company membership, trust
interest, contract, commodity, or future, any foreign currency or other money,
any bank, brokerage, trading or other account, any other security, investment
property, financial asset, investment or interest, or any other obligation or
right to acquire or benefit from any such item.
"Investment Management Agreement" shall mean the Investment
Management Agreement dated as of June 15, 1999, between the Borrower and the
Bank, with respect to the Interest Reserve and other Collateral in the
possession of the Bank and held in the Bank's Collateral Account, as the same
may be supplemented, modified, amended, restated or replaced from time to time
in the manner provided therein.
"Lien" and "Liens" shall respectively refer to any one or more
of the following to which the referenced or relevant person is a party or by
which the referenced or relevant person, any of its assets or properties or any
other referenced assets or properties may be bound or subject: (a) any
assignment, pledge, mortgage, hypothecation or security interest (irrespective
of whether the referenced person is personally obligated with respect to any
obligation thereby secured); (b) any filed financing statement (other than as
secured party); (c) any consignment, finance lease, conditional sale contract or
other title retention agreement; (d) any assignment, pledge or other trans-fer,
restriction or encumbrance of any right to receive any income or other
distribu-tions or proceeds; (e) any sale/leaseback transaction in which the
referenced person is the seller/lessee; (f) any lien, charge, claim or other
encumbrance arising under any Applicable Law, whether if favor of an Authority
or otherwise, including (without limitation) liens for taxes,
<PAGE>
assessments and other governmental charges and liens of mechanics, carriers,
warehouses, suppliers and laborers; (g) any restrictive covenant, lease,
license, right of use, posses-sion or first refusal, infringement, community
property or other joint ownership inter-est, limitation or restriction on use or
transfer, exception to title, or other limitation or restriction on the extent,
exercise or enforcement of any right or interest respect-ing any asset or
property; (h) with respect to any real estate, any easement, right-of-way,
servitude, encroachment, restrictive covenant, reservation, or other exception
to title; (i) any covenant or agreement with any other person to a "Negative
Pledge" (i.e., that the referenced or relevant person will not (A) do any one or
more of the things specified in the preceding clauses or (B) sell, lease,
sublease, transfer, exchange, abandon or otherwise dispose of, surrender
management, physical possession or control of, physi-cally alter or relocate all
or any portion of its assets or properties); or (j) any other lien, encumbrance
or adverse right or claim of any nature in, to or against any asset or property.
"Loan" and "Loans" shall respectively mean any one or more of
the Term Loans and other advances (including future advances) owed to the Bank
by the Borrower under the Note or any other Loan Instrument (whether
individually, jointly, severally or otherwise).
"Loan Instrument" and "Loan Instruments" shall respectively
mean any one or more of this Agreement, each Custody Document, the Note, each
Support Document, each Swap Document, any other notes, overdraft facility
agreements, letter of credit applications, mortgages, assignments, guaranties,
or other agreements, instruments and documents creating, evidencing, perfecting,
governing or supporting any of the Obligations or any Surety's Obligations or
any interest of the Bank in any collateral securing or intended to secure
anyone's obligations under any of the foregoing, and all waivers, consents,
agreements, reports, state-ments, certificates, schedules and other documents
executed by the requisite person(s) pursuant to or in connection with any of the
foregoing and accepted or delivered by the Bank, in each case as and when
executed from time to time (whether before, as of or after the date hereof) and
as each has been and hereafter may be supplemented, renewed, extended, modified,
amended, restated or replaced from time to time.
"Note" shall mean the U.S.$60,000,000.00 Promissory Note dated
(as of) June 15, 1999, issued by the Borrower to the Bank, together with all
schedules and exhibits thereto, as the same may be supplemented, renewed,
extended, modified, amended, restated or replaced from time to time.
"Obligations" shall mean any and all (a) Loans (including
future advances), together with accrued and unpaid interest thereon (including,
without limitation, any and all interest, fees and other amounts accrued,
accruing or otherwise applicable during the pendency of any bankruptcy,
insolvency, receiver-ship or other similar case or other proceeding,
irrespective of whether such interest, fees and other amounts are allowed or
allowable as claims in such case or proceeding), (b) other amounts to be paid
and all other obligations to be performed or otherwise satisfied by the Borrower
under this Note, the Advice Letter or any other Loan Instrument (whether
individually, jointly, severally or otherwise), and (c) other amounts to be paid
(including, without limitation, any and all interest, fees and other amounts
accrued, accruing or otherwise applicable during the pendency of any bankruptcy,
insolvency, receiver-ship or other similar case or other proceeding,
irrespective of whether such interest, fees and other amounts are allowed or
allowable as claims in such case or proceeding) and obligations to be performed
or otherwise satisfied by the Borrower under any Swap Document.
"Organizational Document" shall mean any instrument,
indenture, agreement, charter, by-laws, certificate or other document or any
statutory equivalent respecting any of the Pledged Securities or the
organization, governance or operation of any issuer of any of the Pledged
Securities, in each case whether now or hereafter existing, and irrespective of
whether reduced to writing, and as each has been and hereafter may be
supplemented, renewed, extended, modified, amended or restated from time to
time.
<PAGE>
"Pledged Securities" shall have the meaning assigned to it in
Section 2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any corresponding provisions of any Applicable Law in any state or
foreign jurisdiction, and as the same may be supplemented, modified, amended,
restated or replaced from time to time, and the rules and regulations
promulgated thereunder, or any corresponding or succeeding provisions of
Applicable Law.
"Supplemental Description" shall mean (a) any schedule to any
supplement or amendment to this Agreement or any Note or any schedule thereto,
or (b) any Uniform Commercial Code Financing State-ment filed in connection with
any of the Obligations.
"Support Document" and "Support Documents" shall respectively
mean any one or more of this Agreement and any other security agreement,
guaranty, hypothecation or other instrument, agreement or document issued by the
Borrower or any Surety in support of any of the Obligations or Surety's
Obligations (as hereinafter defined), in each case as and when executed from
time to time (whether before, as of or after the date hereof) and as the same
may be supplemented, renewed, extended, modified, amended, restated or replaced
from time to time in the manner provided therein.
"Surety" and "Sureties" shall respectively mean any one or
more of any co-obligor, indemnitor, guarantor, pledgor or surety of, or any
other person providing any credit support for, any of the Obligations or any
Surety's Obligations; in each case whether or not disclosed to the Borrower or
any other Surety.
"Surety's Obligations" shall mean any and all guaranties,
pledges, mortgages or other credit support from, and any and all other
obligations of, any Surety under any Support Document or other Loan Instrument;
in each case whether or not disclosed to the Borrower or any other Surety.
Section 2. Grant of Security Interest. As security for the
timely and full payment and satisfaction of any and all of the Obligations, the
Borrower hereby abso-lutely, unconditionally and irrevocably pledges, assigns,
conveys, mortgages, transfers and delivers to the Bank, and grants to the Bank a
continuing security interest in and to, the following: (a) (i) the Carnival
Shares held by the Bank or its affiliate, custodian or designee, including
(without limitation) any Carnival Shares held in "street name" by or through any
of them for the benefit or as collateral of the Borrower, (ii) the Interest
Reserve initially deposited from a portion of the Term Loan (and any amount
subsequently deposited from the closing costs escrow), and all subsequent
Investments maintained, in the Collateral Account, (iii) any and all other
Investments received by the Borrower on account of or related to any of the
foregoing items, and (iv) any and all dividends, interest and distributions with
respect thereto (whether cash, stock or otherwise) and splits and
reclassifications thereof (the items in clauses (i) through (iv) of this
subsection (a) will be referred to collectively as the "Pledged Securi-ties"),
provided, however, that dividends with respect to the Carnival Shares payable in
common stock or options, warrants or rights to receive common stock shall not be
included in the Pledged Securities or Collateral unless made in split of the
Carnival Shares or in liquidation or spinoff (in whole or material part) of
Carnival or any material subsidiary or division thereof; (b) any and all of the
security entitlements and other rights, powers, privi-leges, remedies and
interests of the Borrower in, to and under any and all applicable Organizational
Documents and Custody Documents; (c) any and all advances, indebtedness and
other amounts (including interest) directly or indirectly owed to the Borrower
on account of or related to the Pledged Securities; and (d) any and all
accounts, instruments, chattel paper,
<PAGE>
investment property, contract rights, warranties, casualty and other insurance
policies and rights, litigation claims and rights, tradenames, other general
intangibles and books and records of the Borrower arising from or with respect
to all or any part of any of the items described in the foregoing subsections;
in each case whether any of the foregoing items is now existing or hereafter
acquired or created, whether owned beneficially or of record and whether owned
indi-vidually, jointly or otherwise, together with the products and proceeds
thereof, all payments and other distributions with respect thereto and any and
all renewals, substitutions, modifications and extensions of any and all of the
items in the foregoing subsections (the items described in the foregoing
subsections and provisions will be referred to collectively as the
"Collateral").
Section 3. Collateral Delivery and Documentation. (a) The
Borrower has delivered to the Bank's account with The Chase Manhattan Private
Bank (Switzerland), its affiliate, in Geneva, Switzerland, a Carnival
Certificate representing 13,000,000 Carnival Shares (the "Existing Carnival
Certificate"), and has delivered to the Bank stock powers endorsed in blank and
an opinion of counsel that may be relied upon by Carnival's transfer agent. The
Borrower hereby authorizes and directs the Bank or its Representatives to send
the Existing Carnival Certificate to Carnival's transfer agent for reissuance of
the Carnival Shares in accordance with the letter agreement between the borrower
and the Bank dated as of June 15, 1999, respecting "Reissuance of Carnival
Corporation Stock Certificates", which provides (among other things) for
redelivery to the Bank of certificates representing 3,050,000 Carnival Shares to
the Bank to be held as Collateral hereunder. The Borrower shall concurrently
execute and deliver stock powers for each of the certificates so redelivered.
(b) The Borrower also shall from time to time deliver any and
all other stock certificates and instruments evidencing or respecting any
Collateral interest granted by the Borrower, which shall be delivered with this
Agreement if currently existing or shall be delivered promptly as hereafter
received, acquired or created. Stock certificates shall be delivered with
corresponding stock powers, duly endorsed in blank, and other instruments shall
be duly endorsed to the order of the Bank in such manner as the Bank may
specify. Each certificate (other than the Existing Carnival Certificate) shall
be delivered free and clear of any and all restrictive legends. From time to
time upon request of the Bank, the Borrower shall, or shall cause the holder or
issuer of any Collateral to, deliver to the Bank such Organizational Documents
and Custody Docu-ments as the Bank may request. The Bank in its sole and
absolute discretion may at any time transfer or register any of the Collateral
(other than the Carnival Certificates unless permitted under another provision
hereof) into the name of the Bank or its nominee(s) without any notice to the
Borrower. In addition to the foregoing, the Borrower from time to time shall
deliver such assignments, financing statements and other documents as the Bank
may request to further evidence, confirm, effect or perfect any security
interest granted or intended to have been granted under this Agreement, the Note
or any other Loan Instru-ment, each in such form and substance as may be
acceptable to the Bank. The Borrower hereby irrevocably authorizes the Bank in
its sole and absolute discretion: (i) to file without the signature of the
Borrower any and all financing statements, modifications and continuations in
respect of the Collateral and the transactions contemplated by this Agreement,
the Note or any other Loan Instrument; (ii) to sign any such statement,
modification or continuation on behalf of the Borrower if the Bank deems such
signature neces-sary or desirable under Applicable Law; and (iii) to file a
carbon, photographic or other reproduction of any financing statement or
modification if the Bank deems such filing necessary or desirable under
Applicable Law. The Bank shall send a copy of any such filing to the Borrower;
provided, however, that the failure to send that copy shall not affect the
validity or enforceability of any such filing. The Bank shall not be liable for
any mistake in or failure to file any financing statement, modification or
continuation.
Section 4. Certain Representations Respecting the Collateral.
The Borrower
<PAGE>
represents and warrants to the Bank as follows in each subsection of this
Section that, as of the date hereof and as of the date of each Loan or other
advance or any readvance, renewal or extension thereof or change in the
composition of the Collateral: (a) the Borrower is the legal, record and
benefi-cial owner of, and have good title to, the Collateral being, or purported
to be, pledged by him; (b) the Bank has legal, valid, binding, enforceable and
perfected secu-rity interests in and to the Collateral pursuant to this
Agreement and the other Loan Instruments; (c) except as otherwise disclosed in
writing to and approved (in its sole and absolute discretion) by the Bank (i) no
part of the Collateral is subject to any Lien of any kind whatsoever (including,
without limitation, any defense, counter-claim, setoff, right of recoupment,
abatement, or community property right), except those in favor of the Bank, and
(ii) no part of the Collateral was purchased or is being carried directly or
indirectly, in whole or in part, with the proceeds of any indebted-ness or other
credit other than the Loans (except for indebtedness wholly refinanced with the
Loans or wholly repaid prior to the pledge of the relevant Collateral); (d) each
of the Pledged Securities is owned beneficially and of record solely by the
Borrower, is assignable, and has been duly assigned and transferred as
collateral to the Bank; (e) each of the Pledged Securities was duly authorized
and validly issued, is fully paid and non-assessable, and was acquired in a
transaction in compliance with and either registered or exempt from registration
under the Securities Act and other Applicable Laws; and (f) except for the
normal restrictions on public offerings and the like under the Securities Act,
none of those Pledged Securities (i) is subject to any warrant, option, put,
call or other right to acquire, redeem, sell, transfer or encumber it, (ii) is
governed by or otherwise subject to any shareholders agreement, voting trust or
similar agreement or arrangement, or (iii) is limited or otherwise restricted in
any way respecting assignability or transferability or any voting, dividend,
distribution or other ownership right (whether or not reflected in any of the
Organizational Documents).
Section 5. The Borrower's Independent Investment Decision,
Etc. The Borrower represents and warrants to the Bank as follows in each
subsection of this Section, as of the date hereof and as of the date of each
Loan or other advance or any readvance, renewal or extension thereof, and the
Borrower hereby covenants and agrees with the Bank as follows in each subsection
of this Section, that: (a) the Borrower (i) is a sophisticated and knowledgeable
investor, both generally and with respect to each item of Collat-eral, (ii) has
received directly from each holder or issuer of Collateral (which for the
purpose of this Section shall be deemed not to include the Bank), reviewed, and
evalu-ated all financial and other information necessary or prudent to make the
Borrower's investment decision, and will continue to do so, (iii) has made, and
will continue to make, independent investment selections and decisions
respecting the Collateral with-out reliance upon or regard to any evaluation or
investigation by the Bank of any Col-lateral or any holder or issuer of any
Collateral, and (iv) does not directly or indirectly control, and is not an
officer, director, employee, general partner or trustee of, any holder or issuer
of any Collateral; (b) except for specific recommendations made in writing by
the Bank or its affiliate pursuant to the Investment Management Agreement,
neither the Bank nor any of its representatives has, and none of them shall be
deemed or construed to have, (i) made any representa-tion, warranty or guaranty,
(ii) offered or furnished any recommendation, advice, analysis or information,
or (iii) undertaken or assumed any liability, responsibility or other obligation
whatsoever respecting any Collateral or any holder or issuer of any Collateral,
whether oral or otherwise, and whether express or implied, including (without
limitation) anything with respect to any existing or future (A) existence,
enforceability, genuineness, value or condition of any Collateral or (B) assets,
business, cash flow, financial condition, investments, liabilities, operations,
properties, prospects, reputation, or strategies of any holder or issuer of
Collateral or any other person; (c) neither the Bank nor any of its
representa-tives shall have, or shall be deemed or construed to have, any
liability, obligation or responsibility whatsoever for any act or omission of
any issuer or holder of Collateral or any other person or any failure by anyone
to perform any of its obligations under or with respect to any of the
Collat-eral, all of which are hereby expressly waived by the Borrower; and (d)
neither the Bank nor any of its representatives has, or shall be deemed or
construed to have, any agreement, duty or obligation to notify or inform the
Borrower of any matter relating to any of the Collateral or any holder or issuer
of any of the Collateral or to furnish to the Borrower any information
pertaining thereto. The Borrower hereby confirms and assumes all responsibility
for keeping himself fully informed of any and all matters respecting (x) each
item of Collateral and (y) Carnival and each other holder or issuer of any
Collateral or other relevant person (including, without limitation, its assets,
business, cash flow, financial condition, investments, liabilities, operations,
properties, prospects, reputation, and strategies).
<PAGE>
Section 6. Performance and Protection of Collateral by the
Bank. In the event the Borrower fails to pay or otherwise perform or satisfy any
of the Borrower's obligations to others or under or in respect of any of the
Collateral, the Bank shall have the right in its sole and absolute discretion
(but shall be under no duty or obliga-tion) to make any such payment or cause
the performance or satisfaction of any such obligation, including (without
limitation) the payment of any tax, claim or insur-ance premium, the maintenance
or defense of any part of the Collateral or the purchase or discharge of any
Lien on any part of the Collateral. Unless the Bank determines that emergency
action is necessary to protect the Collateral, the Bank will endeavor to give
the Borrower at least five (5) Business Days prior notice (which may be by
telephone or telecopy) of any such payment or action; provided, however, that
the failure to give such notice shall not affect the validity of the payment or
action or the Borrower's reimbursement obliga-tions with respect thereto. The
Borrower shall pay or reimburse on demand any and all amounts advanced or
expenses incurred by the Bank or its designee under this Section, which shall
constitute additional Loans under (and secured by) this Agreement and shall bear
interest at the rate applicable to the Loans. No payment made or action taken by
the Bank or its designee shall be deemed or construed to be a waiver, cure or
satisfaction of the underlying default, which default shall be deemed to be
continuing until such time (if ever) as the Borrower has (i) resumed the
payment, performance and satisfaction required by this Agreement and the other
Loan Instruments and (ii) repaid all Loans advanced for such payments and
actions, together with interest thereon, and paid all others to whom the Bank
has requested direct payment respecting such payments and actions.
Section 7. Power of Attorney to the Bank. With respect to the
various assets and properties included or required to be included in the
Collateral hereunder, the Borrower hereby irrevocably makes, constitutes and
appoints the Bank and the Bank's executive officers (Vice President or above),
and each of them, with full power of substitution, as the Borrower's true and
lawful attorney-in-fact, each with full power and authority from time to time in
the Borrower's name, place and stead to (without any notice to or consent from
the Borrower): (a) take possession of and execute or endorse (to the Bank or
otherwise) any one or more con-tracts, pledges, assignments and other documents,
and any one or more notes, checks or other instruments received in payment for
or on account of those assets and prop-erties; (b) demand, collect and receive
any monies due on account of those assets and properties and give receipts and
acquittances in connection therewith; (c) negotiate and compromise any claim,
and commence, prosecute, defend, settle or withdraw any claims, suits or
proceedings, pertaining to or arising out of those assets and properties; (d)
prepare and exe-cute on behalf of the Borrower any mortgage, financing statement
or other document creating, evidencing, confirming or perfecting any security
interest contemplated by this Agreement, or any modification, amendment,
restatement, replacement, refiling, continuation or extension thereof; and (e)
sign, execute, acknowledge, swear to, verify, deliver, file, record and publish
any one or more of the foregoing; provided, however, that the above-named
attorneys-in-fact may exercise the powers set forth in this Section only
following the Bank's writ-ten notice pursuant to Section 8 of this Agreement and
during the continuance of the subject Event of Default, whether or not any
reference to this Power of Attorney is made in that notice, and without regard
to whether any other action has been taken by the Bank under this Agreement or
any other Loan Instrument. This Power of Attorney is hereby declared to be
absolute and irrevocable, with full power of substitution and coupled with an
interest. This Power of Attorney shall survive the dissolution,
<PAGE>
reorganization or bankruptcy of the Borrower and shall extend to and be binding
upon the Borrower's successors, assigns, heirs and legal representatives. A
facsimile signature shall be effective if so affixed. The Bank shall not be
liable for any failure to collect or enforce the payment of any of those assets
and properties.
Section 8. Rights of the Bank to the Collateral. Upon the
occurrence and during the continuance of any Default or Event of Default, the
Bank may take (and/or may cause one or more of the Bank's designees to take) any
or all of the following actions, all with-out notice to the Borrower or any
other person except as may otherwise be required by Applicable Law, with a
single notice (if required or otherwise given) being sufficient to entitle the
Bank from time to time thereafter to take any one or more of the actions
described below: (a) prohibit the Borrower from taking any action otherwise
permitted by this Agreement, the Note or any other Loan Instrument; (b) notify
each of the obligors, lessees, issuers, custodians and other parties with
respect to or interested in any item of the Collateral of the Bank's interest
therein or of any action proposed to be taken with respect thereto, and direct
one or more of those parties to make all payments, distributions and proceeds
otherwise payable to the Borrower with respect thereto directly to the Bank or
its order until notified by the Bank that all of the Obligations have been fully
paid and satisfied; (c) receive and retain all payments, distri-butions and
proceeds of any kind with respect to any and all of the Collateral; (d) take any
action with respect to the offer, sale, lease or other liquidation or
disposition, and delivery of the whole of, or from time to time any one or more
items of, the Collateral, including, without limitation, (i) to sell, assign,
lease or otherwise dispose of the whole of, or from time to time any part of,
the Collateral, or offer or agree to do so, in any estab-lished market or at any
broker's board, private sale or public auction or sale (with or without demand
on the Borrower or any advertisement or other notice of the time, place or terms
of sale) for cash, credit or any other asset or property, for immediate or
future delivery, and for such consideration and upon such terms and subject to
such conditions as the Bank in its sole and absolute discretion may determine to
be reasonable under the circumstances, and the Bank may purchase (the
consideration for which may consist in whole or in part of cancel-lation of
indebtedness) or any other person may purchase the whole or any one or more
items of the Collateral, and all items purchased shall be free and clear of any
and all rights, powers, privileges, remedies and interests of the Borrower
(whether individual, joint, several or otherwise), which the Borrower has
expressly waived pur-suant to this Agreement, (ii) to postpone or adjourn any
such auction, sale or other liquidation or disposition or cause the same to be
postponed or adjourned from time to time to a subsequent time and place, or to
abandon or cause the abandonment of the same, all without any advertisement or
other notice thereof, and (iii) to carry out any agree-ment to sell any item or
items of the Collateral in accordance with the terms and provisions of such
agreement, notwithstanding that, after the Bank shall have entered into such an
agreement, all of the Obligations may have been paid and satisfied in full; (e)
exercise any voting, consent, enforcement or other right, power, privilege,
remedy or interest of the Borrower pertaining to any item of Collateral to the
same extent as if the Bank were the outright owner thereof, including (without
limitation) any right that a record or beneficial owner of any Collateral may
have, provided that the Bank shall not be entitled to exercise any of the voting
rights of the Borrower pertaining to any equity interest in any affiliate of the
Borrower unless and until the Bank has given specific written notice to the
Borrower, apart from the notice first referred to in this Section, of the Bank's
election to exercise one or more, or all, such voting rights; (f) take
possession of and thereafter deal with or use from time to time all or any part
of the Collateral in all respects as if the Bank were the outright owner
thereof; (g) transfer or cause the transfer of the ownership of all or any part
of the Collateral to the Bank's own name and have such transfer recorded in any
jurisdiction(s) and publicized in any manner deemed appropriate by the Bank; and
(h) in addition to, and not by way of limitation of, any of the rights specified
above, exercise or enforce any and all rights, powers, privileges, remedies and
interests afforded to the Bank under this Agreement, any other Loan Instruments
and any and all provisions of Applicable Law (including, without limitation, the
Uniform
<PAGE>
Commercial Code), whether as a secured party or mortgagee in possession of
collateral or otherwise. The Bank shall not transfer or cause the transfer of
the Collateral to the United States unless (i) directed or permitted to do so by
the Borrower, (ii) to the transfer agent in connection with the partial release
of Carnival Shares and splitting of certificates contemplated in Section 3(a)
hereof, or (iii) an Event of Default is then continuing.
Section 9. Application of Proceeds, Deficiencies, Etc. The
Bank shall collect the cash proceeds received from any sale or other liquidation
or disposition pursuant to the preceding Sections or from any other source
contemplated by this Agreement, and, after deducting all costs and expenses
incurred by the Bank and any person designated by the Bank to take any of the
actions enumerated in the preceding Sections hereof in connection with such
collection and sale or other liquidation or disposition (including attorneys'
disbursements, expenses and fees), the net cash proceeds- may be applied by the
Bank in accordance with the terms and provisions of this Agreement, the Note or
any other Loan Instrument. In the event any funds remain after sat-isfaction in
full of all of the Obligations, then the remainder shall be returned to the
Borrower, subject, however, to any other rights or interests the Bank may have
therein under any other instrument, agreement or document or Applicable Law. If
the amount of all proceeds received with respect to and in liquidation of the
Collateral that shall be applied to payment and satisfaction of the Obligations
shall be insufficient to pay and satisfy all of the Obligations in full, the
Borrower acknowledges and agrees that the Borrower shall remain and be liable
for any deficiency in the Obligations.
Section 10. Certain Acknowledgments and Waivers of the
Borrower. The Borrower acknowledges and agrees that the rights, powers,
privileges, remedies and interests granted to or conferred upon the Bank in
respect of the Collateral by this Agreement, the other Loan Instruments or
Applicable Law are purely discretion-ary and shall not, and shall not be deemed
or construed to, impose upon the Bank any duty or other obligation (a) to sell,
foreclose or otherwise realize upon any Collateral, (b) to protect or preserve
any of the Collateral, (c) to perform or satisfy any obliga-tion under or
respecting any of the Collateral or the Borrower, (d) to mitigate or otherwise
reduce any damage or other loss, or (e) to otherwise exercise or enforce any
such right, power, privilege, remedy or interest. Any sale, foreclosure or other
real-ization upon the Collateral, or any other exercise or enforcement of any
such right, power, privilege, remedy or interest, if undertaken by the Bank in
its sole and absolute discretion, may be delayed, discontinued or otherwise not
pursued or exhausted for any reason whatso-ever (whether intentionally or
otherwise). Without limiting the generality of the fore-going, to the extent
waiver is not limited under Applicable Law, the Borrower hereby irrevocably and
expressly waives each and every claim or defense, and agrees that the Borrower
shall not assert or pursue (by action, suit, counterclaim or otherwise) any
claim or defense, respecting (i) any settlement or compromise with any obligor
or other third party under any account receivable, note, instrument, agreement,
document or general intangible included in the Collateral, irrespective of any
reduction in the potential proceeds therefrom, (ii) the selection or order of
liquidation or disposition of the Collateral (which may be at random or in any
order(s) the Bank may select in its sole and absolute dis-cretion), and which
the Borrower acknowledges and agrees may occur before any action is taken with
respect to either Borrower or any other surety or any collateral pledged by any
of them, (iii) the private sale of any Collateral, whether or not any public
market exists, or the sale or other liquidation or disposition of any Collateral
pursuant to the relevant -Organizational Document, (iv) the choice or timing of
any date for any sale, redemption or other liquidation or disposition (which the
Bank may select in its sole and absolute discretion), irrespective of whether
greater proceeds, distributions or other amounts would be realizable on a
different date, (v) the adequacy of any proceeds, distributions or other amounts
received respecting any Collateral, (vi) any insufficiency of any such proceeds,
distributions or other amounts to fully satisfy the Obligations and Surety's
Obligations, (vii) any sale of Collateral to the first person to receive an
offer or make a bid, (viii) the selection of any purchaser of any Collateral, or
(ix) any default by any purchaser of any Collateral. The Borrower hereby
irrevocably and expressly waives the applicability of any and all Applicable
Laws that are or may be in conflict with the terms and provi-sions of this
Agreement, the Note or any other Loan Instrument now or at any time in the
future to the extent waiver is not limited under Applicable Law, including
(without limitation) those pertaining to notice (other than notices required by
this Agreement, the Note or any other Loan Instrument), appraisal, valuation,
stay, injunction, extension, moratorium, mar-shalling of assets, exemption and
equity of redemption; provided, however, that the preceding provision is not
intended to confer upon the Bank any right, power, privi-lege, remedy or
interest not permissible under Applicable Law notwithstanding the foregoing
waivers. Neither the Bank nor any of its representatives shall incur any
liability in connection with any sale of or other action taken respecting any
Collateral in accordance with the provisions of this Agreement, any -other Loan
Instrument or Applicable Law.
<PAGE>
Section 11. Rights of the Borrower to the Collateral. Subject
to the terms and provisions of this Agreement and until such time as the Bank
shall give notice to the Borrower to the contrary during the continuance of any
Event of Default, without regard to whether any other action has been taken by
the Bank under this Agreement or any other Loan Instrument, the Borrower shall
have the right to do the things expressly permitted by any subsection of this
Section (but shall not have such right after such notice has been given to the
extent specified in such notice):
(a) The Borrower shall be entitled to exercise in good faith
any and all voting, waiver or consensual rights and powers relating or
pertaining to the Collateral or any part thereof for any purpose not
inconsistent with the terms of this Agreement; pro-vided, however, that the
Borrower shall not be permitted to exercise or refrain from exercising any such
right or power if such exercise or nonexercise would be reasonably likely to (A)
have a material and adverse effect on the value of the Col-lateral or any part
thereof or (B) result in any Default or Event of Default.
(b) The Borrower shall be entitled to receive and retain any
and all (i) dividend and other distributions of profit and interest payable in
cash on the securities constituting part of the Collateral, and (ii) dividends
with respect to the Carnival Shares payable in common stock or options, warrants
or rights to receive common stock other than those made in split of the Carnival
Shares or in liquidation or spinoff (in whole or material part) of Carnival or
any material subsidiary or division thereof. However, any and all splits of the
Carnival Shares or stock distributed in liquidation or spinoff (in whole or
material part) of Carnival or any material subsidiary or division thereof or
other stock or liquidating divi-dends, returns of capital or other distributions
of cash or other assets or properties made on, in respect of, upon, in
redemption of, in exchange for or in payment of prin-cipal of any such
Collateral (whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of any issuer thereof, any
merger, consolidation, acquisition or other exchange of assets or securities to
which any such issuer may be a party, any conversion, call or redemption, or
otherwise) shall be and become part of the Collateral pledged under this
Agreement (whether or not any Default or Event of Default is then continuing),
and, if received by the Borrower, shall be delivered immediately to the Bank or
its designee (accompanied by the documentation required under this Agreement) to
be held as Collateral pursuant to this Agreement.
Section 12. Further Assurances; Termination. The Borrower
agrees to do such further acts and things and to execute and deliver such
statements, assign-ments, agreements, instruments and other documents as the
Bank from time to time reasonably may request in connection with the
administration, maintenance, enforce-ment or adjudication of this Agreement, the
Note or any other Loan Instrument in order (a) to evidence, confirm, perfect or
protect any Lien granted or required to have been granted under
<PAGE>
this Agreement, the Note or any other Loan Instrument, (b) to give the Bank or
its designee confirmation and assurance of the Bank's rights, powers,
priv-ileges, remedies and interests under this Agreement, the other Loan
Instruments or Applicable Law, (c) to better enable the Bank to exercise any
such right, power, privi-lege or remedy, or (d) to otherwise effectuate the
purpose and the terms and provi-sions of this Agreement, the Note or any other
Loan Instrument, each in such form and sub-stance as may be acceptable to the
Bank. Upon full payment and satisfaction of the Obligations: the Bank shall
reassign, release and/or deliver to the Borrower all Collat-eral then held by or
at the direction of the Bank; and, if requested by the Borrower, the Bank shall
execute and deliver to the Borrower for filing in each office in which any
financing statement, mortgage, or lease, or assignment thereof, relating to the
Collateral, or any part thereof, shall have been filed, a termination statement
under the Uniform Commercial Code or an appropriate satisfaction, release,
reconveyance or reassignment releasing the Bank's interest therein, and any
other instrument or document that the Borrower shall deem reasonably necessary
to evidence the termination of the Bank's security interest, each in such form
and substance as may be acceptable to the Bank. Any and all actions under this
Section shall be without any recourse to or representation or warranty by the
Bank and shall be at the sole cost and expense of the Borrower.
Section 13. Enforcement. The Bank may (without limitation), at
any time and from time (in the Bank's sole and absolute discretion), exercise or
enforce any right, power, privilege, remedy or interest of the Bank under this
Agreement, the Note, any other Loan Instrument or Applicable Law: (a) at law, in
equity, in rem or in any other forum available under Applicable Law; (b) without
notice except as otherwise expressly provided in this Agreement; (c) without any
demand for payment except as otherwise expressly provided in this Agreement; (d)
without pursuing, exhausting or otherwise exercising or enforcing any other
right, power, privilege, remedy or interest that the Bank may have against or in
respect of the Borrower, any Surety or any other person or thing; and (e)
without regard to any act or omission of the Bank or any other person. The Bank
may institute one or more proceedings (which may be separate proceedings) with
respect to this Agreement and each of the other Loan Instruments in such order
and at such times as the Bank may elect in its sole and absolute discretion.
This Agreement, the Note or any other Loan Instrument may be enforced: without
possession of the Note or its production in any action, suit or proceeding; and
without the presence or participation of any co-obligor (joint or several) or
Surety, whether through lack of jurisdiction, venue or service or otherwise; and
the Borrower shall not raise, and hereby irrevocably and expressly waives, any
objection or defense respecting the need for any such possession, production,
presence or participation.
Section 14. Reinstatement. In the event any payment of or any
application of any amount, asset or property to any of the Obligations, or any
part thereof, at any time is rescinded or must otherwise be restored or returned
by the Bank upon the insolvency, bankruptcy or reorganization of the Borrower,
any Surety or any other person, whether by order of any court, by any settlement
approved by any court, or otherwise, then the terms and provisions of this
Agreement shall con-tinue to apply, or shall be reinstated if not then in
effect, as the case may be, with respect to the Obligations so rescinded,
restored or returned, all as though such payment or application had never been
made.
Section 15. Waivers of Notice, Etc. Except for notices
expressly required to be given to the Borrower under this Agreement or the Note,
the maximum extent permitted under any Applicable Law the Borrower hereby
expressly waives: (a) notice of acceptance of this Agreement, the Note or any
other Loan Instrument; (b) notice of any action taken or omitted in reliance
hereon; (c) presentment; (d) demand for payment; (e) protest or notice of
protest; (f) notice of any nonpayment or other event that constitutes, or with
the giving of notice or the passage of time (or both) would constitute, any
nonpayment, nonperformance, misrepresentation or other breach or default under
this Agreement, the Note or any other
<PAGE>
Loan Instrument; (g) notice of any material and adverse effect, whether
individually or in the aggregate, upon (i) the assets, business, operations,
properties or condition (financial or otherwise) of the Borrower, any Surety or
any other person, (ii) the ability of any of them to pay or otherwise satisfy
(as and when due) any of their respective obligations under any of the Loan
Instruments, or (iii) any collateral securing the obligations of any of them
under the Loan Instruments or its value or the validity, enforceabil-ity,
perfection or priority of any security interest of the Bank therein; or (h) any
other proof, notice or demand of any kind whatsoever with respect to any or all
of the Obligations or Surety's Obligations or promptness in making any claim or
demand under this Agreement, the Note or any other Loan Instrument. No act or
omission of any kind in connection with any of the foregoing shall in any way
impair or otherwise affect the legality, validity, binding effect or
enforceability of any term or provision of this Agreement, the Note or any other
Loan Instrument or any of the Obligations or Surety's Obligations.
Section 16. Consent to Jurisdiction, Waiver of Personal
Service, Etc. The Borrower hereby consents and agrees that the Supreme Court of
the State of New York for the County of New York and the United States District
Court for the South-ern District of New York each shall have personal
jurisdiction and proper venue with respect to any dispute between the Bank and
the Borrower under any Loan Instrument; provided that the fore-going consent
shall not deprive the Bank of the right in its sole and absolute discretion to
voluntarily commence or participate in any action, suit or proceeding in any
other court having jurisdiction and venue over the Borrower. In any dispute with
the Bank, the Borrower will not raise, and the Borrower hereby expressly waives,
any objection or defense to any such juris-diction as an inconvenient forum.
Without in any way limiting the preceding consents to jurisdiction and venue,
the parties intend (among other things) to thereby avail themselves of the
benefit of Section 5-1402 of the General Obligations Law of the State of New
York. The Borrower hereby expressly waives personal service of any summons,
complaint or other process, which may be delivered by any of the means permitted
for notices under this Agreement, the Note or any other Loan Instrument. In
addition (and without limitation of any such delivery), the Borrower has
executed and delivered to the Bank a Designation of Agent for Service appointing
CT Corporation System, 1633 Broadway, New York, New York 10019 as the Borrower's
agent for service in the State of New York, which the Borrower hereby
irrevocably autho-rizes the Bank to date with such date (if undated) and file
with the appropriate Authority at such time as the Bank in its sole and absolute
discretion may elect. The Borrower acknowledges and agrees that a final judgment
in any such action, suit or proceeding shall be conclusive and binding upon the
Borrower and may be enforced against the Borrower or any of his assets or
properties in any other appropriate jurisdiction selected by the Bank (in its
sole and absolute discretion) by an action, suit or proceeding in such other
jurisdiction. To the extent that the Borrower may be entitled to immunity
(whether by reason of sovereignty or otherwise) from suit in any jurisdiction,
from the jurisdiction of any court or from any other legal process, the Borrower
hereby irrevocably and expressly waives such immunity.
Section 17. Waiver of Jury Trial. In any action, suit or
proceeding in any jurisdiction brought by the Bank against the Borrower, or vice
versa, the Borrower and the Bank each hereby irrevocably and expressly waives
trial by jury.
Section 18. Waiver of Set Off, Etc. The Borrower hereby
irrevocably and expressly waives, and agrees that the Borrower will not
exercise, any and all rights of extension, stay, moratorium, setoff,
counterclaim, recoupment, abatement or reduction or other claim or determination
respecting any payment due under this Agreement, the Note or any other Loan
Instrument that may now or hereafter be accorded to the Borrower under
Applicable Law or otherwise. To the extent not required as a compulsory
counterclaim, the Borrower (a) shall pursue separate exercise and enforcement of
any right, power, privilege, remedy or interest retained (and not waived) by the
Borrower under this Agreement, the other Loan Instruments or Applicable Law, and
(b) shall not seek to exercise or enforce any such right, power, privilege,
remedy or interest in any proceeding instituted by the Bank under or in respect
of this Agreement, the Note or any other Loan Instrument, whether through
joinder, conso-lidation, setoff, recoupment, abatement, reduction, counterclaim,
defense or other-wise. In any dispute with the Bank, the Borrower covenants and
agrees that the Borrower will not seek, recover or retain any, and the Borrower
hereby irrevocably and expressly waives any and all, spe-cial, exemplary,
punitive and/or consequential damages (whether through action, suit,
counterclaim or otherwise) to the extent waiver is not limited under Applicable
Law.
<PAGE>
Section 19. Relationship of the Borrower and the Bank, Etc.
The Borrower represents, warrants, acknowledges and agrees that: (a) the Bank is
acting solely in the capacity of lender respecting this Agreement, the other
Loan Instruments, and the Collateral; (b) the sole relationship of the Borrower
with the Bank is that of debtor and creditor, respectively, and no term or
provision of this Agreement, the Note or any other Loan Instrument is intended
to create, nor shall any such term or provision be deemed or construed to have
created, any joint venture, partnership, trust, agency or other fiduciary or
advisory relationship with the Borrower; and (c) the Borrower has independently
and fully reviewed and evaluated the Loan Instruments, the transactions
contemplated thereunder and the potential effects of such transactions on the
assets, business, operations, properties and condition (financial or otherwise)
of each of the Borrower and the subsidiaries and affiliates of the Borrower (if
any), which review and evaluation was made (i) together with counsel and (to the
extent deemed prudent by the Borrower) financial and other advisors to the
Borrower, and (ii) without any reliance upon any oral or written advice,
analysis or assurance of any kind whatsoever from the Bank.
Section 20. Exculpation and Indemnification. The Bank and its
participants, affiliates, custodians and designees, and their respective
directors, officers, employees, attorneys and agents (together with the Bank,
each an "indemnitee"), shall not incur any liability for any acts or omissions
(and the Borrower hereby irrevocably and expressly waives any and all related
claims and actions against each indemnitee), and each indemnitee shall be
indemnified, reimbursed and held harmless by the Borrower on demand, and (at the
request of the Bank) defended at the expense of the Borrower with counsel
selected by the Bank, from and against any and all claims, liabilities, losses
and expenses (including, without limitation, the disbursements, expenses and
fees of their respective attorneys) that may be imposed upon, incurred by, or
asserted against any indemnitee, in each case arising out of or related directly
or indirectly to this Agreement, the Note, any other Loan Instrument, any of the
Collateral, any of the Loans or the application of any proceeds thereof, or any
environmental claim, except to the extent occasioned by the indemnitee's own
acts or omissions breaching a duty owed to the Borrower and amounting to gross
negligence or willful misconduct as finally determined pursuant to Applicable
Law by a governmental Authority having jurisdiction. The preceding general
exculpation and indemnification is not intended (and shall not be deemed or
construed) to in any way qualify, condition, diminish, restrict, limit or
otherwise affect any (and is in addition to each) other release, waiver,
consent, acknowledgment, agreement or other term or provision of this Agreement,
the Note or any other Loan Instrument.
Section 21. Notices. Except as otherwise expressly provided,
any notice, request, demand or other communication permitted or required to be
given under this Agreement, the Note or any other Loan Instrument shall be in
writing, shall be sent by one of the following means to the addressee at the
address set forth in Exhibit A to the Note (or at such other address as shall be
designated hereunder by notice to the other parties and persons receiving
copies, effective upon actual receipt) and shall be deemed conclusively to have
been given: (a) on the first Business Day following the day timely deposited
with Federal Express (or other equivalent national or international overnight
courier) or United States Express
<PAGE>
Mail, with the cost of delivery prepaid or for the account of the sender; (b) on
the fifth Business Day following the day duly sent by certified or registered
United States mail, postage prepaid and return receipt requested; or (c) when
otherwise actually received by the addressee on a Business Day (or on the next
Business Day if received after the close of normal business hours or on any
non-Business- Day), including (without limitation) any telecopy. Refusal to
accept delivery of any item shall be deemed to be receipt of such item by the
refusing party. Notices also may be given by telephone to the extent and for the
purposes provided in this Agreement, the Note or any other Loan Instrument. The
Borrower acknowledges and agrees that the Bank may record any and all telephone
calls with the Borrower and its representatives without any further or specific
notice of such recording.
Section 22. Expenses, Etc. The Borrower shall pay or reimburse
on demand any and all costs and expenses incurred by the Bank, whether directly
or indirectly, in connection with the preparation, execution and delivery of
this Agreement, the Note or any other Loan Instrument, all waivers, releases,
satisfactions, modifications, amendments and consents, all payments made and
actions taken in the name of or on behalf of the Borrower or any Surety, and the
administration, maintenance, enforcement and adjudication of this Agreement, the
Note, any other Loan Instrument and the Bank's rights, powers, privileges and
other interests under this Agreement, the other Loan Instruments or Applicable
Law, including (without limitation) the disbursements, expenses and fees of all
counsel to the Bank (including allocated costs of in-house counsel), provided
that "out of pocket" expenses shall be deemed to include the allocated costs of
experts within the Bank who normally charge the lending unit for their services
(including, without limitation, attorneys, appraisers, collateral advisors and
environmental analysts).
Section 23. Survival of Representations, Etc. Each of the
representations, warranties, covenants, waivers and other obligations and
agreements of the Borrower (whether individual, joint, several or otherwise)
con-tained in this Agreement and the other Loan Instruments: (a) shall be
absolute, irrevocable and unconditional; (b) shall survive the execution and
delivery of this Agreement and the other Loan Instruments, and any and all
advances, repayments and readvances hereunder and there-under; (c) shall remain
and continue in full force and effect without regard (i) to any waiver,
modification, extension, renewal, consolidation, spreading, amendment or
restatement of any other term or provision of any Loan Instrument, (ii) to any
full or partial exercise or nonexercise of any of the Bank's rights, powers,
privileges, remedies and interests under any Loan Instrument or Applicable Law,
against any person or with respect to any collateral, which exercise or
enforcement may be delayed, discontin-ued or otherwise not pursued or exhausted
for any or no reason whatsoever, or which may be waived, omitted or otherwise
not exercised or enforced (whether intentionally or otherwise), (iii) to any
surrender, repossession, sequestration, foreclosure, convey-ance or assignment
(by deed in lieu or otherwise), sale, lease or other realization, deal-ing or
liquidation or disposition respecting any collateral, (iv) to any release,
subordination or impairment of all or any part of any obligations or collateral
or any security interest therein (whether intentionally or otherwise), (v) to
any extension, stay, moratorium or statute of limitations or similar time
constraint under any Applicable Law, (vi) to any investigation, analysis or
evaluation by the Bank or its designees of the assets, busi-ness, operations,
properties or condition (financial or otherwise) of the Borrower, any Surety or
any other person, (vii) to any act or omission on the part of the Bank, any
Surety or any other person, or (viii) to any other event that otherwise might
constitute a legal or equitable counterclaim, defense or discharge of a
borrower, co-obligor, indemnitor, guarantor, pledgor or surety; (d) shall not be
subject to any defense, counterclaim, setoff, right of recoupment, abatement,
reduction or other claim or determination that may have against the Bank, any
Surety or any other person; (e) shall not be diminished or qualified by the
death, disability, dissolution, reorganization, insolvency, bank-ruptcy,
custodianship or receivership of the Borrower, any Surety or any other person,
or the inability of any of them to pay their respective debts or perform or
otherwise satisfy their respective obligations as they become due for any reason
whatsoever; and
<PAGE>
(f) shall remain and continue in full force and effect (i) until all of the
Obligations have been fully paid and satisfied and (ii) thereafter with respect
to events occurring prior to such payment and satisfaction.
Section 24. Severability. In the event that any term or
provision of this Agreement, the Note or any other Loan Instrument shall be
finally determined to be superseded, invalid, illegal or otherwise unenforceable
pursuant to Applicable Law by a governmental Authority having jurisdiction and
venue, that determination shall not impair or otherwise affect the validity,
legality or enforceability (a) by or before that Authority of the remaining
terms and provisions of this Agreement, the Note or any other Loan Instrument,
which shall be enforced as if the unenforceable term or provision were deleted,
or (b) by or before any other Authority of any of the terms and provisions of
this Agreement, the Note or any other Loan Instrument.
Section 25. No Waiver by Action, Cumulative Rights, Etc. Any
waiver or consent respecting this Agreement, the Note or any other Loan
Instrument shall be effective only if in writing and signed by the Bank and then
only in the specific instance and for the specific purpose for which given. No
waiver or consent shall be deemed (regardless of frequency given) to be a
further or continuing waiver or consent. The failure or delay of the Bank to
require performance of, or to exercise the Bank's rights with respect to, any
term or provision of this Agreement, the Note or any other Loan Instrument shall
in no way affect the Bank's right at a later time to enforce any such term or
provision. No notice to or demand on the Borrower or any Surety in any case
shall entitle such party to any other or further notice or demand. All rights,
powers, privileges, remedies and other interests of the Bank under this
Agreement, the other Loan Instruments or Applicable Law are cumulative and not
alternatives.
Section 26. Successors and Assigns, Assignment and Intended
Beneficiaries. Whenever in this Agreement, the Note or any other Loan
Instru-ment reference is made to any party, such reference shall be deemed to
include the successors, assigns, heirs and legal representatives of such party,
and, without limiting the generality of the foregoing, all representations,
warranties, covenants and other agreements made by or on behalf of the Borrower
(whether individual, joint, several or otherwise) in this Agreement, the Note or
any other Loan Instrument shall inure to the benefit of the participants and
other successors and assigns of the Bank; provided, however, that nothing herein
shall be deemed to authorize or permit the Borrower to assign any of the
Borrower's rights or obligations under this Agreement, the Note or any other
Loan Instrument to any other person (whether or not an affiliate of the
Borrower), and the Borrower covenants and agrees that the Borrower shall not
make any such assignment. The Bank from time to time may assign to one or more
banks or other persons all or any portion(s) of the Bank's rights and interests
and/or obligations under this Agreement, the Note or any other Loan Instrument,
including (without limitation) the assignment to any Federal Reserve Bank (as
collateral or otherwise) of all or any portion(s) of the Bank's rights to
payments of principal and/or interest and its other rights and interests under
this Agreement, the Note and any other Loan Instrument, may grant one or more
participation interests therein to any bank or other person, and may take any
and all reasonable actions necessary or appropriate in connection with any such
assignment or participation, all without notice to or consent of either Borrower
or any other person; provided, however, that the Bank shall not make any such
assignment (other than to any Federal Reserve Bank or an affiliate of the Bank)
or grant any such participation without the prior written consent of the
Borrower, which the Borrower agrees that he will not unreasonably withhold. The
Bank from time to time may furnish and disclose financial statements, documents
and other information pertaining to the Borrower to any potential assignee or
participant permitted hereunder. The representations, warranties and other terms
and provisions of this Agreement and the other Loan Instru-ments are for the
exclusive benefit of the parties hereto, and, except as otherwise expressly
provided herein, no other person, including creditors of any party hereto, shall
have any right or claim against any party by reason of any of those terms and
provisions or be entitled to enforce any of those terms and provisions against
any party.
<PAGE>
Section 27. Governing Law, Amendments, Etc. This Agreement has
been made and delivered in the City, County and State of New York. This
Agreement and the other Loan Instruments shall be governed by and construed in
accordance with the Applicable Laws pertaining in the State of New York (other
than those that would defer to the substantive laws of another jurisdiction).
Without in any way limiting the preceding choice of law, the parties intend
(among other things) to thereby avail themselves of the benefit of Sec-tion
5-1401 of the General Obligations Law of the State of New York. This Agreement,
the Note or any other Loan Instrument may have been executed in two or more
counterpart copies of the entire document or of signature pages to the document,
each of which may have been executed by one or more of the parties thereto, but
all of which, when taken together, shall constitute a single agreement binding
upon all of the parties thereto. The section and other headings contained in
this Agreement and the other Loan Instruments are for reference purposes only
and shall not affect the meaning or interpretation of this Agreement, the Note
or any other Loan Instrument. The Borrower hereby authorizes the Bank to fill in
any and all blanks and to correct any and all typographical or clerical errors
in this Agreement, the Note or any other Loan Instrument at any time as
determined by the Bank, all without any notice to or any further consent from
the Borrower. Except as otherwise provided in the preceding sentence or as
otherwise expressly provided in this Agreement with respect hereto or any other
Loan Instrument with respect thereto, each and every modification and amendment
of this Agreement, the Note or any other Loan Instrument shall be in writing and
signed by all of the parties hereto or thereto, as applicable, and each and
every waiver of, or consent to any departure from, any representation, warranty,
covenant or other term or provision of this Agreement, the Note or any other
Loan Instrument shall be in writing and signed by each affected party hereto or
thereto, as applicable. This Agreement and the other Loan Instruments contain
the entire agreement of the parties and supersede all other representations,
warranties, agreements and understandings, oral or otherwise, among the parties
with respect to the matters contained herein and therein.
In Witness Whereof, the parties hereto have executed and
delivered this Agreement as of the date first written above.
Ted Arison, by Andrew H. Weinstein as his
Attorney-in-Fact pursuant to the General
Power of Attorney executed as of June 15,
1999
The Chase Manhattan Bank
By: /s/ Charles W. Ranson, Jr.
---------------------------------------
Charles W. Ranson, Jr.
Managing Director
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 15th day of June in the year 1999, before me, the
undersigned, a Notary Public in and for the above referenced State, personally
appeared Andrew H. Weinstein, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity (i.e., as Attorney-in-Fact), and that by his signature on the
instrument, the person upon behalf of whom the individual acted (i.e., Ted
Arison), executed the instrument in the above referenced State.
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 15th day of June in the year 1999, before me, the
undersigned, a Notary Public in and for the above referenced State, personally
appeared Charles W. Ranson, Jr., personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity (i.e., as Managing Director), and that by his signature on the
instrument, the person upon behalf of which the individual acted (i.e., The
Chase Manhattan Bank), executed the instrument in the above referenced State.
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "Agreement") is dated as of July 10,
1999, between the MICHAEL ARISON CONTINUED TRUST (the "Pledgor"), and CITIBANK,
N.A., a national banking association, in its capacity as collateral agent (the
"Agent") for and representative of CITICORP USA, INC., a Delaware corporation
(the "Lender"). Each initially capitalized term which is used herein but not
otherwise defined shall have the meaning given such term in the Note referred to
below.
W I T N E S S E T H T H A T :
WHEREAS, pursuant to that certain line of credit letter
agreement dated July 10, 1999 (as such agreement may be amended, modified,
supplemented or restated from time to time, the "Letter Agreement") between the
Mainland Trading Ltd., a Jamaican corporation, and Spanish Town Hardware Ltd., a
Jamaican corporation (collectively, the "Borrowers"), and the Lender, the Lender
has agreed to make an uncommitted line of credit available to the Borrowers in a
principal amount not to exceed US$1,000,000.00 at any time outstanding (the
"Line of Credit"), with advances thereunder to be evidenced by a Demand Note of
even date herewith (the "Note"); and
WHEREAS, the Lender has required as a condition, among others,
to making the Line of Credit available to the Borrowers, that the Pledgor
guaranty repayment of the indebtedness evidenced by the Note pursuant to the
terms and conditions of a Limited Guaranty of even date herewith (the
"Guaranty"); and
WHEREAS, in order to secure the prompt and complete payment,
observance and performance of all of the indebtedness, obligations and
liabilities of the Pledgor owing to the Lender under the Guaranty or this
Agreement (all such indebtedness, obligations and liabilities being collectively
referred to herein as the "Liabilities"), the Lender is requiring that the
Pledgor execute and deliver this Agreement to the Agent; and
WHEREAS, the Pledgor is the owner of those shares of the
issued and outstanding common stock of Carnival Corp. (the "Company"), which are
more fully described on Exhibit A attached hereto.
NOW, THEREFORE, for and in consideration of the foregoing and
of any financial accommodations or extensions of credit heretofore, now or
hereafter made to or for the benefit of the Borrowers by the Lender and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. The Pledgor hereby grants to
the Agent, for the benefit of the Lender, as security for the prompt and
complete payment, observance and performance of the Liabilities, together with
all obligations of the Pledgor to the Agent hereunder, a security interest in
(i) all of the shares of the common stock of the Company which are described on
the attached Exhibit A, together with all of the shares of the common stock of
the Company which may hereafter be pledged to the Agent pursuant to the Letter
Agreement (such shares of stock of the Company being collectively referred to
herein as the "Pledged Shares"), and (ii) all proceeds thereof (the Pledged
Shares, together with the "Powers" (as defined below), the property and
interests in property described in paragraphs 7 and 8 below, dividends and
distributions payable with respect to the Pledged Shares pursuant to paragraph 4
below, and all proceeds of any of the foregoing, being hereinafter collectively
referred to as the "Pledged Collateral"). The Pledgor agrees to execute and
deliver to the Agent (a) stock powers in the form of Exhibit B attached hereto
and made a part hereof, appropriately endorsed in blank, with respect to the
Pledged Shares constituting certificated securities, and (b) such other
documents of transfer as the Agent may from time to time request to enable the
Agent to transfer the Pledged Shares into its name or the name of its nominee,
or to register any of the Pledged Collateral to the Agent or its nominee (all of
the foregoing are hereinafter collectively referred to as the "Powers").
1
<PAGE>
2. Perfection of Security Interest. The Pledgor agrees (i)
immediately to deliver to the Agent or the Agent's nominee all certificates
evidencing any of the Pledged Collateral which may at any time come into the
possession of the Pledgor, (ii) to execute and deliver to the Agent such
financing statements as the Agent may request with respect to the Pledged
Collateral, and (iii) to take such other steps as the Agent may from time to
time reasonably request to perfect the Agent's security interest in the Pledged
Collateral under applicable law, including, with respect to any portion of the
Pledged Collateral which may constitute "investment property" (as defined in the
UCC) causing the Agent's security interest as such Collateral to be perfected by
"control" (as defined in the UCC).
3. Voting Rights. During the term of this Agreement, the
Pledgor shall have the right to vote the Pledged Shares and to exercise any
voting rights pertaining thereto (which may be registered on the books and
records of the Company in its name except as otherwise provided in paragraph 10
below), and to give consents, ratifications and waivers with respect thereto.
The Agent shall, at the request of the Pledgor, provide it with appropriate
proxies and any other documents necessary or appropriate to permit it to
exercise the rights set forth in the preceding sentence. At such time as the
indebtedness evidenced by the Note or any Other Note is due and payable in full
("Maturity"), the Agent shall be entitled, at the Agent's option and following
written notice from the Agent to the Pledgor, to exercise all voting powers
pertaining to the Pledged Shares and to give, exclusively, consents,
ratifications and waivers with respect thereto for all purposes.
4. Dividends and Other Distributions. Except as provided in
paragraph 7 hereof, during the term of this Agreement, the Pledgor shall be
entitled to directly receive all dividends and distributions paid in respect of
the Pledged Collateral. Concurrently with its execution and delivery of this
Agreement, the Pledgor shall execute and deliver to the Agent a notice to the
Company substantially in the form of Exhibit C attached hereto (the "Dividends
and Distributions Notice"). The Dividends and Distributions Notice shall
instruct the Company to remit all dividends and other distributions payable with
respect to the Pledged Collateral to the Agent. Such Dividends and Distributions
Notice shall be held by the Agent until the Agent notifies the Pledgor that (i)
Maturity has occurred, and (ii) the Agent is sending the Dividends and
Distributions Notice to the Company. Such notification by the Agent to the
Pledgor shall in all respects be undertaken in compliance with paragraph 15 of
the Note. All dividends and/or distributions remitted to the Agent shall be
applied to the Liabilities.
2
<PAGE>
5. Representations and Warranties. The Pledgor represents and
warrants to the Agent, for the benefit of the Lender, as follows:
(a) The Pledgor is the sole legal and beneficial
owner of each of the Pledged Shares and each of the Pledged Shares is
free and clear of any security interest, lien, pledge or other charge
or encumbrance (or any other type of preferential arrangement) except
such as may exist in favor of the Lender, arising pursuant to this
Agreement;
(b) The Pledgor has full power and authority to enter
into this Agreement;
(c) There are no restrictions upon the pledge or
other transfer of any of the Pledged Shares nor upon the sale of any of
the Pledged Shares by the Lender (whether pursuant to securities laws
or regulations or shareholder, lock-up or other similar agreements)
except as reflected on the face of any certificates evidencing the
Pledged Shares;
(d) The Pledgor has the right, subject to the
provisions of this Agreement and the Note, (i) to vote the Pledged
Shares, and (ii) to pledge and grant a security interest in all or any
part of the Pledged Shares free of any lien or other charge,
encumbrance or restriction;
(e) The Pledgor has the right (subject, however, to
the Securities Act of 1933) to otherwise transfer all or any part of
the Pledged Collateral free of any lien or other charge, encumbrance or
restriction;
(f) The Pledged Shares do not represent more than
five percent (5%) of the issued and outstanding common stock of the
Company;
(g) The Pledged Shares have been duly authorized, are
fully-paid and non-assessable and the certificates evidencing the
Pledged Shares have been registered to the Pledgor for more than one
year;
(h) The Company is current with respect to all of its
SEC filings; and
(i) The Powers are duly executed and give the Agent
the authority they purport to confer.
6. Subsequent Changes Affecting Pledged Collateral. The
Pledgor represents to the Agent that the Pledgor has made arrangements for
keeping informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, reorganization or other exchanges, tender
offers and voting rights), and the Pledgor agrees that neither the Agent nor the
Lender shall have any responsibility or liability for informing the Pledgor of
any such changes or potential changes or for taking any action or omitting to
take any action with respect thereto.
7. Pledged Shares Adjustments. In the event that, during the
term of this Agreement, any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of the Company
(including, without limitation, the issuance of additional shares of common
stock of the Company), then the Agent shall have a security interest in all
equity and non-equity securities issued to or acquired by the Pledgor in respect
of the Pledged Collateral by reason of any such change or exercise, and such
shares or other securities, shall be delivered to the Agent or the Agent's
nominee and become part of the Pledged Collateral.
3
<PAGE>
8. Warrants, Options and Other Rights. In the event that,
during the term of this Agreement, subscription warrants or any other rights or
options shall be issued by the Company in connection with the Pledged Collateral
or otherwise issued to or acquired by the Pledgor, then the Agent shall have a
security interest in such warrants, rights and options, and such warrants,
rights and options shall become part of the Pledged Collateral.
9. Waivers. The Pledgor hereby waives any requirement of
diligence, presentment, demand of payment, filing of claims with a court in the
event of a receivership or bankruptcy of the Borrower, protest or notice with
respect to the Liabilities, the benefit of any statutes of limitation, and all
demands whatsoever (and shall not require that the same be made on the Pledgor
as a condition precedent to the Pledgor's liabilities hereunder), and covenants
that the Pledgor will not be discharged of liabilities under this Agreement,
except as provided in paragraph 11.
10. Remedies of Agent upon Maturity. The Agent may, upon
Maturity, at its option, transfer or register the Pledged Collateral or any part
thereof into its or its nominee's name with or without any indication that such
Pledged Collateral is subject to the security interest hereunder. The Pledgor
hereby appoints the Agent as its attorney-in-fact to arrange at the Agent's
option for such transfer. The Agent shall have, in addition to the foregoing and
any other rights given under this Agreement or by law, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under the
UCC. In addition, upon Maturity, the Agent shall have such powers of sale and
other powers as may be conferred by applicable law. With respect to the Pledged
Collateral or any part thereof which shall then be in or shall thereafter come
into the possession or custody of the Agent or which the Agent shall otherwise
have the ability to transfer under applicable law, the Agent may, in its sole
discretion, without notice except as specified below, sell or cause the same to
be sold at any broker's board or at public or private sale, in one or more sales
or lots, at such price as the Agent may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk on the part of the Agent
or the Lender and the purchaser of any or all of the Pledged Collateral so sold
shall hereafter own the same, absolutely free from any claim, encumbrance or
right of any kind whatsoever. Unless any of the Pledged Collateral threatens to
decline speedily in value or is or becomes a type sold on a recognized market,
the Agent will give the Pledgor reasonable notice of the time and place of any
public sale thereof, or of the time after which any private sale or other
intended disposition is to be made. Any sale of the Pledged Collateral conducted
in conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein, any
requirement of reasonable notice shall be met if ten (10) Business Days' notice
of such sale or disposition is provided to the Pledgor. Any other requirement of
notice, demand or advertisement for sale is, to the extent permitted by law,
waived. The Agent or the Lender may, in its own name or in the name of a
designee or nominee, buy all or any part of the Pledged Collateral at any public
sale and, if permitted by applicable law, buy all or any part of the Pledged
Collateral at any private sale. The Pledgor will pay to the Agent all expenses
(including, without limitation, court costs and reasonable attorneys' and
paralegals' fees and expenses) of, or incident to, (i) the administration of
this Agreement, (ii) the custody or preservation of, or the sale or collection
of or other realization upon, any of the Pledged Collateral, (iii) the exercise
or enforcement of any of the rights of the Agent hereunder, or (iv) the failure
by the Pledgor to perform or observe any provision hereof. In view of the fact
that federal and state securities laws and securities laws in other foreign
jurisdictions may impose certain restrictions on the method by which a sale of
the Pledged Collateral may be effected upon Maturity, the Pledgor agrees that
the Agent may, from time to time, attempt to sell all or any part of the Pledged
Collateral by means of a private placement restricting the bidders and
prospective purchasers to those who are qualified and will represent and agree
that they are purchasing for investment only and not for distribution. In so
doing, the Agent may solicit offers to buy the Pledged Collateral, or any part
of it, from a limited number of investors deemed by the Agent, in its reasonable
judgment, to be financially responsible parties who might be interested in
purchasing the Pledged Collateral. If the Agent solicits such offers, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral.
4
<PAGE>
11. Effectiveness of Agreement. This Agreement shall remain in
full force and effect until all of the Liabilities shall have been indefeasibly
paid and satisfied in full.
12. The Agent's Exercise of Rights and Remedies upon Maturity.
Notwithstanding anything set forth herein to the contrary, it is hereby
expressly agreed that the Agent may, and upon the written direction of the
Lender, shall, exercise any of the rights and remedies provided in this
Agreement upon Maturity.
13. Definitions. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
14. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Pledgor, the Agent and their respective
successors and assigns.
15. Applicable Law. This Agreement shall be governed by, and
construed and enforced in all respects in accordance with, the laws of the State
of New York applicable to contracts made and to be performed entirely within
such State, without giving effect to its conflicts of laws principles or rules.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be held to be prohibited or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
16. Further Assurances. The Pledgor agrees to cooperate with
the Agent and to execute and deliver, or cause to be executed and delivered, all
such other stock powers, proxies, instruments and documents and to take all such
other actions, including, without limitation, the filing of financing
statements, as the Agent may reasonably request from time to time in order to
carry out the provisions and purposes hereof.
5
<PAGE>
17. Consent to Jurisdiction; Waiver of Venue Objection;
Service of Process. WITHOUT LIMITING THE RIGHT OF THE AGENT TO BRING ANY ACTION
OR PROCEEDING AGAINST THE PLEDGOR OR AGAINST PROPERTY OF THE PLEDGOR ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY INDEBTEDNESS SECURED HEREBY (AN
"ACTION") IN THE COURTS OF OTHER JURISDICTIONS, THE PLEDGOR HEREBY IRREVOCABLY
SUBMITS TO AND ACCEPTS THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT OR ANY FEDERAL COURT SITTING IN NEW YORK CITY, AND THE PLEDGOR HEREBY
IRREVOCABLY AGREES THAT ANY ACTION MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR IN SUCH FEDERAL COURT. THE PLEDGOR HEREBY IRREVOCABLY WAIVES AND
DISCLAIMS, TO THE FULLEST EXTENT THAT THE PLEDGOR MAY EFFECTIVELY DO SO, ANY
DEFENSE OR OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY DEFENSE OR OBJECTION TO
VENUE BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH THE PLEDGOR MAY NOW OR
HEREAFTER HAVE TO THE MAINTENANCE OF ANY ACTION IN ANY JURISDICTION. THE PLEDGOR
HEREBY IRREVOCABLY AGREES THAT THE SUMMONS AND COMPLAINT OR ANY OTHER PROCESS IN
ANY ACTION IN ANY JURISDICTION MAY BE SERVED BY MAILING (USING CERTIFIED OR
REGISTERED MAIL, POSTAGE PREPAID) TO THE NOTICE ADDRESS OF THE PLEDGOR SET FORTH
BELOW OR BY HAND DELIVERY TO A PERSON OF SUITABLE AGE AND DISCRETION AT SUCH
ADDRESS. SUCH SERVICE WILL BE COMPLETE ON THE THIRD BUSINESS DAY AFTER SUCH
PROCESS IS SO MAILED OR ON THE DATE SUCH PROCESS IS DELIVERED, AND THE PLEDGOR
SHALL HAVE THIRTY DAYS FROM SUCH COMPLETION OF SERVICE IN WHICH TO RESPOND IN
THE MANNER PROVIDED BY LAW. THE PLEDGOR MAY ALSO BE SERVED IN ANY OTHER MANNER
PERMITTED BY LAW, IN WHICH EVENT THE PLEDGOR'S TIME TO RESPOND SHALL BE THE TIME
PROVIDED BY LAW.
18. Agent Appointed Attorney-in-Fact. The Pledgor hereby
appoints the Agent as the Pledgor's attorney-in-fact, with full authority in the
place and stead of the Pledgor and in the name of the Pledgor or otherwise, from
time to time in the Agent's discretion following Maturity to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any distribution, interest payment or other dividend distribution
in respect of the Pledged Collateral or any part thereof and to give full
discharge for the same. This power of attorney created under this paragraph 18,
being coupled with an interest, shall be irrevocable for the term of this
Agreement.
19. Agent's Duty. The Agent shall not be liable for any acts,
omissions, errors of judgment or mistakes of fact or law including, without
limitation, acts, omissions, errors or mistakes with respect to the Pledged
Collateral, except for those arising out of or in connection with the Agent's
(i) gross negligence or willful misconduct, or (ii) failure to use reasonable
care with respect to the safe custody of any certificate evidencing any of the
Pledged Collateral which is in the physical possession of the Agent. Without
limiting the generality of the foregoing, the Agent shall be under no obligation
to take any steps necessary to preserve rights in the Pledged Collateral against
any other parties but may do so at its option, and all expenses incurred in
connection therewith shall be for the sole account of the Pledgor, and shall be
added to the Liabilities secured hereby.
6
<PAGE>
20. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
21. Section Headings. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
22. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, THE PLEDGOR HEREBY WAIVES AND DISCLAIMS ANY RIGHT TO TRIAL BY JURY (WHICH
THE AGENT, ON BEHALF OF THE LENDER, ALSO WAIVES AND DISCLAIMS) IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS
PLEDGE AGREEMENT, THE PLEDGED COLLATERAL, OR THE AGENT'S OR THE LENDER'S CONDUCT
IN RESPECT THEREOF.
IN WITNESS WHEREOF, the Pledgor and the Agent have executed
this Agreement as of the day and year first above written.
MICHAEL ARISON CONTINUED TRUST
Dated as of July 10, 1999 By: TAF Management Company,
as Successor Trustee under Declaration
of Continued Trust for Michael Arison,
dated December 26, 1991, as amended by
Order, dated December 21, 1992
By:______________________________________
Notice Address: Name:_________________________________
Title:________________________________
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
Attention: Denison H. Hatch, Jr., Esq.
7
<PAGE>
With a copy to:
Mr. Henry Eckstein
555 NE 34th Street, Suite 201
Miami, Florida 33137
and to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: William R. Bloom, Esq.
CITIBANK, N.A., as Agent for the Lender
By:________________________________
Vice President
8
<PAGE>
EXHIBIT A
TO
PLEDGE AGREEMENT
Certificate No. No. of Shares.
--------------- --------------
CC5614 100,000
9
<PAGE>
EXHIBIT B
TO
PLEDGE AGREEMENT
[To be supplied.]
10
<PAGE>
EXHIBIT C
TO
PLEDGE AGREEMENT
DIVIDENDS AND DISTRIBUTIONS NOTICE
July 10, 1999
Carnival Corp.
3655 N.W. 8th Avenue.
Miami, Florida 33178
Ladies and Gentlemen:
The undersigned is the record owner of certain shares of the
common stock of Carnival Corp. and has pledged 100,000 of such shares to
Citibank, N.A. as collateral agent for Citicorp USA, Inc. From and after the
date hereof and until further notice, the undersigned hereby directs you to
remit all dividends and other distributions payable with respect to such shares
directly to Citibank, N.A. at:
Citibank, N.A.
425 Park Avenue, 4th Floor
New York, New York 10022
Attention: Private Banking Division
Very truly yours,
Notice Address: MICHAEL ARISON CONTINUED TRUST
Morris, Nichols, Arsht & Tunnell By: TAF Management Company,
1201 North Market Street as Successor Trustee under
P.O. Box 1347 Declaration of Continued Trust
Wilmington, Delaware 19899-1347 for Michael Arison, dated
Attention: Denison H. Hatch, Jr., Esq. December 26, 1991, as amended
by Order, dated December 21,
1992
By:___________________________
With a copy to: Name:______________________
Mr. Henry Eckstein Title:_____________________
55 NE 34th Street, Suite 201
Miami, Florida 33137
and to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: William R. Bloom, Esq.
11
AMENDMENT NO. 1 TO PLEDGE AGREEMENT
AMENDMENT NO. 1 TO PLEDGE AGREEMENT (this "Amendment") is dated as of
October 1, 1999, by the MICHAEL ARISON CONTINUED TRUST (the "Pledgor"), in favor
of CITIBANK, N.A., a national banking association, having offices at 425 Park
Avenue, 4th Floor, New York, New York 10022; Attention: Private Banking
Division, as collateral agent (in such capacity, the "Agent") for and
representative of CITICORP USA, INC., a Delaware corporation (the "Lender").
W I T N E S S E T H T H A T :
WHEREAS, on or about July 10, 1999, the Lender extended to MAINLAND
TRADING LTD., a Jamaican corporation, and SPANISH TOWN HARDWARE LTD., a Jamaican
corporation (collectively, the "Borrowers"), a $1,000,000.00 uncommitted line of
credit (the "Line") evidenced by a US$1,000,000.00 Demand Note dated July 10,
1999 (the "Original Note,"); and
WHEREAS, to secure repayment of the indebtedness evidenced by the
original Note, the Pledgor granted to the Agent, as collateral agent for and
representative of the Lender, a security interest in certain shares of the
issued and outstanding common stock of Carnival Corp. which are more fully
described in Exhibit A to that certain Pledge Agreement dated as of July 10,
1999, executed by the Pledgor in favor of the Agent for the benefit of the
Lender (the "Pledge Agreement"); and
WHEREAS, in order to induce the Lender to increase the credit
availability under the Line to US$2,000,000.00, the Pledgor has agreed to
execute and deliver this Amendment to the Agent, for the benefit of the Lender.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor agrees that the Pledge Agreement is hereby modified to
provide that the Pledged Collateral (as defined in the Pledge Agreement) shall
henceforth secure (a) the repayment of the indebtedness evidenced by (i) that
certain US$2,000,000.00 Amended and Restated Demand Note dated October 1, 1999,
executed by the Borrowers to the order of the Lender (the "Amended and Restated
Note," each initially capitalized term used but not defined herein having the
meaning specified in Schedule A to said Note), and (ii) any Other Note; and (b)
the performance and observance by the Pledgor of its obligations under the
Guaranty. Except as specifically modified hereby, the Pledge Agreement shall
remain in full force and effect and is hereby ratified, confirmed and approved
in all respects. The execution, delivery and effectiveness of this Amendment
shall not operate as a modification of any right, power or remedy of the Lender
under the Pledge Agreement nor constitute a waiver of any provision thereof,
except as specifically set forth herein.
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Agent have each caused this
Agreement to be executed by their respective duly authorized officers as of
October 1, 1999.
Notice Address: MICHAEL ARISON CONTINUED TRUST
Morris, Nichols, Arsht & Tunnell By: TAF Management Company, as
1201 North Market Street Successor Trustee under
P.O. Box 1347 Declaration of Continued Trust
Wilmington, Delaware 19899-1347 for Michael Arison, dated
Attention: Denison H. Hatch, Jr., Esq. December 26, 1991, as amended
by Order, dated December 21,
1992
With a copy to By:___________________________
Name:______________________
Mr. Henry Eckstein Title:_____________________
555 NE 34th Street, Suite 201
Miami, Florida 33137
and to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
Attention: William R. Bloom, Esq.
CITIBANK, N.A., as Agent
By:___________________________
Vice President
PLEDGE AGREEMENT
This Pledge Agreement (this "Agreement") is dated as of October 22,
1999 between MA 1994 B SHARES, L.P., a Delaware limited partnership ("MA") (the
"Pledgor") and Citibank, N.A., a national banking association, as collateral
agent (the "Agent") for Citicorp USA, Inc., a Delaware corporation (the
"Lender"). Terms capitalized and used herein which are not otherwise defined
herein shall have the meanings given them in the Credit Agreement (as defined
below). This Agreement, the Credit Agreement, the Note (as defined below), and
the Guaranty (as defined below) executed in connection therewith are called the
"Loan Documents."
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof between MIAMI HEAT LIMITED PARTNERSHIP (the "Heat") and the Lender (as
such agreement may be modified, supplemented, amended or restated from time to
time, the "Credit Agreement"), the Lender has agreed to make a One Hundred
Million Dollar ($100,000,000) line of credit (the "Line"), available to Heat
with advances thereunder evidenced by that certain Promissory Note, of even date
herewith, executed by Heat in favor of the Lender in a principal amount of up to
One Hundred Million Dollars ($100,000,000) (as such note may be modified,
supplemented, replaced, amended or restated from time to time, the "Note");
WHEREAS, MA has guaranteed the obligations of Heat under the Credit
Agreement pursuant to that certain Guaranty dated as of the date hereof made by
MA in favor of Lender (the "Guaranty");
WHEREAS, Pledgor owns, and may own in the future, certain securities
including, without limitation, certain shares of stock ("Shares") of certain
corporations ("Corporations") which are identified on Exhibit A attached hereto;
WHEREAS, the Agent has established a certain custody account in the
name of the Pledgor, as described on Exhibit A attached hereto (the "Account");
WHEREAS, the Lender has required as a condition, among others, to
extending credit to Heat under the Line, and in order to secure the prompt and
complete payment, observance and performance of all of the obligations and
liabilities of Heat and MA owing now or hereafter to the Lender under or in
connection with the Line, the Credit Agreement and the Guaranty (all such
obligations and liabilities together with the obligations of the Pledgor owing
to the Agent under this Agreement are collectively referred to herein as the
"Obligations"), that the Pledgor execute and deliver this Agreement to the
Agent.
NOW, THEREFORE, for and in consideration of the foregoing and of any
extensions of credit (including, without limitation, any loan or advance by
renewal, refinancing or extension of the agreements described hereinabove or
otherwise) heretofore, now or hereafter made to or for the benefit of Heat by
the Lender, the Agent or their affiliates and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
<PAGE>
1. Grant of Security Interest. The Pledgor hereby grants to the Agent,
for the benefit of itself and the Lender, as security for the prompt and
complete payment, observance and performance of the Obligations, a security
interest in all of Pledgor's right, title and interest in (i) all Securities and
other investment property, whether now owned or hereafter acquired and now or
hereafter delivered to the Agent or the Agent's nominee pursuant to the Credit
Agreement or this Agreement including, without limitation, the Shares and all
Pledgor's right to receive distributions of the Corporation's assets (such
Securities and other investment property collectively referred to herein as the
"Pledged Interests"), (ii) the Account and all investment property and
Securities contained therein and all replacements, renewals, substitutions and
proceeds thereof, (iii) all rights, privileges, authority and powers of Pledgor
as owner or holder of the Pledged Interests, including all contract rights
related thereto, (iv) any documents, instruments or certificates representing or
evidencing the Pledged Interests, and (v) all interest, dividends,
distributions, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Pledged
Interests and any and all proceeds of any of the foregoing (all of the foregoing
being referred to collectively as the "Collateral"). Pledgor agrees to execute
and deliver to the Agent stock powers substantially in the form of Exhibit B
attached hereto (the "Powers") with respect to each Pledged Interest evidenced
by a "certificated security" and such documents of transfer as the Agent may
from time to time request to enable the Agent to transfer the Pledged Interests
into its name or the name of its nominee, or to register any of the Collateral
to the Agent or its nominee.
2. Perfection of Security Interest. Pledgor agrees (i) to deliver, or
cause to be delivered, to the Agent, or the Agent's nominee, all certificates
evidencing any of the Collateral, (ii) to execute and deliver to the Agent such
financing statements as the Agent may reasonably request from time to time with
respect to the Collateral and (iii) to take such other steps as the Agent may
from time to time reasonably request to perfect the Agent's security interest in
the Collateral under applicable law. At the request of the Agent, Pledgor shall
take all such steps as are necessary or desirable to insure that Pledged
Interests are readily marketable, including, without limitation, causing
opinions to be delivered to applicable transfer agents and other actions to
remove any legends on certificates evidencing the Collateral, if applicable.
3. Voting Rights. During the term of this Agreement, and so long as no
"Trigger Event" (defined below) shall have occurred and be continuing, the
Pledgor shall have the right to vote the Pledged Interests and exercise any
voting rights pertaining to such Pledged Interests, and to give consents,
ratifications and waivers with respect thereto, for all purposes not prohibited
by the terms of the Loan Documents. The Agent shall, at the request of Pledgor,
provide Pledgor with appropriate proxies and any other documents necessary or
appropriate to permit such Pledgor to exercise the rights set forth in the
preceding sentence. For purposes of this Agreement and the other Loan Documents,
"Trigger Event" shall mean the date as of which an Event of Default shall have
occurred and be continuing under the Credit Agreement and the Lender shall have
delivered to the Borrower and the Pledgor a notice that the Lender has
accelerated the due date of the amounts outstanding under the Facility; provided
that, a Trigger Event shall be deemed not to have occurred or be continuing if
the Agent shall have received written notice from the Lender of either the cure
or waiver of such Trigger Event. After the occurrence and during the continuance
of any Trigger Event, the Agent shall be entitled, at the Agent's option and
following written notice from the Agent to the Pledgor, to exercise all voting
powers pertaining to the Collateral and to give, exclusively, consents,
ratifications and waivers with respect thereto for all purposes.
-2-
<PAGE>
4. Dividends and Other Distributions. During the term of this
Agreement, and so long as no Trigger Event shall have occurred and be
continuing, the Pledgor will receive all dividends and other distributions
payable with respect to such Pledged Interests. All such dividends and other
distributions that shall be received by the Agent shall be immediately
distributed to the Pledgor unless and until a Trigger Event shall have occurred
and is continuing whereupon the Agent will retain any dividends and other
distributions paid on account of the Pledged Interests securing the Obligations.
Notwithstanding the foregoing, the Agent shall be entitled to collect and
receive any and all dividends and all cash distributions paid or payable in cash
in respect of any Collateral at any time during the continuance of a Trigger
Event or in connection with a total liquidation or dissolution of any
Corporation or termination of any Account and cash paid, payable or otherwise
distributed in redemption of, in exchange for, or as a return of the Pledgor's
capital investment in the Corporation (solely to the extent of and in respect of
the Pledged Interests), and any such amounts, if received by the Pledgor, shall
be held in trust for the benefit of the Agent segregated from other property or
funds of the Pledgor, and forthwith be delivered to the Agent as Collateral in
the same form as so received (with any necessary endorsement). Any dividends and
distributions retained by the Agent shall be applied to the Obligations.
5. Representations. The Pledgor warrants and represents as follows:
(a) Pledgor has the power and authority to execute, deliver
and perform the Guaranty and this Agreement, to incur the Obligations,
and to grant to the Agent security interests in the Collateral. Pledgor
has taken all necessary action to authorize its execution, delivery and
performance of the Guaranty and this Agreement. No consent, approval,
or authorization of, or declaration or filing with, any governmental
authority, and no consent of any other person, is required in
connection with Pledgor's execution, delivery, and performance of the
Guaranty and this Agreement except for those already duly obtained.
Each of the Guaranty and this Agreement has been duly executed and
delivered by Pledgor, and constitutes the legal, valid and binding
obligation of Pledgor, enforceable against it in accordance with its
terms. Pledgor's execution, delivery, and performance of the Guaranty
and this Agreement do not and will not conflict with, or constitute a
violation or breach of, or constitute a default under, or result in the
creation or imposition of any lien upon the Collateral of Pledgor by
reason of the terms of (i) any contract, mortgage, lien, lease,
agreement, indenture, or instrument to which Pledgor is a party or
which is binding upon it or its property, or (ii) any judgment, law,
statute, rule or governmental regulation applicable to Pledgor.
(b) Pledgor's principal place of business is as set forth on
the signature page hereof.
(c) Pledgor is (i) a duly formed and validly existing
partnership under the laws of the state of Delaware, (ii) qualified to
do business in all states where the failure of Pledgor to qualify to do
business would have a material adverse effect on Pledgor's ability to
conduct its business and own its property, and (iii) an entity that has
all requisite power and authority to conduct its business and to own
its property.
-3-
<PAGE>
(d) Pledgor is the sole, direct, legal and beneficial owner of
each of the Pledged Interests that are delivered by Pledgor to Agent
pursuant to this Agreement, and such Pledged Interests have been duly
authorized and issued and are fully paid and nonassessable.
(e) There are no restrictions upon the voting rights
associated with, or the transfer of, any of the Collateral except as
provided by any law applicable to the sale of securities generally.
(f) Pledgor has the right, subject to the provisions of this
Agreement, (i) to vote the Pledged Interests that are owned by it, and
(ii) to pledge and grant a security interest in all or any part of the
Collateral that is owned by it, free of any lien or other charge,
encumbrance or restriction.
(g) Pledgor has the right (subject, however, to the Securities
Act of 1933, as amended) to otherwise transfer all or any part of the
Pledged Interests owned by it, free of any lien or other charge,
encumbrance or restriction.
(h) The Powers executed by Pledgor are duly executed and give
the Agent the authority they purport to confer.
(i) The financial information for the Pledgor heretofore
provided to the Lender in connection with the Line is accurate in all
material respects.
(j) Since the date of the most recent Compliance Certificate
(as defined in the Guaranty) delivered to the Lender, no event has
occurred that could have a material adverse effect (i) on the business,
operations or condition (financial or otherwise) of the Pledgor or the
value of the Pledged Interests or (ii) on the ability of the Pledgor to
perform its obligations under the Guaranty or to facilitate Borrower's
performance under Section 2.3(c) of the Credit Agreement.
(k) There is no pending or, to the best of Pledgor's
knowledge, threatened litigation against the Pledgor which could have a
material adverse effect on the financial condition of Pledgor or could
affect the legality, validity or enforceability of any of the Guaranty
or the Pledge Agreement.
6. Subsequent Changes Affecting Collateral. Pledgor represents to the
Agent that Pledgor has made its own arrangements for keeping informed of changes
or potential changes affecting the Collateral (including, but not limited to,
rights to convert, rights to subscribe, payment of dividends, reorganization or
other exchanges, tender offers and voting rights), and Pledgor agrees that
neither the Agent nor the Lender shall have any responsibility or liability for
informing Pledgor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto. Nothing in this
Section 6 or any other provision of this Agreement shall modify, alter or
diminish the obligation of the Lender to provide telecopied notice to the
Borrower and the Guarantor of the events described in, and as required by,
Section 2.3(c) of the Credit Agreement.
-4-
<PAGE>
7. No Discharge. The Pledgor shall remain bound and its liabilities
hereunder shall be unconditional, irrespective of (i) the validity or
enforceability, avoidance or subordination of any of the Obligations, (ii) the
absence of any attempt to collect the Obligations from the Heat, or all or any
part of the Obligations or other action to enforce the same or the election of
any remedy by the Agent or the Lender, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by the Agent or the Lender with
respect to any provision of any of the Loan Documents, (iv) failure by the Agent
to take any steps to perfect and maintain its security interest in, or to
preserve its rights to, any of the Collateral, (v) the election by the Lender in
any proceeding instituted under Chapter 11 of the Bankruptcy Code involving the
Pledgor of the application of Section 1111 (b)(2) of the Bankruptcy Code, (vi)
any borrowing or grant of a security interest by the Pledgor, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the
disallowance under Section 502 of the Bankruptcy Code of all or any portion of
the claims of the Lender or the Agent for repayment of any of the Obligations,
or (viii) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or the Pledgor, all of the
foregoing being expressly waived by the Pledgor.
8. Waivers. Except as otherwise provided herein or in the Guaranty,
Pledgor hereby waives any requirement of diligence, presentment, demand of
payment, filing of claims with a court in the event of receivership or
bankruptcy of Pledgor or the Heat, protest or notice with respect to the
Obligations, and all demands whatsoever (and shall not require that the same be
made on the Heat as a condition precedent to Pledgor's liabilities hereunder),
and covenants that this Agreement will not be discharged, except as provided in
paragraph 10 hereunder.
9. Remedies of Agent. Upon the occurrence and during the continuance of
a Trigger Event, the Agent shall have, in addition to the rights given under the
Loan Documents or by law, all of the rights and remedies with respect to the
Collateral of a secured party under the Uniform Commercial Code as in effect in
the State of New York. The Pledgor acknowledges that, in the event the Borrower
and/or the Pledgor (as Guarantor) has not complied with Section 2.3(c) of the
Credit Agreement, the Agent shall be entitled to sell the Collateral as and when
described therein (so that the principal amount of all outstanding Advances is
less than or equal to the Borrowing Base).
10. Term. This Agreement shall remain in full force and effect until
all of the Obligations shall have been paid and satisfied in full and the Line
shall have been terminated (the "Termination Date"). After the Termination Date,
the Agent will return to the Pledgor as soon as administratively practicable,
free and clear from any security interest or any other right, title or interest
of the Agent, the Lender or lien, encumbrance or security interest created
hereunder or under any other Loan Document and free of any lien, encumbrance or
security interest of any person or entity created by, through or under the Agent
or the Lender all of the Collateral (including, without limitation, all stock
certificates, Powers and other documents evidencing the Collateral and/or
constituting documents of transfer) that has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with such
other notices, documents, and/or instruments as the Pledgor may reasonably
request acknowledging and evidencing the termination of this Agreement and the
security interest created hereby.
-5-
<PAGE>
11. The Agent's Exercise of Rights and Remedies upon a Trigger Event.
Notwithstanding anything set forth herein to the contrary, it is hereby
expressly agreed that following the occurrence and during the continuance of a
Trigger Event, the Agent may, and upon the written direction of the Lender,
shall, exercise any of the rights and remedies with respect to the Collateral as
provided in this Agreement or any of the other Loan Documents.
12. Expenses. The Pledgor agrees to pay to the Agent all reasonable
expenses (including, without limitation, court costs and attorneys' and
paralegals' fees and expenses) of, or incident to, (i) the exercise or
enforcement of any of the rights of the Agent hereunder, and (ii) the failure by
the Pledgor to perform or observe any provision hereof in any material respect.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Pledgor, the Lender, the Agent and their respective
successors and permitted assigns. The Pledgor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for the Pledgor. The Pledgor may not assign its rights or delegate its
obligations hereunder without the prior written consent of the Lender and the
Agent. At any time, the Agent may, with the consent of the Lender, and shall,
upon the request of the Lender, assign its rights and delegate its obligations
hereunder to another securities intermediary (as defined in the Uniform
Commercial Code as in effect on the date hereof in the state of New York),
provided, however, that any such assignment shall be subject to prior notice to
the Borrower and the Pledgor and, in the case of an assignment to a securities
intermediary which is not an affiliate of the Lender, as long as no Event of
Default exists, shall be subject to the prior consent of the Borrower and the
Pledgor which shall not be unreasonably withheld or delayed.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
choice of law doctrine of such state. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
15. Further Assurances. Pledgor agrees that it will cooperate with the
Agent and will execute and deliver, or cause to be executed and delivered, all
such stock powers, proxies, instruments and documents, and will take all such
other action, including, without limitation, the filing of financing statements,
as the Agent may reasonably request from time to time in order to carry out the
provisions and purposes hereof.
16. Transfers and Other Liens. The Pledgor agrees that it will not (i)
sell or otherwise dispose of, or grant any option with respect to, any of the
Pledged Interests without the prior written consent of the Agent, or (ii) create
or permit to exist any lien, security interest, adverse claim or other charge or
encumbrance upon or with respect to any of the Collateral, except for the
security interest granted under this Agreement.
17. Additions of Collateral. Agent may permit the Pledgor, from time to
time, to add additional investment property of the Pledgor to the Collateral
subject to this Agreement by executing an amendment to this Agreement
substantially in the form of Exhibit C attached hereto and otherwise complying
with Paragraph 2 hereof.
-6-
<PAGE>
18. Release. If the aggregate principal amount of all Advances (as
defined in the Credit Agreement) is less than forty-five percent (45%) of the
Fair Market Value (as defined in the Credit Agreement) of the Acceptable
Collateral at all times for twenty (20) consecutive Banking Days (as defined in
the Credit Agreement) then as soon as practicable after the Agent's receipt of a
written request from Pledgor, the Agent shall release a sufficient amount of
Collateral, based on the Fair Market Value thereof at such time, so that the
aggregate principal amount of all Advances is approximately equal to the
Borrowing Base (as defined in the Credit Agreement) at the end of the Banking
Day on which such request for a release is made.
19. Consent to Jurisdiction and Service of Process. IN ANY ACTION OR
PROCEEDING ARISING UNDER OR RELATING TO THE CREDIT AGREEMENT, THIS AGREEMENT OR
ANY OF THE OBLIGATIONS (AS DEFINED HEREIN), EACH OF THE AGENT, THE LENDER AND
THE PLEDGOR HEREBY IRREVOCABLY (A) CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN NEW YORK, NEW YORK, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY
TIME TO THE LAYING OF VENUE OF ANY SUCH PROCEEDINGS BROUGHT IN ANY SUCH COURT,
AND (C) WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN AN
INCONVENIENT FORUM AND (D) FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO
SUCH PROCEEDINGS, THAT SUCH OTHER COURT DOES NOT HAVE ANY JURISDICTION OVER SUCH
PARTY.
EACH OF THE PARTIES HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE AT THE
OPTION OF THE OTHER PARTY (A) BY DELIVERY IN PERSON, OR (B) BY COURIER, OR (C)
BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO IT AT SUCH PARTY'S ADDRESS
NOTED BELOW, OR (D) BY SERVICE UPON ITS REGISTERED AGENT IN DELAWARE, AS
APPLICABLE, WHICH SUCH PARTY IRREVOCABLY APPOINTS AS SUCH PERSON'S AGENT FOR THE
PURPOSE OF ACCEPTING SERVICE OF PROCESS FOR NOT ONLY IN ANY ACTION WITHIN THE
STATE OF NEW YORK BUT ALSO FOR ANY ACTION IN ANY OTHER JURISDICTION. ANY PROCESS
SERVED SHALL BE COMPLETE ON THE DATE IT IS DELIVERED. EACH OF THE PARTIES HEREBY
CONSENTS TO SERVICE OF PROCESS AS AFORESAID. EACH OF THE PARTIES ALSO WAIVES ANY
DEFECT IN SERVICE CAUSED BY ITS FAILURE TO NOTIFY THE OTHER PARTIES IN WRITING
OF ANY CHANGE OF ADDRESS.
IN ADDITION, EACH PARTY AGREES TO PROMPTLY FORWARD BY REGISTERED MAIL A
COPY OF ANY PROCESS SO SERVED UPON SAID AGENT TO THE APPLICABLE PARTY AT ITS
ADDRESS SET FORTH BELOW.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR THE RIGHT OF ANY PARTY TO BRING
ANY ACTION OR PROCEEDING AGAINST ANY OR ALL OF THE OTHER PARTIES OR ANY OR ALL
OF THE OTHER PARTIES' PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
-7-
<PAGE>
20. Waiver of Jury Trial. EACH OF PLEDGOR AND THE AGENT IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
AND WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT IN ANY JURISDICTION SET FORTH ABOVE. EACH PARTY AGREES
THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE OTHER PARTY OR ANY OTHER PERSON
INDEMNIFIED UNDER THIS AGREEMENT ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
21. The Agent Appointed Attorney-in-Fact. Pledgor hereby appoints the
Agent as Pledgor's attorney-in-fact to be effective upon the occurrence and
during the continuance of a Trigger Event, with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time in
the Agent's discretion to take any action and to execute any instrument which
the Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to Pledgor representing any distribution, interest
payment or other dividend distribution in respect of the Collateral or any part
thereof and to give full discharge for the same. This power of attorney created
under this paragraph 21, being coupled with an interest, shall be irrevocable
until the Termination Date, but shall not be deemed to authorize the Agent to
take any action which Pledgor could not be required to take hereunder.
22. Agent's Duty. (a) The Agent shall not be liable for any acts,
omissions, errors of judgment or mistakes of fact or law including, without
limitation, acts, omissions, errors or mistakes with respect to the Collateral,
except for those arising out of or in connection with the Agent's (i) gross
negligence or willful misconduct, or (ii) failure to use reasonable care with
respect to the safe custody of any certificate evidencing any of the Collateral
which is in the physical possession of the Agent. Without limiting the
generality of the foregoing, the Agent shall be under no obligation to take any
steps necessary to preserve rights in the Collateral against any other parties
but may do so at its option, and all reasonable expenses incurred in connection
therewith shall be for the sole account of the Pledgor, and shall be added to
the Obligations secured hereby.
(b) The Pledgor acknowledges and agrees that the Agent, an
affiliate of the Lender, has been authorized by the Lender to act as
the Lender's agent for purposes of entering into this Agreement and
holding the Collateral to be pledged hereunder. Except as otherwise
provided under the terms of this Agreement, neither the Pledgor nor the
Borrower shall be obligated to pay any costs or expenses of the Lender
incurred in connection with the appointment and delegation of such
duties to the Agent or the performance of such duties by the Agent.
23. Notices. Any notice required or desired to be served, given or
delivered hereunder shall be in writing, and shall be deemed to have been
validly served, given or delivered (i) when properly transmitted if sent by
telecopy or facsimile with receipt confirmed, (ii) one (1) Banking Day after
being deposited with a reputable overnight courier with all charges prepaid, or
(iii) when delivered, if hand-delivered, by messenger, all of which shall be
properly addressed to the party to be notified and sent to the address or number
set forth on the signature page of this Agreement.
-8-
<PAGE>
24. Indemnity. The Pledgor hereby agrees to indemnify the Agent and the
Lender and their respective directors, officers, employees, affiliates and
agents (collective, the "Indemnified Persons") against, and agrees to hold each
such Indemnified Person harmless from, any and all losses, claims, damages and
liabilities, including claims brought by any governmental or regulatory agency,
account debtor or other obligor of the Pledgor, and related reasonable expenses,
including reasonable counsel fees and expenses, incurred by such Indemnified
Person arising out of any claim, litigation, investigation or proceeding
(whether or not such Indemnified Person is a party thereto) relating to the
transaction that is the subject of this Agreement, the Credit Agreement and the
Guaranty or any interest the Agent or the Lender has in any Collateral or any
action the Agent or the Lender takes with respect to the Collateral; provided,
however, that such indemnity shall not apply to any such losses, claims,
damages, or liabilities or related expenses arising from the gross negligence or
willful misconduct of such Indemnified Person. The agreements of the Pledgor in
this Section 24 shall be in addition to any liabilities that the Pledgor may
otherwise have. All amounts due under this Section 24 shall be payable as
incurred within thirty (30) days following written demand therefor accompanied
by a detailed description of the losses, claims, damages, liabilities and
expenses claimed. Each Indemnified Person shall promptly notify the Pledgor in
writing upon receipt by such Indemnified Person of notice of any action against
or involving such Indemnified Person with respect to which indemnity may be
sought hereunder. The Pledgor shall have the right, by written notice to the
Indemnified Person, to control the defense of any such action with counsel
approved by such Indemnified Person, which approval shall not be unreasonably
withheld or delayed; provided that upon 30 days prior written notice, the
Indemnified Person who is the subject of such indemnified claim which is an
indemnified liability may elect to defend, using a law firm selected by such
Indemnified Person, any such claims, loss, action, legal or administrative
proceeding at the cost and expense of the Pledgor, subject to the reasonable
approval of the Pledgor (which approval shall not be unreasonably withheld or
delayed) if, in the reasonable judgment of such Indemnified Person there is a
conflict of interest between the Indemnified Person and the Pledgor relating to
such lawsuit, action, legal or administrative hearing and such Indemnified
Person reasonably concludes that there may be legal defense available to it
different from those available to the Pledgor. If any Indemnified Person
exercises its right to designate counsel pursuant to this section, all
reasonable costs and expenses thereof shall be paid by the Pledgor in accordance
with this Section 24; provided, however, that the Pledgor will not be required
to pay the costs, fees, and expenses of more than one separate counsel for all
Indemnified Persons in any single action or proceeding. The Pledgor shall not be
liable to any Indemnified Person for any amounts (including any settlement
amount) relating to any action settled without the Pledgor's prior written
consent.
25. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
26. Section Headings. The section headings herein are for convenience
of reference only, and shall not affect in any way the interpretation of any of
the provisions hereof.
-9-
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Agent have executed this
Agreement as of the day and year first above written.
MA 1994 B SHARES, L.P., a Delaware limited
partnership
By: MA 1994 B SHARES, INC., a Delaware
corporation, its general partner
By:
Name:
Title:
Notice Address:
c/o Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: James M. Dubin, Esq.
Telephone: (212) 373-3026
Telecopier: (212) 373-2393
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1615 L Street, NW
Washington, DC 20036-5694
Attention: Dale M. Sarro
Telephone: (202) 223-7348
Telecopier: (202) 223-7420
CITIBANK, N.A., as Agent for the Lender
By:
Vice President
-10-
<PAGE>
Notice Address:
Citicorp, USA, Inc.
c/o Citibank, N.A.
425 Park Avenue, 4th Floor
New York, New York 10022
Attention: Charles Hofforth
Telephone: (212) 559-0993
Telecopier: (212) 793-1152
With a copy to:
Citicorp North America, Inc.
Private Banking Division
201 S. Biscayne Blvd., Suite 3100
Miami, Florida 33131
Attention: David Fritz
Telephone: 305-347-1207
Telecopy: 305-347-1249
and:
Citicorp North America, Inc.
Private Banking Division
500 West Madison Street, Suite 400
Chicago, Illinois 60061
Attention: Jay Marcus
Telephone: (312) 993-4387
Telecopier: (312) 627-5316
and:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6404
Attention: Victoria A. Gilbert
Telephone: (312) 876-8203
Telecopy: (312) 876-7934
-11-
<PAGE>
EXHIBIT A TO PLEDGE AGREEMENT
Account:
-----------------------------
Corporation: Carnival Corp.
<PAGE>
EXHIBIT B TO PLEDGE AGREEMENT
Form of Stock Power Attached
----------------------------
<PAGE>
EXHIBIT C TO PLEDGE AGREEMENT
Amendment To Pledge Agreement
-----------------------------
This Amendment to Pledge Agreement is made as of the ___ day of
__________, _____ (the "Amendment") between MA 1994 B Shares, L.P. (the
"Pledgor") and Citibank, N.A., a national banking association, as collateral
agent (the "Agent") for Citicorp USA, Inc., a Delaware corporation.
Preliminary Statements
A. Pledgor has executed and delivered to Agent that certain Pledge
Agreement dated as of October 22, 1999 (as amended, the "Pledge Agreement").
B. Pledgor wishes to provide additional "Collateral" (as defined in the
Pledge Agreement) to the Agent as provided in Section 19 of the Pledge
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the Pledgor and
Agent agree to add the following ("New Collateral") to Exhibit A of the Pledge
Agreement:
[describe new Pledged Interest]
The Pledgor and Agent agree that as of the date hereof the New
Collateral shall become part of the Pledged Collateral subject to the terms of
the Pledge Agreement.
Except as specifically amended hereby, the terms and conditions of the
Pledge Agreement are in all respects ratified and confirmed and remain in full
force and effect.
IN WITNESS WHEREOF, the Pledgor and Agent have executed this Amendment.
Pledgor: MA 1994 B SHARES, L.P., a Delaware limited
partnership
By: MA 1994 B SHARES, INC., a Delaware
corporation, its general partner
By:
Name:
Its:
Agent: CITIBANK N.A.
By:
Vice President
EXHIBIT 12
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act
of 1934, as amended, the persons named below agree to the joint filing on behalf
of each of them of an amendment or amendments to the Third Amended and Restated
Joint Statement on Schedule 13D, dated November 19, 1999. This Joint Filing
Agreement shall be included as an Exhibit to such joint filing. In evidence
thereof, each of the undersigned, being duly authorized, hereby executed this
Agreement this 19th day of November, 1999.
ESTATE OF TED ARISON
By: /s/Andrew H. Weinstein
- --------------------------
Andrew H. Weinstein,
Temporary Administrator
By: /s/Boaz Nahir
- -----------------
Boaz Nahir,
Temporary Administrator
TAMMS INVESTMENT COMPANY,
LIMITED PARTNERSHIP
By: TAMMS MANAGEMENT
CORPORATION, MANAGING
GENERAL PARTNER
By: /s/Micky Arison
- -------------------
Micky Arison, President
TAMMS MANAGEMENT
CORPORATION
By: /s/Micky Arison
- -------------------
Micky Arison, President
CONTINUED TRUST FOR MICKY
ARISON, TAF MANAGEMENT
COMPANY, TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
MICKY ARISON 1997 HOLDINGS
TRUST, JMD DELAWARE, INC.,
TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary of Corporate Trustee
MA 1997 HOLDINGS, L.P., MA 1997
HOLDINGS, INC., GENERAL
PARTNER
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr., Secretary
MA 1997 HOLDINGS, INC.
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr, Secretary
<PAGE>
MICKY ARISON 1994 "B" TRUST,
JMD DELAWARE, INC., TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary of Corporate Trustee
MA 1994 B SHARES, L.P., MA 1994 B
SHARES, INC., GENERAL PARTNER
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary
MA 1994 B SHARES, INC.
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary
/s/Micky Arison
- ---------------
Micky Arison
CONTINUED TRUST FOR MICHAEL
ARISON, TAF MANAGEMENT
COMPANY, TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
SHARI ARISON IRREVOCABLE
GUERNSEY TRUST, A.H.W.
LIMITED, TRUSTEE
By: /s/R.J. Banfield
- --------------------
R.J. Banfield, Director
CONTINUED TRUST FOR SHARI
ARISON DORSMAN, TAF
MANAGEMENT COMPANY,
TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
TED ARISON 1994 IRREVOCABLE
TRUST FOR SHARI NO. 1,
CITITRUST (JERSEY) LIMITED,
TRUSTEE
By: /s/Debbie Sebire
- --------------------
Debbie Sebire, Director
By: /s/Michael Rossiter
- --- -------------------
Michael Rossiter, Asst. Secretary
/s/Shari Arison
- ---------------
Shari Arison
MARILYN B. ARISON IRREVOC
ABLE DELAWARE TRUST, TAF
MANAGEMENT COMPANY,
TRUSTEE
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
of Corporate Trustee
MBA I LLC
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Executive Vice President,
Secretary and Treasurer
/s/Marilyn B. Arison
- --------------------
Marilyn B. Arison
<PAGE>
A.H.W. LIMITED
By: /s/R.J. Banfield
- --------------------
R.J. Banfield, Director
TAF MANAGEMENT COMPANY
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary and Treasurer
KENTISH LIMITED
By: /s/Philip Scales
- --------------------
Philip Scales
/s/Andrew H. Weinstein
----------------------
Andrew H. Weinstein
/s/Boaz Nahir
- -------------
Boaz Nahir
JMD DELAWARE, INC.
By: /s/Denison H. Hatch, Jr.
- --- ------------------------
Denison H. Hatch, Jr.
Secretary
/s/James M. Dubin
- -----------------
James M. Dubin
