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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 24, 1995
CARNIVAL CORPORATION
(Exact name of registrant as specified in charter)
Republic of Panama 1-9610 59-1562976
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
3655 N.W. 87th Avenue, Miami, Florida 33178-2428
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (305) 599-2600
N/A
(Former name or former address, if changed since last report)
Page 2
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
The exhibits listed below relate to the
Registration Statement (No. 33-50947) on Form S-3 of the
Registrant and are filed herewith for incorporation by
reference in such Registration Statement.
Exhibit Number
(Referenced to
Item 601 of
Regulation S-K) Description of Exhibit
--------------- ----------------------
1 Underwriting Agreement dated May 17,
1995 between the Registrant and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
4 Officers' Certificate dated May 24,
1995 pursuant to Section 3.1 of the
Indenture, which has attached thereto
as an Exhibit a form of 7.05% Note
Due May 15, 2005 of the Registrant.
Page 3
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: May 26, 1995
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
--------------------------
Howard S. Frank
Vice Chairman, Senior Vice
President - Finance,
Chief Financial and
Accounting Officer
Page 4
EXHIBIT INDEX
Exhibit number
(Referenced to
Item 601 of
Regulation S-K) Description of Exhibit Sequential Page Number
- --------------- ---------------------- ----------------------
1 Underwriting Agreement dated
May 17, 1995 between the
Registrant and Merrill Lynch,
Pierce, Fenner & Smith
Incorporated
4 Officers' Certificate dated
May 24, 1995 pursuant to
Section 3.1 of the Indenture,
which has attached thereto as
an Exhibit a form of 7.05%
Note Due May 15, 2005 of the
Registrant.
Exhibit 1
Carnival Corporation
Underwriting Agreement
May 17, 1995
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Carnival Corporation, a company incorporated under
the laws of the Republic of Panama (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are
acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the
"Indenture") dated as of March 1, 1993, between the Company
and First Trust National Association, as trustee (the
"Trustee"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives,"
as used herein, shall each be deemed to refer to such firm
or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set
forth below in this Section l. Certain terms used in this
Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for
the use of Form S-3 under the Securities Act of
1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a
registration statement (the file number of which
is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration
under the Act of the offering and sale of the
Securities. The Company may have filed one or
more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registra-
tion statement, as so amended, has become effec-
tive. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may
not include all the information with respect to
the Securities and the offering thereof required
by the Act and the rules thereunder to be included
in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act
and the rules and regulations thereunder to be
included therein as of the Effective Date. The
Company will next file with the Commission
pursuant to Rule 424(b)(2) or (5) a final supple-
ment to the form of prospectus included in such
registration statement relating to the Securities
and the offering thereof. As filed, such final
prospectus supplement shall include all required
information with respect to the Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects
in the form furnished to you prior to the Execu-
tion Time or, to the extent not completed at the
Execution Time, shall contain only such specific
additional information and other changes (beyond
those contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for
the use of Form S-3 under the Act and has filed
with the Commission a registration statement (the
file number of which is set forth in Schedule I
hereto) on such Form, including a basic
prospectus, for registration under the Act of the
offering and sale of the Securities. The Company
may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The
Company will next file with the Commission either
(x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and
424(b) (1) or (4), or (y) prior to the effective-
ness of such registration statement, an amendment
to such registration statement, including the form
of final prospectus supplement. In the case of
clause (x), the Company has included in such
registration statement, as amended at the Effec-
tive Date, all information (other than Rule 430A
Information) required by the Act and the rules
thereunder to be included in the Final Prospectus
with respect to the Securities and the offering
thereof. As filed, such final prospectus
supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and
the offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects
in the form furnished to you prior to the Execu-
tion Time or, to the extent not completed at the
Execution Time, shall contain only such specific
additional information and other changes (beyond
that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is
first filed (if required) in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus
(and any supplement thereto) will, comply in all
material respects with the applicable requirements of
the Act, the Securities Exchange Act of 1934 (the
"Exchange Act") and the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing
Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture
Act and the rules thereunder; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing
Date, the Final Prospectus (together with any supple-
ment thereto) will not, include any untrue statement of
a material fact or omit to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representa-
tives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment
or amendments thereto became or become effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or,
if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the
Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in
which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective
prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so
amended. Such term shall include any Rule 430A
Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415,"
"Rule 424," "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the
Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein
to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supple-
ment" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange
Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be
incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date
of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other
than Rule 430A Information) with respect to the
securities so offered must be included in such
registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration
statement, with the result that only information
required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof
with respect to the securities so offered. Whether the
offering of the Securities is a Non-Delayed Offering or
a Delayed Offering shall be set forth in Schedule I
hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as
set forth in Schedule II hereto less the respective amounts
of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase
Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts, if any, are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions, or
such other types of investors as may be set forth in the
Final Prospectus, and shall be subject to other conditions
therein set forth. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved
by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule
I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity
or performance of Delayed Delivery Contracts. The principal
amount of Securities to be purchased by each Underwriter as
set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate principal amount set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing;
provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule II hereto
less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and
payment for the Underwriters' Securities shall be made on
the date and at the time specified in Schedule I hereto,
which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Sec-
tion 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities
shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company
by wire transfer of immediately available funds in the
amounts specified in Schedule I. Delivery of the
Underwriters' Securities shall be made at such location as
the Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment for
the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters'
Securities shall be registered in such names and in such
denominations as the Representatives may request not less
than three full business days in advance of the Closing
Date.
The Company agrees to have the Underwriters'
Securities available for inspection, checking and packaging
by the Representatives in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to
cause the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the
offering of the Securities, the Company will not file
any amendment of the Registration Statement or
supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your
prompt review prior to filing and will not file any
such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will
provide evidence reasonably satisfactory to the Repre-
sentatives of such timely filing. The Company will
promptly advise the Representatives (i) when the
Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior
to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration State-
ment or supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the
Commission of any stop order suspending the effective-
ness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and
(vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the
Act, any event occurs as a result of which the Final
Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein in the light of the circumstances under which
they were made not misleading, or if it shall be
necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the
Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earning statement or statements of
the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act.
(d) The Company will furnish to the Representa-
tives and counsel for the Underwriters, without charge,
copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing any
Agreement Among Underwriters, this Agreement, the
Indenture, the Blue Sky Memorandum and any other docu-
ments in connection with the offering, purchase, sale
and delivery of the Securities.
(e) The Company will arrange for the qualifica-
tion of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably
designate, and will maintain such qualifications in
effect so long as required for the distribution of the
Securities, provided that in connection therewith, the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of
process in any jurisdiction.
(f) Until the business date set forth on Schedule
I hereto, the Company will not, without the consent of
the Representatives, offer, sell or contract to sell,
or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Securities),
which mature more than one year after the date hereof
and which are substantively similar to the Securities.
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase
the Underwriters' Securities shall be subject to the
accuracy of the representations and warranties on the part
of the Company contained herein as of the Execution Time and
the Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 P.M. New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 P.M. New
York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public
offering price was determined, if such determination
occurred after 3:00 P.M. New York City time on such
date; if filing of the Final Prospectus, or any supple-
ment thereto, is required pursuant to Rule 424(b), the
Final Prospectus, and any such supplement, shall have
been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have furnished to the
Underwriters the opinion of Paul, Weiss, Rifkind,
Wharton & Garrison ("Paul Weiss"), counsel for the
Company, dated the Closing Date, to the effect that:
(i) Assuming that the Securities have been
duly authenticated by the Trustee, the Securities
have been duly executed, issued and delivered and
constitute valid and legally binding obligations
of the Company and are entitled to the benefits
provided by the Indenture subject, as to
enforcement, to bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to or affecting creditors
rights and to general equity principles; and the
Securities and the Indenture conform in all
material respects to the descriptions thereof in
the Final Prospectus;
(ii) The Indenture has been duly executed
and delivered by the Company and constitutes a
valid and legally binding instrument, enforceable
against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(iii) This Agreement has been duly executed
and delivered by the Company;
(iv) No consent, approval, authorization,
order, registration or qualification of or with
any New York or federal court or governmental
agency or body is required for the issue and sale
of the Securities or the consummation by the
Company of the transactions contemplated by the
Final Prospectus, this Agreement or the Indenture,
except such as have been obtained under the Act
and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state or
foreign securities or Blue Sky laws in connection
with the purchase and distribution of the
Securities by the Underwriters;
(v) Except as noted below, the last
sentence of the first paragraph, the first
sentence of the second paragraph and the entire
third paragraph of the section of the Final
Prospectus relating to the Securities captioned
"Certain Considerations -- Taxation of the
Company" contain a fair and accurate general
description of the U.S. Federal tax provisions
discussed therein. With respect to the last
sentence of the first paragraph of the section of
the Prospectus relating to the Securities
captioned "Certain Considerations -Taxation of the
Company," no opinion is expressed with respect to
whether the exemption of Section 883 of the
Internal Revenue Code of 1986 is available or
applicable to the Company or any of its
subsidiaries; and
(vi) The Registration Statement has become
effective under the Act. To the knowledge of such
counsel, no stop order has been issued and no
proceedings for that purpose have been instituted
or threatened.
In addition, such counsel shall state that on
the basis of the participation of such counsel in
conferences at which the contents of the
Registration Statement and the Final Prospectus
and related matters were discussed, but without
independent verification by such counsel of the
accuracy, completeness or fairness of the state-
ments contained in the Registration Statement, the
Final Prospectus, any amendment or supplement
thereto or any documents incorporated by reference
in the Final Prospectus or any amendment or
supplement thereto, that they have no knowledge
that (other than the Statement of Eligibility on
Form T-1, financial statements, schedules and
other financial or statistical data which are or
should be contained therein, as to which such
counsel need express no statement):
(A) The documents incorporated by reference
in the Final Prospectus or any further amendment
or supplement thereto made by the Company prior to
the Closing Date, when they became effective or
were filed with the Commission, as the case may
be, i) did not comply as to form in all material
respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and
ii) contained in the case of a registration state-
ment which became effective under the Act, an
untrue statement of a material fact, or omitted to
state a material fact required to be stated there-
in or necessary to make the statements therein not
misleading, or, in the case of other documents
which were filed under the Exchange Act with the
Commission, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made when such documents were so filed, not
misleading;
(B) i) The Registration Statement and the
Final Prospectus and any further amendment and
supplements thereto made by the Company prior to
the Closing Date, did not comply as to form in all
material respects with the requirements of the Act
and the rules and regulations thereunder; ii) as
of their respective effective date, the Registra-
tion Statement or any further amendment thereto
made by the Company prior to the Closing Date
contained an untrue statement of a material fact
or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that, as of its date,
the Final Prospectus or any further amendment or
supplement thereto made by the Company prior to
the Closing Date contained an untrue statement of
a material fact or omitted to state a material
fact necessary to make the statements therein, in
light of the circumstances in which they were
made, not misleading or that, as of the Closing
Date, either the Registration Statement or the
Final Prospectus or any further amendment or
supplement thereto made by the Company prior to
the Closing Date contains an untrue statement of a
material fact or omits to state a material fact
necessary to make the statements therein, in light
of the circumstances in which they were made, not
misleading; and iii) any amendment to the
Registration Statement required to be filed with
the Commission or of any contracts or other
documents of a character required to be filed as
an exhibit to the Registration Statement or
required to be incorporated by reference into the
Final Prospectus or required to be described in
the Registration Statement or the Final Prospectus
which are not filed or incorporated by reference
or described as required.
(c) The Company shall have furnished to the
Underwriters the opinion of Arnaldo Perez, Esq.,
Assistant General Counsel for the Company, dated the
Closing Date, to the effect that:
(i) To the knowledge of such counsel, the
Company has all necessary consents,
authorizations, approvals, orders, certificates
and permits of and from, and declarations and
filings with, all federal, state, local and other
governmental authorities, to own, lease, license,
and use its properties and assets and to conduct
its business in the manner described in the Final
Prospectus (except for such consents,
authorizations, approvals, orders, licenses,
certificates, permits, declarations and filings,
which the failure to have obtained, individually
or in the aggregate, does not and can reasonably
be expected in the future not to have a material
adverse effect on the general affairs, business,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, taken as a whole);
(ii) To the knowledge of such counsel, HAL
Antillen N.V. ("HAL") has all necessary consents,
authorizations, approvals, orders, certificates
and permits of and from, and declarations and
filings with, all federal, state, local, and other
governmental authorities, to own, lease, license,
and use its properties and assets and to conduct
its business in the manner described in the Final
Prospectus (except for such consents,
authorizations, approvals, orders, licenses,
certificates, permits, declarations and filings,
which the failure to have obtained, individually
or in the aggregate, does not, and can reasonably
be expected in the future not to, have a material
adverse effect on the general affairs, business,
financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, taken as a whole);
(iii) Each of the Company and each of the
subsidiaries listed on Schedule IV hereto
("Subsidiaries") has been duly qualified as a
foreign corporation for the transaction of
business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business which
requires such qualification (except where the
failure to be so qualified or in good standing
does not, and can reasonably be expected in the
future not to, have a material adverse effect upon
the general affairs, business, financial position,
shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a
whole);
(iv) To the knowledge of such counsel,
except as set forth in Schedule IV to this
Agreement, all of the issued shares of capital
stock of each Subsidiary of the Company are owned
directly or indirectly by the Company, free and
clear of all liens, encumbrances, security
interests or claims;
(v) To the knowledge of such counsel, and
other than as set forth in the Final Prospectus,
there are no legal or governmental proceedings
pending to which the Company or any of its
Subsidiaries is a party or of which any property
of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the
Company or any of its Subsidiaries, could
reasonably be expected to individually or in the
aggregate have a material adverse effect on the
general affairs, business, financial position,
shareholders' equity or results of operations of
the Company and its Subsidiaries, taken as a
whole; and, to the knowledge of such counsel, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) To the knowledge of such counsel, the
issue and sale of the Securities and the
compliance by the Company with all of the
provisions of the Securities, the Indenture and
this Agreement and the consummation of the
transactions herein and therein contemplated will
not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to
such counsel to which the Company or any of the
Subsidiaries is a party or by which the Company or
any of the Subsidiaries is bound or to which any
of the property or assets of the Company or any of
the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the
Company or, to the knowledge of such counsel, any
statute or any order, rule or regulation binding
on the Company or any of the Subsidiaries or any
of their properties;
(vii) To the knowledge of such counsel, the
Company is not i) in violation of, or in default
with respect to, any law, rule, regulation, order,
judgment or decree, except as may be properly
described in the Final Prospectus or such as in
the aggregate do not now have, and can reasonably
be expected in the future not to have, a material
adverse effect on the general affairs, business,
financial position, shareholders' equity or
results of operations of the Company and the
Subsidiaries, taken as a whole; nor is the Company
required to take any action in order to avoid any
such violation or default; ii) in violation or
breach of, or in default with respect to,
complying with any material provision of any
contract, agreement, instrument, lease, license,
arrangement or understanding which is material to
the Company and its Subsidiaries, taken as a
whole; or iii) in violation or breach of, or in
default with respect to, any term of its
certificate of incorporation (or other charter
document) or by-laws; and
(viii) The Company, directly or indirectly,
holds good and marketable title to each of the
vessels listed on Schedule V hereto, subject only
to the liens disclosed on Schedule V and maritime
liens in the ordinary course of business.
(d) The Company shall have furnished to the
Underwriters the opinion of Tapia Linares y Alfaro,
Panamanian counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the Republic of Panama,
with power and authority (corporate and other) to
own, lease, license and use its properties and
conduct its business as described in the Final
Prospectus;
(ii) This Agreement, the Indenture and the
Securities have been duly authorized;
(iii) No consent, approval, authorization,
order, registration or qualification of or with
any Panamanian court or governmental agency or
body is required for the issue and sale of the
Securities or the consummation by the Company of
the transactions contemplated by this Agreement or
the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations
or qualifications as may be required under state
or foreign securities or Blue Sky laws in
connection with the purchase and distribution of
the Securities by the Underwriters;
(iv) The Company has an authorized
capitalization as set forth in the Final
Prospectus, and all of the issued shares of
capital stock of the Company have been duly and
validly authorized and issued, and are fully paid
and non-assessable; and
(v) To the knowledge of such counsel, the
Company is not (A) in violation of, or in default
with respect to, any law, rule, regulation, order,
judgment or decree, except as may be properly
described in the Final Prospectus or such as in
the aggregate do not now have, and can reasonably
be expected in the future not to have, a material
adverse effect on the general affairs, business,
financial position, shareholders' equity or
results of operations of the Company and the
Subsidiaries, taken as a whole.
(e) The Company shall have furnished to the
Representatives the opinion of Clifford Chance, counsel
to HAL, dated the Closing Date, to the effect that:
(i) HAL is a "naamloze vennootschap"
(company with limited liability) duly organized
and validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate
and other) to own, lease, license and use its
properties and conduct its business as described
in the Final Prospectus; and
(ii) All of the issued shares of capital
stock of HAL have been duly and validly authorized
and issued, and are fully paid.
(f) The Company shall have furnished to the
Underwriters the opinions of local counsel to the
effect that each vessel listed on Schedule V hereto is
duly registered, except as noted on Schedule V, under
the laws of the jurisdiction listed opposite its name
on Schedule V.
Each such opinion described in 5(b), (c), (d), (e)
and (f) above shall be in form and substance reasonably
satisfactory to the Representatives. In rendering such
opinions described in 5(b), (c), (d), (e) and (f)
above, each such counsel may rely i) as to matters
involving the application of laws other than the laws
of the jurisdiction in which such counsel practices, to
the extent such counsel deems proper and to the extent
specified in such opinion, upon an opinion or opinions
(in form and substance reasonably satisfactory to
counsel for the Underwriters) of other counsel,
reasonably acceptable to counsel for the Underwriters,
familiar with the applicable laws; ii) as to matters of
fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company or
of any of the Subsidiaries; and iii) to the extent such
counsel deems proper, upon written statements or
certificates of officers of departments of various
jurisdictions having custody of documents respecting
the corporate existence or good standing of the Company
or of any of the Subsidiaries, provided that copies of
any such statements or certificates shall be delivered
to counsel for the Underwriters, and on the absence of
a telegram from the Commission. References to the
Final Prospectus in paragraphs 5(b) through (e) include
any amendments or supplements thereto filed prior to
the Closing Date.
(g) The Underwriters shall have received from
Sullivan & Cromwell, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with
respect to the validity of the Indenture, the
Securities, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters
as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) The Company shall have furnished to the
Underwriters a certificate of the Company, signed by
the Chairman of the Board or the President and the
principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of
the Company in this Agreement are true and correct
in all material respects on and as of the Closing
Date with the same effect as if made on the
Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent
audited financial statements included in the Final
Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the
condition (financial or other), earnings, business
or properties of the Company and its Subsidiaries,
taken as a whole, whether or not arising from
transactions in the ordinary course of business,
except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement
thereto).
(i) At the Closing Date, Price Waterhouse shall
have furnished to the Underwriters a letter or letters
(which may refer to letters previously delivered to one
or more of the Representatives), dated as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent
accountants within the meaning of the Act and the
Exchange Act and the respective applicable published
rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial
statement schedules included or incorporated in
the Registration Statement and the Final
Prospectus and reported on by them comply in form
in all material respects with the applicable
accounting requirements of the Act and the
Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by
the Company and its Subsidiaries; carrying out
certain specified procedures (but not an
examination in accordance with generally accepted
auditing standards) which could not necessarily
reveal matters of significance with respect to the
comments set forth in such letter, a reading of
the minutes of the meetings of the stockholders,
directors and executive and audit committees of
the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have
responsibility for financial and accounting
matters of the Company and its Subsidiaries as to
transactions and events subsequent to the date of
the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came
to their attention which caused them to believe
that:
(A) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with
the published rules and regulations of the
Commission with respect to financial
statements included or incorporated in
quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial
statements are not in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus;
(B) with respect to the period subsequent
to the date of the most recent financial
statements (other than any capsule
information), audited or unaudited, in or
incorporated in the Registration Statement
and the Final Prospectus, there were any
changes, at a specified date not more than
five business days prior to the date of the
letter, in the consolidated capital stock
(other than issuances of capital stock upon
exercise of options and stock appreciation
rights, upon earn-outs of performance shares
and upon conversions of convertible
securities, in each case which were
outstanding on the date of the latest balance
sheet included or incorporated by reference
in the Final Prospectus) or any increase in
the consolidated long-term debt of the
Company and its subsidiaries, or any
decreases in consolidated net current assets
or net assets as compared with the amounts
shown on the most recent consolidated balance
sheet included or incorporated in the
Registration Statement and the Final
Prospectus, or for the period from the date
of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus to such
specified date there were any decreases, as
compared with the corresponding period in the
preceding year in consolidated net revenues,
operating income, net income or earnings per
share, except in all instances for changes or
decreases set forth in such letter, in which
case the letter shall be accompanied by an
explanation by the Company as to the
significance thereof unless said explanation
is not deemed necessary by the
Representatives; or
(C) the amounts included in any unaudited
"capsule" information included or
incorporated in the Registration Statement
and the Final Prospectus do not agree with
the amounts set forth in the unaudited
financial statements for the same periods or
were not determined on a basis substantially
consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus.
(iii) they have performed certain other
specified procedures as a result of which they
determined that certain information of an
accounting, financial or statistical nature (which
is limited to accounting, financial or statistical
information derived from the general accounting
records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in Items 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the
information included in the "Management's
Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in
the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries,
excluding any questions of legal interpretation;
and
(iv) if pro forma financial statements are
included or incorporated in the Registration
Statement and the Final Prospectus, on the basis
of a reading of the unaudited pro forma financial
statements, carrying out certain specified
procedures, inquiries of certain officials of the
Company and the acquired company who have
responsibility for financial and accounting
matters, and proving the arithmetic accuracy of
the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma
financial statements do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or
that the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of such statements.
References to the Final Prospectus in this paragraph
(i) include any supplement thereto at the date of the
letter.
In addition, except as provided in Schedule I
hereto, at the Execution Time, Price Waterhouse shall have
furnished to the Representatives a letter or letters, dated
as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(j) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (i) of this Section 5 or (ii)
any change, or any development involving a prospective
change, in or affecting the business or properties of
the Company and its subsidiaries, taken as a whole, the
effect of which, in any case referred to in clause
(i) or (ii) above, is, in the reasonable judgment of
the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive
of any supplement thereto).
(k) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the
Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such
rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the
Representatives may reasonably request.
(m) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
(n) On or after the date hereof there shall not
have occurred any of the following: (i) a suspension
or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in
New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declara-
tion by the United States of a national emergency or
war, if the effect of any such event specified in this
clause (iii) is in your reasonable judgment so material
and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of
the Securities being issued at such Time of Delivery on
the terms and in the manner contemplated by the
Prospectus.
If any of the conditions specified in this Sec-
tion 5 shall not have been fulfilled in all material
respects when and as provided in this Agreement, or if any
of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to
the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not
consummated by reason of any failure on the part of the
Company to perform any covenant or agreement or satisfy any
condition of this Agreement to be performed or satisfied by
it, the sole liability of the Company to each of the Under-
writers, in addition to the obligations of the Company
pursuant to Sections 3 and 7 will be to reimburse the
Underwriters for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making prepara-
tions for the purchase, sale and delivery of the Securities
not so delivered. Otherwise, if this Agreement shall be
terminated, the Company shall not then be under any
liability to any Underwriter except as provided in Sec-
tion 4(d) and Section 7 hereof.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Under-
writer, the directors, officers, employees and agents of
each Underwriter and each person who controls any Under-
writer within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabili-
ties, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion
therein; and, provided further, that the Company will not be
liable to any Underwriter with respect to any loss, claim,
damage or liability arising out of or based on any untrue
statement or alleged untrue statement or omission or alleged
omission to state a material fact in the Preliminary
Prospectus which is corrected in the Final Prospectus if the
person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent
or given a copy of the Final Prospectus at or prior to the
written confirmation of the sale of such Securities to such
person. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, each of its
directors and officers and each person who controls the
Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished
to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation
conducted by the Underwriters at the request of the Company.
Notwithstanding anything to the contrary contained herein,
an indemnifying party will not be liable for any settlement
of any claim or action effected without its prior written
consent.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute
to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more
of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the
Company and by the Underwriters from the offering of the
Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason or if the
indemnified party failed to give the notice required under
subsection (c) above, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault
of the Company and of the Underwriters in connection with
the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before
deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information
provided by the Company or the Underwriters, the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission
and the failure of an indemnified party to give notice under
subsection (c) above (to the extent such failure is
prejudicial to an indemnifying party). The Company and the
Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or
any other method of allocation which does not take account
of the equitable considerations referred to above.
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the
provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepre-
sentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or
more Underwriters shall fail to purchase and pay for any of
the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to
the aggregate amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Representations and Indemnities to Survive.
The respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
10. Notices. All communications hereunder will
be in writing and effective only on receipt, and, if sent to
the Representatives, will be mailed, delivered or tele-
graphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at
3655 N.W. 87th Avenue, Miami, FL 33178-2428, attention of
the legal department.
11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
12. APPLICABLE LAW. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement among
the Company and the several Underwriters.
Very truly yours,
Carnival Corporation
By: /s/ Lowell Zemnick
-------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
/s/ James A. Hislop
---------------------
Merrill Lynch & Co.,
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
SCHEDULE I
Underwriting Agreement dated May 17, 1995
Registration Statement No. 33-50947
Representative(s): Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated
Title, Purchase Price and Description of Securities:
Title: 7.05% Notes Due May 15, 2005
Principal amount: $100,000,000
Purchase price of the Securities: $99,150,000 (plus
accrued interest from May 15, 1995)
Maturity: May 15, 2005
Interest Rate: 7.05% per annum
Interest Payment Dates: November 15 and May 15
Sinking fund provisions: None
Redemption provision: At any time at the option of the
Company, as a whole but not in
part, at 100% of the principal
amount plus accrued interest to
the date of redemption in the
event of certain changes
affecting Panamanian withholding
taxes in accordance with Sec-
tion 11.8 of the Indenture.
Other provisions: None
Closing Date, Time and Location: May 24, 1995, 9:30 a.m.,
Sullivan & Cromwell, 125 Broad Street, New York, New York
Specified Funds for Payment of Purchase Price: Immediately
available funds
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the Company may
offer or sell debt securities issued or guaranteed by the
Company without the consent of the Representative: The date
after the Closing Date
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5 (i) at the
Execution Time: None
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
Merrill Lynch & Co., Merrill $100,000,000
Lynch, Pierce, Fenner & Smith
Incorporated
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from
Carnival Corporation (the "Company"), and the Company agrees
to sell to the undersigned, on 19 (the
"Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by the Company's Prospectus
dated , 19 , and related Prospectus Supplement
dated , 19 , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal
amount thereof, plus [accrued interest] [amortization of
original issue discount], if any, thereon from ,
19 , to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York
City time, on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the
undersigned of the Securities in definitive fully registered
form and in such authorized denominations and registered in
such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less
than five full business days prior to the Delivery Date. If
no request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination
equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery
of and make payment for Securities on the Delivery Date, and
the obligation of the Company to sell and deliver Securities
on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to
be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not
on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and
(2) the Company, on or before the Delivery Date, shall have
sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them
pursuant to the Underwriting Agreement referred to in the
Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters,
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective
successors, but will not be assignable by either party
hereto without the written consent of the other.
It is understood that acceptance of this contract
and other similar contracts is in the Company's sole
discretion and, without limiting the foregoing, need not be
on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company
sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract
between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Very truly yours,
-------------------------------
(Name of Purchaser)
By
-----------------------------
(Signature and Title of
Officer)
-----------------------------
(Address)
Accepted:
Carnival Corporation
By
--------------------------
(Authorized Signature)
SCHEDULE IV
Capital
Stock
Subsidiary Ownership
---------- ---------
Carnival Corporation ("CCL"). . . . . . . . . . . ____
HAL Antillen N.V. ("HAL") . . . . . . . . . . . . CCL
Sunbury Assets Limited. . . . . . . . . . . . . . CCL
Festivale Maritime Limited. . . . . . . . . . . . CCL
Celebration Cruises Inc.. . . . . . . . . . . . . CCL
Tropicale Cruises Inc.. . . . . . . . . . . . . . CCL
Jubilee Cruises Inc.. . . . . . . . . . . . . . . CCL
HAL Shipping Ltd. . . . . . . . . . . . . . . . . HAL
Wind Surf Limited . . . . . . . . . . . . . . . . HAL
Windstar Limited. . . . . . . . . . . . . . . . .WSCL
Wind Spirit Limited . . . . . . . . . . . . . . .WSCL
Windstar Sail Cruises Limited ("WSCL"). . . . . . HAL
Futura Cruises, Inc. . . . . . . . . . . . . . . CCL 1/
- --------------------
1/ The shares owned by CCL are subject to a pledge in favor
of Citibank, N.A.
SCHEDULE V
Jurisdiction of
Vessels Registration Liens
- ------- --------------- -----
I.Carnival Cruise Lines
1. Celebration Liberia First Preferred Ship Mortgage
in favor of the Swedish
National Debt Office.
2. Jubilee Liberia None.
3. Tropicale Liberia None.
4. Fantasy Liberia First Preferred Ship Mortgage
of Finnish Export Credit
Limited.
5. Festivale Bahamas None.
6. Holiday Bahamas None.
7. Ecstasy Liberia First Preferred Ship Mortgage
in favor of Finnish Export
Credit Limited.
8. Sensation Panama None.
9. Fascination Panama None.
II.Holland America Line
1. Westerdam Bahamas Mortgage in favor of
Kreditanstalt fur
Wiederaufbau.
2. Noordam Netherlands None.
Antilles
3. Nieuw Amsterdam Netherlands None.
Antilles
4. Rotterdam Netherlands None.
Antilles
5. Statendam Bahamas None.
6. Maasdam Bahamas None.
7. Ryndam Bahamas None.
III.Windstar Sail Cruises
1. Wind Spirit Bahamas Mortgage in favor of Banque
Francaise du Commerce
Exterieur ("BFCE") and
mortgage in favor of Banque
Nationale de Paris.
2. Wind Song Bahamas Mortgage in favor of BFCE.
3. Wind Star Bahamas Mortgage in favor of BFCE.
CARNIVAL CORPORATION
OFFICERS' CERTIFICATE PURSUANT TO
SECTIONS 3.1 AND 3.3 OF THE INDENTURE IDENTIFIED BELOW
The undersigned officers of Carnival Corporation
(the "Company"), acting pursuant to authorizations contained
in resolutions of (i) the Board of Directors of the Company
(the "Board") duly adopted on November 4, 1993, and (ii) the
Special Pricing Committee of the Board duly adopted on
May 17, 1995, do hereby authorize, adopt and approve the
following terms for a series (the "Series") of the Company's
debt securities to be issued under an indenture dated as of
March 1, 1993 (the "Indenture") from the Company to First
Trust National Association, as trustee (the "Trustee"), and
which have been registered for sale with the Securities and
Exchange Commission pursuant to a Registration Statement on
Form S-3 (No. 33-50947) under the Securities Act of 1933, as
amended. The terms set forth below are qualified in their
entirety by reference to the terms relating to the Series
that are contained in (i) the form of note (the "Form of
Note") that is attached hereto as Exhibit A and (ii) the
Prospectus Supplement dated May 17, 1995 to the Prospectus
dated May 17, 1995 (the "Prospectus Supplement") attached
hereto as Exhibit B, all of which terms are hereby
authorized, adopted and approved. In the event of any
conflict or discrepancy between the terms contained in this
Certificate and/or the Prospectus Supplement and the terms
contained in the Form of Note, the terms contained in the
Form of Note shall control. Capitalized terms used herein
and not otherwise defined herein shall have the meanings set
forth in the Indenture.
Subject to the foregoing, the following are hereby
authorized, adopted and approved as the terms of the Series:
(1) Title of Securities of
the Series: 7.05% Notes Due May 15,
2005 (the "Notes").
(2) Limit, if any, of the
aggregate principal
amount of Securities of
the Series: $100,000,000.
(3) Date or dates on which
the principal of Secu-
rities of the Series is
payable (maturity date): May 15, 2005.
(4) With respect to interest
on Securities of the
Series:
(a) The rate and method
of calculation the-
reof: 7.05% per annum.
(b) The date from which
such interest shall
accrue: May 15, 1995.
(c) Interest Payment
Dates: November 15 and May 15,
commencing November 15,
1995.
(d) Regular Record Dates
for interest payable
on any Interest
Payment Date: To holders of record at
the close of business on
November 1 or May 1 prior
to the Interest Payment
Date.
(5) Place or places where
principal and interest
on Securities of the
Series shall be payable,
and where Securities of
the Series may be
surrendered for
exchange:
At the office or agent of First Trust National
Association (the "Trustee") in the Borough of
Manhattan, The City of New York; at the office of the
Trustee at 180 East Fifth Street, St. Paul, Minnesota
55164-0111; or at such other office as any executive
officer of the Company may designate, except that
payment of interest may, at the option of the
Company, be made by check mailed to the address of
the Person entitled thereto as it appears in the Note
Register. Principal and interest due on any Global
Security representing the Notes will be made
available to the Trustee, and, as soon as possible
thereafter, the Trustee will make such payments
available to The Depository Trust Company (the
"Depository").
(6) With respect to redemp-
tion, in whole or in
part, the terms and
conditions applicable to
Securities of the
Series, including the
applicability of Section
11.8 of the Indenture: Section 11.8 of the
Indenture applies to the
Notes. The Notes are not
otherwise redeemable.
(7) With respect to the
mandatory redemption or
purchase of Securities
of the Series:
(a) Any provisions for a
sinking or analogous
fund or upon the
happening of a
specified event: Not applicable.
(b) Provisions for
redemption at the
option of a holder,
the period or peri-
ods within which
such redemption must
be made, the
applicable redemp-
tion price, and the
other terms and
conditions of such
redemption: Not applicable.
(8) Denominations in which
Securities of the Series
are issuable: $1,000 and integral mul-
tiples thereof.
(9) If other than the prin-
cipal amounts thereof,
the portion of the
principal amount of
Securities of the Series
payable on declaration
of acceleration pursuant
to Section 5.2 of the
Indenture: Not applicable.
(10) Trustee, Paying Agent
and registrar: First Trust National
Association.
(11) Currency in which
interest is payable if
other than U.S.
currency: Not applicable.
(12) Currency in which
principal is payable
if other than U.S.
currency: Not applicable.
(13) Basis for determining
equivalent price in
U.S. currency if
Securities denominated
in more than one
currency: Not applicable.
(14) Manner in which prin-
cipal and interest
payments determined if
according to an index: Not applicable.
(15) Whether Securities of
the Series are
issuable in temporary
or permanent global
form:
A Global Security representing the Notes will be
registered in the name of the nominee of The
Depository Trust Company, which will act as
depository.
(a) Whether, and the
terms upon which,
owners of interests
in any permanent
Global Securities of
the Series may be
exchanged for
Securities of such
Series and of like
tenor:
A Global Security representing the Notes is
exchangeable only if (i) the Depository notifies the
Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time
the Depository for such Global Security notifies the
Company that the Depository for such Global Security
shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation
and a successor depository for such Global Security
is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of
such condition, as the case may be or (ii) the
Company in its sole discretion determines that all
such Global Security shall be exchangeable for defi-
nitive Notes in registered form.
(16) Any other terms of or
provisions applicable
to the Securities of
the Series and the
sale thereof:
(a) The form of the
Securities of the
Series: See Exhibit A to this
Certificate.
(b) Form of sale: Negotiated without
competitive bidding to:
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated pursuant to
an Underwriting Agreement
in the form of Exhibit C
to this Certificate.
(c) Issue price to
public of Securi-
ties of the
Series: 99.80%
(d) Underwriters'
commission or
discount as a
percentage of the
principal amount
of Securities of
the Series to be
issued: 0.650%
IN WITNESS WHEREOF the undersigned have executed
this Certificate on behalf of the Company as of this 24th
day of May, 1995.
/s/ Howard S. Frank
-------------------------------
Howard S. Frank, Vice Chairman,
Senior Vice President - Finance and
Chief Financial and Accounting
Officer
/s/ Alan R. Twaits
-------------------------------
Alan R. Twaits, Secretary
Exhibit A to
Exhibit 4
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.5 OF THE INDENTURE, THIS SECURITY MAY
BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE
DEPOSITORY OR TO A SUCCESSOR DEPOSITORY OR TO A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Carnival
Corporation or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
CARNIVAL CORPORATION
7.05% Notes Due May 15, 2005
$100,000,000 CUSIP No. 143658AG7
Registered No. 1
CARNIVAL CORPORATION, a corporation duly organized and existing under the
laws of the Republic of Panama (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of One Hundred Million Dollars on May 15, 2005, and
to pay interest thereon from May 15, 1995 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on November 15 and May 15 in each year, commencing November 15,
1995, at the rate of 7.05% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the November 1 or May 1 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or, one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of
Page 2
Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and any interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in the Borough of Manhattan, The City of New York; at the
office of the Trustee in the City of St. Paul, the State of Minnesota; or at
such other office as the Company may designate, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
Page 3
IN WITNESS WHEREOF, Carnival Corporation has caused this Instrument to be
duly executed under its corporate seal.
Dated: May 24, 1995
[CORPORATE SEAL]
CARNIVAL CORPORATION
By: /s/ Howard S. Frank
------------------------
Howard S. Frank,
Vice Chairman and Senior
Vice President - Finance
Attest:
/s/ Alan R. Twaits
___________________________________
Alan R. Twaits, Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
As Trustee
By: /s/ Kathe Barrett
--------------------------
AUTHORIZED SIGNATORY
Page 4
COPY
[REVERSE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of March 1, 1993 (herein called the
"Indenture"), between the Company and First Trust National Association, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $100,000,000.
The Company will pay to the Holders such Additional Amounts in respect of
Panamanian taxes as may become payable under Section 10.5 of the Indenture.
The Securities will be subject to redemption as a whole, but not in part,
at the option of the Company at any time at 100% of the principal amount,
together with accrued interest thereon to the Redemption Date, in the event the
Company has become or would become obligated to pay, on the next date on which
any amount would be payable with respect to the Securities, any Additional
Amounts as a result of certain changes affecting Panamanian withholding taxes
which are specified in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66-2/3% in principal amount of the Outstanding
Securities of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Outstanding Securities of each series, on behalf of the Holders of all
Outstanding Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the amount of principal of (and premium, if
any, on) and interest on this Security herein provided, and at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company or the Trustee in any place where the principal
of (and premium, if any, on) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of like tenor of different authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.