AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 21, 1998
REGISTRATION NO. 333-43269
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CARNIVAL CORPORATION
(Exact name of registrant as specified in its charter)
REPUBLIC OF PANAMA 59-1562976
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3655 N.W. 87TH AVENUE
MIAMI, FLORIDA 33178-2428
(305) 599-2600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ARNALDO PEREZ, ESQ.
GENERAL COUNSEL
CARNIVAL CORPORATION
3655 N.W. 87TH AVENUE
MIAMI, FLORIDA 33178-2428
(305) 599-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
JAMES M. DUBIN, ESQ. ROBERT S. RISOLEO, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & SULLIVAN & CROMWELL
GARRISON
1285 AVENUE OF THE AMERICAS 125 BROAD STREET
NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10004
(212) 373-3000 (212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, this
Registration Statement relates to $730,000,000 principal amount of securities
registered hereby and to the remaining unsold $70,000,000 principal amount of
such securities previously registered by the Registrant under its Registration
Statement on Form S-3 (File No. 33-50947).
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$800,000,000
CARNIVAL CORPORATION
CLASS A COMMON STOCK, DEBT SECURITIES AND WARRANTS
Carnival Corporation (the "Company") may offer from time to time in one or
more series up to $800,000,000 aggregate public offering price (or its
equivalent (based on the applicable exchange rate at the time of sale) if issued
with principal amounts denominated in one or more foreign currencies or currency
units as shall be designated by the Company) of (i) shares of its Class A Common
Stock ("Class A Common Stock"), (ii) its debt securities ("Debt Securities"),
consisting of notes, debentures or other evidences of indebtedness denominated
in United States dollars or any other currency, including composite currencies
such as the European Currency Unit, and (iii) warrants to purchase Class A
Common Stock or Debt Securities or any combination thereof or to buy and sell
government debt securities, foreign currencies, currency units or units of a
currency index or basket, units of a stock index or basket or a commodity or
commodity index ("Warrants") on terms to be determined at or prior to the time
of sale. The Class A Common Stock, Debt Securities and Warrants are collectively
referred to as the "Securities."
The Securities may be offered independently or together for sale. This
Prospectus will be supplemented by one or more prospectus supplements (each, a
"Prospectus Supplement") which will set forth,
(i) in the case of Class A Common Stock, the number of shares and the initial
public offering price; (ii) in the case of Debt Securities, the specific
designation, aggregate principal amount, ranking as senior debt ("Senior
Securities") or subordinated debt ("Subordinated Securities"), purchase price,
maturity, rate (or method of calculation thereof) and time of payment of
interest, if any, any conversion or exchange provisions, any redemption
provisions, any subordination provisions and any other specific terms of the
Debt Securities offered hereby not set forth herein under the caption
"Description of Debt Securities" in this Prospectus, and any listing thereof on
a securities exchange; and, (iii) in the case of the Warrants, the duration,
purchase price, exercise price, detachability and any other specific terms not
set forth herein of such Warrants.
The Class A Common Stock is listed on the New York Stock Exchange ("NYSE"),
under the symbol "CCL." Any Class A Common Stock sold pursuant to a Prospectus
Supplement will be listed on the NYSE, subject to official notice of issuance.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The Company may sell the Securities to or through underwriters, and also may
sell the Securities directly to other purchasers or through agents. See "Plan of
Distribution." In addition, the Securities may be sold to dealers at the
applicable price to the public set forth in the Prospectus Supplement relating
to the Securities who later resell to investors. Such dealers may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, as amended.
If any agents of the Company, or any underwriters, are involved in the sale of
any Securities, the names of such agents or underwriters and any applicable
commissions or discounts are set forth in the accompanying Prospectus
Supplement.
Any statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in the accompanying
Prospectus Supplement.
The date of this Prospectus is January 21, 1998.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at Room
1400, 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade Center,
13th Floor, New York, New York 10048, and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Such materials can
also be inspected on the Internet at http://www.sec.gov. In addition, reports,
proxy statements and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, on which the Company's Class A Common Stock is listed.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), with respect to the Securities offered hereby. This Prospectus and any
applicable Prospectus Supplement do not contain all the information set forth in
the Registration Statement, certain parts of which have been omitted pursuant to
the rules and regulations of the Commission. The information so omitted may be
obtained from the Commission's principal office in Washington, D.C. upon payment
of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended November
30, 1996, the Company's Current Report on Form 8-K filed with the Commission on
June 26, 1997 and the Company's Quarterly Reports on Form 10-Q for the three
months ended February 28, 1997, May 31, 1997 and August 31, 1997, filed with the
Commission (File No. 1-9610) pursuant to the Exchange Act, are incorporated
herein by reference.
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities made hereby shall be
deemed incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deeemed to be incorporated herein by reference, or contained in
this Prospectus, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus and any Prospectus Supplement have been delivered, upon written or
oral request of such person, a copy (without exhibits other than exhibits
specifically incorporated by reference) of any or all documents incorporated by
reference into this Prospectus. Requests for such copies should be directed to
Investor Relations, Carnival Corporation, 3655 N.W. 87th Avenue, Miami, Florida
33178-2428; telephone number (305) 599-2600.
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THE COMPANY
The Company is the world's largest multiple-night cruise company based on
the number of passengers carried, revenues generated and available capacity. The
Company offers a broad range of cruise products, serving the contemporary cruise
market through Carnival Cruise Lines, the premium market through Holland America
Line and the luxury market through Windstar Cruises. In total, the Company owns
and operates 22 cruise ships with an aggregate capacity of 31,078 passengers
based on two passengers per cabin. The eleven Carnival Cruise Lines ships have
an aggregate capacity of 20,332 passengers with itineraries primarily in the
Caribbean, Mexican Riviera and Alaska. The eight Holland America Line ships have
an aggregate capacity of 10,302 passengers, with itineraries in the Caribbean,
the Mediterranean and Alaska and through the Panama Canal, as well as other
worldwide itineraries. The three Windstar ships have an aggregate capacity of
444 passengers with itineraries in the Caribbean, Costa Rica, the Mediterranean
and the Far East. The Company also owns equity interests in Seabourn Cruise
Line, Costa Cruises and Airtours plc, an integrated leisure travel group. The
three Seabourn ships have an aggregate capacity of 612 passengers with
itineraries in the Caribbean, the Baltic, the Mediterranean and the Far East.
The seven Costa Cruises ships have an aggregate capacity of 7,710 passengers
with itineraries in the Mediterranean, Northern Europe, the Carribean and South
America. Airtours owns tour operators, charter airlines, travel agencies, three
cruise ships and holiday hotels.
The Company has signed agreements with a Finnish shipyard providing for the
construction of two additional SuperLiners, each with a capacity of 2,040
passengers, for Carnival Cruise Lines with delivery expected in February 1998
and November 1998. The Company also has agreements with an Italian shipyard for
the construction of two cruise ships, each with a capacity of 2,640 passengers,
for Carnival Cruise Lines with delivery expected in June 1999 and July 2000 and
for the construction of two cruise ships with a capacity of 1,440 passengers for
Holland America Line, with delivery expected in May 1999 and December 1999.
The Company also operates a tour business, through Holland America
Line-Westours Inc. ("Holland America Westours"), which markets sightseeing tours
both separately and as a part of Holland America Line cruise/tour packages.
Holland America Westours operates 14 hotels in Alaska and the Canadian Yukon,
two luxury day-boats offering tours to the glaciers of Alaska and the Yukon
River, over 290 motor coaches used for sightseeing and charters in the states of
Washington and Alaska and in the Canadian Rockies and 12 private domed rail cars
which are run on the Alaskan railroad between Anchorage and Fairbanks.
The Company was incorporated under the laws of the Republic of Panama in
November 1974. The Company's executive offices are located at 3655 N.W. 87th
Avenue, Miami, Florida 33178-2428, telephone number (305) 599-2600. The
Company's registered office in Panama is located at 10 Elvira Mendez Street,
Interseco Building, Panama, Republic of Panama.
CERTAIN CONSIDERATIONS
INCOME TAXES
Non-U.S. companies are exempt from U.S. corporate income tax on U.S. source
income from international passenger cruise operations if (i) their countries of
incorporation exempt shipping operations of U.S. persons from income tax (the
"Incorporation Test") and (ii) they meet either the "CFC Test" or the "Publicly
Traded Test." The Company and its subsidiaries involved in the cruise ship
operations meet the Incorporation Test because they are incorporated in
countries which provide the required exemption to U.S. persons involved in
shipping operations. A company meets the CFC Test if it is a controlled foreign
corporation ("CFC"). A CFC is defined by the Internal Revenue Code as a foreign
corporation more than 50% of the vote or value of whose stock is owned by U.S.
persons, each of whom owns or is considered to own 10% or more of the
corporation's vote on any day during its fiscal year. Through July 15, 1997, the
date upon which all of the Class B Common Stock of the Company (the "Class B
Common Stock") was converted to Class A Common Stock (the "Conversion Date"),
all of the outstanding shares of Class B
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Common Stock of the Company, which represented more than 50% of the total
combined voting power of all classes of stock, were owned by The Micky Arison
1994 "B" Trust (the "B Trust"), a U.S. Trust whose primary beneficiary is Micky
Arison, the Company's Chairman of the Board. The B Trust is a "United States
Person." Accordingly, the Company believes that it will meet the CFC Test for
its 1997 taxable year, but will not meet such test in its 1998 taxable year and
subsequent taxable year.
A corporation meets the Publicly Traded Test if the stock of the corporation
(or the direct or indirect corporate parent thereof) is "primarily and regularly
traded on an established securities market" in the United States. Although no
Treasury regulations have been promulgated that explain when stock is primarily
and regularly traded for purposes of this exemption, Treasury regulations have
been promulgated interpreting a similar phrase under another section, Section
884. Under the Section 884 regulations, stock is considered primarily and
regularly traded if (i) 80% (by vote and value) of the stock of the corporation
is listed on an established securities market in the United States where more
shares are traded than in any other country, (ii) trades of such stock are
effected on such market, other than in de minimis quantities, on at least 60
days during the taxable year, (iii) the aggregate number of shares so traded is
equal to 10% or more of the average number of shares outstanding during the
taxable year, and (iv) the company is not "closely held." The Company believes
that it will meet the foregoing requirements for the portion of its taxable year
beginning after the Conversion Date and for future taxable years. Since the
Conversion Date, the Company has had only one class of stock outstanding, the
Class A Common Stock, which is listed on the New York Stock Exchange, where more
shares trade than in any other country. Trades of such Class A Common Stock have
been effected in more than de minimis quantities on every business day since the
Company's initial public offering, and the annual volume of such trades has
significantly exceeded 10% of the average number of shares outstanding.
Moreover, the Company believes that any stock traded on the NYSE are considered
as traded on a qualifying exchange and, to the Company's knowledge, it is not
closely held because no person other than members of the Arison family and
certain related entities (the "Arison Group") owns more than 5% of its stock and
the Arison Group holds less than 50% of the outstanding shares.
Accordingly, the Company believes that virtually all of its income (with the
exception of its United States source income from the operations of the
transportation, hotel and tour business of Holland America Line) is exempt from
United States federal income taxes. There is, however, no authority that
addresses the treatment of a corporation that meets the test for a CFC for only
part of its taxable year. Similarly, there is no authority that addresses the
treatment of a corporation that meets the Publicly Traded Test for only a part
of its taxable year. If the Company or its subsidiaries were found to meet
neither the CFC Test nor the Publicly Traded Test, much of their income would
become subject to taxation by the United States at higher than normal corporate
tax rates.
CONTROL BY PRINCIPAL SHAREHOLDERS
Ted Arison (the Company's founder), the B Trust, certain members of the
Arison family and trusts for the benefit of Ted Arison's children (collectively,
the "Principal Shareholders"), beneficially own on the date hereof, in the
aggregate, approximately 47.1% of the outstanding capital stock of the Company.
As a result, the Principal Shareholders have the power to substantially
influence the election of directors and the Company's affairs and policies.
Micky Arison, the Chairman and Chief Executive Officer of the Company, has the
sole right to vote and direct the sale of the Class A Common Stock held by the B
Trust, subject, during Ted Arison's lifetime, to the consent of the trustee of
the B Trust.
SOURCE OF INTEREST ON THE DEBT SECURITIES
Under the "branch tax" rules of the Code, it is possible that,
notwithstanding that the Company is a Panamanian corporation, some or all
interest payable on the Securities may be treated as United States source income
for United States federal income tax purposes.
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USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement, the
net proceeds to the Company from the sale of the Securities offered hereby will
be added to the working capital of the Company and will be available for general
corporate purposes, which may include the repayment of indebtedness, the
financing of capital commitments and possible future acquisitions associated
with the continued expansion of the Company's business. Pending application as
set forth above, the net proceeds will be invested in marketable securities,
including, without limitation, certificates of deposit and commercial paper.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of "earnings" to "fixed charges" for the Company and its
subsidiaries were as follows for the nine months ended August 31, 1997 and 1996
and for the five years ended November 30, 1996:
NINE MONTHS
ENDED AUGUST 31, YEARS ENDED NOVEMBER 30,
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1997 1996 1996 1995 1994 1993 1992
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9.9x 7.2x 6.4x 6.2x 5.8x 5.7x 4.4x
The ratio of earnings to fixed charges has been computed by dividing
earnings from continuing operations available for fixed charges (income from
continuing operations before income taxes adjusted for interest expense and
one-third of rent expense) by fixed charges. Fixed charges include interest
costs (interest expense plus capitalized interest and one-third of rent
expense). The Company has assumed that one-third of rent expense is
representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued in one or more series under an
indenture dated as of March 1, 1993, as supplemented from time to time (the
"Senior Indenture"), between the Company and First Trust National Association
(the "Senior Trustee"), as Trustee, and the Subordinated Securities will be
issued under an indenture to be dated as of a date prior to the first issuance
of Subordinated Securities, as supplemented from time to time (the "Subordinated
Indenture"), between the Company and a trustee to be named in the applicable
Prospectus Supplement (the "Subordinated Trustee"). The term "Indenture" as used
herein refers to either the Senior Indenture or the Subordinated Indenture, as
appropriate, and the term "Trustee" as used herein refers to either the Senior
Trustee or the Subordinated Trustee, as appropriate. Each Indenture will be
subject to and governed by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The following statements with respect to the Debt
Securities are subject to the detailed provisions of the Indenture, the form of
which is filed as an exhibit to the Registration Statement. Parenthetical
references below are to the Indenture (or the Form of Security contained therein
if so specified) and, whenever any particular provision of the Indenture or any
term used therein is referred to, such provision or term is incorporated by
reference as a part of the statement in connection with which such reference is
made, and the statement in connection with which such reference is made is
qualified in its entirety by such reference.
The particular terms of each series of Debt Securities, as well as any
modification or addition to the general terms of the Debt Securities as herein
described, which may be applicable to a particular series of Debt Securities,
are described in the Prospectus Supplement relating to such series of Debt
Securities and will be set forth in a filing with the Commission. Accordingly,
for a description of the terms of a particular series of Debt Securities,
reference must be made to both the Prospectus Supplement relating to such series
and to the description of Debt Securities set forth in this Prospectus.
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GENERAL
The Senior Debt Securities and Subordinated Debt Securities offered hereby
will be limited to $800,000,000 and $730,000,000, respectively, aggregate
principal amount (or (i) its equivalent (based on the applicable exchange rate
at the time of sale), if Senior Debt Securities and Subordinated Debt Securities
are issued with principal amounts denominated in one or more foreign currencies,
composite currencies or currency units as shall be designated by the Company, or
(ii) such greater amount, if Senior Debt Securities and Subordinated Debt
Securities are issued at an original issue discount, as shall result in
aggregate proceeds of $800,000,000 and $730,000,000, respectively, to the
Company). The Indenture provides that additional Debt Securities may be issued
thereunder up to the aggregate principal amount, which is not limited by the
Indenture, authorized from time to time by the Company's Board of Directors or
any duly authorized committee thereof. The Indenture also provides that there
may be more than one Trustee under the Indenture, each with respect to one or
more different series of Debt Securities. See also "Trustee" herein. The effect
of the provisions contemplating that there might be more than one Trustee acting
for different series of Debt Securities is that, in that event, those Debt
Securities (whether of one or more than one series) for which each Trustee is
acting would be treated as if issued under a separate Indenture.
The applicable Prospectus Supplement will set forth a description of the
particular series of Debt Securities being offered thereby, including: (1) the
designation or title of such Debt Securities; (2) the aggregate principal amount
of such Debt Securities; (3) the percentage of their principal amount at which
such Debt Securities will be offered; (4) the date or dates on which the
principal of such Debt Securities will be payable; (5) the rate or rates (which
may be either fixed or variable) and/or the method of determination of such rate
or rates at which such Debt Securities shall bear interest, if any; (6) the date
or dates from which any such interest shall accrue, or the method of
determination of such date or dates, and the date or dates on which any such
interest shall be payable; (7) the terms for redemption, extension or early
repayment of such Debt Securities, if any; (8) if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which such Debt
Securities are authorized to be issued; (9) the currencies in which such Debt
Securities are issued or payable; (10) the provisions for a sinking fund, if
any; (11) if other than the principal amount thereof, the portion of the
principal amount of such Debt Securities that will be payable upon the
declaration of acceleration of the maturity thereof; (12) any additional
restrictive covenants included for the benefit of the holders of such Debt
Securities; (13) any additional Event of Default with respect to such Debt
Securities; (14) whether such Debt Securities are issuable as a Global Security
or securities; (15) any applicable tax consequences with respect to such Debt
Securities; (16) the terms and conditions, if any, pursuant to which such Debt
Securities are convertible into or exchangeable for Class A Common Stock or
other securities; (17) the applicability of the provisions described in
"--Defeasance" below; (18) any subordination provisions applicable to such Debt
Securities in addition to or different than those described under
"--Subordination" below; and (19) any other term or provision relating to such
Debt Securities which is not inconsistent with the provisions of the Indenture.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. Federal income tax
consequences and special considerations applicable thereto will be described in
the Prospectus Supplement relating to any such series of Debt Securities.
Except as otherwise provided in the applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, will be payable at an office
or agency to be maintained by the Company, except that at the option of the
Company interest may be paid by check mailed to the person entitled thereto.
(Form of Security and Sections 10.1 and 10.2).
The Debt Securities will be issued only in fully registered form without
coupons and may be presented for registration of transfer or exchange at the
corporate trust office of the Trustee. No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may require payment
of a
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sum to cover any tax or other governmental charge payable in connection
therewith. Not all Debt Securities of any one series need be issued at the same
time, and, unless otherwise provided, a series may be reopened for issuances of
additional Debt Securities of such series. (Sections 3.1 and 3.5).
The Indenture does not contain any covenants or provisions that are
specifically intended to afford holders of the Debt Securities protection in the
event of a highly leveraged transaction. With respect to any specific series of
Debt Securities, the existence or non-existence of such covenants or provisions
will be disclosed in the applicable Prospectus Supplement.
Neither Panamanian law nor the Company's Articles of Incorporation or
By-laws impose limitations on the right of non-resident or foreign owners to
hold Debt Securities. While no tax treaty currently exists between the Republic
of Panama and the United States, under current law the Company believes that
interest payments to holders of its Debt Securities are not subject to taxation
under the laws of the Republic of Panama.
BOOK-ENTRY SYSTEM
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a depository (the "Depository") or
with a nominee for the Depository identified in the applicable Prospectus
Supplement and will be registered in the name of the Depository or a nominee
thereof. In such a case one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in whole
or in part for Debt Securities in definitive certificated form, a Global
Security may be transferred, in whole but not in part, only to another nominee
of the Depository for such series, or to a successor Depository for such series
selected or approved by the Company, or to a nominee of such successor
Depository. (Section 2.5).
The specific depository arrangement with respect to any series of Debt
Securities to be represented by a Global Security will be described in the
applicable Prospectus Supplement.
PAYMENT OF ADDITIONAL AMOUNTS
The Company will agree that any amounts to be paid by the Company with
respect to the Debt Securities will be paid without deduction or withholding for
any and all present and future taxes, levies, imposts or other governmental
charges whatsoever imposed, assessed, levied or collected by or for the account
of the Republic of Panama (or by or for the account of the jurisdiction of
incorporation (other than the United States) of a successor corporation to the
Company, to the extent that such taxes first become applicable as a result of
the successor corporation becoming the obligor on the Debt Securities) or any
political subdivision or taxing authority thereof or therein ("Panamanian
Taxes") or, if deduction or withholding of any Panamanian Taxes shall at any
time be required by the Republic of Panama (or the jurisdiction of incorporation
(other than the United States) of a successor corporation to the Company) or any
such subdivision or authority, the Company will (subject to compliance by the
holders or beneficial owners of the relevant Debt Securities with any relevant
administrative requirements) pay such additional amounts ("Additional Amounts")
in respect of principal, premium, if any, interest, if any, and sinking fund or
analogous payments, if any, as may be necessary in order that the net amounts
paid to the holders of the Debt Securities or the Trustee under the Indenture,
as the case may be, after such deduction or withholding, shall equal the
respective amounts of principal, premium, if any, interest, if any, and sinking
fund or analogous payments, if any, as specified in the Debt Securities to which
such holders or the Trustee are entitled; PROVIDED, HOWEVER, that the foregoing
shall not apply to (i) any present or future Panamanian Taxes which would not
have been so imposed, assessed, levied or collected but for the fact that the
holder or beneficial owner of the relevant Debt Security being or having been a
domiciliary, national or resident of, or engaging or having been engaged in
business or maintaining or having maintained a permanent
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establishment or being or having been physically present in, the Republic of
Panama (or the jurisdiction of incorporation of a successor corporation to the
Company) or such political subdivision or otherwise having or having had some
connection with the Republic of Panama (or the jurisdiction of incorporation of
a successor corporation to the Company) or such political subdivision other than
the holding or ownership of a Debt Security, or the collection of principal of
and interest, if any, on, or the enforcement of, a Debt Security, (ii) any
present or future Panamanian Taxes which would not have been so imposed,
assessed, levied or collected but for the fact that, where presentation is
required, the relevant Debt Security was presented more than thirty days after
the date such payment became due or was provided for, whichever is later, or
(iii) any present or future Panamanian Taxes which would not have been so
imposed, assessed, levied or collected but for the failure to comply with any
certification, identification or other reporting requirements concerning the
nationality, residence, identity or connection with the Republic of Panama (or
the jurisdiction of incorporation of a successor corporation to the Company) or
any political subdivision thereof of the holder or beneficial owner of the
relevant Debt Security, if compliance is required by statute or by rules or
regulations of the Republic of Panama (or the jurisdiction of incorporation of a
successor corporation to the Company) or such political subdivision as a
condition to relief or exemption from Panamanian Taxes. The provisions described
in (i) through (iii) above are referred to herein as "Excluded Taxes." The
Company or any successor to the Company, as the case may be, will indemnify and
hold harmless each holder of the Debt Securities and upon written request
reimburse each holder for the amount of (i) any Panamanian Taxes levied or
imposed and paid by such holder of the Debt Securities (other than Excluded
Taxes) as a result of payments made with respect to the Debt Securities, (ii)
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, and (iii) any Panamanian Taxes with respect to payment of
Additional Amounts or any reimbursement pursuant to this sentence. The Company
or any successor to the Company, as the case may be, will also (1) make such
withholding or deduction and (2) remit the full amount deducted or withheld to
the relevant authority in accordance with applicable law. The Company or any
successor to the Company, as the case may be, will furnish the Trustee within 30
days after the date the payment of any Panamanian Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by the
Company or any successor to the Company, as the case may be, which the Trustee
will forward to the holders of the Debt Securities.
At least 30 days prior to each date on which any payment under or with
respect to the Debt Securities is due and payable, if the Company will be
obligated to pay Additional Amounts with respect to such payments, the Company
will deliver to the Trustee an officers' certificate stating the fact that such
Additional Amounts will be payable, stating the amounts so payable and setting
forth such other information as may be necessary to enable the Trustee to pay
such Additional Amounts to holders of the Debt Securities on the payment date.
Whenever in the Indenture or any Debt Securities there is mentioned, in any
context, the payment of the principal, premium, if any, or interest, or sinking
fund or analogous payment, if any, in respect of such Debt Securities or overdue
principal or overdue interest or overdue sinking fund or analogous payment, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for herein to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention thereof in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made (if applicable). (Section 10.5).
REDEMPTION OR ASSUMPTION OF DEBT SECURITIES UNDER CERTAIN CIRCUMSTANCES
Unless otherwise specified in the Prospectus Supplement with respect to any
series of Debt Securities, if as the result of any change in or any amendment to
the laws, including any regulations thereunder and any applicable double
taxation treaty or convention, of the Republic of Panama (or the jurisdiction of
incorporation (other than the United States) of a successor corporation to the
Company), or of any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in an
8
application or interpretation of such laws, including any applicable double
taxation treaty or convention, which change, amendment, application or
interpretation (the "Change") becomes effective on or after the original
issuance date of such series (or, in certain circumstances, such later date on
which a corporation becomes a successor corporation to the Company), it is
determined by the Company based upon an opinion of independent counsel of
recognized standing that (i) the Company would be required to pay Additional
Amounts in respect of principal, premium, if any, interest, if any, or sinking
fund or analogous payments, if any, on the next succeeding date for the payment
thereof, or (ii) any taxes would be imposed (whether by way of deduction,
withholding or otherwise) by the Republic of Panama (or the jurisdiction of
incorporation (other than the United States) of a successor corporation to the
Company) or by any political subdivision or taxing authority thereof or therein,
upon or with respect to any principal, premium, if any, interest, if any, or
sinking fund or analogous payments, if any, then the Company may, at its option,
on giving not less than 30 nor more than 60 days' notice (which shall be
irrevocable) redeem such series of Debt Securities in whole, but not in part, at
any time (except in the case of Debt Securities of a series having a variable
rate of interest, which may be redeemed only on an interest payment date) at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the date fixed for redemption (except in the case of outstanding
original issue discount Debt Securities which may be redeemed at the redemption
price specified by the terms of each series of such Debt Securities); provided,
however, that (i) no notice of redemption may be given more than 90 days prior
to the earliest date on which the Company would be obligated to pay such
Additional Amounts or such tax would be imposed, as the case may be, and (ii) at
the time that such notice of redemption is given, such obligation to pay
Additional Amounts or such tax, as the case may be, remains in effect. For
purposes of the foregoing, all references to the Company in this paragraph shall
include any successor corporation thereto. (Section 11.8).
MERGER AND CONSOLIDATION
The Company may not consolidate with or merge into any other Person (as
defined in the Indenture) or transfer or lease all or substantially all of its
assets to any Person unless, after giving effect to such transaction, no Event
of Default, and no event which after notice or lapse of time or both would
become an Event of Default, shall have occurred and be continuing and the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires or leases all or substantially all of its assets assumes all the
obligations of the Company under the Debt Securities and the Indenture. (Article
8).
EVENTS OF DEFAULT AND NOTICE THEREOF
Except as may otherwise be provided in an indenture supplemental to the
Indenture (a "Supplemental Indenture"), the following events in respect of a
particular series of Debt Securities are defined in the Indenture as "Events of
Default": (a) failure to pay interest (including Additional Amounts) for 30 days
after becoming due; (b) failure to pay the principal or premium, if any, when
due at maturity, on redemption or otherwise; (c) failure to make a sinking fund
payment for five days after becoming due; (d) failure to perform any other
covenants for 60 days after written notice as provided in the Indenture; (e)
failure to pay when due the principal of, or acceleration of, any indebtedness
for money borrowed by the Company in excess of $20 million, if such indebtedness
is not discharged, or such acceleration is not annulled, within 30 days after
written notice as provided in the Indenture; (f) certain events of bankruptcy,
insolvency or reorganization; and (g) any other Event of Default provided with
respect to Securities of such series (as indicated in the Prospectus Supplement
relating to such series of Securities). (Section 5.1).
If an Event of Default in respect of a particular series of Debt Securities
outstanding occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the Debt Securities outstanding of
such series may declare the principal amount (or, if the Debt Securities of such
series are Original Issue Discount Securities (as defined in the Indenture),
such portion of the principal amount as may be specified in the terms of such
series) of all of the Debt Securities of such series to be due
9
and payable immediately. At any time after such a declaration of acceleration in
respect of a particular series of Debt Securities has been made, but before a
judgment or decree for the payment of money due upon acceleration has been
obtained by the Trustee, the holders of a majority in aggregate principal amount
of the Debt Securities outstanding of such series may, under certain
circumstances, rescind and annul such declaration and its consequences if all
Events of Default in respect of the Debt Securities of such series, other than
the non-payment of principal due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture. (Section 5.2).
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default in respect of a particular series of Debt Securities,
give the holders of such series notice of all uncured defaults known to it (the
term "default" to include the events specified above without grace periods);
PROVIDED that, except in the case of default in the payment of the principal of,
or premium, if any, on or interest on any of the Debt Securities of such series,
or in the payment of any sinking fund installment with respect to the Debt
Securities of such series, the Trustee shall be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interests of the holders of such series. (Section 6.2).
Pursuant to the terms of the Indenture, the Company is required to furnish
to the Trustee annually a statement of certain officers of the Company stating
whether or not to the best of their knowledge the Company is in default in
respect of any series of Debt Securities in the performance and observance of
the terms of the Indenture and, if the Company is in default, specifying such
default and the nature thereof. (Section 10.4).
The Indenture provides that the holders of a majority in aggregate principal
amount of all Debt Securities of a particular series then outstanding will have
the right to waive certain defaults in respect of such series and, subject to
certain limitations, to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. (Sections 5.12 and 5.13). The Indenture provides
that, in case an Event of Default in respect of a particular series of Debt
Securities shall occur (which shall not have been cured or waived), the Trustee
will be required to exercise such of its rights and powers under the Indenture,
and to use the degree of care and skill in their exercise, that a prudent man
would exercise or use in the conduct of his own affairs, but otherwise need only
perform such duties as are specifically set forth in the Indenture. (Section
6.1). Subject to such provisions, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
of the holders of such series unless they shall have offered to the Trustee
reasonable security or indemnity. (Section 6.3).
No holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such holder shall have previously given to the Trustee written notice of
a continuing Event of Default and unless the holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of such series
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the holders of a majority in aggregate principal amount of the
outstanding Debt Securities of such series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
(Section 5.7). However, such limitations do not apply to a suit instituted by a
holder of a Debt Security for enforcement of payment of the principal of and
premium, if any, or interest on such Debt Security on or after the respective
due dates expressed in such Debt Security. (Section 5.8).
MODIFICATION OF THE INDENTURE
With certain exceptions, the Indenture, the rights and obligations of the
Company and the rights of the holders of a particular series may be modified by
the Company with the consent of the holders of not less than 66 2/3% in
aggregate principal amount of the Debt Securities of such series then
outstanding, but no such modification may be made which would (i) change the
stated maturity of the principal of (or
10
premium, if any, on) or interest on (including any Additional Amounts) any Debt
Security of such series, or reduce the principal amount thereof, or reduce the
rate of interest thereon, or reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the maturity thereof, without the
consent of the holder of each Indenture Security of such series so affected; or
(ii) reduce the above-stated percentage of Debt Securities of such series, the
consent of the holders of which is required to modify or alter the Indenture,
without the consent of the holders of all Debt Securities of such series then
outstanding. (Section 9.2).
DEFEASANCE
An applicable Supplemental Indenture may provide that the Company may elect
either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of any series pursuant to such Supplemental
Indenture, except for the obligation to pay Additional Amounts, and the
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities and to
maintain an office or agency in respect of such Debt Securities and to hold
moneys for payment in trust or (ii) to be released from its obligations with
respect to such Debt Securities under certain sections of such Indenture or
Supplemental Indenture or certain Events of Default, and any failure to comply
with such obligations will not constitute an Event of Default with respect to
such Debt Securities if, in either case, the Company irrevocably deposits with
the applicable Trustee, in trust, money or direct obligations of the United
States for the payment of which the full faith and credit of the United States
is pledged or obligations of an agency or instrumentality of the United States
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable at the
issuer's option ("U.S. Government Obligations") or certain depositary receipts
therefor that through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal of and premium, if any, and any interest on, the Debt
Securities on the dates such payments are due in accordance with the terms of
such Debt Securities. Such defeasance may be effected only if, among other
things, (a) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under the applicable
Indenture has occurred and is continuing on the date of such deposit, (b) in the
event of defeasance under clause (i) above, the Company has delivered an opinion
of counsel, stating that (1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (2) since the date of the
applicable Supplemental Indenture there has been a change in applicable federal
law, in either case to the effect that, the holders of the Debt Securities will
not recognize gain or loss for United States federal income tax purposes as a
result of such deposit or defeasance and will be subject to United States
federal income tax in the same manner as if such defeasance had not occurred and
(c) in the event of defeasance under clause (ii) above, the Company has
delivered an opinion of counsel to the effect that, among other things, the
holders of the Debt Securities will not recognize gain or loss for United States
federal income tax purposes as a result of such deposit or defeasance and will
be subject to United States federal income tax in the same manner as if such
defeasance had not occurred. In the event the Company fails to comply with its
remaining obligations under the applicable Indenture or Supplemental Indenture
after a defeasance of such Indenture and Supplemental Indenture with respect to
Debt Securities as described under clause (ii) above and the Debt Securities are
declared due and payable because of the occurrence of any undefeased Event of
Default, the amount of money and U.S. Government Obligations on deposit with the
applicable Trustee may be insufficient to pay amounts due on the Debt Securities
of such series at the time of the acceleration resulting from such Event of
Default. However, the Company will remain liable in respect of such payments.
SUBORDINATION
Upon any distribution of assets of the Company upon the dissolution, winding
up, liquidation or reorganization of the Company, the payment of the principal
of (and premium, if any) and interest on the Subordinated Debt Securities will
be subordinated to the extent provided in the Subordinated Indenture
11
and the applicable Supplemental Indenture in right of payment to the prior
payment in full of all senior indebtedness, including Senior Securities, but the
obligation of the Company to make payment of principal (and premium, if any) or
interest on the Subordinated Debt Securities will not otherwise be affected. No
payment on account of principal (or premium, if any), sinking fund or interest
may be made on the Subordinated Debt Securities at any time when there is a
default in the payment of principal, premium, if any, sinking fund or interest
on senior indebtedness. In the event that, notwithstanding the foregoing, any
payment by the Company described in the foregoing sentence is received by the
Subordinated Trustee under the Subordinated Indenture or the holders of any of
the Subordinated Debt Securities before all senior indebtedness is paid in full,
such payment or distribution will be paid over to the holders of such senior
indebtedness or on their behalf for application to the payment of all senior
indebtedness remaining unpaid until all such senior indebtedness has been paid
in full, after giving effect to any concurrent payment or distribution to the
holders of such senior indebtedness. Subject to payment in full of senior
indebtedness, the holders of the Subordinated Debt Securities will be subrogated
to the rights of the holders of the senior indebtedness to the extent of
payments made to the holders of such senior indebtedness out of the distributive
share of the Subordinated Debt Securities.
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover more,
ratably, than holders of the Subordinated Debt Securities. A Subordinated
Indenture may provide that the subordination provisions thereof will not apply
to money and securities held in trust pursuant to the satisfaction and discharge
and the legal defeasance provisions of the Subordinated Indenture.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the accompanying Prospectus Supplement
or the information incorporated by reference therein will set forth the
approximate amount of senior indebtedness outstanding as of a recent date.
CONVERSION RIGHTS
The terms and conditions, if any, on which Debt Securities being offered are
convertible into Class A Common Stock or other Securities of the Company will be
set forth in an applicable Prospectus Supplement relating thereto. Such terms
will include the conversion price, the conversion period, provisions as to
whether conversion will be at the option of the holder or the Company, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such Debt Securities.
TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Debt Securities and a successor Trustee may be appointed to act with respect to
such one or more series. (Section 6.10). In the event that there shall be two or
more persons acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a trustee of a trust or trusts under the
Indenture separate and apart from the trust or trusts administered by any other
such Trustee, and any action described herein to be taken by the "Trustee" may
then be taken by each such Trustee with respect to, and only with respect to,
the one or more series of Debt Securities for which it is acting as Trustee.
(Section 6.11).
12
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Class A Common Stock or
Debt Securities, Warrants to purchase or sell Class A Common Stock or Debt
Securities of or guaranteed by the United States ("Government Debt Securities"),
Warrants to purchase or sell foreign currencies, currency units or units of a
currency index or currency basket, Warrants to purchase or sell units of a stock
index or a stock basket and Warrants to purchase or sell a commodity or a
commodity index. Warrants may be issued independently or together with any Debt
Securities offered by any Prospectus Supplement and may be attached to or
separate from such Debt Securities. The Warrants will be settled either through
physical delivery or through payment of a cash settlement value as set forth
herein and in any applicable Prospectus Supplement. The Warrants will be issued
under warrant agreements (each a "Warrant Agreement") to be entered into between
the Company and a bank or trust company, as warrant agent (the "Warrant Agent"),
all as set forth in the Prospectus Supplement relating to the particular issue
of Warrants being offered pursuant thereto. The Warrant Agent will act solely as
an agent of the Company in connection with the Warrant certificates and will not
assume any obligation or relationship of agency or trust for or with any holders
of Warrant certificates or beneficial owners of Warrants. The following
summaries of certain provisions of the forms of Warrant Agreement do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to the provisions of the forms of Warrant Agreement (including the
forms of Warrant certificates), copies of which are filed as an exhibit to the
Registration Statement.
The particular terms of the Warrants offered by any Prospectus Supplement,
as well as any modification or addition to the general terms of the Warrants as
herein described, which may be applicable to any Warrants are described in such
Prospectus Supplement relating to such Warrants and will be set forth in a
filing with the Commission. Accordingly, for a description of the terms of any
particular Warrants, reference must be made to both the Prospectus Supplement
relating to such Warrants and to the description of the Warrants set forth in
this Prospectus.
GENERAL
The Prospectus Supplement will describe the following terms of the Warrants
(to the extent such terms are applicable to such Warrants): (1) the title of
such Warrants; (2) the aggregate number of such Warrants; (3) whether the
Warrants are for the purchase or sale of Class A Common Stock, Debt Securities,
Government Debt Securities, currencies, currency units, composite currencies,
currency indices or currency baskets, stock indices, stock baskets, commodities,
commodity indices or such other index or reference as therein described; (4) the
price or prices at which such Warrants will be offered; (5) the currency or
currencies, including composite currencies or currency units, in which the price
of such Warrants may be payable; (6) the date, if any, on and after which such
Warrants and the related Class A Common Stock or Debt Securities will be
separately transferable; (7) the date on which the right to exercise such
Warrants shall commence, and the date on which such right shall expire; (8) the
maximum or minimum number of such Warrants which may be exercised at any time;
(9) a discussion of material federal income tax considerations, if any; (10) the
terms, procedures and limitations relating to the exercise of such Warrants; and
(11) any other terms of the Warrants, including any terms which may be required
or advisable under United States laws or regulations.
If the Warrants are to purchase Class A Common Stock, the Prospectus
Supplement will also describe the price at which the underlying Class A Common
Stock purchased upon exercise of the Warrants may be purchased.
If the Warrants are to purchase Debt Securities, the Prospectus Supplement
will also describe (a) the designation, aggregate principal amount, currency,
currency unit, composite currency or currency basket of denomination and other
terms of the Debt Securities purchasable upon exercise of the Warrants; (b) the
designation and terms of the Debt Securities with which the Warrants are issued
and the number of Warrants issued with each such Debt Security; (c) the date on
and after which the Warrants and the related
13
Debt Securities will be separately transferable, if any; and (d) the principal
amount of Debt Securities purchasable upon exercise of each Warrant and the
price at which and currency, currency unit, composite currency or currency
basket in which such principal amount of Debt Securities may be purchased upon
such exercise.
If the Warrants are to purchase or sell Government Debt Securities or a
foreign currency, currency unit, composite currency, currency index or currency
basket, such Warrants will be listed on a national securities exchange and the
Prospectus Supplement will describe the amount and designation of the Government
Debt Securities or currency, currency unit, composite currency, currency index
or currency basket, as the case may be, subject to each Warrant, whether such
Warrants are to purchase or sell the Government Debt Securities, foreign
currency, currency unit, composite currency, currency index or currency basket,
whether such Warrants provide for cash settlement or delivery of the Government
Debt Securities or foreign currency, currency unit, composite currency, currency
index or currency basket upon exercise, and the national securities exchange on
which the Warrants will be listed.
If the Warrants are to purchase or sell a stock index or a stock basket,
such Warrants will provide for payment of an amount in cash determined by
reference to increases or decreases in such stock index or stock basket and will
be listed on a national securities exchange, and the Prospectus Supplement will
describe the terms of the Warrants, whether such warrants are to purchase or
sell the stock index or stock basket, the stock index or stock basket covered by
the Warrants and the market to which such stock index or stock basket relates,
whether such warrants are to purchase or sell the stock index or stock basket
and the national securities exchange on which the Warrants will be listed.
If the Warrants are to purchase or sell a commodity or commodity index, such
Warrants will provide for cash settlement or delivery of the particular
commodity or commodities and such Warrants will be listed on a national
securities exchange, and the Prospectus Supplement will describe the terms of
the Warrants, the commodity or commodity index covered by the Warrants, whether
such Warrants are to purchase or sell the commodity or commodity index, whether
such Warrants provide for cash settlement or delivery of the commodity or
commodity index, the market, if any, to which such commodity or commodity index
relates and the national securities exchange on which the Warrants will be
listed.
Warrant certificates may be exchanged for new Warrant certificates of
different denominations, may be presented for registration of transfer, and may
be exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement. Warrants to purchase or sell
Government Debt Securities or a foreign currency, currency unit, composite
currency, currency index or currency basket, and Warrants to purchase stock
indices or stock baskets or commodities or commodity indices, may be issued in
the form of a single Global Warrant Certificate, registered in the name of the
nominee of the depository of the Warrants, or may initially be issued in the
form of definitive certificates that may be exchanged, on a fixed date, or on a
date or dates selected by the Company, for interests in a Global Warrant
Certificate, as set forth in the applicable Prospectus Supplement.
Prior to the exercise of their Warrants, holders of Warrants to purchase
Class A Common Stock or Debt Securities will not have any of the rights of
holders of such Securities purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase such principal amount of
Class A Common Stock or Debt Securities or purchase or sell such amount of
Government Debt Securities or of such currency, currency unit, composite
currency, currency index or currency basket, stock index or stock basket,
commodity or commodities at such exercise price, or receive such settlement
value in respect of such amount of Government Debt Securities or of such
currency, currency unit, composite currency, currency index or currency basket,
stock index or stock basket, commodity or commodity index, as shall in each case
be set forth in or calculable from, the Prospectus Supplement relating to such
Warrants or as otherwise set forth in the Prospectus Supplement. Warrants may be
exercised on the date set forth in the Prospectus
14
Supplement relating to such Warrants or as may be otherwise set forth in the
Prospectus Supplement. After such time on that date (or such later date to which
such date may be extended by the Company), unexercised Warrants will become
void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement relating thereto, Warrants may be exercised
by delivery to the Warrant Agent of the Warrant certificate evidencing such
Warrants properly completed and duly executed and of payment as provided in the
Prospectus Supplement of the amount required to purchase the Debt Securities, or
(except in the case of Warrants providing for cash settlement) payment for or
delivery of the Government Debt Securities or currency, currency unit, composite
currency, currency index, currency basket, stock index, stock basket, commodity
or commodities index as the case may be, purchased or sold upon such exercise.
Warrants will be deemed to have been exercised upon receipt of such Warrant
certificate and any such payment, if applicable, at the corporate trust office
of the Warrant Agent or any other office indicated in the Prospectus Supplement
and the Company will, as soon as practicable thereafter, issue and deliver the
Debt Securities purchasable upon such exercise, or purchase or sell such
Government Debt Securities or currency, currency unit, composite currency,
currency index or currency basket, stock index or stock basket, commodity or
commodities or pay the settlement value in respect of such Warrants. If fewer
than all of the Warrants represented by such Warrant certificate are exercised,
a new Warrant certificate will be issued for the remaining amount of the
Warrants.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company's authorized capital stock consists of 399,500,000 shares of
Class A Common Stock and 100,500,000 shares of Class B Common Stock. As of the
date hereof, there are 297,206,642 shares of Class A Common Stock and no shares
of Class B Common Stock outstanding. The Company presently has no intention of
issuing any shares of Class B Common Stock.
VOTING
Holders of Class A Common Stock and Class B Common Stock vote as a single
class on all matters submitted to a vote of the shareholders, with each share of
Class A Common Stock entitled to one vote and each share of Class B Common Stock
entitled to five votes, except (i) for the election of directors, and (ii) as
otherwise provided by law. In the annual election of directors, the holders of
Class A Common Stock, voting as a separate class, are entitled to elect 25% of
the directors to be elected (rounded up to the nearest whole number). The
holders of Class B Common Stock, voting as a separate class, are entitled to
elect 75% of the directors to be elected (rounded down to the nearest whole
number), so long as the number of outstanding shares of Class B Common Stock is
at least 12 1/2% of the number of outstanding shares of both classes of Common
Stock. If the number of outstanding shares of Class B Common Stock falls below
12 1/2%, directors that would have been elected by a separate vote of that class
will instead be elected by the holders of both classes of Common Stock, with
holders of Class A Common Stock having one vote per share and holders of Class B
Common Stock having five votes per share. Because there are currently no shares
of Class B Common Stock outstanding, the holders of Class A Common Stock
currently elect all of the directors of the Company.
Directors may be removed, with or without cause, by the holders of the class
or classes of Common Stock that elected them. Vacancies in a directorship may be
filled by the vote of the class of shares that had previously filled that
vacancy, or by the remaining directors of that class; if there are no such
directors, however, the vacancy may be filled by the remaining directors of the
other class.
Except for the election or removal of directors as described above and
except for class votes as required by law, holders of both classes of Common
Stock vote or consent as a single class on all matters,
15
with each share of Class A Common Stock having one vote per share and each share
of Class B Common Stock having five votes per share.
CONVERSION
At the option of the holder of record, each share of Class B Common Stock is
convertible at any time into one share of Class A Common Stock. Shares of Class
A Common Stock are not convertible into shares of Class B Common Stock.
DIVIDENDS
The holders of the Common Stock are entitled to receive such dividends, if
any, as may be declared by the Board of Directors in its discretion out of funds
legally available therefor. Any dividend declared by the Board of Directors on
the Company's Common Stock must be paid concurrently at the same rate on the
Class A Common Stock and the Class B Common Stock. Panamanian law permits the
payment of dividends to the extent of retained earnings.
OTHER PROVISIONS
Upon liquidation or dissolution of the Company, the holders of shares of
Common Stock are entitled to receive on a pro rata basis all assets remaining
for distribution to common stockholders. The Common Stock has no preemptive or
other subscription rights and there are no other conversion rights or redemption
or sinking fund provisions with respect to such shares. All shares of Class A
Common Stock that are currently outstanding are fully paid and non-assessable.
Neither Panamanian law nor the Company's Articles of Incorporation or
By-laws impose limitations on the right of non-resident or foreign owners to
hold or vote shares of the Common Stock. While no tax treaty currently exists
between the Republic of Panama and the United States, under current law the
Company believes that distributions to its shareholders are not subject to
taxation under the laws of the Republic of Panama.
Under Panamanian law, directors of the Company may vote by proxy.
The Company's transfer agent and registrar for the Class A Common Stock is
First Union National Bank of North Carolina.
PLAN OF DISTRIBUTION
The Company may sell the Class A Common Stock, Debt Securities and Warrants
to or through underwriters, and also may sell such Securities directly to one or
more other purchasers or through agents.
The Prospectus Supplement will set forth the terms of the offering of the
particular series or issuance of Securities to which such Prospectus Supplement
relates, including (i) the name or names of any underwriters or agents with whom
the Company has entered into arrangements with respect to the sale of such
Securities, (ii) the initial public offering or purchase price of such
Securities, (iii) any underwriting discounts, commissions and other items
constituting underwriters' compensation from the Company and any other
discounts, concessions or commissions allowed or reallowed or paid by any
underwriters to other dealers, (iv) any commissions paid to any agents, (v) the
net proceeds to the Company, and (vi) the securities exchanges, if any, on which
such Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series or issuance of Securities, the obligations of the underwriters
to purchase such Securities will be subject to certain conditions precedent and
each of the underwriters with respect to such series of Securities will be
obligated to purchase all of the Securities allocated to it if any such
Securities are purchased. Any initial public
16
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
The Securities may be offered and sold by the Company directly or through
agents designated by the Company from time to time. Unless otherwise indicated
in the applicable Prospectus Supplement, any such agent or agents will be acting
on a best efforts basis for the period of its or their appointment. Any agent
participating in the distribution of the Securities may be deemed to be an
"underwriter", as that term is defined in the Act, of the Securities so offered
and sold. The Securities also may be sold to dealers at the applicable price to
the public set forth in the Prospectus Supplement relating to a particular
series or issuance of Securities who later resell to investors. Such dealers may
be deemed to be "underwriters" within the meaning of the Act.
If so indicated in the Prospectus Supplement relating to a particular series
or issuance of Securities, the Company will authorize underwriters or agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to delayed delivery contracts providing for payment and delivery at a
future date. Such contracts will be subject only to those conditions set forth
in the applicable Prospectus Supplement and such Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Underwriters and agents may be entitled, under agreements entered into with
the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Act.
VALIDITY OF SECURITIES
The validity of the Debt Securities and Warrants will be passed upon for the
Company with respect to New York law by Paul, Weiss, Rifkind, Wharton &
Garrison, New York, New York and for any underwriters or agents with respect to
New York law by Sullivan & Cromwell, New York, New York. The validity of the
Securities with respect to Panamanian law will be passed upon by Tapia Linares y
Alfaro, Panama City, Republic of Panama. James M. Dubin, a partner of Paul,
Weiss, Rifkind, Wharton & Garrison, is the sole stockholder of the trustee of
the B Trust and a director of the Company. Paul, Weiss, Rifkind, Wharton &
Garrison also serves as counsel to Micky Arison. See "Certain Considerations--
Control by Principal Shareholders".
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended November 30, 1996 have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
certified public accountants, given on the authority of said firm as experts in
auditing and accounting.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements under the heading "The Company" and elsewhere in this
Prospectus or incorporated by reference in this Prospectus constitute
"forward-looking statements" within the meaning of Section 27A of the Act and
Section 21E of the Exchange Act. Such forward-looking statements involve known
and unknown risks, uncertainties and other factors, which may cause the actual
results, performance or achievements of the Company to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, among others, the
following: general economic and business conditions which may impact levels of
disposable income of consumers and pricing and passenger yields for the
Company's cruise products; consumer demand for cruises; pricing policies
followed by competitors of the Company; increases in cruise industry capacity in
the Caribbean and Alaska; changes in tax laws and regulations (see "Certain
Considerations-- Income Taxes"); the ability of the Company to implement its
shipbuilding program and to expand its business outside the North American
market where it has less experience; delivery of new vessels on schedule and at
the contracted price; weather patterns in the Caribbean; unscheduled ship
repairs and drydocking; incidents involving cruise vessels at sea; and changes
in laws and government regulations applicable to the Company (including the
implementation of the "Safety of Life at Sea Convention" and changes in Federal
Maritime Commission surety and guaranty arrangements).
17
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF SUCH INFORMATION.
------------------------
TABLE OF CONTENTS
PAGE
-----
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
The Company.................................... 3
Certain Considerations......................... 3
Use of Proceeds................................ 5
Ratio of Earnings to Fixed Charges............. 5
Description of Debt Securities................. 5
Description of Warrants........................ 13
Description of Capital Stock................... 15
Plan of Distribution........................... 16
Validity of Securities......................... 17
Experts........................................ 17
Special Note Regarding Forward-Looking
Statements................................... 17
[LOGO]
$800,000,000
Carnival
Corporation
Class A Common Stock,
Debt Securities and Warrants
---------------------
PROSPECTUS
------------------------
JANUARY 21, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses payable in connection
with the issuance and distribution of the Securities being registered hereby,
other than underwriting discounts and commissions (which will be described in
the applicable Prospectus Supplement). All the amounts shown are estimates,
except the Securities and Exchange Commission registration fee. All of such
expenses are being borne by the Company.
Securities and Exchange Commission Registration Fee............... $ 215,350
Accounting Fees and Expenses...................................... 30,000
Legal Fees and Expenses........................................... 100,000
Printing and Engraving Expenses................................... 50,000
Miscellaneous Fees and Expenses................................... 4,650
---------
Total......................................................... $ 400,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Article of Incorporation and By-laws provide, subject to the
requirements set forth therein, that with respect to any person who was or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
the Company shall indemnify such person by reason of the fact that he is or was
a director or an officer, and may indemnify such person by reason of the fact
that he is or was an employee or agent of the Company or is or was serving at
its request as a director, officer, employee or agent in another corporation,
partnership, joint venture, trust or other enterprise, in either case against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Company has entered
into indemnity agreements with Shari Arison, Maks L. Birnbach, Richard G. Capen,
Jr., David Crossland, James M. Dubin, Modesto Maidique, William S. Ruben, Stuart
Subotnick, Sherwood M. Weiser and Uzi Zucker providing essentially the same
indemnities as are described in the Company's Articles of Incorporation.
Under a registration rights agreement among the Company and certain
irrevocable trusts (the "Trusts"), the Trusts have agreed to indemnify the
Company, its directors and officers and each person who controls the Company
within the meaning of the Exchange Act, against certain liabilities. In
addition, under a registration rights agreement between the Company and Ted
Arison, Ted Arison has agreed to indemnify the Company, its directors and
officers and each person who controls the Company within the meaning of the Act
against certain liabilities.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
1 -- Form of Underwriting Agreement
4.1 -- Senior Indenture, dated March 1, 1993, between the Company and the Senior
Trustee relating to the Senior Securities (Incorporated by reference to the
Registrant's Registration Statement on Form S-3 (File No. 33-53136) filed with
the Securities and Exchange Commission)
4.2 -- Form of Subordinated Indenture between the Company and Subordinated Trustee
relating to the Subordinated Securities
4.3* -- Form of Amended and Restated Articles of Incorporation of the Company
(Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
(File No. 1-9610) for the quarter ended February 28, 1995)
4.4* -- Form of Warrant Agreement
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
5.2 -- Opinion of Tapia Linares y Alfaro
12** -- Statement Regarding Computation of Ratios
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1)
23.3 -- Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
24** -- Power of Attorney
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Senior Trustee to act as Trustee under the Senior Indenture (Incorporated
by reference to the Registrant's Registration Statement on Form S-3 (File No.
33-50947) filed with the Securities and Exchange Commission)
25.2* -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Subordinated Trustee to act as Trustee under the Subordinated Indenture
- ------------------------
* To be incorporated by reference in connection with the offering of
Securities.
** Previously filed.
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
II-2
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(5) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act of 1939 in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be filed on its behalf by the
undersigned, thereunto duly authorized, in the City of Miami, State of Florida,
on the 21st day of January, 1998.
CARNIVAL CORPORATION
By: /s/ HOWARD S. FRANK
-----------------------------------------
Howard S. Frank
(CHIEF FINANCIAL AND ACCOUNTING OFFICER)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ----------------------------- -------------------------- -------------------
* Chairman of the Board,
- ----------------------------- Chief Executive Officer,
Micky Arison Director and Authorized
Representative
/s/ HOWARD S. FRANK Vice-Chairman, Chief January 21, 1998
- ----------------------------- Financial and Accounting
Howard S. Frank Officer and Director
* Director
- -----------------------------
Shari Arison
Director
- -----------------------------
Maks L. Birnbach
* Director
- -----------------------------
Richard G. Capen, Jr.
* Director
- -----------------------------
David Crossland
* Director
- -----------------------------
Robert H. Dickinson
* Director
- -----------------------------
James M. Dubin
II-4
SIGNATURE TITLE DATE
- ----------------------------- -------------------------- -------------------
* Director
- -----------------------------
A. Kirk Lanterman
Director
- -----------------------------
Modesto A. Maidique
* Director
- -----------------------------
William S. Ruben
Director
- -----------------------------
Stuart Subotnick
* Director
- -----------------------------
Sherwood M. Weiser
Director
- -----------------------------
Meshulam Zonis
Director
- -----------------------------
Uzi Zucker
*By: /s/ HOWARD S. FRANK
-------------------------
Howard S. Frank
ATTORNEY-IN-FACT
Dated: January 21, 1998
II-5
EXHIBIT INDEX
1 -- Form of Underwriting Agreement
4.1 -- Senior Indenture, dated March 1, 1993, between the Company and the Senior
Trustee relating to the Senior Securities (Incorporated by reference to the
Registrant's Registration Statement on Form S-3 (File No. 33-53136) filed with
the Securities and Exchange Commission)
4.2 -- Form of Subordinated Indenture between the Company and Subordinated Trustee
relating to the Subordinated Securities
4.3* -- Form of Amended and Restated Articles of Incorporation of the Company
(Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
(File No. 1-9610) for the quarter ended February 28, 1995)
4.4* -- Form of Warrant Agreement
5.1 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
5.2 -- Opinion of Tapia Linares y Alfaro
12** -- Statement Regarding Computation of Ratios
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in Exhibit 5.1)
23.3 -- Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
24** -- Power of Attorney
25.1 -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Senior Trustee to act as Trustee under the Senior Indenture (Incorporated
by reference to the Registrant's Registration Statement on Form S-3 (File No.
33-50947) filed with the Securities and Exchange Commission)
25.2* -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
the Subordinated Trustee to act as Trustee under the Subordinated Indenture
- ------------------------
* To be incorporated by reference in connection with the offering of
Securities.
** Previously filed.
Exhibit 1
Carnival Corporation
Underwriting Agreement
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
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] [the aggregate number of
shares] of its securities identified in Schedule I hereto (the ["Firm]
["]Securities"), [to be issued under an indenture (the "Indenture") dated as of
__________, 199_, between the Company and _______________________________, as
trustee (the "Trustee")]. [The Company also grants to the Underwriters,
severally and not jointly, the right to purchase at their election in the
aggregate all or any part of the number of additional Securities (the "Optional
Securities") set forth on Schedule I to cover over-allotments. The Firm
Securities, together with all or any part of the Optional Securities, are
collectively herein called the "Securities".] [The Securities may be converted
into Class A Common Stock, par value $.01 per share, of the Company (the
"Class A Common Stock") in accordance with the terms of the Securities and the
Indenture.] 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.
[It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of ________
shares of the Securities (the "International Securities"), including the
over-allotment option thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom
_____________ and ____________ are acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the International
Underwriters are simultaneously entering into an
2
Agreement between U.S. and International Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the transfer of
shares of Securities between the two syndicates. Two forms of prospectus are to
be used in connection with the offering and sale of shares of Securities
contemplated by the foregoing, one relating to the Securities hereunder and the
other relating to the International Securities. The latter form of prospectus
will be identical to the former except for the front cover page, back cover
page, and the text under the captions "Underwriting" and "Taxation." Except as
used in Sections 2, 3, 4 and 9 herein, and except as the context may otherwise
require, references hereinafter to the Securities shall include all the shares
of Securities which may be sold pursuant to either this Agreement or the
International Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include both the U.S. and the international versions thereof.]
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 at the end of this
Section 1.
(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 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
3
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 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, as amended (the
"Exchange Act") [and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act")] and the respective rules thereunder; such registration
statement (as so amendment, if applicable), including any Rule 430A Information
or Rule 434 Information, is referred to herein as the "Registration Statement";
PROVIDED, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) (the "Rule 462 Registration Statement"), then, after
such filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462 Registration Statement; on the Effective Date,
4
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) Each of the Company and each of the subsidiaries listed on
Schedule IV hereto ("Subsidiaries") had been duly incorporated and is in good
standing under the laws of its jurisdiction, 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 incorporated, 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).
(d) The Company, directly or indirectly, holds goods and
marketable title to each of the vessels listed on the Schedule V hereto, subject
only to the liens disclosed on such Schedule V and maritime liens in the
ordinary course of business.
(e) 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.
[other representatives and warranties will be added depending on
the requirements of the issuance]
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
5
Registration Statement, the Rule 462(b) 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; PROVIDED that, if the Company elects to rely upon Rule 434,
then all references to the "Final Prospectus" shall also be deemed to include
the term sheet (the "Term Sheet") in the form furnished to the Underwriters
by the Company in reliance on Rule 434, and all references in this Agreement
to the date of the Final Prospectus shall mean the date of the Term Sheet.
"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
and any Rule 434 Information deemed to be included therein at the Effective
Date as provided by Rule 430A or Rule 434 as the case may be. "Rule 415,"
"Rule 424," "Rule 430A," "Rule 434" 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. "Rule 434 Information" means information with respect to the Securities
deemed to be incorporated by reference into the Registration Statement
pursuant to Rule 434. 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
6
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 [Firm] Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of [Firm] Securities pursuant to delayed delivery
arrangements, the respective principal amounts of [Firm] 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] [at
a purchase price per share as set forth in Schedule I hereto, the number of Firm
Securities (to be adjusted by you so as to eliminate fractional shares) as set
forth opposite the name of such Underwriter on Schedule II hereto] [and in the
event and to the extent that the Underwriters shall exercise their election to
purchase Optional Securities, the Company agrees to sell to each Underwriter and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price [per share] as set forth in Schedule I hereto, that
portion of the [number] [principal amount] of Optional Securities as to which
such election shall have been exercised [(as adjusted by you so as to eliminate
fractional shares)]. [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
7
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.
You are to submit to the Company, at least three business days prior
to the Closing Date (as hereinafter defined), the names of any institutional
investors with which it is proposed that the Company enter into Delayed Delivery
Contracts, the principal amount of Offered Securities to be purchased by each of
them and the date of delivery thereof, and the Company will advise you, at least
two business days prior to the Closing Time, of the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Offered Securities to be covered by each such
Delayed Delivery Contract.]
3. DELIVERY AND PAYMENT. Delivery of and payment for the Firm
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 and payment for the Optional Securities
shall be on the date and at the time specified by you in the written notice
given by you of the Underwriters' election to purchase the Optional Securities,
or at such other time and date as you and the Company may agree upon in writing.
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.
8
The Company agrees to have the [Firm] Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date. [The
Company agrees to have the Optional Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 P.M. on the business day prior to the Time of Delivery for such
Securities.]
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
Representatives 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
9
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 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 [and the shares of Class A Common Stock issuable upon conversion of
the Securities] for sale under the securities 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], [or any shares of Class A
Common Stock [or any other security convertible into or exchangeable for shares
of Class A Common Stock] (other than upon conversion of [the Securities or]
outstanding Convertible Securities or the issuance of shares or options pursuant
to employee stock option or other benefit plans or pursuant to contracts with
officers or employees of the Company or its subsidiaries)].
(g) If and to the extent specified in Schedule I, the Company
will use its reasonable best efforts to cause the Securities [and the shares of
Class A Common Stock issuable upon conversion of the Securities] to be duly
authorized for listing on the [New York] [American] Stock Exchange or [any other
trading market] specified in Schedule I.
10
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]
[the Time of Delivery], 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
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. As Rule
462(b) allows increases in offering size even when pricing occurs after the
Commission's business hours, the Rule 462(b) Registration Statement may be filed
with the Commission from 5:30 P.M. to 10:00 P.M. (New York City time) by
transmitting a copy thereof by facsimile or through an EDGAR transmission. The
Rule 462(b) Registration Statement becomes effective automatically upon receipt
by the Commission of the complete facsimile or EDGAR copy and payment of the
filing fee. Payment of the filing fee after the close of banking hours may be
made by the Company by instructing a bank or wire service to transmit a wire
transfer in the requisite amount to the Commission as soon as practicable and
providing specific certifications to the Commission, as provided in Rule
111(b) under the Act.
(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] [such Time of Delivery], 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;]
11
[(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) [Each of] this Agreement [and the International
Underwriting 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[,] [or] this Agreement [the
International Underwriting 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) The first, second, third and fourth sentences of
the first paragraph, the first, second and third sentences of the
second paragraph and the second and third sentences of the third
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;
(vi) The Company is not an "investment company" as such
term is defined in the Investment Company Act; and
(vii) The [Securities] [and] [the Class A Common Stock]
conform[s] in all material respects to the description of [Securities]
[and] [the Class A Common Stock] contained in the Final Prospectus.
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
12
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] [such Time of Delivery], 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] [such Time of Delivery], 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 Registration Statement or any further amendment
thereto made by the Company prior to [the Closing Date] [such Time of
Delivery] 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] [such Time of Delivery], either the Registration
Statement or the Final Prospectus or any further amendment or
supplement thereto made by the Company prior to [the Closing Date]
[such Time of Delivery] 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
13
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] [such Time of Delivery], 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) 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
14
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 International Underwriting 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; and
(vi) 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; nor is the Company required to
take any action in order to avoid any such violation or default;
(B) 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
(C) 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] [such Time of Delivery], 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
15
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] [the International
Underwriting Agreement] 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 [the International Underwriting
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[, including the Securities] 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 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 4(b), (c) and (d) above shall be
in form and substance reasonably satisfactory to the Representatives. In
rendering such opinions described in 4(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,
16
and on the absence of a telegram from the Commission. References to the Final
Prospectus in paragraph 4(b) through (d) include any amendments or supplements
thereto filed prior to [the Closing Date] [such Time of Delivery].
(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] [such Time of Delivery], 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
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] [such Time of Delivery], with respect to the validity of [the
Indenture,] the Securities, [shares of Class A Common Stock initially issuable
upon conversion of 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
17
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
or any Senior Vice President or Vice President and the principal financial or
accounting officer of the Company or treasurer 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] [such Time of Delivery] with the same effect
as if made on [the Closing Date] [such Time of Delivery] 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] [such Time of Delivery];
(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] [such time of delivery], 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][such Time of Delivery], 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;
18
(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
19
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 (h) include any
supplement thereto at the date of the letter.
20
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.
(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 6 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) If and to the extent specified in Schedule I, the Securities
shall have been duly authorized for listing by the securities exchange or
exchanges specified in Schedule I subject only to official notice of issuance.]
(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 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
21
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 6 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 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.
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
22
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
Final 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,
including the Rule 430A Information and the Rule 434 Information deemed to be
a part thereof, if applicable, 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
23
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 misrepresentation. 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
24
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] [the Time of Delivery] 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 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.
25
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:
--------------------------
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Insert names of Underwriter
Representatives]
By:
----------------------------
SCHEDULE I
Underwriting Agreement dated _______________
Registration Statement No. ______________
Representative(s): _____________________________________________
_________________________________________________________________
Title, Purchase Price and Description of Securities:
Title: _________________________________
[Principal amount: ______________] [Number of shares: ______]
[Maximum [principal amount] [number of shares] of Optional Securities to
cover over-allotments: ______]
Purchase price of the Securities: __________ [(plus accrued interest
from ___________)] [per share]
[Maturity: ________________]
[Interest Rate: ________% per annum]
[Initial Conversion [Price] [Rate]: _______]
[Interest Payment Dates: ______________]
[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 ___ of the Indenture.]
Other provisions: None
Closing Date, Time and Location: ______________, 9:30 A.M., Sullivan &
Cromwell, 125 Broad Street, New York, New York
Specified Funds for Payment of Purchase Price: Immediately available funds
2
Type of Offering: [Delayed Offering] [Non-Delayed Offering]
Listing: ________
[Delayed Delivery Arrangements:
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
_________ [name of security] 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]
[Principal Amount] [Number of Shares]
[Number of Shares] to be purchased if
of [Firm] Securities to Maximum Option
Underwriters be Purchased Exercised]
------------ ----------------------- -------------------
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 A.M., New York City time, on the Delivery Date to or
upon the order of the Company in immediately available 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 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 "Underwriters") such
principal amount of the Securities as is to be sold to them
2
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
---------- ---------
SCHEDULE V
Jurisdiction of
Vessels Registration Liens
------- ------------ -----
Exhibit 4.2
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
CARNIVAL CORPORATION
AND
[ ],
Trustee
___________________
INDENTURE
Dated as of [ ]
____________________
UNSECURED AND SUBORDINATED DEBT SECURITIES
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
CARNIVAL CORPORATION
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Section 310-318(a), inclusive, of the Trust
Indenture Act of 1939.
TRUST INDENTURE ACT SECTIONS OF INDENTURE
310(a)(1)(2). . . . . . . . . . . . . . . . .6.9
(3)(4) . . . . . . . . . . . . . . . . .Inapplicable
(5). . . . . . . . . . . . . . . . . . .6.9
310(b). . . . . . . . . . . . . . . . . . . .6.8 and 6.10
(b)(1)(A)(C). . . . . . . . . . . . . . . .Inapplicable
310(c). . . . . . . . . . . . . . . . . . . .Inapplicable
311(a)(b) . . . . . . . . . . . . . . . . . .6.13 and 7.3
(c) . . . . . . . . . . . . . . . . . . . .Inapplicable
312(a). . . . . . . . . . . . . . . . . . . .7.1 and 7.2
(b)(c). . . . . . . . . . . . . . . . . . .7.2
313(a)(1)(2)(3)(4)(5)(7). . . . . . . . . . .7.3
(6) . . . . . . . . . . . . . . . . . . . .Inapplicable
(b)(1). . . . . . . . . . . . . . . . . . .Inapplicable
(2). . . . . . . . . . . . . . . . . . .7.3
(c)(d). . . . . . . . . . . . . . . . . . .7.3
314(a). . . . . . . . . . . . . . . . . . . .7.4
(b) . . . . . . . . . . . . . . . . . . . .Inapplicable
(c)(1)(2) . . . . . . . . . . . . . . . . .1.2
(3). . . . . . . . . . . . . . . . . . .Inapplicable
(d) . . . . . . . . . . . . . . . . . . . .Inapplicable
(e) . . . . . . . . . . . . . . . . . . . .1.2
315(a)(c)(d). . . . . . . . . . . . . . . . .6.1
(b) . . . . . . . . . . . . . . . . . . . .6.2
(e) . . . . . . . . . . . . . . . . . . . .5.14
316(a)(1) . . . . . . . . . . . . . . . . . .5.12 and 5.13
(2). . . . . . . . . . . . . . . . . . .Inapplicable
(b) . . . . . . . . . . . . . . . . . . . .5.8
(c) . . . . . . . . . . . . . . . . . . . .5.15
317(a). . . . . . . . . . . . . . . . . . . .5.3 and 5.4
(b) . . . . . . . . . . . . . . . . . . . .10.3
318(a)(c) . . . . . . . . . . . . . . . . . .1.5
(b) . . . . . . . . . . . . . . . . . . . .Inapplicable
____________________
* The Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS*
PAGE
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Certain Terms Defined. . . . . . . . . . . . . . . . . . . . . . .1
Section 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . .8
Section 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . .9
Section 1.4 Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1.5 Conflict with Trust Indenture Act of 1939. . . . . . . . . . . . 11
Section 1.6 Effect of Headings and Table of Contents . . . . . . . . . . . . 11
Section 1.7 Separability Clause. . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.8 Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . 11
Section 1.9 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.2 Form of Face of Security. . . . . . . . . . . . . . . . . . . 12
Section 2.3 Form of Reverse of Security. . . . . . . . . . . . . . . . . 15
Section 2.4 Form of Trustee's Certificate of Authentication. . . . . . . 21
Section 2.5 Securities Issuable in the Form of a Global Security. . . . . 21
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.1 Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 22
Section 3.2 Denominations. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.3 Execution, Authentication, Delivery and Dating. . . . . . . . 25
Section 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . . . . 26
Section 3.5 Registration; Registration of Transfer and Exchange. . . . . . 27
Section 3.6 Mutilated, Destroyed Lost or Stolen Securities . . . . . . . . 28
Section 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . 29
Section 3.8 Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . 30
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.10 Computation of Interest. . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4 SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.1 Satisfaction and Discharge of Indenture. . . . . . . . . . . . 31
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . 32
Section 4.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . 32
Section 4.4 Repayment of Moneys Held by Trustee. . . . . . . . . . . . . . 32
ARTICLE 5 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . 33
____________________
* The table of contents, comprising pages i to iv, is not part of this
Indenture.
i
PAGE
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . 35
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 36
Section 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 36
Section 5.5 Trustee May Enforce Without Possession of Securities . . . . . 37
Section 5.6 Application of Money Collected . . . . . . . . . . . . . . . . 37
Section 5.7 Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 38
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . . . . . . . 39
Section 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . 39
Section 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 39
Section 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . 39
Section 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.13 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 40
Section 5.14 Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . 40
Section 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 41
ARTICLE 6 THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.1 Certain Duties and Responsibilities. . . . . . . . . . . . . . 41
Section 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.3 Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . 43
Section 6.4 Trustee Not Responsible for Recitals in
Indenture or in Securities . . . . . . . . . . . . . . . . . . 44
Section 6.5 May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 44
Section 6.6 Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 44
Section 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . 44
Section 6.8 Disqualification; Conflicting Interest . . . . . . . . . . . . 45
Section 6.9 Corporate Trustee Required; Eligibility. . . . . . . . . . . . 51
Section 6.10 Resignation and Removal; Appointment of Successor. . . . . . . 52
Section 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . 54
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . 55
Section 6.13 Preferential Collection of Claims Against Company. . . . . . . 55
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . . . . . 60
Section 7.1 Company to Furnish Trustee Information as to
Names and Addresses of Holders . . . . . . . . . . . . . . . . 60
Section 7.2 Preservation of Information; Communications to Holders . . . . 60
Section 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . 63
ii
PAGE
ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE. . . . . . . . . . . . . . . 64
Section 8.1 Consolidations and Mergers of Company
Permitted Subject to Certain Conditions. . . . . . . . . . . . . 64
Section 8.2 Rights and Duties of Successor Corporation . . . . . . . . . . . 65
ARTICLE 9 SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . . 65
Section 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . 65
Section 9.2 Supplemental Indentures with Consent of Holders. . . . . . . . . 67
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . 68
Section 9.4 Effect of Supplemental Indentures. . . . . . . . . . . . . . . 68
Section 9.5 Reference in Securities to Supplemental Indentures . . . . . . 68
ARTICLE 10 PARTICULAR COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . 68
Section 10.1 Payment of Principal, Premium and Interest. . . . . . . . . . . 68
Section 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . 69
Section 10.3 Money for Securities Payments To Be Held in Trust . . . . . . . 69
Section 10.4 Statement by Officers as to Default . . . . . . . . . . . . . . 70
Section 10.5 Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 11 REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 72
Section 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . 73
Section 11.3 Selection by Trustee of Securities to Be Redeemed . . . . . . . 73
Section 11.4 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . 73
Section 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 74
Section 11.6 Securities Payable on Redemption Date . . . . . . . . . . . . . 74
Section 11.7 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . 75
Section 11.8 Optional Redemption or Assumption of
Securities under Certain Circumstances . . . . . . . . . . . . 75
ARTICLE 12 REPAYMENT AT OPTION OR HOLDERS . . . . . . . . . . . . . . . . . . . 76
Section 12.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 76
Section 12.2 Repayment of Securities . . . . . . . . . . . . . . . . . . . . 76
Section 12.3 Exercise of Option. . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.4 When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . . . . . . . 77
Section 12.5 Securities Repaid in Part . . . . . . . . . . . . . . . . . . . 77
ARTICLE 13 SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 13.1 Applicability of Article. . . . . . . . . . . . . . . . . . . . 77
Section 13.2 Satisfaction of Sinking Fund Payments with Securities . . . . . 78
iii
PAGE
Section 13.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . 78
ARTICLE 14 IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES. . . . . . . . . . . . . . . . . . 79
Section 14.1 Exemption from Individual Liability . . . . . . . . . . . . . . 79
ARTICLE 15 SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 80
Section 15.2 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . 80
Section 15.3 Default on Senior Debt . . . . . . . . . . . . . . . . . . . . 80
Section 15.4 Acceleration of Securities . . . . . . . . . . . . . . . . . . 81
Section 15.5 When Distribution Must Be Paid Over. . . . . . . . . . . . . . 81
Section 15.6 Notice by Company. . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.7 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.8 Relative Rights. . . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.9 Subordination May Not Be Impaired by Trust . . . . . . . . . . 82
Section 15.10 Distribution or Notice to Representative . . . . . . . . . . . 82
Section 15.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . 82
ARTICLE 16 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 82
Section 16.1 Successors and Assigns of Company Bound by Indenture. . . . . . 82
Section 16.2 Acts of Board, Committee or Officer of
Successor Corporation Valid. . . . . . . . . . . . . . . . . . 82
Section 16.3 Required Notices or Demands . . . . . . . . . . . . . . . . . . 82
Section 16.4 Indenture and Securities To Be Construed In
Accordance With the Laws of the State of New York. . . . . . . 83
Section 16.5 Indenture May Be Executed in Counterparts . . . . . . . . . . . 83
iv
INDENTURE, dated as of ________________, between CARNIVAL CORPORATION,
a corporation duly organized and existing under the laws of the Republic of
Panama (hereinafter sometimes called the "Company"), party of the first part,
and ______________________________, a national banking association organized and
existing under the laws of the United States of America (hereinafter sometimes
called the "Trustee"), party of the second part.
WHEREAS, for its lawful corporate purposes, the Company deems it
necessary to issue its securities and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured and subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as in this
Indenture provided.
WHEREAS, all things necessary to constitute these presents a valid
indenture and agreement according to its terms have been done and performed by
the Company, and the execution of this Indenture has in all respects been duly
authorized by the Company, and the Company, in the exercise of legal right and
power in it vested, executes this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are made, executed, authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of Securities by
the Holders thereof and of the sum of One Dollar to it duly paid by the Trustee
at the execution of these presents the receipt whereof is hereby acknowledged,
the Company and the Trustee covenant and agree with each other, for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities or of series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 CERTAIN TERMS DEFINED. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.1. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939 or which are by reference therein defined in the
Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust
2
Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Certain terms, used principally in Article 6, are defined in that
Article.
ACT. The term "Act," when used with respect to any Holder, shall have
the meaning specified in Section 1.4.
AFFILIATE; CONTROL. The Term "Affiliate" of any specified Person
shall mean any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" shall have the meanings correlative to the foregoing.
AUTHORIZED NEWSPAPER. The term "Authorized Newspaper" shall mean a
newspaper printed in the English language and customarily published at least
once a day on each business day in each calendar week and of general circulation
in the Borough of Manhattan, the City and State of New York, whether or not such
newspaper is published on Saturdays, Sundays and legal holidays.
BOARD OF DIRECTORS. The term "Board of Directors" or "Board," when
used with reference to the Company, shall mean the Board of Directors of the
Company or any duly authorized committee of such Board.
BOARD RESOLUTION. The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY. The term "business day," when used with respect to any
Place of Payment, shall mean any day other than a Saturday or a day on which
banking institutions in the Place of Payment are authorized or obligated by law
or regulation to close.
COMMISSION. The term "Commission" shall mean the Securities and
Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties at such time.
3
COMMON STOCK. The term "Common Stock" shall mean, with respect to any
Person, capital stock issued by such Person other than Preferred Stock.
COMPANY. The term "Company" shall mean Carnival Corporation, a Panama
corporation, and, subject to the provisions of Article 8, shall also include its
successors and assigns.
COMPANY REQUEST; COMPANY ORDER. The term "Company Request" or Company
Order" shall mean a written request or order signed in the name of the Company
by its Chairman of the Board, its President, an Executive Vice President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
CORPORATE TRUST OFFICE. The term "Corporate Trust Office" or other
similar term shall mean the principal office of the Trustee in
____________________, at which any particular time its corporate trust business
shall be administered, which office at the date of this Indenture is located at
____________________________ _______________________________________.
CORPORATION. The term "corporation" includes corporations,
associations, companies and business trusts.
DEFAULTED INTEREST. The term "Defaulted Interest" shall have the
meaning specified in Section 3.7.
DEPOSITORY. The term "Depository" shall mean, with respect to
Securities of any series for which the Company shall determine that such
Securities will be issued as a Global Security, the Depositary Trust Company,
another clearing agency or any successor registered under the Securities and
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to either
Section 2.5 or 3.1.
EVENT OF DEFAULT. The term "Event of Default" shall have the meaning
specified in Section 5.1.
GLOBAL SECURITY. The term "Global Security" shall mean, with respect
to any series of Securities, a Security executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with this Indenture and pursuant to
a Company Order, which (i) shall be registered in the name of the Depository or
its nominee and (ii) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities of
such series.
4
HOLDER. The term "Holder" shall mean a Person in whose name a
Security is registered in the Security Register.
INDENTURE. The term "Indenture" shall mean this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is acting as Trustee
under this instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which one Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
INTEREST. The term "interest," when used with respect to an Original
Issue Discount Security which by its terms bears only after Maturity, shall mean
interest payable after Maturity.
INTEREST PAYMENT DATE. The term "Interest Payment Date," when used
with respect to any Security, shall mean the Stated Maturity of an instalment of
interest on such Security.
MATURITY. The term "Maturity," when used with respect to any
Security, shall mean the date on which the principal of such Security or an
instalment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
NATIONAL BANKRUPTCY ACT. The term "National Bankruptcy Act" shall
mean the Bankruptcy Act or title 11 of the United States Code.
OFFICERS' CERTIFICATE. The term "Officers' Certificate" shall mean a
certificate signed by the Chairman of the Board, the President, an Executive
Vice President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. Each such
certificate shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 1.2, if and to the extent required by the
provisions thereof.
5
OPINION OF COUNSEL. The term "Opinion of Counsel" shall mean an
opinion in writing signed by legal counsel, who may be an employee of or of
counsel to the Company, and delivered to the Trustee. Each such opinion shall
include the statements provided for in Section 1.2, if and to the extent
required by the provisions thereof.
ORIGINAL ISSUE DISCOUNT SECURITY. The term "Original Issue Discount
Security" shall mean any Security which provides for an amount less than the
principal amount thereof and to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
OUTSTANDING. The term "Outstanding," when used with respect to
Securities, shall mean, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment,
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in Trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities or portions thereof are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture, (i)
the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.2, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.1 on the date of original issuance of such Security of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor on the Securities or any
6
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding for the purposes of such determination, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor on the Securities or any Affiliate of
the Company or of such other obligor.
PAYING AGENT. The term "Paying Agent" shall mean any Person
authorized by the Company to pay the principal of (and premium, if any, on) or
interest on any Securities on behalf of the Company.
PERSON. The term "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLACE OF PAYMENT. The term "Place of Payment," when used with respect
to the Securities of any series, shall mean the place or places where the
principal of (and premium, if any, on) and interest on the Securities of that
series are payable as specified as contemplated by Section 3.1.
PREDECESSOR SECURITY. The term "Predecessor Security" of any
particular Security shall mean every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular Security; and, for
the purposes of this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
PREFERRED STOCK. The term "Preferred Stock" shall mean, with respect
to any Person, capital shares issued by such Person that are entitled to a
preference or priority over any other capital shares issued by such Person upon
any distribution of such Person's assets, whether by dividend or upon
liquidation.
REDEMPTION DATE. The term "Redemption Date" shall mean, when used
with respect to any Security to be redeemed, in whole or in part, the date fixed
for such redemption by or pursuant to this Indenture.
REDEMPTION PRICE. The term "Redemption Price" shall mean, when used
with respect to any Security to be redeemed, the price at which it is to be
redeemed by or pursuant to this Indenture.
7
REGULAR RECORD DATE. The term "Regular Record Date" for the interest
payable on any Interest Payment Date on the Securities of any series shall mean
the date specified for that purpose as contemplated by Section 3.1.
REPAYMENT DATE. The term "Repayment Date" shall mean, when used with
respect to any Security to be repaid at the option of the Holder, the date fixed
for such repayment by or pursuant to this Indenture.
REPAYMENT PRICE. The term "Repayment Price" shall mean, when used
with respect to any Security to be repaid at the option of the Holder, the price
at which it is to be repaid by or pursuant to this Indenture.
REPRESENTATIVE. The term "Representative" shall mean the indenture
trustee or other trustee, agent or representative for an issue of Senior Debt.
RESPONSIBLE OFFICER. The term "responsible officer" when used with
respect to the Trustee shall mean the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the Board
of Directors, the President, any Vice President, any Second Vice President, the
Cashier, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Corporate Trust Officer, any Assistant Trust Officer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
SECURITIES. The term "Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the series as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
SECURITY REGISTER; SECURITY REGISTRAR. The terms "Security Register"
and "Security Registrar" shall have the respective meanings set forth in Section
3.5.
SENIOR DEBT. The term "Senior Debt" shall mean any obligation of the
Company to its creditors whether now outstanding or subsequently incurred other
than (i) any obligation as to which, in the instrument creating or evidencing
the same or pursuant to which the same is outstanding, it is provided that such
obligation is not Senior Debt, and (ii) obligations evidenced by the Securities.
8
SPECIAL RECORD DATE. The term "Special Record Date" for the payment
of any Defaulted Interest shall mean a date fixed by the Trustee pursuant to
Section 3.7.
STATED MATURITY. The term "Stated Maturity," when used with respect
to any Security or any instalment of principal thereof or interest thereon,
shall mean the date specified in such Security as the fixed date on which the
principal of such Security or such instalment of principal or interest is due
and payable.
SUBSIDIARY OF THE COMPANY. The term "subsidiary of the Company" shall
mean a corporation a majority of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more subsidiaries of the
Company, or by the Company and one or more subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power to elect a majority of the directors irrespective of
whether or not stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency.
TRUSTEE. The term "Trustee" shall mean ________________ and, subject
to the provisions of Article 6, shall also include its successors and assigns,
and, if at any time there is more than one Person acting as Trustee hereunder,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
TRUST INDENTURE ACT OF 1939. The term "Trust Indenture Act of 1939"
(except as herein otherwise expressly provided) shall mean the Trust Indenture
Act of 1939, as amended, as in force at the date of this Indenture as originally
executed.
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 7.4(d)) shall include:
9
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer actually knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care (but without having made an investigation specifically for
the purpose of rendering such opinion) should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
10
Section 1.4 ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient and in accordance with
such reasonable rules as the Trustee may determine.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act of 1939, fix any date as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any person
with respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
11
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 1.5 CONFLICT WITH TRUST INDENTURE ACT OF 1939. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act of 1939 that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed either
to apply to this Indenture so modified or to be excluded, as the case may be.
Section 1.6 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.7 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.8 BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.9 LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity; provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
12
ARTICLE 2
SECURITY FORMS
Section 2.1 FORMS GENERALLY. The Securities of each series shall be
in substantially the form set forth in this Article, or in such other form or
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form or forms of
Securities of any series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 FORM OF FACE OF SECURITY. [Insert any legend required
by the Internal Revenue Code and the regulations thereunder.]*
CARNIVAL CORPORATION
____________________
$ No.
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
__________________
* All legends should be reviewed by a tax lawyer.
13
referred to), for value received, hereby promise to pay to
, or registered assigns, the principal sum of Dollars on
[IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY,
INSERT --, and to pay interest thereon from or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on and
in each year, commencing , at the rate of %
per annum, until the principal hereof is paid or made available for payment [IF
APPLICABLE, INSERT -- and (to the extent that the payment of such interest shall
be legally enforceable) at the rate of % per annum on any overdue principal
and premium and on any overdue instalment of interest]. 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
or (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 of 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 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].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --.
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption, upon
repayment at the option of the Holder or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of % per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the rate
of ____% per annum (to the extent that such payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any, on) and [IF
APPLICABLE, INSERT -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in either the City
of ____________, the State of ____________, or _______________________, in such
14
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 [IF APPLICABLE, INSERT --;
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.
15
IN WITNESS WHEREOF, Carnival Corporation has caused this Instrument to
be duly executed under its corporate seal.
Dated:
[CORPORATE SEAL]
CARNIVAL CORPORATION
By:
Attest:
Section 2.3 FORM OF REVERSE OF SECURITY. 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 _____________ (herein called the "Indenture"), between the Company
and _________________, 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 $_________].
[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.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [IF APPLICABLE, INSERT --
(1) on __________ in any year commencing with the year _____ and ending with the
year _____ at a Redemption Price equal to ____% of the principal amount, and
(2)] at any time [on or after ____________, 19__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before _____________,
____%, and if redeemed] during the 12-month period beginning of the years
indicated,
16
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[The Securities will also 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 APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _____________ in
any year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after _____________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set froth in the
table below: If redeemed during the 12-month period beginning _____________ of
the years indicated,
17
REDEMPTION PRICE REDEMPTION PRICE
FOR REDEMPTION FOR REDEMPTION
THROUGH OPERATION OTHERWISE THAN
OF THE THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
______________, redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year _____ and ending with the year
_____ of [not less than] $_________ [("mandatory sinking fund") and not more
than $___________] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made in the [describe
order] order in which they become due.]
[In the event of redemption or repayment of this Security in part
only, a new Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
repayment in whole [or in part] [but not in part], in integral multiples of
$_________, on _________ [and ___________] at the option of the Holder hereof at
a Repayment
18
Price equal to ____% of the principal amount thereof [to be repaid], together
with interest thereon accrued to the Repayment Date, all as provided in the
Indenture [; PROVIDED, HOWEVER, that the principal amount of this Security may
not be repaid in part if, following such repayment, the unpaid principal amount
of this Security would be less than [$_________] [the minimum authorized
denomination for Securities of this series]]. To be repaid at the option of the
Holder, this Security, with the "Option to Elect Repayment" form duly completed
by the Holder hereof, must be received by the Company at its office or agency
maintained for that purpose in either the City of ____________, the State of
__________, or ________________________[, which will be located initially at the
office of the Trustee at _________________________], not earlier than 30 days
nor later than 15 days prior to the Repayment Date. Exercise of such option by
the Holder of this Security shall be irrevocable unless waived by the Company.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY -- 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.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
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 662/3% 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.
19
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 (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 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 $ 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.
[IF APPLICABLE, INSERT --
20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security [(or the portion thereof specified below)],
pursuant to its terms, on the "Repayment Date" first occurring after the date of
receipt of the within Security as specified below, at a Repayment Price equal to
% of the principal amount thereof, together with interest thereon accrued to
the Repayment Date, to the undersigned at:
________________________________________________________________________
________________________________________________________________________
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED NOT EARLIER THAN
30 DAYS PRIOR TO THE REPAYMENT DATE AND NOT LATER THAN 15 DAYS PRIOR TO THE
REPAYMENT DATE BY THE COMPANY AT ITS OFFICE OR AGENCY EITHER IN THE CITY OF
____________, THE STATE OF _____________, OR __________________________________
[, WHICH WILL BE LOCATED INITIALLY AT THE OFFICE OF THE TRUSTEE AT
___________________ ].
[If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $ or an integral
multiple thereof) which is to be repaid: $ . The principal amount of this
Security may not be repaid in part if, following such repayment, the unpaid
principal amount of this Security would be less than [$ [the
minimum authorized denomination for Securities of this series].]
[If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount: ($ or any integral multiple of $ ): $
.]
Dated:
__________________________________________
Note: The signature to this Option to Elect Repayment
must correspond with the name as written upon the face
of the within Security in every particular without
alterations or enlargement or any change whatsoever.
21
Section 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. This
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
_________________________________
,
As Trustee
By_______________________________
Authorized Officer
Section 2.5 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 3.1 that the Securities
of a particular series are to be issued as a Global Security, then the Company
shall execute and the Trustee shall, in accordance with Section 3.3 and the
Company Order delivered to the Trustee thereunder, authenticate and deliver, a
Global Security which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depository or its
nominee, (iii) shall be delivered by the Trustee to the Depository or pursuant
to the Depository's instruction and (iv) shall bear a legend substantially to
the following effect: "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."
(b) Notwithstanding any other provision of this Section 2.5 or
of Section 3.5, but subject to the provisions of paragraph (c) below, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 3.5, only to another nominee of the Depository for
such series, or to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depository
for such series or if at any time the Depository for such series shall no longer
be registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulatory and a successor Depository
for such series 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,
this Section 2.5 shall no longer be applicable to the Securities of such series
and the Company will execute, and the Trustee will authenticate and deliver
securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal
22
amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.5 shall no longer
apply to the Securities of such series. In such event the Company will execute
and the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Securities of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.5(c) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered, but without any liability on the part of the Company or the
Trustee for the accuracy of the Depository's instructions.
ARTICLE 3
THE SECURITIES
Section 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is not limited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following as
applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) the limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.5, 3.4, 3.5, 3.6, 9.5, 11.7 or 12.5, and except
for any Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
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(3) the date or dates on which the principal of the Securities
of the series is payable or the manner in which such dates are determined;
(4) the rate or rates at which the Securities of the series
shall bear interest, or the manner in which such rates are determined, the date
or dates from which such interest shall accrue, or the manner in which such
dates are determined, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Dates, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any, on) and any interest on Securities of the series shall be payable;
(6) the obligation or option, if any, of the Company to
redeem, purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof;
(7) the period or periods, if any, within which the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, purchased or repaid, in whole or in part, at the
option or obligation of the Company;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of the Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(11) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency unit in which payment of the principal (and
premium, if any) or interest on the Securities of the series shall be payable;
(12) if the amount of payment of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to an index, formula or other method based on a coin currency or
currency unit other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
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(13) if the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency or currency unit other than that in which
the Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(14) whether the Securities of the series are issuable as a
Global Security and, in such case, the identity of the Depository for such
series;
(15) the obligation, if any, of the Company to permit the
conversion of the Securities of the series into the Company's Common Stock or
Preferred Stock, as the case may be, and the terms and conditions upon which
such conversion shall be effected (including, without limitation, the initial
conversion price or rate, the conversion period, any adjustment of the
applicable conversion price and any requirements relative to the reservation of
such shares for purposes of conversion);
(16) the provisions necessary to permit or facilitate the
defeasance and discharge or covenant defeasance of the Securities of or within
the series; and
(17) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution and the Officers's Certificate setting forth the
terms of the series shall be delivered to the Trustee at or prior to the
delivery of the Company Order for authentication and delivery of Securities of
such series.
Section 3.2 DENOMINATIONS. The Securities of each series shall be
issuable in definitive registered form without coupons and, except for such
Global Security, in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series, other than a Global
Security, shall be issuable in denominations of $1,000 and any integral multiple
thereof.
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Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be signed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. Such signatures upon the Securities may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at the time they signed such Securities the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such officers prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If not
all the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms and terms of such Securities have been
established in conformity with the provisions of this Indenture;
(b) that all conditions precedent of the Indenture to the
authentication and delivery of such Securities have been complied with and that
such Securities, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance with
this Indenture, authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities; and
26
(c) that all laws and requirements of the federal government of the
United States, the State of New York and the Republic of Panama in respect of
the execution and delivery by the Company of such Securities have been complied
with.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if not all the Securities of any series are to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Security but such opinion with appropriate modifications shall
be delivered at or before the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the Trustee, being advised by counsel, determines that such action
(i) may not lawfully be taken or (ii) would expose the Trustee to personal
liability to existing Holders of Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein,
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
Section 3.4 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series
27
shall in all respects be entitled to the same benefits under this Indenture as
the definitive Securities of such series.
Section 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office or agency of the Company
maintained pursuant to Section 10.2 a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall, subject to the provisions of Section 2.5, provide for the registration of
Securities and transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Subject to the provisions of Section 2.5, upon surrender for
registration of transfer of any definitive Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new definitive Securities of the same
series of any authorized denominations and of a like aggregate principal amount.
Subject to the provisions of Section 2.5, at the option of the Holder,
definitive Securities of any series may be exchanged for other definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, upon surrender of the definitive Securities to be
exchanged at such office or agency. Whenever any definitive Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the definitive Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
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The Company shall not be required (i) to issue or register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 11.3 and ending at the close of
business on the day of the mailing of notice of redemption, (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to issue or register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.6 MUTILATED, DESTROYED LOST OR STOLEN SECURITIES. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, or, in case any such mutilated Security has
become or is about due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding or, in case any
such destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
29
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2;
PROVIDED, HOWEVER, that each instalment of interest on any Security may at the
Company's option be paid by mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 3.8,
to the address of such Person as it appears on the Security Register.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Default Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted
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Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 PERSONS DEEMED OWNERS. Prior to due presentment of a
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 such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Section 3.7) interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 3.9 CANCELLATION. All Securities surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be destroyed by it and the Trustee shall
deliver its certificate of such destruction to the Company, unless by a Company
Order the Company directs their return to it.
Section 3.10 COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 3.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption, as the case may be;
(2) the Company has paid or cause to be paid all other sums
payable hereunder by the Company; and
32
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2 APPLICATION OF TRUST MONEY. Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
Section 4.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture all moneys then
held by any Paying Agent (other than the Trustee, if the Trustee be a Paying
Agent) under the provisions of this Indenture shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 4.4 REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys
deposited with the Trustee or any Paying Agent for the payment of the principal
of (or premium, if any, on) or interest on any Security of any series and not
applied but remaining unclaimed by the Holders for two years after the date upon
which the principal of (or premium, if any, on) or interest on such Security
shall have become due and payable, shall be repaid to the Company by the Trustee
or such Paying Agent on demand; and the Holder of any of the Securities entitled
to receive such payment shall thereafter look only to the Company for the
payment thereof and all liability of the Trustee or such Paying Agent with
respect to such moneys shall thereupon cease;
33
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be mailed
to each such Holder or published once a week for two successive weeks (in each
case on any day of the week) in an Authorized Newspaper, or both, a notice that
said moneys have not been so applied and that after a date named therein any
unclaimed balance of said moneys then remaining will be returned to the Company.
It shall not be necessary for more than one such publication to be made in the
same newspaper.
ARTICLE 5
REMEDIES
Section 5.1 EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to Securities of any series, shall mean any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series, and continuance of such
default for five business days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company or under any
34
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company, whether such indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay the principal of indebtedness in
excess of $20,000,000 when due and payable after the expiration of any
applicable grace period with respect thereto or shall have resulted in
indebtedness in excess of $20,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 30 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; PROVIDED, HOWEVER, that, subject to the
provisions of Sections 6.1 and 6.2, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the Trustee
shall have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under the National Bankruptcy Act or any other similar
Federal or State law or (B) a decree or order adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(7) the commencement of the Company of a voluntary case or
proceeding under the National Bankruptcy Act or any other similar Federal or
State law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under the National
Bankruptcy Act or any other similar Federal or State law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the
35
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due; or
(8) any other Event of Default provided with respect to
Securities to that series.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) and any
sinking fund payments with respect to any Securities of that series which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
enforceable under applicable law, interest upon overdue interest to the
date of such payment or deposit at the rate or rates prescribed therefor in
such Securities or, if no such rate or rates are so prescribed, at the rate
borne by the Securities during the period of such default, and
36
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such waiver or rescission and annulment shall effect any subsequent default
or impair any right consequent thereon.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that (1) in case default shall be made in the
payment of any instalment of interest on any Security of any series, as and when
the same shall become due and payable, and such defaults shall have continued
for a period of 30 days, or (2) in case default shall be made in the payment of
the principal of (and premium, if any, on) any Security of any series on its
Maturity and such default shall have continued for a period of five business
days--then, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the Holders of such Security of such series, the whole amount
that then shall have become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue instalments of interest at the
rate borne by the Securities during the period of such default; and, in addition
thereto, such further amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or
37
of such other obligor or their creditors, the Trustee, irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest, shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advance of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5 TRUSTEE MAY ENFORCE WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding related thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 5.6 APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the
38
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Securities in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns or to whosoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
Section 5.7 LIMITATION ON SUITS. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding;
(5) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.12 during such 60-day
period by the Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
been given any right in any manner whatever by virtue of, or by availing of, any
provision
39
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable and common benefit of
all of such Holders.
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 3.7) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or Repayment Date,
as the case may be) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee, or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
40
Section 5.12 CONTROL BY HOLDERS. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
PROVIDED, HOWEVER, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of
Holders not taking part in such direction, and
(4) such direction would not involve the Trustee in personal
liability, as the Trustee, upon being advised by counsel, shall reasonably
determine.
Section 5.13 WAIVER OF PAST DEFAULTS. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any, on)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and the Company, the Trustee and Holders shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the
41
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any, on)
or interest on any Security on or after the Stated Maturity or maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1 CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
42
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series, determined as provided
in Section 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, unless
such default hereunder known to the Trustee, unless such default shall have be
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund instalment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the
43
Trustee in good faith determine the withholding of such notice is in the
interest of the Holders of Securities of such series; and PROVIDED, FURTHER,
that in the case of any default of the character specified in Section 5.1(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default (not including periods
of grace, if any) with to Securities of such series.
Section 6.3 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness, approval or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon and in accordance therewith;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) except during the continuance of an Event of Default, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or
44
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS IN INDENTURE OR IN
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 supplied to the Company are true
and accurate, subject to the qualifications set forth therein. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
Section 6.5 MAY HOLD SECURITIES. The Trustee, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
Section 6.6 MONEY HELD IN TRUST. Subject to the provisions of
Section 4.4, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee shall pay such interest on any moneys received by it hereunder
as it may agree with the Company to pay thereon. So long as no Event of Default
shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time upon the receipt of a Company Order with respect
thereto.
Section 6.7 COMPENSATION AND REIMBURSEMENT. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the
45
expenses and disbursements of its agents, attorneys and counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 6.8 DISQUALIFICATION; CONFLICTING INTEREST. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section, with respect to the Securities of any series:
(i) then, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate
such conflicting interest or, except as otherwise provided below in this
Section, resign, and the Company shall take prompt steps to have a
successor appointed in the manner provided in Section 6.10;
(ii) in the event that the Trustee shall fail to comply with
the provisions of clause (i) of this Subsection, the Trustee shall, within
10 days after the expiration of such 90-by period, transmit notice of such
failure to the Holders of the Securities of the applicable series in the
manner and to the extent provided in Section 7.3(c); and
(iii) subject to the provisions of Section 5.14, unless the
Trustee's duty to resign is stayed as provided below in this Section, any
Holders of the Securities of the applicable series who has been a bona fide
Holder of such Securities for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee, and the appointment of a
successor, if the Trustee fails, after written request thereof by such
Holder to comply with the provisions of clause (i) of this Subsection.
(b) For the purposes of this Section, a Trustee shall be
deemed to have a conflicting interest if an Event of Default exists with respect
to the Securities of the applicable series and:
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than the
applicable series or is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the
46
Company are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture; PROVIDED, HOWEVER, that there shall be excluded from
the operation of this paragraph this Indenture with respect to the
Securities of any series other than the applicable series and any indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and ranks equally, and such other
indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of the
applicable series and one or more other series or the provisions of
such other indenture or indentures which are so likely to involve a
material conflict of interest as to make it in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of the
applicable series and such other series or under such other indenture
or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
the Securities of the applicable series and such other series or such
other indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is direct or indirect common control with an
underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is
a director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one
47
individual may be a director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both, of the Company,
but may not be at the same time an executive officer of both the Trustee
and the Company; (ii) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of the Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), (i) 5% or more of the voting securities, or
10% or more of any other class of security, of the Company not including
the Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), 5% or more of the voting securities of any
person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of an Event of Default with
respect to the Securities of the applicable series or any anniversary of
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such Event of Default while such Event of Default remains outstanding, in
the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this Subsection. As to any such securities of
which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period of two
years from the date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting securities or 25%
of any such class security. Promptly after the dates of any such Event of
Default with respect to the Securities of the applicable series and
annually in each succeeding year that such Event of Default remains
outstanding, the Trustee shall make a check of its holdings of such
securities in any the above-mentioned capacities as of such dates. If the
Company fails to make payment in full of the principal of (or premium, if
any, on) or interest on any of the Securities when and as the same becomes
due and payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holding of such securities in any
of the above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in it, shall, but
only so long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 6.13(b), the Trustee shall become a
creditor of the Company.
For the purposes of paragraph (1) of this Subsection, and of Section
5.12 and 5.13, the term "series of securities" and "series" means a series,
class or group of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately from
holders of another such series; PROVIDED, HOWEVER, that "series of securities"
or "series" shall not include any series of securities issuable under an
indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to
49
constitute direct or indirect control for the purposes of paragraph (3) or (7)
of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) except as expressly provided in
paragraph (9) of this Subsection, an obligation shall be deemed to be "in
default" when a default in payment of principal shall have continued for 30 days
or more and shall not have been cured; (iii) the Trustee shall not be deemed to
be the owner or holder of (A) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is not in default as
defined in clause (ii) above, or (B) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph, the word
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(c) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the
Company, shall mean every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
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(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect to
any organization, whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a trust,
an unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
(5) The term "Company" shall mean any obligor upon the
Securities.
(6) The term "Event of Default" shall mean an Event of
Default to Section 5.1, but exclusive of any period of grace or requirement
of notice.
(7) The term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(d) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section (each
of whom is referred to as a "person" in this paragraph) means such amount
of the outstanding voting securities of such person as entitles the holder
or holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
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(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of the
class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares and the number of units if
relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
PROVIDED, HOWEVER, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; PROVIDED, HOWEVER,
that, in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and PROVIDED, FURTHER, that, in
the case of unsecured evidences or indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under single indenture.
Section 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be a corporation organized and
doing
52
business under the laws of the United States of America, any State there or the
District of Columbia or a corporation or other person permitted to act as
Trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000, and
subject to supervision or examination by Federal, State or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or Person directly or indirectly controlling by, or
under common control with such obligor shall serve as Trustee hereunder. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereafter specified in Section 6.10.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Company
and by mailing notice thereof to the Holders of Securities of such one or more
series, as their names and addresses appear in the Security Register. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such one or more series or any Holder who has been a bona fide
holder of a Security or Securities of such one or more series for at least six
months may, subject to the provisions of Section 5.14, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
(c) The Trustee may be removed and a successor Trustee appointed
at any time with respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee so removed, to the successor Trustee and to the
Company.
(d) If at any time:
53
(1) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder who has been
a bona fide holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect to all Securities, one copy
of which Board Resolution shall be delivered to the Trustee so removed and one
copy to the successor Trustee, or (ii) subject to Section 5.14, any Holder who
has a bona fide holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated,
54
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges
pursuant to Section 6.7, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series and execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts and
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
55
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the Company shall mail notice of the succession of
such Trustee hereunder to the Holders of the Securities of one or more or all
series, as the case may be, to which the appointment of such successor Trustee
relates as their names and addresses appear on the Security Register. If the
Company fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall
56
set apart and hold in a special account for the benefit of the Trustee
individually, the Holders and the holders of other indenture securities, as
defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, SUBJECT, HOWEVER, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable thereon, and
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to a
third Person, and (iii) distributions made in cash, securities or other property
in respect of claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the National Bankruptcy Act or any
other similar applicable Federal or State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received the Trustee had
no reasonable cause to believe that a default, as defined in Subsection (c) of
this Section, would occur within three months; or
57
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the National
Bankruptcy Act or any other similar applicable Federal or State law, the same
percentage of their reserve claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company of the funds
and property in such special account, and before crediting to the respective
claims of the Trustee, the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the National Bankruptcy Act or any
other similar applicable Federal or State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the National Bankruptcy Act or any other similar applicable Federal or State
law, whether such distribution is made in cash, securities or other property,
but shall not include any such distribution with respect to the secured portion,
if any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special accounts and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee, the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as
58
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three months' period;
and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in
the manner provided in Section 7.3 of this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction, as defined in Subsection
(c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
59
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of Subsection (a) of this Section,
and (iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase
processing, manufacturing shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or, a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation; and
(5) the term "Company" shall mean any obligor upon the
Securities.
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF HOLDERS. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(a) Semi-annually, not later than November 1 and May 1 in each
year, commencing November 1, 1992, a list, in such form as the Trustee may
reasonably require, of the name and addresses of the Holders as of a date not
more than 15 days prior to the time such list is furnished and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more the 15 days prior to the time
such list is furnished;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trust shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of Securities (1)
contained in the most recent list furnished to it as provided in Section 7.1 and
(2) received by it in the capacity of Paying Agent or Security Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of any series
(hereinafter called "applicants") apply in writing to the Trustee, and furnish
to the Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of the same series or of all
series, as the case may be, with respect to their rights under this Indenture or
under the Securities of such series or of all series, as the case may be, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
Subsection (a) of this Section 7.2, or
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(2) inform such applicants as to the approximate number of
Holders of Securities of such series or of all series, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with the provisions of Subsection (a) of this
Section 7.2, and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series or of all series,
as the case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of Subsection (a)
of this Section 7.2, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all series, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Security Registrar nor any Paying Agent shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with the provisions of
Subsection (b) of this Section 7.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason by mailing any material pursuant to a request made under said
Subsection (b).
Section 7.3 REPORTS BY TRUSTEE. (a) On or before November 1, 1992,
and on or before November 1 in every year thereafter, so long as required by the
Trust Indenture Act of 1939, as then amended, and so long as any Securities are
Outstanding hereunder, the Trustee shall transmit to the Holders as hereinafter
in this Section 7.3 provided and to the Company a brief report, dated as of the
preceding
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April 1, with respect to any of the following events which may have occurred
within the 12 months prior to the date of such report (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9, and
its qualification under Section 6.8;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 6.8;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or funds
held or collected by it as Trustee, except the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than one-half of one per cent of the
aggregate principal amount of the Outstanding Securities on the date of
such report;
(4) the amount, interest rate, and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of Subsection (b) of Section 6.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of such
report;
(6) any additional issue of Securities which it has not
previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 6.2.
(b) The Trustee shall transmit to the Holders, as hereinafter
provided, and to the Company a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report
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transmitted pursuant to the provisions of Subsection (a) of this Section 7.3 (or
if no such report has yet been so transmitted, since the date of execution of
this Indenture for the reimbursement of which it claims or may claim a lien or
charge prior to that of the Securities on property or funds held or collected by
it as Trustee and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate ten
per cent or less of the aggregate principal amount of the Outstanding Securities
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by
mail to all Holders, as the names and addresses of such Holders appear upon the
Security Register.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any of the Securities are listed and also with the Commission. The
Company agrees to notify the Trustee when and as any of the Securities become
listed on any stock exchange.
Section 7.4 REPORTS BY COMPANY. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with said Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such Sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed from
time to time by said Commission, such additional information, documents, and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders
within 30 days after the filing thereof with the Trustee, in the manner and to
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the extent provided in Subsection (c) of Section 7.3, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to Subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee,
on or within 15 days before November 1, 1992, and on or within 15 days before
November 1 in every year thereafter, a brief certificate from the chief
executive officer, the chief financial officer or the chief accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Subsection, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.1 CONSOLIDATIONS AND MERGERS OF COMPANY PERMITTED SUBJECT TO
CERTAIN CONDITIONS. The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit any
Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Section 1311;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger,
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conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person has been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. The
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof) for one or more of the following
purposes:
(1) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article Eight hereof;
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); PROVIDED, HOWEVER, that in respect of any such additional Events
of Default such supplemental indenture may provide for a particular period of
grace after default (which period may be
66
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the Holders
of a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive such
default;
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the issuance of
Securities in coupon form, registrable or not registrable as to principal, and
to provide for exchangeability of such Securities with Securities issued
hereunder in fully registered form;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11(b);
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental indenture,
or to make such other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material respect; or
(10) to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the Trust Indenture Act
of 1939.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer assignment, mortgage or pledge of any property thereunder.
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Any supplemental indenture authorized by the provisions of this
Section 9.1 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Outstanding Securities, notwithstanding any of the
provisions of Section 9.2.
Section 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than 66-2/3% in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall (i) change the Stated Maturity of the
principal of (or premium, if any, on), or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption or repayment at the option of the Holder, on or after
the Redemption Date or Repayment Date, as the case may be), without the consent
of the Holder of each Outstanding Security so affected, or (ii) reduce the
aforesaid percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental
indenture, without the consent of the Holders of all the Outstanding Securities
of such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Company accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.5 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE 10
PARTICULAR COVENANTS OF THE COMPANY
Section 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of (and premium, if
any, on) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. Each installment of interest on any
Security may at the Company's option be paid by mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 3.7, to the address of such Person as it appears on the
Security Register. At the option of the Company,
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all payments of principal may be paid by official bank check to the registered
Holder of the Security or other person entitled thereto against surrender of
such Security.
Section 10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange as in this Indenture provided and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give notice to the Trustee of the
location, and any change in the location of each such office or agency. In case
the Company shall fail to maintain any such required office or agency or shall
fail to give notice of the location or of any change thereof, presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee. The Company hereby initially appoints the Trustee as its
office or agency for such purpose.
The Company may also from time to time designate one or more other
offices or agencies in any location where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; PROVIDED, HOWEVER, that so such designation
or rescission shall in any manner relieve the Company of its obligations to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(or premium, if any, on) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (or premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided. The Company will promptly notify the Trustee of any failure by
the Company to take such action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(or premium, if any, on) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (or premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
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The Company will cause each Paying Agent for any series of Securities,
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(or premium, if any, on) or interest on Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the Persons entitled thereto;
(2) give the Trustee notice of any failure by the Company (or
any other obligor upon the Securities of that series) to make any payment of
principal of (or premium, if any, on) or interest on the Securities of that
series when the same shall be due and payable; and
(3) at any time during the continuance of any Event of Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining satisfaction and discharge of
this Indenture, or for any other reason, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 10.4 STATEMENT BY OFFICERS AS TO DEFAULT. The Company will
deliver to the Trustee, on or before a date not more than 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating, as to each officer signing such certificate, whether or not
to the best of his knowledge the Company is in default in the performance and
observance of any of the terms, provisions and conditions hereof, and, if the
Company shall be in default, specifying all such defaults and the nature thereof
of which he may have knowledge.
Section 10.5 ADDITIONAL AMOUNTS. The Company hereby agrees that any
amounts to be paid by the Company with respect to each Security shall be paid
without deduction or withholding for any and all present and future taxes,
levies, imposts or other governmental charges whatsoever imposed, assessed,
levied or collected by or for the account of the Republic of Panama (or by or
for the account of the jurisdiction of incorporation (other than the United
States) of a successor corporation to the Company pursuant to Section 8.1, to
the extent that such taxes first become applicable as a result of the successor
corporation becoming the obligor on
71
the Debt Securities) or any political subdivision or taxing authority thereof or
therein ("Panamanian Taxes") or, if deduction or withholding of any Panamanian
Taxes shall at any time be required by the Republic of Panama (or the
jurisdiction of incorporation (other than the United States) of a successor
corporation to the Company pursuant to Section 8.1) or any such subdivision or
authority, the Company shall (subject to compliance by the Holder or beneficial
owner of the Security with any relevant administrative requirements) pay such
additional amounts ("Additional Amounts") in respect of principal, premium, if
any, interest, if any, and sinking fund or analogous payments, if any, as may be
necessary in order that the net amount paid to the Holder of such Security or
the Trustee under this Indenture, as the case may be, after such deduction or
withholding, shall equal the respective amounts of principal, premium, if any,
interest, if any, and sinking fund or analogous payments, if any, as specified
in the Security to which such Holder or the Trustee is entitled; provided,
however, that the foregoing shall not apply to (i) any present or future
Panamanian Taxes which would not have been so imposed, assessed, levied or
collected but for the fact that the Holder or beneficial owner of such Security
being or having been a domiciliary, national or resident of, or engaging or
having been engaged in business or maintaining or having maintained a permanent
establishment or being or having been physically present in, the Republic of
Panama (or the jurisdiction of incorporation of a successor corporation to the
Company pursuant to Section 8.1) or such political subdivision or otherwise
having or having had some connection with the Republic of Panama (or the
jurisdiction of incorporation of a successor corporation to the Company pursuant
to Section 8.1) or such political subdivision other than the holding or
ownership of a Security, or the collection of principal of and interest, if any,
on, or the enforcement of, a Security, (ii) any present or future Panamanian
Taxes with would not have been so imposed, assessed, levied or collected but for
the fact that, where presentation is required, such Security was presented more
than thirty days after the date such payment became due or was provided for,
whichever is later, or (iii) any present or future Panamanian Taxes which would
not have been so imposed, assessed, levied or collected but for the failure to
comply with any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the Republic
of Panama (or the jurisdiction of incorporation of a successor corporation to
the Company pursuant to Section 8.1) or any political subdivision thereof of the
Holder or beneficial owner of such Security, if compliance is required by
statute or by rules or regulations of the Republic of Panama (or the
jurisdiction of incorporation of a successor corporation to the Company pursuant
to Section 8.1) or such political subdivision as a condition to relief or
exemption from Panamanian Taxes. The provisions described in (i) through
(iii) above are referred to herein as "Excluded Taxes." The Company or any
successor to the Company, as the case may be, shall indemnify and hold harmless
each Holder of the Securities and upon written request reimburse each Holder for
the Securities and upon written request reimburse each Holder for the amount of
(i) any Panamanian Taxes levied or imposed and paid by such Holder of the
Securities (other than Excluded Taxes) as a result of payments
72
made with respect to the Securities, (ii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, and (iii) any
Panamanian Taxes with respect to payment of Additional Amounts or any
reimbursement pursuant to this sentence. The Company or any successor to the
Company, as the case may be, shall also (1) make such withholding or deduction
and (2) remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. The Company or any successor to the Company, as
the case may be, shall furnish the Trustee within 30 days after the date the
payment of any Panamanian Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Company or any successor
to the Company, as the case may be, which the Trustee shall forward to the
Holders of the Securities.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payments, the Company will
deliver to the Trustee an Officers' Certificate stating the fact that such
Additional Amounts will be payable, and setting forth such other information as
may be necessary to enable the Trustee to pay such Additional Amounts to Holders
of the Securities on the payment date.
Whenever in this Indenture or any Security there is mentioned, in any
context, the payment of the principal, premium, if any, or interest, or sinking
fund or analogous payment, if any, in respect of such Security or overdue
principal or overdue interest or overdue sinking fund or analogous payment, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for herein to the extent that, in such context, Additional Amounts,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention thereof in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is mot made (if applicable).
The obligations of the Company (and any successor corporation to the
Company pursuant to Section 8.1) under this Section 10.5 shall survive the
termination of this Indenture and the payment of all amounts under or with
respect to the Securities.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in accordance with this Article.
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Section 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The right of the
Company to elect to redeem any Securities of any series shall be set forth in
the terms of such Securities of such series established in accordance with
Section 3.1. The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 11.3. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
Section 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as may be specified by the
terms of such Securities or, if no such method is so specified, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Securities of
such series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of such Security not redeemed to less than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeem only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.4 NOTICE OF REDEMPTION. Notice of redemption shall be
given by the Company or, at the Company's request, by the Trustee, in the name
and at the expense of the Company, to the Holders of the Securities to be
redeemed, by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Section 11.5 DEPOSIT OF REDEMPTION PRICE. On or before any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.6 SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; PROVIDED, HOWEVER, that unless otherwise specified as
contemplated by Section 3.1, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender therefor, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
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Section 11.7 SECURITIES REDEEMED IN PART. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
Section 11.8 OPTIONAL REDEMPTION OR ASSUMPTION OF SECURITIES UNDER
CERTAIN CIRCUMSTANCES. (a) Unless otherwise specified with respect to the
Securities of any series, if as the result of any change in or any amendment to
the laws, including any regulations thereunder and any applicable double
taxation treaty or convention, of the Republic of Panama (or the jurisdiction of
incorporation (other than the United States) of a successor corporation to the
Company pursuant to Section 8.1), or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in an application
or interpretation of such laws, including any applicable double taxation treaty
or convention, which change, amendment, application or interpretation ("Change")
become effective on or after the original issuance date of such series (or, if
such Change is imposed with respect to tax imposed with respect to payments from
the jurisdiction in which a successor corporation to the Company pursuant to
Section 8.1 is incorporated, such later date on which such successor corporation
becomes a successor corporation to the Company pursuant to Section 8.1), it is
determined by the Company based upon an opinion of independent counsel of
recognized standing that (i) the Company would be required to pay Additional
Amounts (as defined in Section 10.5 herein) in respect of principal, premium, if
any, interest, if any, or sinking fund or analogous payments, if any, on the
next succeeding date for the payment thereof, or (ii) any taxes would be imposed
(whether by way of deduction, withholding or otherwise) by the Republic of
Panama (or the jurisdiction of incorporation (other than the United States) of a
successor corporation to the Company pursuant to Section 8.1) or by any
political subdivision or taxing authority thereof or therein, upon or with
respect to any principal, premium, if any, interest, if any, or sinking fund or
analogous payments, if any, then the Company may, at its option, on giving not
less than 30 nor more than 60 days' notice (which shall be irrevocable) redeem
such series of Securities in whole, but not in part, at any time (except in the
case of Securities of a series having a variable rate of interest, which may be
redeemed only on an Interest Payment Date) at a Redemption Price equal to 100
percent of the principal amount thereof plus accrued interest to the Redemption
Date (except in the case of outstanding Original Issue Discount Securities which
may be redeemed at the Redemption Price specified by the terms of each series of
such Securities); provided, however, that (i) no notice of redemption may be
given more than 90 days prior to the earliest date on which the Company would be
76
obligated to pay such Additional Amounts or such tax would be imposed, as the
case may be, and (ii) at the time that such notice of redemption is given, such
obligation to pay Additional Amounts or such tax, as the case may be, remains in
effect.
(b) Prior to any redemption of a series of Securities pursuant
to paragraph (a) above, the Company shall provide the Trustee with an opinion of
independent counsel of recognized standing which states that the conditions
precedent to the right of the Company to redeem such Securities pursuant to this
Section shall have occurred. Each such opinion of independent counsel of
recognized standing shall be based on the laws in effect on the date of such
opinion or to become effective on or before the next succeeding date of payment
of principal, premium, if any, interest, if any, and sinking fund or analogous
payments, if any. For purposes of this Section, all references to the Company
in this paragraph shall include any successor corporation thereto pursuant to
Section 8.1.
ARTICLE 12
REPAYMENT AT OPTION OR HOLDERS
Section 12.1 APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 12.2 REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest thereon accrued to
the Repayment Date specified in the terms of such Securities. The Company
covenants that on or before the Repayment Date it will deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 12.3 EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. To be repaid at the option
of the Holder, any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly completed by the
Holder, must
77
be received by the Company at the Place of Payment therefor specified in the
terms of such Security (or at such other place or places of which the Company
shall from time to time notify the Holders of such Securities) not earlier than
30 days nor later than 15 days prior to the Repayment Date. If less than the
entire principal amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be repaid, in
increments of $1,000 unless otherwise specified in the terms of such Security,
and the denomination or denominations of the Security or Securities to be issued
to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid must be specified. The principal amount of
any Security providing for repayment at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid principal amount of
such Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the Company.
Section 12.4 WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company on the Repayment Date therein specified, and on and after
such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) interest on such Securities or the portions
thereof, as the case may be, shall cease to accrue.
Section 12.5 SECURITIES REPAID IN PART. Upon surrender of any
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Security or Securities
of the same series, of any authorized denomination specified by the Holder, in
an aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE 13
SINKING FUNDS
Section 13.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may (1) deliver to the Trustee Outstanding Securities of a series
(other than any previously called for redemption) theretofore purchased or
otherwise acquired by the Company and (2) receive credit for Securities of a
series which have been previously delivered to the Trustee by the Company or for
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of the same series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 13.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering or crediting Securities of that series pursuant to Section 13.2
(which Securities will, if not previously delivered, accompany such certificate)
and whether the Company intends to exercise its right to make a permitted
optional sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be obligated to
make the cash payment or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 13.2 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
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Not more than 60 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 13.3.
ARTICLE 14
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 14.1 EXEMPTION FROM INDIVIDUAL LIABILITY. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, shareholder, officer, director or employee, as
such , past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, shareholders, officers, directors or employees, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities.
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ARTICLE 15
SUBORDINATION
Section 15.1 AGREEMENT TO SUBORDINATE. The Company agrees, and each
Holder of Securities by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article, to the prior payment in full of all
Senior Debt and that the subordination is for the benefit of the holders of
Senior Debt.
Section 15.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment
in full in cash of the principal of and interest (including interest
accruing after the commencement of any such proceeding) to the date of
payment on the Senior Debt before Holders of Securities shall be entitled
to receive any payment of principal of or interest on Securities; and
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders of Securities would be entitled but for this
Article shall be made to holders of Senior Debt as their interests may
appear, except that Holders of Securities may receive securities that are
subordinated to Senior Debt to at least the same extent as the Securities.
Section 15.3 DEFAULT ON SENIOR DEBT. The Company may not pay
principal of or interest on the Securities and may not acquire any Securities
for cash or property other than capital stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that
permits holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 15.11. If the Company receives any such notice, a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Debt shall not be effective for
purposes of this Section.
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The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default is not
the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
Section 15.4 ACCELERATION OF SECURITIES. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt of the acceleration. The Company may pay
the Securities when 120 days pass after the acceleration occurs if this Article
permits the payment at that time.
Section 15.5 WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution
is made to Holders of Securities that because of this Article should not have
been made to them, the Holders of Securities who receive the distribution shall
hold it in trust for holders of Senior Debt and pay it over to them as their
interests may appear.
Section 15.6 NOTICE BY COMPANY. The Company shall promptly notify
the Trustee and any Paying Agent of any facts known to the Company that would
cause a payment of principal of or interest on Securities to violate this
Article.
Section 15.7 SUBROGATION. After all Senior Debt is paid in full and
until the Securities are paid in full, Holders of Securities shall be subrogated
to the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders of
Securities have been applied to the payment of Senior Debt. A distribution made
under this Article to holders of Senior Debt which otherwise would have been
made to Holders of Securities is not, as between the Company and Holders of
Securities, a payment by the Company on Senior Debt.
Section 15.8 RELATIVE RIGHTS. This Article defines the relative
rights of Holders of Securities and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders of Securities,
the obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders of Securities and
creditors of the Company other than holders of Senior Debt; or
82
(3) prevent the Trustee or any Holders of Securities from
exercising its available remedies upon an Event of Default, subject to the
rights of holders of Senior Debt to receive distributions otherwise payable
to Holders of Securities.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still an Event of Default
as provided elsewhere herein.
Section 15.9 SUBORDINATION MAY NOT BE IMPAIRED BY TRUST. No right
of any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by
the Company or by its failure to comply with this Indenture.
Section 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
Section 15.11 RIGHTS OF TRUSTEE AND PAYING AGENT. The Trustee or any
Paying Agent may continue to make payments on the Securities until it receives
notice of facts that would cause a payment of principal of or interest on the
Securities to violate this Article. Only the Company, a Representative or a
holder of an issue of Senior Debt that has no Representative may give the
notice.
ARTICLE 16
MISCELLANEOUS PROVISIONS
Section 16.1 SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 16.2 ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
CORPORATION VALID. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
Section 16.3 REQUIRED NOTICES OR DEMANDS. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders to or on the Company may, except as
83
otherwise provided in Sections 5.1(4), be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Company with the Trustee), as follows:
Carnival Corporation, 3655 N.W. 87th Avenue, Miami, Florida 33178-2828,
Attention: Treasurer. Any notice, direction, request or demand by the Company
or by any Holder to or upon the Trustee may be given or made, for all purpose,
by being deposited postage prepaid in a post office letter box in the United
States addressed to the Corporate Trust Office of the Trustee. Any notice
required or permitted to be mailed to a Holder by the Company or the Trustee
pursuant to the provisions of this Indenture shall be deemed to be properly
mailed by being deposited postage prepaid in a post office letter box in the
United States addressed to such Holder at the address of such Holder as shown on
the Security Register. In any case, where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
Section 16.4 INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
Section 16.5 INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but all of which shall together constitute one and the same
instrument.
84
______________________, the party of the second part, hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, CARNIVAL CORPORATION, the party of the first part,
has caused this Indenture to be duly signed and acknowledged by its Chairman of
the Board or its President or an Executive Vice President or a Vice President or
its Treasurer or its Secretary or its Assistant Secretary thereunto duly
authorized, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and ______________________,
the party of the second part, has caused this Indenture to be duly signed and
acknowledged by one of its Vice Presidents or Assistant Vice Presidents
thereunto duly authorized, and its corporate seal to be affixed hereunto, and
the same to be attested by one of its Trust Officers.
CARNIVAL CORPORATION
By:___________________________________
Name:
Title:
Attest:___________________
Name:
Title:
[CORPORATE SEAL]
[ ]
By:___________________________________
Name: ____________________
Title: Vice President
Attest:___________________
Name: ____________
Title: Trust Officer
[CORPORATE SEAL]
85
________________________________, the party of the second part, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, CARNIVAL CORPORATION, the party of the first part,
has caused this Indenture to be duly signed and acknowledged by its Chairman of
the Board or its President or an Executive Vice President or a Vice President or
its Treasurer or its Secretary or its Assistant Secretary thereunto duly
authorized, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and
______________________________, the party of the second part, has caused this
Indenture to be duly signed and acknowledged by one of its Vice Presidents or
Assistant Vice Presidents thereunto duly authorized, and its corporate seal to
be affixed hereunto, and the same to be attested by one of its Trust Officers.
CARNIVAL CORPORATION
By:___________________________________
Name: HOWARD S. FRANK
Title: Executive Vice President
Attest:_______________________
Name: ALAN R. TWAITS
Title: Secretary
[CORPORATE SEAL]
[ ]
By:___________________________________
Name:____________________
Title: Assistant Vice President
Attest:_______________________
Name:_________________
Title: Assistant Secretary
86
STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS )
On this 10th day of March, 1993, before me personally came Lowell
Zemnick to me known, who, being by me duly sworn, did depose and say that he
resides at 1150 SW 98th Court, Miami, FL 33176, that he is Vice President &
Treasurer of CARNIVAL CORPORATION, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________
Notary Public
Exhibit 5.1
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
January 21, 1998
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
REGISTRATION STATEMENT ON FORM S-3
REGISTRATION NO. 333-43269
Ladies and Gentlemen:
In connection with the above-captioned Registration Statement on Form
S-3 (the "Registration Statement") filed by Carnival Corporation (the "Company")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act"), and the rules and regulations promulgated
thereunder, we have been requested to render our opinion as to the legality of
the securities being registered thereunder. The Registration Statement relates
to the registration under the Act of (i) the Company's senior debt securities
("Senior Debt Securities") and subordinated debt securities ("Subordinated Debt
Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), consisting of notes, debentures and/or other evidences of
indebtedness denominated in United States dollars or any other currency, (ii)
the Company's Warrants (the "Warrants" and, collectively with the Debt
Securities, the "Securities") and (iii) shares of the Class A Common Stock
(including shares to be issued upon conversion of the Debt Securities) of the
Company, par value $.01 per share (the "Class A Common Stock"). The Securities
and the Class A Common Stock are being registered for offering and sale from
time to time pursuant to Rule 415 under the Act. The aggregate public offering
price of the Securities and Class A Common Stock will not exceed $730,000,000
(or its equivalent (based on the applicable exchange rate at the time of sale)
if Debt Securities or Warrants are issued with principal amounts denominated in
one or more foreign currencies or currency units as shall be designated by the
Company).
Carnival Corporation 2
The Senior Debt Securities are to be issued under an Indenture, dated
as of March 1, 1993, between the Company and First Trust National Association
("First Trust"), as Trustee (the "Senior Debt Indenture"). The Subordinated
Debt Securities are to be issued under an indenture to be entered into between
the Company and the trustee thereunder (the "Subordinated Debt Indenture" and,
together with the Senior Debt Indenture, the "Indentures"). The Warrants are to
be issued pursuant to either a warrant agreement relating to Warrants to
purchase Debt Securities or a warrant agreement relating to other types of
Warrants, each between the Company, as issuer, and a warrant agent
(collectively, the "Warrant Agreements").
In this connection we have examined (i) originals, photocopies or
conformed copies of the Registration Statement (including the exhibits and
amendments thereto), (ii) the forms of the Indentures filed as exhibits to the
Registration Statement, and (iii) records of certain of the Company's corporate
proceedings relating, among other things, to the proposed issuance and sale of
the Securities and Class A Common Stock. In addition, we have made such other
examinations of law and fact as we considered necessary in order to form a basis
for the opinion hereinafter expressed. In connection with such investigation,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as photocopies or conformed copies and the legal
capacity of natural persons executing such documents, none of which facts we
have independently verified. We have relied as to matters of fact upon
certificates of officers of the Company.
In rendering the opinion set forth below, we have assumed that (i) the
Company has been duly organized and is validly existing in good standing under
the laws of the Republic of Panama, (ii) the Company has the legal power and
authority to enter into and perform its obligations under the Indentures, the
Warrant Agreements and the Securities, (iii) the execution, delivery and
performance by the Company of the Indentures, the Warrant Agreements and the
Securities will not conflict with or violate the charter or by-laws of the
Company, the laws of Panama or the terms of any agreement or instrument to which
the Company is subject, (iv) the Senior Debt Indenture has been duly authorized
by the parties thereto, and has been duly executed and delivered by First Trust,
(v) the Subordinated Debt Indenture shall have been duly executed and delivered
by the parties thereto in substantially the form filed as an exhibit to the
Registration Statement, (vi) the Senior Debt Indenture does, and the
Subordinated Debt Indenture, when so executed and delivered, will, represent a
valid and binding obligation of the appropriate trustee thereunder under the
laws of its jurisdiction of incorporation and the State of New York and of the
Company under the laws of the Republic of Panama, (vii) the Warrant Agreements
will be duly authorized, executed and delivered by the parties thereto, and
(ix) the Warrant Agreements, when so executed and delivered, will represent
Carnival Corporation 3
a valid and binding obligation of the appropriate Warrant Agent under the
laws of its jurisdiction of incorporation and the State of New York and of
the Company under the laws of the Republic of Panama. We have also assumed,
with respect to the Securities of a particular series or issuance offered
(the "Offered Securities"), that (i) the terms of issue and sale of the
Offered Securities shall have been duly established in accordance with the
appropriate Indenture or Warrant Agreement, as the case may be, (ii) the
Offered Securities shall have been duly authorized, issued and delivered by
the Company and duly authenticated by the Trustee or Warrant Agent, as the
case may be, all in accordance with the terms of the appropriate Indenture or
Warrant Agreement, as the case may be, and against payment by the purchasers
thereof at the agreed consideration therefor and (iii) the Offered
Securities, when so issued, authenticated, delivered and sold, will represent
valid and binding obligations of the Company under the laws of the Republic
of Panama. With regard to such assumptions, we refer you to the opinion of
Tapia, Linares y Alfaro, Panamanian counsel to the Company, filed as Exhibit
5.2 to the Registration Statement.
Based on the foregoing, we are of the opinion that:
1. The Senior Debt Indenture does, and the Subordinated Debt
Indenture and Warrant Agreements, when duly authorized, executed and
delivered, will, represent valid and binding obligations of the Company under
the laws of the State of New York, enforceable against the Company in
accordance with their terms, except as such enforceability may be subject to
(a) bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (c)
requirements that a claim with respect to any Securities denominated other
than in United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law.
2. When issued, authenticated and delivered, the Offered
Securities will be legal, valid and binding obligations of the Company under
the laws of the State of New York enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and other similar laws affecting creditors' rights
generally, (b) subject to general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and (c)
requirements that a claim with respect to any Offered Securities denominated
other than in United States dollars (or a judgment denominated other than in
United States dollars in respect of such
Carnival Corporation 4
claim) be converted into United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law.
Our opinions expressed above are limited to the laws of the State of
New York and the federal laws of the United States of America. Our opinions are
rendered only with respect to the laws, and the rules, regulations and orders
thereunder, that are currently in effect.
We hereby consent to the use of our name in the Registration Statement
and in the prospectus therein as the same appears in the caption "Validity of
Securities" and to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required by the Act or by the rules and
regulations promulgated thereunder.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Exhibit 5.2
[Letterhead of TAPIA, LINARES Y ALFARO]
Panama, January 21, 1997
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
U.S.A.
Registration Statement on Form S-3
REGISTRATION NO. 333-43269
Dear Sirs:
In connection with the above-captioned Registration Statement on Form S-3 (the
"Registration Statement") filed by Carnival Corporation (the "Company") with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations promulgated thereunder, we
have been requested to render our opinion as to the legality of the securities
being registered thereunder. The Registration Statement relates to the
registration under the Act of (i) the Company's senior debt securities ("Senior
Debt Securities") and subordinated debt securities ("Subordinated Debt
Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), consisting of notes, debentures and/or other evidences of
indebtedness denominated in United States dollars or any other currency,
(ii) the Company's Warrants (the "Warrants" and collectively with the Debt
Securities, the "Securities") and (iii) shares of the Class A Common Stock
(including shares to be issued upon conversion of the Debt Securities) of the
Company, par value $.01 per share (the "Class A Common Stock"). The Securities
and the Class A Common Stock are being registered for offering and sale from to
time pursuant to Rule 415 under the Act. The aggregate public offering price of
the Securities and Class A Common Stock will not exceed $730,000,000 (or its
equivalent (based on the applicable exchange rate at the time of sale) if Debt
Securities or Warrants are issued with principal amounts denominated in one or
more foreign currencies or currency units as shall be designated by the
Company).
Carnival Corporation 2
The Senior Debt Securities are to be issued under an Indenture, dated as of
March 1, 1993, between the Company and First Trust National Association ("First
Trust"), as Trustee (the "Senior Debt Indenture"). The Subordinated Debt
Securities are to be issued under an indenture to be entered between the Company
and the Trustee thereunder (the "Subordinated Debt Indenture"; and, together
with the Senior Debt Indenture, the "Indentures"). The Warrants are to be
issued pursuant to either a warrant agreement relating to Warrants to purchase
Debt Securities or a warrant agreement relating to purchase other types of
Warrants, each between the Company, as issuer, and a warrant agent
(collectively, the "Warrant Agreements").
In this connection we have examined (i) originals, photocopies or conformed
copies of the Registration Statement, including the exhibits and amendments
thereto, (ii) the forms of the Indentures filed as exhibits to the Registration
Statement, and (iii) records of certain of the Company's corporate proceedings
relating to, among other things, the proposed issuance and sale of the
Securities and Class A Common Stock. In addition, we have made such other
examinations of law and fact as we considered necessary in order to form a basis
for the opinion hereinafter expressed. In connection with such investigation,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as photocopies or conformed copies. We have relied as
to matters of fact upon certificates of officers of the Company.
In rendering the opinion set forth below, we have assumed that (i) the Senior
Debt Indenture has been duly authorized by the parties thereto other than the
Company, and has been executed and delivered by First Trust, (ii) the
Subordinated Debt Indenture shall have been executed and delivered by the
parties thereto other than the Company in substantially the form filed as an
exhibit to the Registration Statement, (iii) the Senior Debt Indenture does, and
the Subordinated Debt Indenture, when so executed and delivered, will, represent
a valid and binding obligation of the appropriate trustee under the laws of the
jurisdiction of incorporation and the State of New York, (iv) the Warrant
Agreements will be duly authorized, executed and delivered by the parties
thereto, and (v) the Warrant Agreements, when so executed and delivered, will
represent a valid and binding obligation of the appropriate thereunder Warrant
Agent under the laws of its jurisdiction of incorporation and the State of New
York. We have also assumed that the Securities, except shares of Class A Common
Stock, of a particular issuance offered will be duly executed, issued,
authenticated and delivered, and sold as described in the Registration
Statement.
Based on the foregoing, we are of the opinion that:
1. The execution and delivery of the Indentures and Warrant Agreements, the
performance of the Company's obligations hereunder, the execution, issuance
and delivery of the Senior Debt Securities, Subordinated Debt Securities
and
Carnival Corporation 3
Warrants, as applicable, and the performance of the Company's obligations
thereunder have been duly authorized by the Company.
2. The Indentures, when duly executed and delivered, and the Senior Debt
Securities and Subordinated Debt Securities, as applicable, when duly
issued, authenticated, delivered and paid for, as contemplated in the
Registration Statement and in accordance with the terms of the respective
Indenture, will represent valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except that such enforceability may be subject to (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting creditors' rights generally, (b) general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and, (c) requirements that a claim with
respect to any Debt Securities or Convertible Debt Securities denominated
other than in United States dollars (or a judgment denominated other than
in United States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined to
applicable law.
3. The Warrant Agreements, when duly executed and delivered, and the Warrants
when duly issued, authenticated, delivered and paid for, as contemplated in
the Registration Statement and in accordance with the terms of the
respective Warrant Agreement, will represent valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except that such enforceability may be subject to
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors' rights generally, (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and, (c) requirements that
a claim with respect to any Warrants denominated other than in United
States dollars (or a judgment denominated other than in United States
dollars in respect of such claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law.
4. The shares of Class A Common Stock, when issued and sold as contemplated in
the Registration Statement and any prospectus supplement relating thereto,
against payment of the consideration fixed therefor by the Board of
Directors or a committee thereof, will be duly authorized, validly issued,
fully paid and nonassessable.
5. The shares of Class A Common Stock issuable upon conversion of the Debt
Securities will be duly authorized and reserved for issuance and will, be
validly issued, fully paid and nonassessable, assuming the execution,
authentication, issuance and delivery of the Debt Securities and conversion
of
Carnival Corporation 4
the Debt Securities in accordance with the terms of the Senior Debt
Indenture or any Supplement or Officers' Certificate thereto.
6. Neither distributions to the holders of shares of Class A Common Stock nor
the interest paid on the Debt Securities will be subject to taxation under
the laws of Panama. Also, the Company's income will not be subject to
significant taxation under the laws of Panama.
We are members of the Bar of the Republic of Panama. We express no opinion as
to matters of law other than the laws of the Republic of Panama.
We hereby consent to the use of our name in the Registration Statement and in
the Prospectus therein as the same appears in the caption "Validity of
Securities" and to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required by the Act or by the rules and
regulations promulgated thereunder.
Yours very truly,
/s/ Mario E. Correa
Mario E. Correa
MEC/tg
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 15, 1997, which appears on page 37 of the 1996 Annual Report to
Shareholders of Carnival Corporation, which is incorporated by reference in
Carnival Corporation's Annual Report on Form 10-K for the year ended November
30, 1996. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
Price Waterhouse LLP
Miami, Florida
January 21, 1998
