UNITED STATES
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): January 15, 1998
CARNIVAL CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Republic of Panama 1-9610 59-1562976
- --------------------------------------------------------------------------------
(State of other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
3655 N.W. 87th Avenue, Miami, Florida 33178-2428
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (305) 599-2600
Not Applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
Page 2
ITEM 5. OTHER EVENTS.
On January 15, 1998, Carnival Corporation consummated the
issuance of $200 million aggregate principal amount of its Debentures Due
January 15, 2028 (the "Debentures"). Bear, Stearns & Co. Inc. and Lehman
Brothers Inc. served as Underwriters for the offering of the Debentures (the
"Offering"). Attached hereto as Exhibits 1 and 4 are copies of the applicable
Underwriting Agreement and Officers' Certificate which set forth the terms of
the Debentures.
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 No. Description of Exhibit
- ----------- ----------------------
1 Underwriting Agreement dated January 6, 1998
between the Registrant and Bear, Stearns & Co.
Inc. and Lehman Brothers Inc.
4 Officers' Certificate dated January 15, 1998
pursuant to Sections 3.1 and 3.3 of the Indenture,
which has attached thereto as an Exhibit a form of
6.65% Debentures Due January 15, 2028 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 hereunto duly authorized.
CARNIVAL CORPORATION
Dated: January 27, 1998 By: /s/ Howard S. Frank
-------------------
Howard S. Frank,
Vice Chairman and
Chief Financial Officer
Page 4
Exhibit Index
-------------
Exhibit No. Description of Exhibit
- ----------- ----------------------
1 Underwriting Agreement dated January
6, 1998 between the Registrant and
Bear, Stearns & Co. Inc. and Lehman
Brothers Inc.
4 Officers' Certificate dated January 15,
1998 pursuant to Sections 3.1 and 3.3
of the Indenture, which has attached
thereto as an Exhibit a form of 6.65%
Debentures Due January 15, 2028 of the
Registrant.
Exhibit 1
Carnival Corporation
Underwriting Agreement
January 6, 1998
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.
4.1 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. 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
2
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. 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
supplement 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 Execution 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 effectiveness 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 Effective 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
3
the form furnished to you prior to the Execution 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 supplement 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 Representatives 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
4
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
"supplement" 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
5
is a Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
(d) 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).
(e) 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.
(f) 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.
4.2 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,
6
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 11 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.
4.3 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 Section 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 two 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.
7
4.4 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 Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness 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.
8
(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 Representatives 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 documents in connection with the offering,
purchase, sale and delivery of the Securities.
(e) The Company will arrange for the qualification 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.
4.5 CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. 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 4:30 P.M. New York City time on such date or
(ii) 12:00 Noon on the business day following the day on
9
which the public offering price was determined, if such determination
occurred after 4:30 P.M. New York City time on such date; if filing of
the Final Prospectus, or any supplement 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;
10
(v) The third and fourth sentences of the first
paragraph and the first, second and third sentences of the
second paragraph of the section of the Final Prospectus
relating to the Securities captioned "Certain Considerations
-- Income Taxes" contain a fair and accurate general
description of the U.S. Federal tax provisions discussed
therein; 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 statements 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
statement which became effective under the Act, 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, 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
11
material respects with the requirements of the Act and the
rules and regulations thereunder; (ii) as of their respective
effective date, the Registration 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., 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,
12
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) 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;
(iv) 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;
(v) 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
13
counsel, any statute or any order, rule or regulation binding
on the Company or any of the Subsidiaries or any of their
properties; and
(vi) 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.
(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;
14
(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 duty 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.
Each such opinion described in 5(b), (c) and (d) above shall
be in form and substance reasonably satisfactory to the
Representatives. In rendering such opinions described in 5(b), (c) and
(d) 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, and on the
absence of a telegram from the Commission. References to the Final
Prospectus in paragraph 5(b) through (d) include any amendments or
supplements thereto filed prior to the Closing Date.
(e) The Company shall have furnished to the underwriters a
certificate of the Company, signed by the General Counsel of the
Company, dated the Closing Date, to the effect that to the knowledge of
the signer of such certificate after reasonable investigation (as
defined below):
(i) each of the Company and each of the 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
15
general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole);
(ii) 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; and
(iii) 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.
As used in the certificate described in this
paragraph (e), "reasonable investigation" includes obtaining
and reviewing, as appropriate, (i) as to matters involving the
application of laws other than the laws of Florida and
respecting the corporate existence or good standing of the
Company or any of the Subsidiaries, oral or written
statements, advice or opinions of other counsel familiar with
the applicable laws and legal status of the Company and its
Subsidiaries, and (ii) as to matters of fact, certificates of
responsible officers of the Company of any of the
Subsidiaries.
(f) 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.
(g) 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
16
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).
(h) 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:
17
(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 consoli dated 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
18
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 (h) 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.
19
(i) 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 (h) 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).
(j) 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.
(k) 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.
(l) 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.
(m) 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 declaration 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 Section 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
20
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.
4.6 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 Underwriters, 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 preparations 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 Section 4(d) and Section 7 hereof.
4.7 Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, 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
21
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
22
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).
4.8 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
23
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
non-defaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any non-defaulting 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.
4.9 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.
24
4.10 NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed 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.
4.11 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.
4.12 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
------------------
Lowell Zemnick
Vice President & Treasurer
25
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
By: /s/ Timothy A. O'Neill
----------------------
Timothy A. O'Neill
Senior Managing Director
Bear, Stearns & Co. Inc.
SCHEDULE I
Underwriting Agreement dated January 6, 1998
Registration Statement No. 33-50947
Representative(s): Bear, Stearns & Co. Inc. and Lehman Brothers Inc.
Title, Purchase Price and Description of Securities:
Title: 6.65% Debentures due 2028
Principal amount: $200,000,000
Purchase Price of the Securities: 98.738% ($197,476,000)
Maturity: January 15, 2028
Interest Rate: 6.65% per annum
Interest Payment Dates: January 15 and July 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 Section 11.8 of the Indenture.
Other provisions: None
Closing Date, Time and Location: January 15, 1998, 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: $_____________
2
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
- ------------ ----------------
Bear, Stearns & Co. Inc. $150,000,000
Lehman Brothers Inc. 50,000,000
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 by wire transfer in immediately available funds,
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 three 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
2
"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.
3
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
Festivale Maritime Limited.......................................... CCL
Celebration Cruises Inc............................................. CCL
Wind Surf Limited................................................... HAL
Windstar Limited.................................................... WSCL
Wind Spirit Limited................................................. WSCL
Windstar Sail Cruises Limited ("WSCL").............................. HAL
Futura Cruises, Inc................................................. CCL
Utopia Cruises, Inc................................................. CCL
SCHEDULE V
Jurisdiction of
Vessels Registration Liens
------- --------------- -----
I. Carnival Cruise Lines
4.1 Celebration................ Liberia None.
4.2 Jubilee.................... Panama None.
4.3 Tropicale.................. Liberia None.
4.4 Fantasy.................... Liberia First Preferred Shop Mortgage of Finnish
Export Credit Limited.
4.5 Holiday.................... Panama None.
4.6 Ecstasy.................... Liberia First Preferred Ship Mortgage in favor of
Finnish Export Credit Limited.
4.7 Imagination................ Panama None.
4.8 Sensation.................. Panama None.
4.9 Inspiration................ Panama None.
4.10 Fascination................ Panama None.
4.11 Carnival Destiny........... Panama None.
4.12 IslandBreeze............... Bahamas Mortgage in favor of Skandinaviska
Enskilda Baken AB.
II. Holland America Line
4.1 Westerdam.................. Netherlands Antilles None.
4.2 Noordam.................... Netherlands Antilles None.
4.3 Nieuw Amsterdam Netherlands Antilles None.
4.4 Rotterdam V................ Netherlands Antilles Mortgage in favor of HAL Antillen N.V.
4.5 Rotterdam VI............... Netherlands Antilles None.
4.6 Statendam.................. Netherlands Antilles None.
4.7 Veendam.................... Bahamas None.
4.8 Maasdam.................... Bahamas None.
4.9 Ryndam..................... Bahamas None.
III.Wind Sail Cruises
4.1 Wind Spirit................ Bahamas Mortgage in favor of Banque Francaise du
Commerce Exterieur ("BFCE") and
mortgage in favor of Banque Nationale de
Paris.
4.2 Wind Song.................. Bahamas None.
4.3 Wind Star.................. Bahamas None.
Exhibit 4
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 Executive Committee of the Board duly adopted on January 7, 1998, 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 debenture (the
"Form of Debenture") that is attached hereto as Exhibit A, and (ii) the
Prospectus Supplement dated January 6, 1998 to the Prospectus dated January 6,
1998 (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 Debenture, the
terms contained in the Form of Debenture 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:
4.4 Title of Securities of the Series 6.65% Debentures Due January 15,
2028 (the "Debentures")
4.5 Limit, if any, of the aggregate
principal amount of Securities of
the Series: $200,000,000
4.6 Date or dates on which the principal
of Securities of the Series is payable
(maturity date): January 15, 2028.
4.7 With respect to interest on
Securities of the Series:
(a) The rate and method of
calculation thereof: 6.65% per annum.
2
(b) The date from which such
interest shall accrue: January 15, 1998
(c) Interest Payment Dates: January 15 and July 15,
commencing July 15, 1998.
(d) Regular Record Dates for
interest payable on any
Interest Payment Date: To holders of record at the close
of business on January 1 or July
1 prior to the Interest Payment
Date.
4.8 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 55101; 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 Debenture Register. Principal
and interest due on any Global
Security representing the
Debentures 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").
3
4.9 With respect to redemption, 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 Debentures. The
Debentures are not otherwise
redeemable.
4.10 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 periods within
which such redemption must
be made, the applicable
redemption price, and the
other terms and conditions of
such redemption: Not applicable.
4.11 Denominations in which
Securities of the Series are
issuable: $1,000 and integral multiples
thereof.
4.12 If other than the principal
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.
4.13 Trustee, Paying Agent and
registrar: First Trust National Association.
4
4.14 Currency in which interest is
payable if other than U.S. currency: Not applicable.
4.15 Currency in which principal is
payable if other than U.S. currency: Not applicable.
4.16 Basis for determining equivalent
price in U.S. currency if Securities
denominated in more than one currency: Not applicable.
4.17 Manner in which principal and interest
payments determined if according to an
index: Not applicable.
4.18 Whether Securities of the Series are
issuable in temporary or permanent
global form: A Global Security representing
the Debentures 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 Debentures 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 definitive
Debentures in registered form.
5
4.19 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: Bear, Stearns & Co.
Inc. and Lehman Brothers Inc.
pursuant to an Underwriting
Agreement in the form of Exhibit
C to this Certificate.
(c) Issue price to public of
Securities of the Series: 99.613%
(d) Underwriters' commission or
discount as a percentage of the
principal amount of Securities
of the Series to be issued: 0.875%
IN WITNESS WHEREOF the undersigned have executed this Certificate
on behalf of the Company as of this 15th day of January, 1998.
/s/ Howard S. Frank
-------------------
Howard S. Frank, Vice Chairman and
Chief Financial Officer
/s/ Arnaldo Perez
-----------------
Arnaldo Perez, Secretary
