View:
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended August 31, 2002
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ______________ to ________________
Commission file number 1-9610
CARNIVAL CORPORATION
(Exact name of registrant as specified in its charter)
Republic of Panama 59-1562976
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3655 N.W. 87th Avenue, Miami, Florida 33178-2428
(Address of principal executive offices) (Zip code)
(305) 599-2600________ _________
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No__
At October 10, 2002, the Registrant had 586,776,338 shares of its common
stock, $.01 par value, outstanding.
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements.
CARNIVAL CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(in thousands, except par value)
August 31, November 30,
2002 2001
ASSETS
Current Assets
Cash and cash equivalents $ 1,300,442 $ 1,421,300
Short-term investments 46,969 36,784
Accounts receivable, net 129,291 90,763
Inventories 91,042 91,996
Prepaid expenses and other 136,843 113,798
Fair value of hedged firm commitments 97,003 204,347
Total current assets 1,801,590 1,958,988
Property and Equipment, Net 9,251,822 8,390,230
Goodwill, Net 678,380 651,814
Other Assets 284,667 188,915
Fair Value of Hedged Firm Commitments 180,263 373,605
$12,196,722 $11,563,552
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt $ 25,700 $ 21,764
Accounts payable 317,313 269,467
Accrued liabilities 261,346 298,032
Customer deposits 744,656 627,698
Dividends payable 61,611 61,548
Fair value of derivative contracts 97,841 201,731
Total current liabilities 1,508,467 1,480,240
Long-Term Debt 3,044,488 2,954,854
Deferred Income and Other Long-Term Liabilities 167,877 157,998
Fair Value of Derivative Contracts 184,187 379,683
Commitments and Contingencies (Notes 4 and 5)
Shareholders' Equity
Common stock; $.01 par value; 960,000 shares
authorized; 586,773 shares issued and
outstanding at August 31, 2002 (620,019
shares issued at November 30, 2001) 5,868 6,200
Additional paid-in capital 1,088,812 1,805,248
Retained earnings 6,196,125 5,556,296
Unearned stock compensation (12,485) (12,398)
Accumulated other comprehensive income (loss) 13,383 (36,932)
Treasury stock; 33,848 shares at cost (727,637)
Total shareholders' equity 7,291,703 6,590,777
$12,196,722 $11,563,552
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(in thousands, except earnings per share)
Nine Months Three Months
Ended August 31, Ended August 31,
2002 2001 2002 2001
Revenues $3,332,588 $3,576,649 $1,437,655 $1,489,918
Costs and Expenses
Operating 1,733,863 1,920,832 682,243 719,378
Selling and administrative 442,647 457,252 147,900 146,797
Depreciation and amortization 281,431 280,958 99,088 97,008
Impairment charge 20,000 101,389 20,000 101,389
2,477,941 2,760,431 949,231 1,064,572
Operating Income Before
Loss From Affiliated
Operations 854,647 816,218 488,424 425,346
Loss From Affiliated
Operations, Net (44,024)
Operating Income 854,647 772,194 488,424 425,346
Nonoperating (Expense) Income
Interest income 25,177 22,750 10,762 12,972
Interest expense, net of
capitalized interest (86,440) (92,210) (28,974) (30,100)
Other (expense) income, net (5,251) 105,459 1,879 93,133
Income tax benefit
(expense), net 36,472 1,695 28,673 (6,376)
(30,042) 37,694 12,340 69,629
Net Income $ 824,605 $ 809,888 $ 500,764 $ 494,975
Earnings Per Share
Basic $ 1.41 $ 1.39 $ .85 $ 84
Diluted $ 1.40 $ 1.38 $ .85 $ .84
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in thousands)
Nine Months Ended August 31,
2002 2001
OPERATING ACTIVITIES
Net income $ 824,605 $ 809,888
Operating items not requiring cash:
Depreciation and amortization 281,431 280,958
Loss from affiliated operations and
dividends received, net 56,910
Impairment charge 20,000 101,389
Gain on sale of investments
in affiliates (116,698)
Accretion of original issue discount 14,469 157
Other 8,761 13,143
Changes in operating assets and liabilities:
(Increase) decrease in:
Receivables (29,618) (18,275)
Inventories 1,908 4,114
Prepaid expenses and other (57,072) 23,018
Increase (decrease) in:
Accounts payable 38,066 (33,160)
Accrued and other liabilities (49,843) 4,137
Customer deposits 115,720 (20,032)
Net cash provided by operating
activities 1,168,427 1,105,549
INVESTING ACTIVITIES
Additions to property and equipment, net (1,022,464) (713,328)
(Purchase) sale of short-term investments, net (6,437) 531,471
Other, net (40,106) (23,931)
Net cash used in investing activities (1,069,007) (205,788)
FINANCING ACTIVITIES
Proceeds from issuance of long-term debt 117,902 1,972,566
Principal repayments of long-term debt (154,082) (1,708,746)
Dividends paid (184,712) (184,297)
Proceeds from issuance of common stock 6,927 5,076
Other, principally debt issuance costs 101 (16,351)
Net cash (used in) provided by financing
activities (213,864) 68,248
Effect of exchange rate changes on cash
and cash equivalents (6,414) (2,055)
Net (decrease) increase in cash and
cash equivalents (120,858) 965,954
Cash and cash equivalents at beginning
of period 1,421,300 189,282
Cash and cash equivalents at end of period $ 1,300,442 $ 1,155,236
The accompanying notes are an integral part of these consolidated financial
statements.
CARNIVAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - Basis of Presentation
The accompanying financial statements have been prepared, without audit,
pursuant to the rules and regulations of the Securities and Exchange
Commission. Carnival Corporation and its consolidated subsidiaries are
referred to collectively in these consolidated financial statements and
elsewhere in this Form 10-Q as "we", "our" and "us".
The accompanying consolidated balance sheet at August 31, 2002 and the
consolidated statements of operations for the nine and three months ended
August 31, 2002 and 2001 and the consolidated statements of cash flows for
the nine months ended August 31, 2002 and 2001 are unaudited and, in the
opinion of our management, contain all adjustments necessary for a fair
presentation. All the adjustments are of a normal recurring nature, except
for our impairment charge adjustments (see Note 8).
Our operations are seasonal and results for interim periods are not
necessarily indicative of the results for the entire year. Reclassifications
have been made to prior period amounts to conform with the current period
presentation.
NOTE 2 - Property and Equipment
Property and equipment consisted of the following (in thousands):
August 31, November 30,
2002 2001
Ships $ 9,751,471 $ 8,892,412
Ships under construction 732,508 592,781
10,483,979 9,485,193
Land, buildings and improvements 277,377 264,294
Transportation equipment and other 372,302 349,188
Total property and equipment 11,133,658 10,098,675
Less accumulated depreciation and
amortization (1,881,836) (1,708,445)
$ 9,251,822 $ 8,390,230
Capitalized interest, primarily on our ships under construction,
amounted to $25 million and $21 million for the nine months ended August 31,
2002 and 2001, respectively, and $9 million and $7 million for the three
months ended August 31, 2002 and 2001, respectively.
NOTE 3 - Long-Term Debt
Long-term debt consisted of the following (in thousands):
August 31, November 30,
2002(a) 2001(a)
Euro floating rate note, secured by one ship,
bearing interest at euribor plus 0.5%
(4.0% and 4.8% at August 31, 2002 and November
30, 2001, respectively), due through 2008 $ 117,600 $ 125,770
Unsecured fixed rate notes, bearing interest
at rates ranging from 6.15% to
7.7%, due through 2028(b) 848,869 848,779
Unsecured floating rate euro notes, bearing
interest at rates ranging from euribor plus
0.35% to euribor plus 0.53% (3.9% to 4.0% and
3.9% to 4.9% at August 31, 2002 and
November 30, 2001, respectively),
due in 2005 and 2006 677,858 604,068
Unsecured fixed rate euro notes, bearing interest
at 5.57%, due in 2006 (b) 294,329 266,223
Unsecured 2% convertible notes, due in 2021 600,000 600,000
Unsecured zero-coupon convertible notes, net of
discount, with a face value of $1.05 billion,
due in 2021 516,195 501,945
Other 15,337 29,833
3,070,188 2,976,618
Less portion due within one year (25,700) (21,764)
$3,044,488 $2,954,854
(a) All borrowings are in U.S. dollars unless otherwise noted. Euro
denominated notes have been translated to U.S. dollars at the period-end
exchange rate.
(b) These notes are not redeemable prior to maturity.
Our unsecured 2% convertible notes ("2% Notes") and our zero-coupon
convertible notes ("Zero-Coupon Notes") are convertible into 15.3 million
shares and 17.4 million shares, respectively, of our common stock. Our 2%
Notes are convertible at a conversion price of $39.14 per share, subject to
adjustment, during any fiscal quarter for which the closing price of our
common stock is greater than $43.05 per share for a defined duration of time.
Our Zero-Coupon Notes have a 3.75% yield to maturity and are convertible
during any fiscal quarter for which the closing price of our common stock
reaches certain targeted levels for a defined duration of time. These levels
commenced at a low of $31.94 per share for the first quarter of fiscal 2002
and increase at an annual rate of 3.75% thereafter, until maturity. The
conditions for conversion of our 2% Notes or Zero-Coupon Notes were not met
for the first, second or third quarters of fiscal 2002. Upon conversion of
these notes we may choose to deliver common stock, cash or a combination of
cash and common stock with a total value equal to the value of the
consideration otherwise deliverable.
NOTE 4 - Commitments
Ship Commitments
A description of our ships under contract for construction at August 31,
2002 was as follows (in millions, except passenger capacity):
Expected Estimated
Service Passenger Total
Ship Date(a) Shipyard Capacity(b) Cost(c)
Carnival Cruise
Lines ("Carnival")
Carnival Conquest 11/02 Fincantieri 2,974 $ 510
Carnival Glory 7/03 Fincantieri 2,974 510
Carnival Miracle 4/04 Masa-Yards(d) 2,124 375
Carnival Valor 11/04 Fincantieri(d) 2,974 510
Newbuild 1/06 Fincantieri 2,974 460
Total Carnival 14,020 2,365
Holland America Line
("Holland America")
Zuiderdam 12/02 Fincantieri(d) 1,848 410
Oosterdam 7/03 Fincantieri(d) 1,848 410
Westerdam 5/04 Fincantieri(d) 1,848 410
Newbuild 11/05 Fincantieri(d) 1,848 410
Newbuild 6/06 Fincantieri 1,848 390
Total Holland America 9,240 2,030
Costa Cruises ("Costa")
Costa Mediterranea 6/03 Masa-Yards (e) 2,114 355
Costa Fortuna 12/03 Fincantieri(e) 2,720 435
Costa Magica 11/04 Fincantieri(e) 2,720 435
Total Costa 7,554 1,225
Cunard Line ("Cunard")
Queen Mary 2 1/04 Chantiers de
l'Atlantique(d) 2,620 780
Newbuild 2/05 Fincantieri(d) 1,968 410
Total Cunard 4,588 1,190
Total 35,402 $6,810
(a) The expected service date is the date the ship is currently expected to
begin its first revenue generating cruise.
(b) In accordance with cruise industry practice, passenger capacity is
calculated based on two passengers per cabin even though some cabins can
accommodate three or more passengers.
(c) Estimated total cost of the completed ship includes the contract price
with the shipyard, design and engineering fees, capitalized interest,
various owner supplied items and construction oversight costs.
(d) These construction contracts are denominated in euros and have been fixed
into U.S. dollars through the utilization of forward foreign currency
contracts. At August 31, 2002, the $266 million of unrealized losses
from these forward contracts has been recorded as fair value of
derivative contract liabilities on our August 31, 2002 balance sheet and
are also included in the above estimated total cost of these construction
contracts.
(e) These construction contracts are denominated in euros, which is Costa's
functional currency. The estimated total costs have been translated into
U.S. dollars using the August 31, 2002 exchange rate.
In connection with our ships under contract for construction, we have
paid $733 million through August 31, 2002 and anticipate paying approximately
$2.1 billion during the twelve months ending August 31, 2003 and
approximately $4.0 billion thereafter.
Travel Vouchers
Pursuant to Carnival's and Holland America's settlement of litigation,
travel vouchers with face values of $10 to $55 were required to be issued to
qualified past passengers. Approximately $123 million of these travel
vouchers are available to be used for future travel prior to their
expiration, principally in fiscal 2005. We will account for the redemption
of these travel vouchers as a reduction to our future revenues as they are
used.
Proposed Acquisition of P&O Princess Cruises plc ("P&O Princess")
We have made an offer to acquire P&O Princess, the world's third largest
cruise company, for 0.3004 shares of our common stock for each P&O Princess
share of common stock. At June 30, 2002, there were approximately 695
million shares of P&O Princess stock outstanding. In addition, should we
acquire P&O Princess, we will assume or refinance P&O Princess' outstanding
net long-term debt, which was approximately $1.8 billion as of June 30, 2002.
Our offer includes a partial cash alternative of 250 pence per P&O Princess
share, which currently represents approximately $2.7 billion of the purchase
price, subject to our obtaining satisfactory financing. The partial cash
alternative will reduce the portion of our offer that will be paid in shares
of our common stock. Prior to our offer, P&O Princess and Royal Caribbean
Cruises Ltd. ("RCL") were parties to a series of agreements intended to
result in a combination of P&O Princess and RCL in a dual listed company
structure (the "RCL Merger"). P&O Princess' Board of Directors recommended
the RCL Merger to its shareholders. However, in February 2002 the P&O
Princess shareholders did not follow their Board of Directors' recommendation
and voted to adjourn their scheduled meeting to vote on the RCL Merger. Both
the RCL Merger and our offer have obtained the necessary European and U.S.
regulatory clearances. The ultimate outcome of our offer to acquire P&O
Princess cannot be determined at this time. We have incurred approximately
$32 million of costs related to the possible P&O Princess acquisition as of
September 2002 and we expect to continue to incur additional costs, which
will be capitalized as part of the cost of the acquisition if we are
successful or will be written off to expense if we are not successful in
consummating the acquisition.
NOTE 5 - Contingencies
Litigation
Several actions have been filed against Costa, Cunard and Holland
America Tours ("Tours") alleging that they violated the Americans with
Disabilities Act by failing to make certain cruise ships accessible to
individuals with disabilities (collectively the "ADA Complaints").
Plaintiffs seek injunctive relief and fees and costs. These actions are
proceeding.
Several actions filed in the U.S. District Court for the Southern
District of Florida against us and four of our executive officers on behalf
of a purported class of purchasers of our common stock were consolidated into
one action in Florida (the "Stock Purchase Complaint"). The plaintiffs have
claimed that statements we made in public filings violated federal securities
laws and seek unspecified compensatory damages and attorney and expert fees
and costs. Recently a magistrate judge recommended that our motion to
dismiss the Stock Purchase Complaint be granted and that the plaintiffs'
amended complaint be dismissed without prejudice. The plaintiffs have been
granted the right, until November 15, 2002, to file a new amended complaint.
Three actions (collectively, the "Facsimile Complaints") were filed
against us and others on behalf of purported classes of persons who received
unsolicited advertisements via facsimile, alleging that we distributed
unsolicited advertisements via facsimile in contravention of the U.S.
Telephone Consumer Protection Act. The plaintiffs seek to enjoin the sending
of unsolicited facsimile advertisements and statutory damages. The
advertisements referred to in the Facsimile Complaints were not sent by us,
but rather were distributed by a professional faxing company at the behest of
a travel agency that referenced a Carnival product. We do not advertise
directly to the traveling public through the use of facsimile transmission.
The ultimate outcomes of the pending ADA, Stock Purchase and Facsimile
Complaints cannot be determined at this time. We believe that we and our
executive officers have meritorious defenses to these claims and,
accordingly, we intend to vigorously defend against these actions.
In February 2001, Holland America Line-USA, Inc. ("HAL, Inc."), our
wholly-owned subsidiary, received a grand jury subpoena requesting that it
produce documents and records relating to the air emissions from Holland
America ships in Alaska. HAL, Inc. responded to the subpoena. The ultimate
outcome of this matter cannot be determined at this time.
On August 17, 2002, an incident occurred in Juneau, Alaska onboard
Holland America's Ryndam involving a wastewater discharge from the ship. As
a result of this incident, various Ryndam ship officers have received grand
jury subpoenas from the Office of the U.S. Attorney in Anchorage, Alaska
requesting that they appear before the grand jury. One of these subpoenas
also requests the production of Holland America documents, which Holland
America is producing. If the investigation results in charges being filed, a
judgement could include, among other forms of relief, fines and debarment
from federal contracting, which would prohibit operations in Glacier Bay
National Park and Preserve during the period of debarment. The State of
Alaska is separately investigating this incident. The ultimate outcome of
these matters cannot be determined at this time.
Costa has instituted arbitration proceedings in Italy to confirm the
validity of its decision not to deliver its ship, the Costa Classica, to the
shipyard of Cammell Laird Holdings PLC ("Cammell Laird") under a 79 million
euro denominated contract for the conversion and lengthening of the ship.
Costa has also given notice of termination of the contract. It is now
expected that the arbitration tribunal's decision will be made at the
earliest by mid-2004. In the event that an award is given in favor of
Cammell Laird, the amount of damages, which Costa will have to pay, if any,
is not currently determinable. The ultimate outcome of this matter cannot be
determined at this time.
In the normal course of our business, various other claims and lawsuits
have been filed or are pending against us. Most of these claims and lawsuits
are covered under our insurance programs. We believe the ultimate outcome of
any such actions, which are not covered by insurance, are not expected to
have a material adverse effect on our financial statements.
Contingent Obligations
At August 31, 2002, we had contingent obligations totaling $760 million
to participants in lease out and lease back type transactions for three of
our ships. At the inception of the leases, the entire amount of the
contingent obligations was paid by us to major financial institutions to
enable them to directly pay these obligations. Accordingly, these
obligations were considered extinguished, and neither the funds nor the
contingent obligations have been included on our balance sheets. We would
only be required to make any payments under these contingent obligations in
the remote event of nonperformance by these financial institutions, all of
which have long-term credit ratings of AAA or AA. If their credit ratings
fall below AA-, then we would be required to move a majority of the funds
from these financial institutions to other highly-rated financial
institutions. If our credit rating falls below BBB, then we would be
required to provide a letter of credit for an additional $90 million, or
alternatively provide mortgages in the aggregate amount of $90 million on two
of our ships.
In the unlikely event that we were to terminate the three lease
agreements early or default on our obligations, we would currently have to
pay a total of $180 million in stipulated damages. At August 31, 2002, $148
million of letters of credit have been issued by a major financial
institution in order to provide further security for the payment of these
contingent stipulated damages. An additional $40 million of letters of credit
would be required to be issued if our credit rating falls below A-. Between
2017 and 2022, we have the right to exercise options that would terminate
these transactions at no cost to us. As a result of these three
transactions, we have received $67 million, which was recorded as deferred
income on our balance sheets and is being amortized to nonoperating income
through 2022. In the event we were to default under our $1.4 billion
revolving credit facility, we would be required to post cash collateral to
support the letters of credit discussed above.
NOTE 6 - Shareholders' Equity
Our Articles of Incorporation authorize our Board of Directors, at their
discretion, to issue up to 40 million shares of our preferred stock. At
August 31, 2002 and November 30, 2001, no preferred stock had been issued.
During the nine months ended August 31, 2002 and 2001, we declared cash
dividends of $.315 per share each period, or an aggregate of $185 million for
each period.
In April 2002, we retired 33.8 million shares of our treasury stock.
NOTE 7 - Comprehensive Income
Comprehensive income was as follows (in thousands):
Nine Months Three Months
Ended August 31, Ended August 31,
2002 2001 2002 2001
Net income $824,605 $809,888 $500,764 $494,975
Foreign currency translation
adjustment, net 46,789 48,031 22,044 64,995
Changes in securities valuation
allowance 1,739 7,782 (4,541) (351)
Changes related to cash flow
derivative hedges, net 1,787 (1,679) (2,784) (848)
Transition adjustment for cash
flow derivative hedges (4,214)
Total comprehensive income $874,920 $859,808 $515,483 $558,771
NOTE 8 - Impairment Charge
During the third quarter of fiscal 2002 and fiscal 2001 we reviewed our
long-term assets and goodwill for which there were indications of possible
impairment or as required annually pursuant to Statement of Financial
Accounting Standards ("SFAS") No. 142 "Goodwill and Other Intangible Assets".
As a result of these reviews, in the third quarter of fiscal 2002 we reduced
the carrying value of one of our ships by recording an impairment charge of
$20 million. In the third quarter of fiscal 2001, we recorded an impairment
charge of $101 million, which consisted principally of a reduction in the
carrying value of ships and the write-off of goodwill. The impaired ships'
fair values were based primarily on third party appraisals or other available
evidence, and the fair value of the goodwill was based on comparable market
prices and/or our estimates of discounted future cash flows.
NOTE 9 - Segment Information
Our cruise segment includes six cruise brands, which have been
aggregated as a single operating segment based on the similarity of their
economic and other characteristics. Cruise revenues are comprised of sales
of passenger cruise tickets, including, in some cases, air transportation to
and from the cruise ships, and revenues from certain onboard activities and
other services. The tour segment represents the transportation, hotel and
tour operations of Tours.
Cruise revenues included intersegment revenues, which primarily
represent billings to the tour segment for the cruise portion of a tour when
a cruise is sold as a part of a cruise/tour package. In addition, cruise and
tour operating expenses included a cost allocation of corporate and other
expenses.
Selected segment information was as follows (in thousands):
NINE MONTHS ENDED THREE MONTHS ENDED
AUGUST 31, AUGUST 31,
2002 2001 2002 2001
Revenues
Cruise $3,207,042 3,412,197 $1,339,181 $1,357,606
Tour 158,902 212,358 125,407 173,600
Intersegment
elimination (33,356) (47,906) (26,933) (41,288)
$3,332,588 $3,576,649 $1,437,655 $1,489,918
Operating income
(loss)
Cruise $ 865,346(a)$ 818,801(a)$ 473,002(a)$ 403,209(a)
Tour (1,821) 6,686 18,558 24,847
Affiliated
operations (44,024)
Corporate (8,878) (9,269) (3,136) (2,710)
$ 854,647 $ 772,194 $ 488,424 $ 425,346
(a) Includes impairment charges of $20 million and $101 million in 2002 and
2001, respectively (see Note 8).
NOTE 10 - Earnings Per Share
Our basic and diluted earnings per share were computed as follows (in
thousands, except per share data):
Nine Months Three Months
Ended August 31, Ended August 31,
2002 2001 2002 2001
Net income $824,605 $809,888 $500,764 $494,975
Weighted average common shares
outstanding 586,496 584,698 586,672 586,078
Dilutive effect of stock plans 1,621 2,046 1,245 1,432
Dilutive weighted average shares
outstanding 588,117 586,744 587,917 587,510
Basic earning per share $ 1.41 $ 1.39 $ .85 $ .84
Diluted earnings per share $ 1.40 $ 1.38 $ .85 $ .84
Our diluted earnings per share computations for the nine and three
months ended August 31, 2002 and 2001 did not include 32.7 million shares and
15.3 million shares, respectively, of our common stock issuable upon
conversion of our 2% Notes and Zero-Coupon Notes, as this common stock was
not issuable under the contingent conversion provisions of these debt
instruments.
Note 11 - Income Tax Benefit
Our fiscal 2002 third quarter income tax benefit, net, included a $34
million benefit as a result of a new Italian investment incentive, which
allows Costa to receive an income tax benefit based on its fiscal 2002
investment in new ships.
NOTE 12 - Accounting Change
SFAS No. 142 requires companies to stop amortizing goodwill and requires
an annual, or when events or circumstances dictate a more frequent,
impairment review of goodwill. Accordingly, as of December 1, 2001, we no
longer amortize our goodwill, all of which has been allocated to our cruise
segment. We completed the transitional and annual impairment tests of our
existing goodwill as of December 1, 2001 and July 31, 2002, respectively, and
determined that such goodwill was not impaired. There has been no change to
our goodwill carrying amount since November 30, 2001, other than the change
resulting from using a different foreign currency translation rate at August
31, 2002 compared to November 30, 2001. If goodwill amortization had not
been recorded for the nine and three months ended August 31, 2001, then our
adjusted net income would have been $825 million and $500 million,
respectively. In addition, adjusted basic and diluted earnings per share for
the nine and three months ended August 31, 2001 would have been $1.41 per
share and $0.85 per share, respectively.
NOTE 13 - Recent Accounting Pronouncement
In August 2001, SFAS No. 144, "Accounting for the Impairment or Disposal
of Long-Lived Assets" was issued. SFAS No. 144 requires (i) the recognition
and measurement of the impairment of long-lived assets to be held and used
and (ii) the measurement of long-lived assets to be held for sale. SFAS No.
144 is effective for us in fiscal 2003. We have not completed our review of
SFAS No. 144.
In June 2002, SFAS No. 146, "Accounting for Costs Associated with Exit
or Disposal Activities" was issued. SFAS No. 146 requires that liabilities
for costs associated with an exit activity or disposal of long-lived assets
be recognized when the liabilities are incurred and can be measured at fair
value. SFAS No. 146 is effective for us for any exit or disposal activities
that are initiated after December 31, 2002.
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations.
Cautionary Note Concerning Factors That May Affect Future Results
Certain statements in this "Management's Discussion and Analysis of
Financial Condition and Results of Operations", and elsewhere in this Form
10-Q constitute "forward-looking statements" within the meaning of the U.S.
Private Securities Litigation Reform Act of 1995. We have tried, wherever
possible, to identify such statements by using words such as "anticipate,"
"believe," "expect," "forecast," "future," "intend," and words and terms of
similar substance in connection with any discussion of future operating or
financial performance. These forward-looking statements, including those
which may impact the forecasting of our net revenue yields, booking levels,
pricing, occupancy or business prospects, involve known and unknown risks,
uncertainties and other factors, which may cause our actual results,
performances or achievements to be materially different from any future
results, performances or achievements expressed or implied by such forward-
looking statements. Such factors include, among others, the following:
- general economic and business conditions which may impact levels of
disposable income of consumers and the net revenue yields for our cruise
products,
- consumer demand for cruises and other vacation options,
- other vacation industry competition,
- effects on consumer demand of armed conflicts, political instability,
terrorism, adverse media publicity and the availability of air service,
- shifts in consumer booking patterns,
- increases in vacation industry capacity, including cruise capacity,
- continued availability of attractive port destinations,
- changes in tax laws and regulations,
- changes and disruptions in equity, financial and insurance markets,
- our financial and contractual counterparties' ability to perform,
- our ability to implement our brand strategy,
- our ability to implement our shipbuilding program and to continue
to expand our business worldwide,
- our ability to attract and retain shipboard crew,
- changes in foreign currency and interest rates and increases in
security, food, fuel and insurance costs,
- delivery of new ships on schedule and at the contracted prices,
- weather patterns or natural disasters,
- unscheduled ship repairs and drydocking,
- incidents involving cruise ships,
- impact of pending or threatened litigation,
- our ability to successfully implement cost improvement plans,
- the continuing financial viability and/or consolidation of our travel
agent distribution system,
- our ability to successfully integrate business acquisitions, and
- changes in laws and regulations applicable to us.
These risks may not be exhaustive. We operate in a continually
changing business environment, and new risks emerge from time to time. We
cannot predict such risks nor can we assess the impact, if any, of such
risks on our business or the extent to which any risk, or combination of
risks may cause actual results to differ from those projected in any
forward-looking statements. Accordingly, forward-looking statements should
not be relied upon as a prediction of actual results. We undertake no
obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
Results of Operations
We earn our cruise revenues primarily from the following:
- the sale of passenger cruise tickets, which includes accommodations,
meals, and most onboard activities,
- the sale of air transportation to and from our cruise ships, and
- the sale of goods and services on board our cruise ships, such as
casino gaming, bar sales, gift shop and photo sales, shore excursions
and spa services.
We also derive revenues from the hotel, tour and transportation
operations of Tours.
For segment information related to our revenues, operating income and
affiliated operations segment see Note 9 in the accompanying financial
statements. Operations data expressed as a percentage of revenues and
selected statistical information was as follows:
Nine Months Three Months
Ended August 31, Ended August 31,
2002 2001 2002 2001
Revenues 100% 100% 100% 100%
Costs and Expenses
Operating 52 54 48 48
Selling and administrative 13 12 10 10
Depreciation and amortization 8 8 7 7
Impairment charge 1 3 1 7
Operating Income Before Loss
from Affiliated Operations 26 23 34 28
Loss from Affiliated
Operations, Net (1)
Operating Income 26 22 34 28
Nonoperating (Expense) Income (1) 1 1 5
Net Income 25% 23% 35% 33%
Selected Statistical Information
(in thousands)
Passengers carried 2,640 2,596 1,036 994
Available lower berth days 15,842 15,500 5,524 5,405
Occupancy percentage 106.3% 107.0% 113.7% 113.0%
General
Our cruise and tour operations experience varying degrees of
seasonality. Our revenue from the sale of passenger tickets for our cruise
operations is moderately seasonal. Historically, demand for cruises has been
greatest during the summer months. Tour's revenues are highly seasonal, with
a vast majority of its revenues generated during the late spring and summer
months in conjunction with the Alaska cruise season.
Our average cruise passenger capacity is currently expected to increase
by 8.2% in the fourth quarter of fiscal 2002, as compared to the same period
of fiscal 2001. Substantially all of our fiscal 2002 capacity increase will
be in Carnival and Costa.
The year over year percentage increase in our average passenger capacity
resulting from the delivery of ships under contract for construction for
fiscal 2003 and 2004 is currently expected to be approximately 18% and 17%,
respectively.
For a discussion of our critical accounting policies see "Management's
Discussion and Analysis of Financial Condition and Results of Operations",
which is included in our Annual Report on Form 10-K for fiscal 2001.
Outlook for Fourth Quarter of Fiscal 2002
As previously announced on September 20, 2002, we expect net revenue
yield to be up between 1 percent to 3 percent in the fourth quarter of 2002
compared to the fourth quarter of 2001.
In addition, if future 2002 fuel prices remain at the same level that we
currently are experiencing, then we estimate that our fuel costs will
increase by approximately $14 million for the fourth quarter of fiscal 2002
versus the comparable period in fiscal 2001. Finally, hurricanes and
tropical storms, which occurred subsequent to our September 20, 2002 earnings
release, could reduce our earnings for the fourth quarter of fiscal 2002 by
up to $0.01 per share.
Nine Months Ended August 31, 2002 ("2002") Compared
To Nine Months Ended August 31, 2001 ("2001")
Revenues
Revenues decreased $244 million, or 6.8%, in 2002 compared to 2001.
Cruise revenues decreased by $205 million, or 6.0%, to $3.20 billion in 2002
from $3.41 billion in 2001. Our cruise revenues change resulted from a 7.5%
decrease in our gross revenue per passenger cruise day and a .7% decrease in
our occupancy rate, partially offset by a 2.2% increase in our passenger
capacity. This decrease in gross revenue per passenger cruise day and
occupancies was primarily caused by the impact of the September 11, 2001
events, which resulted in lower cruise ticket prices and occupancies in 2002.
There was also a significant reduction in the number of guests purchasing air
travel from us in 2002 compared to 2001. When a guest elects to provide his
or her own transportation, rather than purchasing air transportation from us,
both our cruise revenues and operating expenses decrease by approximately the
same amount. Net revenue yield (net revenue per available berth day after
deducting the cost of air transportation, travel agent commissions and other
direct costs of sales) was down 4.1%, compared to 2001. Tour revenues
decreased $53 million, or 25.2%, to $159 million in 2002 from $212 million in
2001 principally due to a lower number of tours sold, primarily as a result
of one less ship selling land tours in 2002 compared to 2001, the
cancellation of three Holland America cruises in 2002 and increased
competition.
Costs and Expenses
Operating expenses decreased $187 million, or 9.7%, in 2002 compared to
2001. Cruise operating costs decreased by $160 million, or 8.9%, to $1.64
billion in 2002 from $1.80 billion in 2001. Approximately $106 million of
this decrease was due to reduced air travel and related costs primarily due
to fewer guests purchasing air transportation through us. The remaining
decrease of $54 million was primarily due to lower commissions because of
lower cruise revenues and lower land package costs due to fewer guests
purchasing pre/post cruise land packages. Excluding air travel costs, travel
agent commissions and other direct costs of sales, cruise operating expenses
per available berth day decreased 2.8%, partially as a result of the cost
reduction initiatives we undertook after the events of September 11, 2001.
Tour operating expenses decreased $41 million, or 24.2%, to $130 million in
2002 from $171 million in 2001 principally due to the reduction in the number
of tours sold.
Selling and administrative expenses decreased $15 million, or 3.2%, to
$443 million in 2002 from $457 million in 2001. Selling and administrative
expenses decreased in 2002 partially because of the cost containment actions
taken after September 11, 2001. A portion of the decrease was offset by
additional expenses associated with our 2.2% increase in passenger capacity.
Depreciation and amortization was the same in 2002 and 2001. The
elimination of $15 million of goodwill amortization upon our adoption of SFAS
No. 142 on December 1, 2001 (see Note 12) reduced amortization this year, but
that was offset by increased depreciation primarily from the expansion of our
fleet and ship improvement expenditures.
See Note 8 in the accompanying financial statements for a discussion of
the 2002 and 2001 impairment charge.
Affiliated Operations
During 2001, we recorded $44 million of losses from affiliated
operations for our portion of Airtours' losses. On June 1, 2001 we sold our
investment in Airtours and, accordingly, we ceased recording Airtours'
results as of the end of our second quarter of 2001.
Nonoperating (Expense) Income
Interest income increased by $2 million, which was comprised of a $29
million increase in interest income from our higher average invested cash
balances partially offset by a $27 million reduction in interest income due
to lower average interest rates. Interest expense decreased by $2 million,
which was comprised of a $21 million reduction in interest expense due to
lower average borrowing rates partially offset by a $19 million increase in
interest expense due to our increased level of average borrowings.
Capitalized interest increased $4 million during 2002 compared to 2001 due
primarily to higher average levels of investment in ship construction
projects
Other expense in 2002 included a $9 million loss, including related
expenses, resulting from the sale of Holland America's former Nieuw
Amsterdam, partially offset by $4 million of income related to the
termination of an overfunded pension plan.
Three Months Ended August 31, 2002 ("2002") Compared
To Three Months Ended August 31, 2001 ("2001")
Revenues
Revenues decreased $52 million, or 3.5%, in 2002 compared to 2001.
Cruise revenues decreased by $18 million, or 1.4%, to $1.34 billion in 2002
from $1.36 billion in 2001. Our cruise revenues change resulted from a 4.2%
decrease in our gross revenue per passenger cruise day partially offset by a
2.2% increase in our passenger capacity and a 0.6% increase in our occupancy
rate. This decrease in gross revenue per passenger cruise day was primarily
caused by lower ticket prices, partially as a result of the impact of the
September 11, 2001 events and a significant reduction in the number of guests
purchasing air travel from us, partially offset by the strengthening of the
euro relative to the U.S. dollar. Net revenue yield was down 0.8% compared
to 2001. Tour revenues decreased $48 million, or 27.8%, to $125 million in
2002 from $174 million in 2001 principally due to a lower number of tours
sold, primarily as a result of one less ship selling land tours in 2002
compared to 2001, the cancellation of three Holland America cruises in 2002
and increased competition.
Costs and Expenses
Operating expenses decreased $37 million, or 5.2%, in 2002 compared to
2001. Cruise operating costs decreased by $13 million, net, or 2.0%, to $615
million in 2002 from $628 million in 2001. This decrease was principally due
to approximately $27 million of reduced air travel and related costs
primarily due to fewer guests purchasing air transportation through us and
slightly lower commission expenses because of lower cruise revenues. The
decreases in air travel costs and travel agent commissions were partially
offset by increases in other cruise operating expenses primarily due to the
strengthening of the euro relative to the U.S. dollar and higher fuel costs
incurred during the quarter. Tour operating expenses decreased $39 million,
or 29.1%, to $94 million in 2002 from $133 million in 2001 principally due to
the reduction in the number of tours sold.
Selling and administrative expenses were approximately the same in 2002
and 2001.
Depreciation and amortization increased $2 million, or 2.1%, to $99
million in 2002 from $97 million in 2001. The elimination of $5 million of
goodwill amortization upon our adoption of SFAS No. 142 on December 1, 2001
(see Note 12) reduced amortization in 2002, but that was offset by increased
depreciation primarily from the expansion of our fleet and ship improvement
expenditures.
Nonoperating (Expense) Income
Interest income decreased by $2 million, which was comprised of a $10
million reduction in interest income due to lower average interest rates
partially offset by an $8 million increase in interest income from our higher
average invested cash balances. Interest expense increased by $1 million,
which was comprised of a $5 million increase in interest expense due to our
increased level of borrowing partially offset by a $4 million decrease in
interest expense due to lower average borrowing rates.
The $35 million increase in our income tax benefit, net, in 2002
compared to 2001 was primarily as a result of the income tax benefit to be
received by Costa as a result of a new Italian investment incentive, which
allows Costa to receive an income tax benefit based on its fiscal 2002
investment in new ships.
Liquidity and Capital Resources
Sources and Uses of Cash
Our business provided $1.17 billion of net cash from operations during
the nine months ended August 31, 2002, an increase of $63 million, or 5.7%,
compared to the nine months ended August 31, 2001, due primarily to an
increase in customers' advance ticket deposits.
During the nine months ended August 31, 2002, our net expenditures for
capital projects were $1.02 billion, of which $876 million was spent for our
ongoing shipbuilding program. The $146 million of nonshipbuilding capital
expenditures consisted primarily of ship refurbishments, information
technology assets, Tour assets and other.
During the nine months ended August 31, 2002, we borrowed $118 million
under Costa's euro denominated revolving credit facility primarily for
Costa's short-term working capital needs, and made $154 million of principal
repayments, primarily on Costa's revolving credit facility and Costa's
secured debt. We also paid cash dividends of $185 million in the first nine
months of fiscal 2002.
Future Commitments and Funding Sources
As of August 31, 2002, the primary changes to our November 30, 2001
contractual cash obligations, as discussed in "Management's Discussion and
Analysis of Financial Condition and Result of Operations", which is included
in our 2001 Annual Report on Form 10-K, with initial or remaining terms in
excess of one year, resulted from $876 million of scheduled shipbuilding
payments and the addition of one new Carnival and one new Holland America
shipbuilding contract with an estimated cost of $460 million and $390
million, respectively (see Note 4). Accordingly, our fiscal 2005 and fiscal
2006 contractual shipbuilding cash obligations have increased by
approximately $400 million and $350 million, respectively.
As of August 31, 2002, we had noncancelable contracts for the delivery
of 15 new ships over the next four years. Our remaining obligations related
to these ships under contract for construction is to pay approximately $2.1
billion during the twelve months ending August 31, 2003 and approximately
$4.0 billion thereafter.
At August 31, 2002, we had $3.07 billion of long-term debt, of which $26
million is due during the twelve months ending August 31, 2003. See Notes 3
and 4 in the accompanying financial statements for more information regarding
our debt and commitments.
At August 31, 2002, we had liquidity of $2.89 billion, which consisted
of $1.35 billion of cash, cash equivalents and short-term investments, and
$1.54 billion available for borrowing under our revolving credit facilities
obtained through a group of banks, which have strong long-term credit
ratings. Our revolving credit facilities mature in 2006. A key to the cost
of, and our access to, other forms of liquidity is the maintenance of our
strong long-term credit ratings. Credit rating agencies review credit ratings
on a periodic basis and may revise a company's credit rating. A lower credit
rating would increase our cost of borrowing and could restrict our access to
the commercial paper and other capital markets. In that case, unless there
was a material adverse change in our business, we could draw on our revolving
credit facilities or seek other sources of financing. A downgrade in our
credit ratings would not accelerate the scheduled principal repayments on our
existing long-term debt. In that regard, the cash component of the proposed
acquisition of P&O Princess, if consummated, may result in a ratings
downgrade, although we currently believe our senior unsecured long-term debt
would retain long-term investment grade debt ratings.
Our $1.4 billion revolving credit facility and other of our loan
agreements contain covenants that require us, among other things, to maintain
debt service coverage and limit our debt to tangible capital ratio. At
August 31, 2002 we were in compliance with all our debt covenants.
We believe that our existing liquidity, as well as our forecasted cash
flow from future operations, will be sufficient to fund most of our capital
projects, debt service requirements, dividend payments, working capital and
other firm commitments, excluding the cash portion of our offer to acquire
P&O Princess. Our forecasted cash flow from future operations may be
adversely affected by various factors noted under "Cautionary Note Concerning
Factors That May Affect Future Results". To the extent that we are required,
or choose, to fund future cash requirements, including our future
shipbuilding commitments, from sources other than as discussed above, we
believe that we will be able to secure financing from banks or through the
offering of debt and/or equity securities in the public or private markets.
Specifically, if the P&O Princess shareholders elect to receive our partial
cash payment (subject to our obtaining financing), then we intend to fund
this cash requirement, a maximum of approximately $2.7 billion, by either
using our existing liquidity, obtaining short-term bridge financing, issuing
long-term debt or selling equity securities or a combination thereof. No
assurance can be given that our future operating cash flow will be sufficient
to fund future obligations or that we will be able to obtain additional
financing, including financing for the cash portion of our proposed
acquisition of P&O Princess.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
An action referred to as the Stock Purchase Complaint was previously
reported in our Annual Report on Form 10-K for the year ended November 30,
2001. On July 24, 2002 the court heard oral argument on the motion we filed
on February 5, 2001 to dismiss the Stock Purchase Complaint in its entirety.
Recently a magistrate judge recommended that our motion to dismiss the Stock
Purchase Complaint be granted and that the plaintiffs' amended complaint be
dismissed without prejudice. The plaintiffs have been granted the right,
until November 15, 2002, to file a new amended complaint.
On August 17, 2002, an incident occurred in Juneau, Alaska onboard
Holland America's Ryndam involving a wastewater discharge from the ship. As
a result of this incident, various Ryndam ship officers have received grand
jury subpoenas from the Office of the U.S. Attorney in Anchorage, Alaska
requesting that they appear before the grand jury. One of these subpoenas
also requests the production of Holland America documents, which Holland
America is producing. If the investigation results in charges being filed, a
judgement could include, among other forms of relief, fines and debarment
from federal contracting, which would prohibit operations in Glacier Bay
National Park and Preserve during the period of debarment. The State of
Alaska is separately investigating this incident. The ultimate outcome of
these matters cannot be determined at this time.
The Facsimile Complaints were filed against us on behalf of purported
classes of persons who received unsolicited advertisements via facsimile,
alleging that we and other defendants distributed unsolicited advertisements
via facsimile in contravention of the U.S. Telephone Consumer Protection Act.
The plaintiffs seek to enjoin the sending of unsolicited facsimile
advertisements and statutory damages in the amount of five hundred dollars
per facsimile, or in the alternative, fifteen hundred dollars per facsimile
if the conduct was willful or knowing. The advertisements referred to in the
Facsimile Complaints were not sent by us, but rather were distributed by a
professional faxing company at the behest of a travel agency that referenced
a Carnival product. The status of each Facsimile Complaint is as follows:
On March 4, 2002, a Facsimile Complaint was filed against us and other
unrelated defendants (including Allstate Insurance Company and Wal-Mart
Stores, Inc.) in the South Carolina Court of Common Pleas, Lexington County
by Andrew Syrett. On May 15, 2002, we filed an Answer to this Facsimile
Complaint.
On April 15, 2002, a Facsimile Complaint was filed against us in the
Circuit Court of Greene County, Alabama by Mary Pelt. We filed an Answer on
June 3, 2002 and a Motion to Stay on July 26, 2002 on the basis that the
claims in the Jefferson County Facsimile Complaint described below
significantly overlaps the claims in this Greene County Facsimile Complaint.
A hearing on the Motion to Stay was held on October 4, 2002 and we are
awaiting the judge's ruling.
On May 14, 2002, a Facsimile Complaint was filed against us and other
defendants (including Club Resort International d/b/a Vacation Getaway
Travel, Inc., Dollar Thrifty Automotive Group, Inc., Thrifty, Inc. and
Thrifty Rent-A-Car Systems, Inc., Choicepoint, Inc., First Western Bank, and
Bankcard USA Merchant Services, Inc.) in the Circuit Court of Jefferson
County, Alabama, Bessemer Division by Clem & Kornis, L.L.C., The Firm of
Compassion, P.C., Collins Chiropractic Center, Forstmann & Cutchen, L.L.P.
and others. On July 26, 2002, we filed a Motion to Dismiss or, in the
Alternative, Separate Defendant.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures
that are designed to ensure that information required to be disclosed by us
in the reports that we file or submit, is recorded, processed, summarized and
reported, within the time periods specified in the Securities and Exchange
Commission's rules and forms.
Our Chief Executive Officer, Chief Operating Officer and Chief Financial
Officer have evaluated our disclosure controls and procedures as of October
11, 2002 and believe that they are effective.
Changes in Internal Controls
Not applicable.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
3.1 Second Amended and Restated Articles of Incorporation of the
Company, incorporated by reference to Exhibit No. 3 to our
registration statement on Form S-3 (File No. 333-68999), filed with
the Securities and Exchange Commission.
3.2 Amendment to Second Amended and Restated Articles of
Incorporation of the Company, incorporated by reference to
Exhibit 3.1 to the our Quarterly Report on Form 10-Q for the
quarter ended May 31, 1999 (Commission File No. 1-9610),
filed with the Securities and Exchange Commission.
3.3 Certificate of Amendment of Articles of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 to our
Quarterly Report on Form 10-Q for the quarter ended May 31,
2000 (Commission File No. 1-9610), filed with the Securities
and Exchange Commission.
3.4 Form of By-laws of the Company, incorporated by reference to
Exhibit No. 3.2 to our registration statement on Form S-1
(File No. 33-14844), filed with the Securities and Exchange
Commission.
10.1 Redemption Agreement, dated June 13, 2002, between CC U.S.
Ventures, Inc., and Continental Hospitality Holdings, LLC.
10.2 Promissory Note, dated June 13, 2002, from Continental Hospitality
Holdings, LLC, to CC U.S. Ventures, Inc.
10.3 Guaranty Agreement, dated June 13, 2002, by Sherwood M. Weiser.
10.4 Security and Pledge Agreement, dated June 13, 2002, between
Sherwood M. Weiser and CC U.S. Ventures, Inc.
12 Ratio of Earnings to Fixed Charges
99.1 Certification of Chief Executive Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
99.2 Certification of Chief Operating Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
99.3 Certification of Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
(b) Reports on Form 8-K
We filed current reports on Form 8-K on June 20, 2002 (Items 5. and 7.)
and on August 7, 2002 (Item 5.).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CARNIVAL CORPORATION
Date: October 14, 2002 BY /s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
Date: October 14, 2002 BY /s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of
Directors and Chief
Operating Officer
Date: October 14, 2002 BY /s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
CERTIFICATIONS
I, Micky Arison, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: October 14, 2002
By /s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
I, Howard S. Frank, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: October 14, 2002
By /s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of
Directors and Chief
Operating Officer
I, Gerald R. Cahill, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival
Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that material
information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this quarterly report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the effectiveness
of the disclosure controls and procedures based on our evaluation as of the
Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors:
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls;
and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Date: October 14, 2002
By /s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer
EXHIBIT 10.1
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT, dated as of the 13th day of June, 2002, is
entered into by and among CC U.S. VENTURES, INC., a Delaware corporation
("Ventures"), and CONTINENTAL HOSPITALITY HOLDINGS, LLC, a Delaware limited
liability company ("CHH").
WHEREAS, Ventures owns, beneficially and of record a 55% membership
interest in CHH (the "Membership Interest");
WHEREAS, Ventures desires to sell, transfer and assign all of the
Membership Interest and CHH desires to redeem all of the Membership Interest
upon the terms and conditions and subject to the provisions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of the mutual premises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Redemption of Membership Interest.
a. Subject to the terms and conditions of this Redemption Agreement,
Ventures agrees to sell, transfer and assign to CHH the Membership Interest
and CHH agrees to redeem from Ventures the Membership Interest.
b. At the Closing Ventures shall deliver to CHH an Assignment of
Membership Interest (the "Assignment") in CHH in a form attached hereto as
Exhibit A sufficient to convey to CHH good and valid title to the
Membership Interest free and clear of all, liens, charges, security
interests, options, rights, encumbrances and claims of any kind or nature
whatsoever, along with all right, title and interest in the Membership
Interest. Additionally, at the Closing Ventures shall deliver the
resignation of Mr. Howard S. Frank as managing member of CHH.
2. Redemption Price; Closing; Tax Treatment.
a. The aggregate redemption price (the "Redemption Price") for the
Membership Interest shall be Four Million Nine Hundred Thousand and 00/100
($4,900,000.00) plus an amount calculated in lieu of interest thereon from
January 1, 2002 to the Closing (the "Closing Fee"), plus the Contingent
Items (defined below). The Redemption Price shall be paid upon the Closing
by CHH delivering to Ventures $1,000,000 plus the Closing Fee in cash (the
"Cash Portion") and a promissory note in the original principal amount of
$3,900,000.00 in the form attached hereto as Exhibit B (the "Promissory
Note"), the obligations of which shall be personally guaranteed by Karim
Alibhai, Donald Lefton and Sherwood M. Weiser (the "Guarantors"), all of
whom own (directly or indirectly) membership interests in CHH pursuant to a
Guaranty Agreement, the forms of which are attached hereto as Exhibit C-1
and C-2 (collectively, the "Guaranty Agreements"). The Guaranty Agreements
shall be secured by pledging the certain collateral, including a specified
limited partnership interest in GB Hotel Partners, Ltd. to Ventures
pursuant to a Security and Pledge Agreement in the form attached hereto as
Exhibit D (collectively, the "Security Agreements").
Payment of the Cash Portion of the Purchase Price shall be made by
wire transfer of immediately available funds to an account in the United
States pursuant to the payment instructions of Ventures attached hereto as
Exhibit E.
The "Contingent Items" shall mean the following, the actual values of
which are not reasonably determinable as of the date hereof:
(i) 47.48% interest in the amount received by CHH or its
subsidiaries or affiliates in connection with its claim against the
Wampanoag Tribe of Gay Head, whether or not suit is filed;
(ii) 47.48% interest in the amount of proceeds received by CHH or
its subsidiaries or affiliates in connection with the complaint filed by
CCR of Lake Las Vegas Ltd. and CCR of Lake Las Vegas GP, Inc. in the
District Court of Clark County, Nevada, Case No. A424445 against Lake of
Las Vegas Joint Ventures and TransNevada Limited Partnership and
Transcontinental Properties, Inc. or any settlement thereof;
(iii) 55% of (x) the amount by which the liability of CHH to
Wyndham International or its subsidiary ("Wyndham") is reduced below the
calculated amount due to Wyndham, which as of January 1, 2002 was
$3,683,738, less (y) the amount paid to Karim Alibhai pursuant to paragraph
1 of that certain letter agreement dated as of September 1, 2000 between
Karim Alibhai, Sherwood M. Weiser, Donald E. Lefton, CRC Holdings, Inc.,
Gencom Asset Management Company, L.P. and Continental Gencom Holdings, LLC
(which amount shall not exceed the lesser of $500,000 or one-third (1/3) of
(x) above). The amount referred to in this subparagraph (iii) shall be
referred to as the "Wyndham Amount"; and
(iv) 47.48% of the fee received from the developer of the Royal
Palm Crowne Plaza Resort.
CHH may deduct from the payment of each Contingent Item referred to in
(i), (ii) and (iv) above Ventures' applicable percentage of the reasonable
third party (non-affiliate) costs and expenses incurred by CHH for services
rendered after January 1, 2002 in pursuing the settlement and/or collection
of such Contingent Item so long as CHH provides to Ventures a detailed
accounting to support such costs and expenses.
Upon resolution or settlement of the Contingent Item referred to in
item (iii) above, the Wyndham Amount shall be deemed added to the principal
amount of the Promissory Note and the principal payments due thereunder
shall be adjusted ratably over the remaining term of the Promissory Note.
At that time, CHH agrees to execute and deliver to Ventures a new
promissory note reflecting this new amount and terms. Interest shall begin
to accrue on the adjusted principal amount as of the date the Wyndham
Amount is resolved or settled.
In the event it is finally determined by CHH that it is not going to
be successful collecting or resolving any one of the Contingent Items and
all efforts to pursue such claim have ceased, then CHH shall provide
Ventures with a detailed accounting to support all reasonable third party
(non-affiliate) costs and expenses incurred in pursuing the Contingent
Item. The applicable percentage (either 47.48% or 55%) of such reasonable
third party (non-affiliate) costs and expenses shall be payable by Ventures
to CHH to the extent and in the manner as follows:
First, the aggregate amount of such costs and expenses will be applied
to reduce the principal amount due under the Promissory Note only if and to
the extent the Wyndham Amount has been added to the principal amount of the
Promissory Note and in no event (other than as set forth in the following
paragraph) shall the aggregate of such costs and expenses exceed the
Wyndham Amount. For purposes of clarity the parties understand that in no
event shall the principal amount of the Promissory Note be reduced for any
reason if the Wyndham Amount is $0;
Second, if any of the Contingent Items referred to in (i), (ii) or
(iv) above have been paid to Ventures resulting in a positive cash payment
(collectively, the "Other Cash Payments"), Ventures will reimburse CHH for
such costs and expenses for an amount not to exceed the aggregate of the
Other Cash Payments and the Wyndham Amount; and
Third, any of such costs and expenses which exceed the aggregate of
the Other Cash Payments and the Wyndham Amount shall not be payable by
Ventures and CHH forfeits the right to any such reimbursement by Ventures.
b. The closing of the transactions contemplated hereby (the
"Closing") shall take place immediately following the execution of this
Redemption Agreement at the offices of Ventures, 3655 N.W. 87th Avenue,
Miami, Florida 33178, or at such other place as the parties may mutually
agree upon.
c. Each party agrees that the value of Ventures' interest in the
assets of CHH is equal to $4,900,000 plus the Closing Fee. Each party
further agrees that the Cash Portion of the Redemption Price to be paid at
Closing and all payments of principal under the Promissory Note will be
classified as payments under Section 736(b) of the Internal Revenue Code of
1986, as amended (the "Code"), and will be treated as liquidating
distributions by CHH in the year payments are actually made thereunder.
The issuance of the Promissory Note itself will not be treated as a
distribution but merely as evidence of CHH's obligation to make liquidating
distributions to Ventures in the future. All other payments made pursuant
to this Redemption Agreement will be classified as payments under Section
736(a) of the Code.
d. CHH agrees to provide Ventures with detailed written status
reports regarding the Contingent Items by the 1st of each quarter beginning
July 1, 2002 and continuing until all Contingent Items have been paid to
Ventures or all efforts to pursue such claims have ceased. In addition,
CHH shall provide Ventures with written notice within five (5) business
days of CHH's (or its subsidiary or affiliate) resolution, settlement or
receipt of any funds relating to any of the Contingent Items. All amounts
due to Ventures relating to the Contingent Items shall be paid by CHH to
Ventures within five (5) business days of CHH's (or its subsidiary or
affiliate) receipt of funds relating to any of the Contingent Items (other
than the Wyndham Amount) by wire transfer of immediately available funds to
an account in the United States pursuant to the payment instructions of
Ventures.
e. From time to time on request, CHH shall furnish Ventures with
such information and documents, and provide access to the books, records,
consultants, advisors and agreements of CHH, including any subsidiary or
affiliate of CHH, as Ventures may reasonably require for the purpose of
auditing and verifying the amounts due to Ventures in respect of the
Contingent Items.
3. Ventures' Representations and Warranties. In order to induce CHH to
enter into this Redemption Agreement, Ventures represents and warrants to
CHH as follows:
a. Ventures has full power and authority to execute and deliver this
Redemption Agreement, and when fully executed and delivered, this
Redemption Agreement will constitute a legal, valid and binding obligation
of Ventures enforceable in accordance with its terms.
b. Except for the lien of Marriott International Capital
Corporation, the Membership Interest is owned by Ventures free and clear of
any and all liens, charges, security interests, options, rights,
encumbrances and claims of any kind or nature whatsoever, and the
redemption, transfer and assignment of the Membership Interest, will be
made free and clear of all liens, charges, security interests, options,
rights, encumbrances and claims of any kind or nature whatsoever.
c. The execution and delivery of this Redemption Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of
the terms and provisions hereof does not and will not constitute a default
or conflict with, any material agreement, indenture or other instrument to
which Ventures is bound; any judgment, decree, order or award of any court,
government body or arbitrator to which Ventures is subject; any law, rule
or regulation applicable to Ventures; or any charter documents relating to
the Membership Interest.
d. Ventures hereby recognizes and acknowledges that the Redemption
Price has been reached as a result of arms-length negotiations between
Ventures and CHH.
e. Ventures acknowledges that the Contribution Agreement dated as of
April 27, 2001 by and among Sherwood M. Weiser, Donald E. Lefton, Carnival
Corporation ("CC") and certain other parties (the "Contribution Agreement")
continues to be valid and enforceable against CC as of the date hereof and
that neither it, nor CC or any of their respective affiliates is currently
aware of having any claims or defenses relating to CC obligation
thereunder.
4. CHH's Representations and Warranties. In order to induce Ventures to
enter into this Redemption Agreement, CHH represents and warrants the
following:
a. CHH has full power and authority to execute and deliver this
Redemption Agreement, and when fully executed and delivered, this
Redemption Agreement will constitute a legal, valid and binding obligation
of CHH enforceable in accordance with its terms.
b. The execution and delivery of this Redemption Agreement, the
consummation of the transactions contemplated hereby and the fulfillment of
the terms and provisions hereof does not and will not constitute a default
or conflict with, any material agreement, indenture or other instrument to
which CHH is bound; any judgment, decree, order or award of any court,
government body or arbitrator to which CHH is subject; or any law, rule or
regulation applicable to CHH; or any charter documents relating to the
Membership Interest.
c. CHH hereby recognizes and acknowledges that the Redemption Price
has been reached as a result of arms-length negotiations among Ventures and
CHH.
d. CHH understands and acknowledges that the redemption and transfer
of the Membership Interest pursuant to this Redemption Agreement has not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any other applicable securities laws, and is intended
to be exempt from registration under the Securities Act. The Membership
Interest which CHH is acquiring will be acquired solely for the account of
CHH and is not being purchased with a view to effecting a public
distribution within the meaning of the federal securities laws.
e. CHH is not relying on any representations or warranties, explicit
or implied, from any party (including Ventures) in connection with the
matters set forth in this Redemption Agreement, other than the express
representations and warranties included in Section 3 hereof. CHH
acknowledges that Howard S. Frank, an executive officer of Ventures'
ultimate parent company, was designated by Ventures as a managing member of
CHH. CHH further acknowledges that no information relating to CHH shall be
attributed to Ventures (including Mr. Frank) based on any knowledge or
information that may have come to the attention of Mr. Frank in his
capacity as a managing member of CHH. CHH hereby waives and releases
Ventures from any and all claims, whether known or unknown, relating to the
value of the Membership Interest. Notwithstanding the foregoing, CHH does
not waive or release Ventures from any and all claims, whether known or
unknown, arising from a breach of any representation or warranty of
Ventures contained herein.
f. To the best of CHH's knowledge, after due inquiry, there are no
claims or contingencies which CHH may have, whether or not entered on the
books and records of CHH, to which CHH (or is subsidiaries or affiliates)
may be entitled to collect or entitled not to pay for an amount in excess
of $100,000.00, other than the Contingent Items.
5. Mutual Release. Each of CHH, its members and their respective
affiliates and assigns (collectively for this Section 5, "CHH"), on the one
hand, and CC, Ventures and their respective affiliates and assigns
(collectively for this Section 5, "Ventures"), on the other hand, for and
in consideration of the assignments of the Membership Interest from
Ventures to CHH and other valuable consideration received, the receipt
thereof is hereby acknowledged, does hereby release, acquit, satisfy, and
forever discharge the other parties of and from all, and all manner of
action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, contracts, controversies, agreements, promises, damages,
judgments, executions, claims and demands whatsoever in law or in equity
which any of the parties ever had, now has, or which any personal
representative, successor, heir or assign of any such party hereafter can,
shall or may have against any other party for, upon or by reason relating
to CHH, CRC Holdings, Inc. ("CRC") and any of the transactions related by
any of CHH, CRC or any of their affiliates. However, without regard to the
foregoing, nothing herein shall relieve (i) any of the parties from any
obligations or rights under this Agreement or any of the other agreements
executed in connection herewith (including the Promissory Note, the
Guaranty Agreements, or the Security Agreements) or under the Contribution
Agreement, (ii) any of the parties from acts of fraud, gross negligence or
willful misconduct, or (iii) Mr. Weiser from any obligations he may have as
a member of the Board of Directors of CC (provided, however, Ventures and
CC acknowledge that as of the date hereof they are not aware of any claims
against Mr. Weiser and they further acknowledge that they are not aware of
any claims relating to CC's ownership in CRC and CHH and Mr. Weiser's
ownership and management of such entities).
6. Survival of Representations and Warranties. All representations,
warranties, covenants, and agreements of the parties made in this Redemption
Agreement shall survive the execution of this Redemption Agreement and the
consummation of the transactions contemplated in this Redemption Agreement.
7. Waiver. No waiver of any breach of any term or condition of this
Redemption Agreement shall be deemed to be a waiver of any subsequent
breach of any term or condition of a like or different nature.
8. Severability. If any provision of this Redemption Agreement shall be
held invalid or unenforceable, such invalidity or unenforceability shall
not, if possible, affect the validity or enforceability of any other
provision of this Redemption Agreement, and this Redemption Agreement
shall, if possible, be construed and enforced in all respects as if such
invalid or unenforceable provision had not been contained in this
Redemption Agreement.
9. Draftsmanship. The fact that one of the parties may have drafted or
structured any provision of this Redemption Agreement shall not be
considered in construing the particular provision either in favor of, or
against, such party.
10. Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for in this Redemption
Agreement shall be given in writing by registered or certified mail or by
overnight courier service, which shall be addressed to the parties as
follows:
If to Ventures: c/o Carnival Corporation
3655 N.W. 87 Avenue
Miami, Florida 33178
Attn: Gerald R. Cahill
With a copy to: c/o Carnival Corporation
3655 N.W. 87 Avenue
Miami, Florida 33178
Attn: Arnaldo Perez, Esq.
If to CHH: 3250 Mary Street
Suite 500
Miami, Florida 33133
Attn: Sherwood Weiser
and Donald Lefton
With a copy to: Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street
Miami, Florida 33130
Attn: Richard E. Schatz, Esq.
11. Further Assurances. The parties will, upon reasonable request, execute
and deliver all such further assignments, endorsements and other documents as
may be necessary in order to perfect the redemption by CHH of the Membership
Interest.
12. Entire Agreement; No Oral Modification. This Redemption Agreement
contains the entire agreement among the parties hereto with respect to the
purchase and sale of the Membership Interest and supersedes all prior
agreements and understandings with respect thereto and may not be amended or
modified except in a writing signed by all of the parties hereto.
13. Binding Effect; Benefits. This Redemption Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors and assigns; however, nothing in this Redemption Agreement,
expressed or implied, is intended to confer any benefit on any other person
other than the parties hereto, their respective successors or assigns.
14. Counterparts. This Redemption Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
15. Governing Law. This Redemption Agreement shall be governed by, and
construed and enforced in accordance with the laws of the United States and
the State of Florida, both substantive and remedial. Exclusive venue and
jurisdiction for any action arising hereunder shall lie in the competent court
of jurisdiction located in Miami-Dade County, Florida, and the parties
specifically agree to submit to such jurisdiction and waive any objections to
such venue.
16. Headings. The section headings herein are included for convenience only
and are not to be deemed a part of this Redemption Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Redemption
Agreement as of the date first written above.
CC U.S. VENTURES, INC.
By: /s/Howard S. Frank
Howard S. Frank
Title: Vice President and Treasurer
CONTINENTAL HOSPITALITY HOLDINGS, LLC
By: /s/Sherwood M. Weiser
Sherwood M. Weiser
Title: Managing Member
EXHIBIT 10.2
PROMISSORY NOTE
$3,900,000.00 Dated as of June 13, 2002
1. For value received, CONTINENTAL HOSPITALITY HOLDINGS, LLC, a Delaware
limited liability company (the "Borrower"), promises to pay to the order of
CC U.S. VENTURES, INC., a Delaware corporation (the "Lender"), in installments
as hereinafter set forth, at the office of the Lender located at 3655 N.W. 87th
Avenue, Miami, Florida 33178 (or at such other office or location as the
Lender shall specify to the Borrower in writing from time to time), the
principal sum of Three Million Nine Hundred Thousand Dollars ($3,900,000.00)
(the "Loan"), in lawful money of the United States of America, and to pay
interest on the unpaid principal balance hereof in like money at such office
from the date hereof until the principal hereof shall have become due and
payable by acceleration or otherwise, at a fixed rate per annum equal to 5%.
2. This Note has been issued by the Borrower pursuant to the
Redemption Agreement dated as of the date hereof between the Borrower and
the Lender (the "Redemption Agreement"). This Note is secured by the joint
and several personal guarantees of Sherwood M. Weiser ("Mr. Weiser"), Karim
Alibhai and Donald Lefton (collectively, the "Guarantors") evidenced by
those certain Guaranty Agreements executed by each of the Guarantors and
dated as of the date hereof (the "Guaranty Agreements"). All capitalized
terms used in this Note and not otherwise defined herein shall have the
respective meaning as set forth in the Redemption Agreement, the terms of
which are incorporated herein by reference.
3. Unless earlier paid pursuant to the terms set forth below, the
principal amount of this Note shall be payable in nine equal semiannual
installments on each April 1, and October 1, commencing on April 1, 2003
with the last principal payment due April 1, 2007, at which time all unpaid
principal and accrued interest hereunder shall be due and payable in full.
Accrued and unpaid interest shall be due and payable in quarterly
installments on the first day of each January, April, July, and October,
with the first payment of interest due July 1, 2002 and the last interest
payment to be due and payable on April 1, 2007.
4. This Note may be prepaid from time to time, without premium or
penalty, with such prepayments being applied in the following order: first,
to all accrued interest and second, to all outstanding principal in the
inverse order of maturity.
5. Late Charge. A late charge of five percent (5%) of any payment
required hereunder shall be imposed on each and every payment, including the
final payment due hereunder, not received by the Lender within ten (10) days
after it is due. The late charge is not a penalty, but liquidated damages to
defray administrative and related expenses due to such late payment. The late
charge shall be immediately due and payable and shall be paid by the Borrower
to the Lender without notice or demand. This provision for a late charge is
not and shall not be deemed a grace period, and Lender has no obligation to
accept a late payment. Further, the acceptance of a late payment shall not
constitute a waiver of any default then existing or thereafter arising in this
Note.
6. Prior to the occurrence of an Event of Default (as hereinafter
defined), any payments received by Lender shall be applied first to accrued
and unpaid interest and then to the outstanding principal amount of this
Note. Upon the occurrence of an Event of Default, all payments hereunder
shall first be applied to costs pursuant to Section 9, then to interest and
the remainder to principal.
7. Upon the occurrence of an Event of Default, this Note shall bear
interest at the rate of fifteen percent (15%) per annum, until paid (the
"Default Rate").
8. All payments by the Borrower under this Note shall be made without
setoff or counterclaim and in such amounts as may be necessary in order
that all payments, after deduction or withholding for or on account of any
present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political subdivision or
taxing authority thereof (collectively the "Taxes"), shall not be less than
the amounts otherwise specified to be paid under this Note.
Notwithstanding anything to the contrary contained in this paragraph, the
Borrower shall not be liable for the payment of any tax on or measured by
net income imposed on the Lender pursuant to the income tax laws of the
United States or by the jurisdiction under the laws of which the Lender is
organized or is or should be qualified to do business or any political
subdivision thereof. The Borrower shall further pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Note or any of the other documents evidencing and/or securing the Loan
(herein referred to as "Other Taxes"). The Borrower shall pay all Taxes
and Other Taxes when due (and indemnify the Lender against any liability
therefor) and shall promptly (and in any event not later than 30 days
thereafter) furnish to the Lender any certificates, receipts and other
documents which may be required (in the judgment of the Lender) to
establish any tax credit to which the Lender may be entitled. The Borrower
shall indemnify the Lender for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this paragraph) paid by the Lender or
any liability (including interest and penalties) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the obligations of the Borrower under this
paragraph shall survive the termination of this Note and the repayment of
the Loan. The Borrower and Lender acknowledge that the principal amount of
this Promissory Note may be increased or decreased pursuant to Section 2 of
the Redemption Agreement.
9. Upon the happening of any of the following events (herein referred
to as an "Event of Default"), all liabilities of the Borrower to the Lender,
evidenced by this Note, shall thereupon or thereafter, at the option of the
Lender, without notice or demand, become immediately due and payable:
(a) failure of the Borrower or any Guarantor to (i) perform any
agreement, obligation or covenant contained in this Note, in the Redemption
Agreement, in any of the Guaranty Agreements or under any other instrument
or agreement evidencing, securing and/or guaranteeing the obligations and
indebtedness of the Borrower to the Lender evidenced by this Note, or (ii)
to pay in full, when due, any liability whatsoever or any principal
installment or interest payment due under this Note or (iii) to pay
promptly any amounts owed by Borrower to Lender under that certain
Redemption Agreement, and in each case, any such failure shall remain
unremedied for ten (10) days after written notice thereof shall have been
given to the Borrower by the Lender;
(b) the Borrower or Mr. Weiser shall (i) make an assignment for the
benefit of creditors, petition or apply to any court or other tribunal for
the appointment of a custodian, receiver or any trustee or shall commence
any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if there shall have
been filed any such petition or application, or any such proceeding shall
have been commenced against the Borrower or Mr. Weiser in which an order
for relief is entered or which remains undismissed for a period of thirty
(30) days or more; the Borrower or Mr. Weiser, by any act or omission shall
indicate consent to, approval of or fail to timely object to any such
petition, application or proceeding or order for relief or the appointment
of a custodian, receiver or any trustee or shall suffer any such
custodianship, receivership or trusteeship to continue undischarged for a
period of thirty (30) days or more; (ii) admit in writing its inability to
pay its debts as they mature; or (iii) have concealed, removed or permitted
to be concealed or removed any part of its properties or assets, with
intent to hinder, delay or defraud its creditors or any of them, or made or
suffered a fraudulent transfer of any of its property under any bankruptcy,
fraudulent conveyance or similar law; or (iv) be "insolvent", as such term
is defined in the federal bankruptcy code of the United States or under the
laws of the jurisdiction in which the Borrower is incorporated or does
business or Mr. Weiser resides;
(c) the issuing of any attachment or garnishment against any property
of the Borrower or any Guarantor pledged to secure the obligations of the
Borrower to the Lender evidenced by this Note or the obligations of any
Guarantors under the Guaranty Agreements, or the filing of any lien against
any property of the Borrower or any Guarantor pledged to secure the
obligations of the Borrower to the Lender evidenced by this Note or the
obligations of the Guarantor to the Lender evidenced by the Guaranty
Agreements, in either of which case is not cured, bonded or released within
thirty (30) days following notice thereof from the Lender to the Borrower
or the Guarantor, as the case may be;
(d) the taking of possession of any substantial part of the property
of the Borrower or Mr. Weiser at the instance of any governmental
authority;
(e) the death of Mr. Weiser; provided, however, that the death of Mr.
Weiser shall not constitute an Event of Default if, within sixty (60) days of
the opening of the estate of Mr. Weiser (the "Estate"), the Estate or another
party reasonably acceptable to the Lender, by written instrument acceptable
to the Lender becomes a substitute guarantor, and upon the Estate distributing
its assets, a substitute guarantor reasonably acceptable to the Lender is
provided to the Lender (all costs incurred by the Lender in connection with
the preparation and delivery of any documentation relating to the foregoing
shall be borne solely by the Borrower);
(f) any warranty, representation, certificate or statement of the
Borrower or any Guarantors (whether contained in this Note or not), including,
without limitation, the representations, warranties and statements contained
in the Redemption Agreement, in the Certificate of Borrower and in the
Certificate of Guarantors dated as of the date hereof, pertaining to or in
connection with this Note or the loan evidenced by this Note is not true in
any material respect and any such failure shall remain unremedied to the
reasonable satisfaction of the Lender for ten (10) days after written notice
thereof shall have been given to the Borrower by the Lender;
(g) any Guarantor further granting of a security interest in any of the
Collateral, without the prior written consent of the Lender;
(h) the occurrence of a default not cured within the applicable grace
period under any of the Security Agreements executed by the Guarantors;
(i) a default not cured within the applicable grace period or waived
under any loan from Marriott International Capital Corporation to G.B. Hotel
Partners, Ltd;
(j) the occurrence of a default not cured or waived within the
applicable grace period under that certain Pledge and Security Agreement dated
as of July 10, 2001 by and among Key Resort, Inc., GB (Key Biscayne) Operating
Corporation, the limited partners of G.B. Hotel Partners, Ltd. and Marriott
International Capital Corporation;
(k) G.B. Hotel Partners Ltd. (the "Partnership") shall sell or transfer,
or otherwise dispose of its interest in the Key Biscayne Ritz-Carlton (the
"Project");
(l) Any Guarantor shall sell or transfer, or otherwise dispose of its
interest in the Collateral; or
(m) the occurrence of a default, not cured or waived within the
applicable grace period, with respect to any mortgage encumbering the Project.
The Borrower agrees to pay all costs incurred by any holder hereof,
including reasonable attorneys' fees (including those for appellate
proceedings), incurred in connection with any Event of Default, or in
connection with the collection or attempted collection or enforcement
hereof, or in connection with the protection of any collateral given as
security for the payment hereof, whether or not legal proceedings may have
been instituted.
10. The Borrower hereby waives presentment for payment, demand,
protest, notice of dishonor, notice of acceleration of maturity, and all
defenses on the ground of extension of time for payment hereof, and agrees
to continue and remain bound for the payment of principal, interest and all
other sums payable hereunder, notwithstanding any change or changes by way
of release, surrender, exchange or substitution of any security for this
Note or by way of any extension or extensions of time for payment of
principal or interest; and the Borrower waives all and every kind of notice
of such change or changes and agree that the same may be made without
notice to or consent of him.
11. Rights and remedies of the holder as provided herein shall be
cumulative and concurrent and may be pursued singularly, successively or
together at the sole discretion of the holder, and may be exercised as
often as occasion therefor shall occur, and the failure to exercise any
such right or remedy shall in no event be construed as a waiver or release
of the same.
12. No failure on the part of Lender to exercise any right or remedy
hereunder, whether before or after the happening of an Event of Default
shall constitute a waiver thereof, and no waiver of any past default shall
constitute a waiver of any future default or of any other default. No
failure to accelerate the debt evidenced hereby by reason of default
hereunder, or acceptance of a past due installment, or indulgence granted
from time to time shall be construed to be a waiver of the right to insist
upon prompt payment thereafter or to impose late charges retroactively or
prospectively, or shall be deemed to be a novation of this Note or as a
reinstatement of the debt evidenced hereby or as a waiver of such right or
acceleration or any other right, or be construed so as to preclude the
exercise of any right that Lender may have, whether by the laws of the
State of Florida, by agreement, or otherwise; and the Borrower hereby
expressly waives the benefit of any statute or rule of law or equity that
would produce a result contrary to or in conflict with the foregoing. This
Note may not be changed orally, but only by an agreement in writing signed
by the party against whom such agreement is sought to be enforced.
13. Anything herein to the contrary notwithstanding, the obligations
of the Borrower under this Note shall be subject to the limitation that
payments of interest to the Lender shall not be required to the extent that
receipt of any such payment by the Lender would be contrary to provisions
of law applicable to the Lender (if any) which limit the maximum rate of
interest which may be charged or collected by the Lender; provided,
however, that nothing herein shall be construed to limit the Lender to
presently existing maximum rates of interest, if an increased interest rate
is hereafter permitted by reason of applicable federal or state
legislation. In the event that the Borrower makes any payment of interest,
fees or other charges, however denominated, pursuant to this Note, which
payment results in the interest paid to the Lender to exceed the maximum
rate of interest permitted by applicable law, any excess over such maximum
shall be applied in reduction of the principal balance owed to the Lender
as of the date of such payment, or if such excess exceeds the amount of
principal owed to the Lender as of the date of such payment, the difference
shall be paid by the Lender to the Borrower.
14. In the event of the loss, theft or destruction of this Note, upon
Borrower's receipt of a reasonably satisfactory indemnification agreement
executed in favor of Borrower by the party who held this Note immediately
prior to its loss, theft or destruction, or in the event of the mutilation
of this Note, upon Lender's surrender to the Borrower of the mutilated
Note, Borrower shall execute and deliver to such party or Lender, as the
case may be, a new promissory note in form and content identical to this
Note in lieu of the lost, stolen, destroyed or mutilated Note.
15. This Note shall be binding on and enforceable on and against the
Borrower and its successors and assigns.
16. This Note shall be governed by and construed in accordance with
the laws of the State of Florida.
17. The captions of sections of this Note are for convenient
reference only, and shall not affect the construction or interpretation of
any of the terms and provisions set forth in this Note.
18. If any provision or portion of this Note is declared or found by
a court of competent jurisdiction to be unenforceable or null and void,
such provision or portion thereof shall be deemed stricken and severed from
this Note, and the remaining provisions and portions thereof shall continue
in full force and effect.
19. This Note may not be amended, extended, renewed or modified nor
shall any waiver of any provision hereof be effective, except by an
instrument in writing executed by an authorized officer of the Lender. Any
waiver of any provision hereof shall be effective only in the specific
instance and for the specific purpose for which given.
20. THE RELATIONSHIP BETWEEN BORROWER AND LENDER IS, AND AT ALL TIMES
SHALL REMAIN, SOLELY THAT OF DEBTOR AND CREDITOR, AND SHALL NOT BE, OR BE
CONSTRUED TO BE, A JOINT VENTURE, EQUITY VENTURE, PARTNERSHIP OR OTHER
RELATIONSHIP OF ANY NATURE.
21 THE BORROWER HEREBY, AND THE LENDER BY ITS ACCEPTANCE OF THIS NOTE,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER MAKING THE LOAN EVIDENCED
BY THIS NOTE.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed as of
the date first above written.
CONTINENTAL HOSPITALITY HOLDINGS, LLC
By:/s/ Sherwood M. Weiser
Sherwood M. Weiser
Title: Managing Member
EXHIBIT 10.3
GUARANTY AGREEMENT
This absolute and unconditional guaranty (this "Guaranty Agreement")
given by Sherwood M. Weiser (the "Guarantor"), to induce CC U.S. VENTURES,
INC., a Delaware corporation ("Ventures"), to extend credit to or otherwise
become or remain the creditor of CONTINENTAL HOSPITALITY HOLDINGS, LLC, a
Delaware limited liability company ("CHH").
WITNESSETH:
WHEREAS, contemporaneously with the execution of this Guaranty
Agreement, CHH entered into a Redemption Agreement dated as of the date
hereof between Ventures and CHH (the "Redemption Agreement") and Ventures
agreed to accept a promissory note in the original principal amount of $3.9
million from CHH (the "Promissory Note") as provided for in the Redemption
Agreement (the "Redemption Transaction");
WHEREAS, the Guarantor owns a membership interest in CHH and will
benefit substantially from the Redemption Transaction. Immediately
following the Redemption Transaction, the Guarantor will own 25.25%
membership interest in CHH;
WHEREAS, as a material inducement to Ventures to enter into the
Redemption Transaction and accept the Promissory Note, the Guarantor has
agreed to issue in favor of Ventures this Guaranty Agreement pursuant to
which the Guarantor guarantees all of the Obligations (defined below);
WHEREAS, as further inducement to Ventures to enter into the
Redemption Transaction and accept the Promissory Note, Karim Alibahi and
Donald Lefton (collectively, the "Other Guarantors") have agreed to issue
in favor of Ventures guaranty agreements pursuant to which they guarantee
certain of the Obligations; and
WHEREAS, the Guarantor has agreed to grant a continuing lien on the
Collateral (defined in that certain Security and Pledge Agreement dated as
of the date hereof between Guarantor and Ventures (the "Security and Pledge
Agreement")) to secure their obligations under this Guaranty Agreement as
further provided in the Security and Pledge Agreement.
NOW, THEREFORE, in consideration of the foregoing, the Guarantor does
hereby agree with Ventures as follows:
1. Obligation of the Guarantor. The Guarantor irrevocably, absolutely and
unconditionally guarantees to Ventures, its successors and assigns (whether
collateral assigns or otherwise), the prompt and full payment in United
States currency and performance of any and every of the Obligations
(defined below), whether due at maturity, acceleration or otherwise,
together with all attorneys' fees, costs and expenses of collection whether
suit be brought or not, including costs, expenses and attorneys' fees on
appeal if an appeal is taken from any suit, incurred by Ventures, in
connection with any matter covered by this Guaranty Agreement, and agrees
in the event CHH fails to fully and timely perform any of said Obligations
to fully and timely perform same immediately upon demand. "Obligations"
means all loans, advances, debts, liabilities and obligations owing by CHH
to Ventures under the Promissory Note and the Redemption Agreement, and all
covenants and duties regarding such amounts, of any kind or nature, present
or future, arising under the Promissory Note or the Redemption Agreement
and any related document or agreement. The term "Obligations" includes,
without limitation, (i) all principal and interest (including all interest
which accrues after the commencement of any case or proceeding in
bankruptcy after the insolvency of, or for the reorganization of CHH,
whether or not allowed in such proceeding), (ii) all costs of collection,
and (iii) all other fees, charges, expenses, attorneys' fees and any other
sum chargeable to CHH under the Promissory Note, the Redemption Agreement
or any related document or agreement.
2. Consent to Ventures' Acts. The Guarantor consents, without affecting
in any way the Guarantor's liability to Ventures hereunder, that Ventures
may, without notice to or consent of the Guarantor and upon such terms as
it may deem advisable and with or without consideration and after notice of
cancellation is received by Ventures: (a) extend, in whole or in part, by
renewal or otherwise, and as often as Ventures may wish, the time of
payment of any indebtedness owing by CHH, to Ventures, or held by Ventures
as security for any such obligation; (b) release, surrender, exchange,
modify, impair, or extend the period of duration, or the time for
performance or payment, of any collateral securing any obligation of CHH to
Ventures; (c) settle or compromise any claim of Ventures against CHH, or
against any other person, firm or corporation, whose obligation is held by
Ventures as collateral security for any obligation of CHH to Ventures; (d)
release in whole or in part any person liable for the payment of any
Obligation, including, but not limited to, any of the other guarantors or
any person liable as an endorser, guarantor or judgment debtor (if Ventures
obtains a judgment on any of the Obligation) of the Obligation and, in any
event, such release shall not affect the liability of the Guarantor for the
entire amount of any and every of the Obligation; (e) proceed against the
Guarantor without first proceeding against or joining CHH or any guarantor
or any endorser of any note or other agreement evidencing the Obligations,
or any property securing the payment or performance of the Obligations; and
(f) generally deal with CHH or any of the security for the Obligations or
other person or party as Ventures may see fit. Further, Ventures shall not
be under any obligation whatsoever to obtain or perfect or to maintain the
perfection of any security interest or other lien on property to secure
indebtedness of CHH to Ventures or the obligations of the Guarantor
hereunder and Ventures shall have no obligation to, and shall not have any
liability for failing to, obtain or perfect or to maintain the perfection
of any security interest or lien on property to secure indebtedness of CHH
or the obligations of the Guarantor hereunder. Any failure of Ventures to
obtain and perfect or to maintain the perfection of any security interest
or lien shall not affect in any way whatsoever the obligation of the
Guarantor to Ventures under this Guaranty Agreement. The Guarantor hereby
ratifies and confirms any such extension, renewal, release, surrender,
exchange, modification, impairment, settlement, or compromise, and all such
actions shall be binding upon the Guarantor who hereby waive all defense,
counterclaims, or offsets which the Guarantor might have by reason thereof.
3. Covenants. The Guarantor covenants as follows:
a. The Guarantor shall provide (or cause CHH to provide) Ventures with
quarterly reports regarding the status of the working capital
loan (the "Marriott Loan") from Marriott International Capital
Corporation to G.B. Hotel Partners, Ltd. ("GBHP"), including the
amount of principal and interest outstanding.
b. The Guarantor shall provide Ventures with written notice within
ten(10) days of the occurrence of any of the following:
(i) Any amendment of any documents relating to the Marriott
Loan;
(ii) The satisfaction of the Marriott Loan;
(iii) Any notice, report, threat or other information
regarding the failure of GBHP or any of its property failing
to materially comply with all applicable laws, rules,
regulations and orders or to pay when due all taxes,
assessments and governmental charges imposed upon it or upon
its property;
(iv) Any event which is or may become a default or breach of
GBHP's obligations under the documents relating to the
Marriott Loan or results in a default or event of default
thereunder, or any event which materially adversely affects
GBHP's ability to fully perform any of its obligations under
the documents relating to the Marriott Loan, or any event
which has occurred and is continuing under thy material
agreement to which GBHP or any of its subsidiaries is a
party;
(v) As soon as they become available, but in any event within
120 days after the end of each of its fiscal years, a copy
of the financial statements of GBHP; and
(vi) From time to time on request, such information and documents
as Ventures may reasonably request.
c. The Guarantor shall ensure that GBHP shall not (i) obtain
additional financing or (ii) refinance any of its existing or
future indebtedness, unless (a) with regard to a refinancing, there
is no increase in the aggregate principal amount outstanding
immediately prior to such refinancing; or (b) the value of the
Collateral immediately following any such financing or refinancing
is reasonably acceptable to Ventures. For purposes this Section
3.c., the value of the Collateral shall be deemed reasonably
acceptable if the Collateral value equals at least the Minimum
Value (defined below) based upon an independent third party
appraisal and such appraiser and appraisal is reasonably acceptable
to Ventures. "Minimum Value" means (x) prior to the effectiveness
of the Security and Pledge Agreement as provided in Section 3
thereof, three times the amount outstanding under the Promissory
Note and (y) following effectiveness of the Security and Pledge
Agreement as provided in Section 3 thereof, two times the amount
outstanding under the Promissory Note.
d. The Guarantor shall not sell, transfer, encumber or otherwise
dispose of its interest in the Collateral.
e. The Guarantor shall ensure that GBHP shall not sell or otherwise
dispose of its interest in the Ritz-Carlton Hotel located in
Key Biscayne, Florida.
f. Upon the occurrence of any of the following events described in
(i) - (iii) below, the Guarantor shall immediately, and in no
event not later than 30 days following the occurrence of any one
of these events (which event shall have continued and not have
been dismissed during such period), provide or shall cause CHH to
provide additional collateral for the Obligations, the form and
value of which shall be reasonably acceptable to Ventures:
(i) Any of the Other Guarantors shall (A) make an assignment for
the benefit of creditors, petition or apply to any court or
other tribunal for the appointment of a custodian, receiver
or any trustee or shall commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or
application, or any such proceeding shall have been
commenced against any of the Other Guarantors in which an
order for relief is entered; any of the Other Guarantors, by
any act or omission shall indicate consent to, approval of
or fail to timely object to any such petition, application
or proceeding or order for relief or the appointment of a
custodian, receiver or any trustee; (B) admit in writing his
inability to pay his debts as they mature; or (C) have
concealed, removed or permitted to be concealed or removed
any part of his properties or assets, with intent to hinder,
delay or defraud its creditors or any of them, or made or
suffered a fraudulent transfer of any of his property under
any bankruptcy, fraudulent conveyance or similar law; or (D)
be "insolvent", as such term is defined in the federal
bankruptcy code of the United States or under the laws of
the jurisdiction in which the Borrower is incorporated or
does business or either of the Other Guarantors reside;
(ii) the taking of possession of any substantial part of the
property of any of the Other Guarantors at the instance of
any governmental authority;
(iii) the death of any of the Other Guarantors;
4. Waivers by Guarantor. The Guarantor waives: (a) notice of acceptance
of this Guaranty Agreement by Ventures; (b) notice of presentment, demand
of payment, notice of dishonor or protest of any of the Obligations or the
obligation of any person, firm, or corporation held by Ventures as
collateral security for CHH's obligation; (c) notice of the failure of any
person, firm or corporation to pay to Ventures any indebtedness held by
Ventures as collateral security interest or lien on property to secure any
indebtedness to CHH; (d) failure of Ventures to obtain and perfect or
maintain the perfection or priority of any security interest or lien on
property to secure any indebtedness of CHH or the obligations of the
Guarantor hereunder; (e) all defenses, offsets and counterclaims which the
Guarantor may at any time have to any claim of Ventures against CHH; (f)
notice of any default by CHH or any pledgor, grantor of security, or any
guarantor; (g) any other notices to which the Guarantor may otherwise be
entitled; (h) any right or claim of right to cause a marshalling of any of
CHH's assets or the assets of any other party now or hereafter held as
security for the Obligations, and waives the benefit of any statute of
limitations affecting the liability of the Guarantor hereunder.
5. Remedies of Ventures. This is a guaranty of payment and not of
collection. Ventures may at its option proceed in the first instance
against the Guarantor to collect any obligation covered by this Guaranty
Agreement, without first proceeding against CHH for the Obligations, or any
other person, firm or corporation liable for the Obligations, and without
first resorting to any property at any time held by Ventures as collateral
security for the Obligations or the obligations under this Guaranty
Agreement and without any marshalling of assets whatsoever.
The liability of the Guarantor under this Guaranty Agreement is
absolute and unconditional, without regard to the liability of any other
person, and shall not in any manner be affected by reason of action taken
or not taken by Ventures, which action or inaction is herein consented and
agreed to, nor by the partial or complete unenforceability or invalidity of
any other guaranty or surety agreement, pledge, assignment or other
security for any of the Obligation or the obligations under this Guaranty
Agreement. No delay in making demand on the Guarantor for satisfaction of
their liability hereunder shall prejudice Ventures' right to enforce such
satisfaction. All of Ventures' rights and remedies shall be cumulative and
any failure of Ventures to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right
at any time, and from time to time, thereafter.
6. Bankruptcy of CHH. Notwithstanding that this Guaranty Agreement may
have been cancelled and/or returned to the Guarantor, to the extent CHH has
made any payments to Ventures within the ninety (90) day period following
the date this Guaranty Agreement was so cancelled, and the Guarantor was
obligated under this Guaranty Agreement for said payments, the liability of
the Guarantor hereunder shall at all times continue for the amounts so paid
by CHH to Ventures. If, for any reason, (e.g. bankruptcy, or otherwise),
Ventures is not permitted to retain the payments so made by CHH during said
ninety (90) day period, the Guarantor shall be liable under this Guaranty
Agreement for the amount of such payments as if this Guaranty Agreement had
never been cancelled and Ventures shall be entitled to recover said amount
so paid by CHH within said ninety (90) day period. Anything in this
Guaranty Agreement to the contrary notwithstanding, if at any time this
Guaranty Agreement is to be cancelled, Ventures may retain the Guaranty
Agreement for a period of one hundred twenty (120) days after the date the
Guaranty Agreement is to be so cancelled and in the event no bankruptcy
petition has been filed by or against CHH for the ninety (90) day period
following the date this Guaranty Agreement is to be cancelled, then, in
that event, this Guaranty Agreement shall be returned to the Guarantor.
If, however, a bankruptcy petition has been filed by or against CHH during
said ninety (90) day period, and CHH has made payments to Ventures during
said (90) day period, this Guaranty Agreement shall not be cancelled and/or
returned to the Guarantor unless and until a decision by a court of
competent jurisdiction, or other agreement has been entered or reached,
pursuant to which Ventures shall be entitled to retain all such monies paid
during said ninety (90) day period. If, as set for the above, Ventures is
obligated to return to CHH any monies so paid during said ninety (90) day
period and such monies are actually returned to CHH, this Guaranty
Agreement shall not be cancelled (notwithstanding it being marked
"Cancelled" and returned to the Guarantor) and the Guarantor shall continue
to be liable to Ventures for all monies paid during said ninety (90) day
period. If Ventures shall have marked this Guaranty Agreement "Cancelled"
and/or returned this Guaranty Agreement to the Guarantor, and under the
provisions of this paragraph 2, the Guarantor has continuing liability to
Ventures for certain amounts which Ventures has or is obligated to return
to CHH, then, in such case, Ventures may enforce its rights under this
Guaranty Agreement upon any copy of this Guaranty Agreement notwithstanding
the fact that the original of this Guaranty Agreement may have been marked
"Cancelled" and/or returned to the Guarantor.
7. Construction and Benefit. This Guaranty Agreement is delivered and
made in, and shall be construed pursuant to and governed by, the laws of
the State of Florida, and is binding upon the Guarantor and his legal
representatives and successors, and shall inure to the benefit to Ventures,
its successors and assigns.
8. Miscellaneous. In the event it becomes necessary for Ventures to
exercise its rights under this Guaranty Agreement, whether suit be brought
or not, the Guarantor shall be liable for all costs and attorneys' fees
incurred by Ventures, including costs and attorneys' fees incurred by
Ventures on appeal. To the extent the Guarantor is obligated to make any
payments to Ventures under this Guaranty Agreement, Ventures may offset and
retain in payment of said amounts any and all monies of the Guarantor in
the possession of Ventures at any time. In the further event Ventures
obtains a final judgment against the Guarantor upon this Guaranty
Agreement, the judgment shall bear interest not at the judgment rate but at
the highest rate permitted by applicable law from time to time in effect at
the time of said judgment. Further, the Guarantor agrees that the proper
venue for any action that may be brought under this Guaranty Agreement, in
addition to any other venue permitted by law, shall be in Miami-Dade
County, Florida. The liability of the Guarantor shall be joint and
several. This Guaranty Agreement shall be a continuing one and shall be
binding upon the Guarantor regardless of how long before or after the date
hereof any of the Obligations were or are incurred. The term "Ventures"
shall be deemed to include any individual, partnership or corporation
acting as its nominee or agent, and any of its corporate subsidiaries or
affiliates, the stock or interest of which is owned or controlled, directly
or indirectly, by it or by any affiliate of Ventures. The term "CHH" shall
include (a) any successor individual or individuals, association,
partnership, corporation or other entity to which all or substantially all
of the business or assets of said CHH shall have been transferred, (b) any
new partnership which shall have been created by reason of the admission of
any new partner or partners therein and/or the dissolution of the existing
partnership by death, resignation or other withdrawal of any partner, and
(c) any other corporation into or with which CHH shall have been merged,
consolidated, reorganized, purchased or absorbed.
9. Complete Agreement. The whole of this Guaranty Agreement is herein set
forth and there is no verbal or other written agreement, and not
understanding or custom affecting the terms hereof. This Guaranty
Agreement can be modified only by a written instrument signed by the party
to be charged therewith.
10. Subordination. Upon the occurrence and continuance of an Event of
Default (as defined under the Promissory Note):
a. All rights and claims of the Guarantor (collectively the
"Guarantor Claims") against CHH or any of CHH's property now or
hereafter existing shall be subordinate and subject in right of
payment to the prior payment in full of and the performance of
all of the Obligations.
b. Until the Obligations have been paid and performed in full and
the Guarantor shall have performed all of the Guarantor's
obligations hereunder, the Guarantor shall not receive or
collect, directly or indirectly, from CHH or any other party any
payment upon the Guarantor Claims, nor seek to realize upon any
collateral securing such Guarantor Claims. Notwithstanding the
foregoing, if the Guarantor should receive any such payment, the
Guarantor agrees to hold same in trust for Ventures and agrees
that the Guarantor shall have absolutely no rights in or to or
dominion over such payments except to pay them promptly to
Ventures and the Guarantor hereby covenant to do so.
11. Grant of Security Interest. To secure the prompt payment and
performance of the Obligations, the Guarantor grants to Ventures a
continuing first lien security interest in the Guarantor Claims and in all
property of the Guarantor delivered concurrently herewith or now, or at any
time hereafter in the possession of Ventures, and all proceeds of all such
property. The Guarantor agrees that Ventures shall have the rights and
remedies of a secured party under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida with respect to all of the
aforesaid property, including, without limitation, the right to sell or
otherwise dispose of any or all of such property. Ventures may, without
further notice to anyone, apply or set off any balances, credits, deposits,
accounts, monies or other indebtedness at any time created by or due from
Ventures to the Guarantor against the amounts due hereunder. Any
notification of intended disposition of any property required by law shall
be deemed reasonably and properly given if given at least five (5) calendar
days before such disposition.
12. Notice. All notices, demands, requests and other communications, if
any, required under this Guaranty Agreement may be given orally (either in
person or by telephone if confirmed in writing within three (3) days
thereafter), by telex, telegram, or telecopy, or in writing delivered by
hand or mail and shall be conclusively deemed to have been received if
delivered or attempted to be delivered by United States first class mail,
return receipt requested, postage prepaid, addressed to the party for whom
it is intended at its address set forth below. Any party may designate a
change of address by written notice to the other party, received by such
other party at least ten (10) days before such change of address is to
become effective. The Guarantor's addresses for the purpose of this
Section 12 is:
Sherwood M. Weiser
3250 Mary Street
Suite 500
Miami, Florida 33133
With a copy to:
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street
Miami, Florida 33130
Attn: Richard E. Schatz, Esq.
Donald E. Lefton
3250 Mary Street
Suite 500
Miami, Florida 33133
Karim Alibhai
3250 Mary Street
Suite 500
Miami, Florida 33133
Ventures' address for the purpose of this Section 12 is:
c/o Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Attn: Gerald R. Cahill
With a copy to:
c/o Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Attn: Arnaldo Perez, Esq.
This Guaranty Agreement does not require that Ventures give the
Guarantor any notice, demand, or request and this Section 12 shall not be
construed to create such a requirement.
13. Gender and Number. In this Guaranty Agreement, wherever the context so
requires, the use of any gender shall include all other genders, and words
in the singular shall include the plural and the plural shall include the
singular.
14. Savings Clause. If any provision or portion of this Guaranty Agreement
is declared or found by a court of competent jurisdiction to be
unenforceable or null and void, such provision or portion thereof shall be
deemed stricken and severed from this Guaranty Agreement, and the remaining
provisions and portions thereof shall continue in full force and effect.
15. Headings. The captions of Sections of this Guaranty Agreement are for
convenient reference only, and shall not affect the construction or
interpretation of any of the terms and provisions set forth in this
Guaranty Agreement.
16. Subrogation. At such time, and only at such time, as the Obligations
have been paid and performed in full, Ventures shall subrogate to Guarantor
any and all rights it has against the Other Guarantors and CHH (including
all rights with respect to the Collateral). To such end, Ventures shall
cooperate and execute any and all documents and/or instruments of transfer
necessary to effectuate an assignment of such claims and rights.
17. Waiver of Trial by Jury. VENTURES AND THE GUARANTOR HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EITHER MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM
BASED ON THIS GUARANTY AGREEMENT, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN CONNECTION WITH THIS GUARANTY AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR VENTURES
ACCEPTING THIS GUARANTY AGREEMENT FROM THE GUARANTOR AND FOR THE GUARANTOR
GIVING THIS GUARANTY AGREEMENT TO VENTURES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Guarantor intending to be jointly and
severally legally bound hereby has signed this Guaranty Agreement effective
as of the 13th day of June, 2002.
/s/Sherwood M. Weiser
Sherwood M. Weiser
State of Florida )
) SS
County of Miami-Dade )
The foregoing instrument was acknowledged before me this 13 day of June,
2002 by Sherwood M. Weiser. He personally appeared before me, is personally
known to me or produced _________________________ as identification.
Notary:/s/Gwen C. Newell
Print Name: Gwen C. Newell
EXHIBIT 10.4
SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT (this "Security and Pledge
Agreement"), dated as of June 13, 2002, is made and entered into by and
between SHERWOOD M. WEISER (the "Guarantor"), and CC U.S. VENTURES, INC., a
Delaware corporation (the "Secured Party").
WITNESSETH:
WHEREAS, Continental Hospitality Holdings, LLC ("CHH") entered into a
Redemption Agreement dated as of the date hereof between Secured Party and
CHH (the "Redemption Agreement") and Secured Party agreed to accept a
promissory note in the original principal amount of $3.9 million from CHH
(the "Promissory Note") as provided for in the Redemption Agreement (the
"Redemption Transaction");
WHEREAS, the Guarantor owns a 11.36% membership interest in CHH and
benefited substantially from the Redemption Transaction;
WHEREAS, in order to induce Secured Party to enter into the Redemption
Transaction, the Guarantor (i) issued in favor of Secured Party that
certain Guaranty Agreement, dated as of the date hereof (the "Guaranty
Agreement"), pursuant to which the Guarantor jointly and severally
guaranteed the Obligations (defined below) and (ii) agreed to grant a
continuing Lien on the Collateral (defined below) to secure his obligations
under the Guaranty Agreement subject to the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Redemption Agreement are used herein as therein defined, and the
following shall have (unless otherwise provided elsewhere in this
Security and Pledge Agreement) the following respective meanings (such
meanings being equally applicable to both the singular and plural form of
the terms defined):
"Bankruptcy Code" means title 7, 11 or 13, United States Code, as
amended from time to time, and any successor statute thereto.
"UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of Florida;
provided, however, in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or
priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of Florida, the term "UCC" shall
mean the Uniform Commercial Code as enacted and in effect in such
other jurisdiction solely for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes
of definitions related to such provisions.
"Collateral" has the meaning assigned to such term in Section 2
below.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including any lease or title retention agreement, any
financing lease having substantially the same economic effect as any
of the foregoing, and the filing of, or agreement to give, any
financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"Obligations" has the meaning ascribed to that term in the Guaranty
Agreement.
"Termination Date" means the date on which the amounts evidenced by
the Promissory Note have been indefeasibly repaid in full and all
other Obligations have been completely discharged.
2. Pledge and Grant of Lien. To secure the prompt and complete payment,
performance and observance of all of the obligations of the Guarantor
under the Guaranty Agreement, the Guarantor hereby grants, assigns,
conveys, mortgages, pledges, hypothecates and transfers to the Secured
Party a lien upon all of his right, title and interest in, to and under
the following property, whether now owned by or owing to, or hereinafter
acquired by or arising in favor of the Guarantor, and regardless or where
located (all of which being hereinafter collectively referred to as the
"Collateral"):
(i) 4.6% limited partnership interest in G.B. Hotel Partners, Ltd.
("GBHP"), a Florida limited partnership (the "Partnership
Interest"), subject to adjustment as provided below; and
(ii) All rights, powers, privileges and preferences pertaining to the
Collateral described in the preceding clause (i) and any
partnership rights, rights to subscribe, cash distributions,
dividends, distributions, liquidating distributions, new
securities (whether certificated or uncertificated) and other
property to which the Guarantor may become entitled by reason of
the ownership of any such Collateral; and
(iii) All proceeds of any of the foregoing Collateral.
Until the occurrence of an event which may upon notice or lapse of time
become an Event of Default (as defined in Section 7 hereof), the
Guarantor shall have the right to receive any dividends or
distributions relating to the Collateral.
This Security and Pledge Agreement shall constitute a security
agreement under the UCC.
The parties agree that at the time this Security and Pledge Agreement
becomes effective as provided in Section 3(ii) below, upon the Guarantor's
request, the Secured Party shall release its lien on a portion of the
Partnership Interest comprising the Collateral such that the Secured Party
shall have a lien on a 3.2% limited partnership interest in GBHP, provided
that the Collateral value of all collateral pledged to secure the
Promissory Note is at least two times the amount outstanding under the
Promissory Note based upon an independent third party appraisal and such
appraiser and appraisal is reasonably acceptable to the Secured Party.
3. Effective Date. This Security and Pledge Agreement shall be effective
only after the earlier of the following to occur:
(i) the Maturity Date (as defined in the Marriott Loan documents)
under the working capital loan from Marriott International
Capital Corporation to GBHP (the "Marriott Loan");
(ii) the satisfaction of the Marriott Loan; or
(iii) the occurrence of a default not cured within the applicable
grace period under the Marriott Loan.
4. Delivery of Collateral and Other Documents.
(i) To the extent applicable, immediately upon execution hereof,
Guarantor shall deliver to Secured Party all certificates, if
any, evidencing the pledged interests, accompanied by duly
executed instruments of transfer or assignments in blank, all in
form and substance satisfactory to the Secured Party.
(ii) Contemporaneously with the execution and delivery hereof,
Guarantor shall execute and deliver to Secured Party duly signed
UCC financing statements for filing with the State of Florida,
and shall execute and deliver to Secured Party, upon Secured
Party's request, any other documents reasonably requested by
Secured Party to effectively implement the purposes of this
Security and Pledge Agreement. The UCC financing statements
shall not be filed with the applicable governmental authorities
until the Effective Date shall have occurred.
5. Representations and Warranties. The Guarantor hereby represents and
warrants to the Secured Party as follows:
(i) The Guarantor is the sole legal and equitable owner of each item
of the Collateral upon which it purports to grant a security
interest hereunder, free from any adverse claim, lien, security
interests, encumbrance or other right, title or interests of any
person, except for the security interests created hereby and the
existing security interests securing the Marriott Loan. The
Guarantor has the right and power to grant a security interest in
the Collateral to the Secured Party without the consent of any
other person upon the satisfaction of the Marriott Loan, and the
Guarantor shall at its expense defend the Collateral against all
claims and demands of all persons at any time claiming the
Collateral or any interest therein adverse to the Secured Party.
So long as the obligations under the Guaranty Agreement are
outstanding, the Guarantor agrees with the Secured Party (a) not
to permit any part of the Collateral to be levied upon under any
legal process; (b) not to dispose of any of the Collateral
without the prior written consent of the Secured Party; (c) to
comply with all applicable federal, state and local statutes,
laws, rules and regulations, the non-compliance with which would
have an adverse effect on the value of the Collateral; and (d) to
pay all taxes accruing after the date hereof, which constitute or
may constitute a lien against the Collateral, prior to the date
when penalties or interest would attach to such taxes; provided
that the Guarantor may contest any such tax claim if done
diligently and in good faith.
(ii) No dispute, set-off, counterclaim or defense exists on the part
of Guarantor or any other person in respect of any part of the
Collateral;
(iii) No consent or approval by any governmental authority, regulatory
body, or other person, is or will be necessary for Guarantor to
establish the creation of a security interest in the Collateral
in favor of Secured Party which has not been obtained, except for
the approval required with respect to the Marriott Loan;
(iv) All information supplied and statements made to Secured Party in
connection with the identification and description of the
Collateral are true and correct in all material respects;
(v) The Guarantor's principal residence and the locations of all of
his books and records concerning the Collateral are set forth on
Schedule 1 hereto.
(vi) Without the proper consent of the Secured Party, the Guarantor
shall not sell, transfer, assign, convey, lease of otherwise
dispose of any part of the Collateral, or enter into any contract
or agreement to do so. The Guarantor will not compromise,
release, surrender or waive any rights of any nature whatsoever
in respect of any of the Collateral without the Secured Party's
prior written consent.
(vii) The Guarantor shall appear in and defend any actions or
proceedings which could reasonably be expected to affect
Guarantor's title to or the Secured Party's interest in the
Collateral and the proceeds thereof; provided, however, that the
Guarantor may settle such actions or proceedings with the consent
of the Secured Party which consent shall not be unreasonably
withheld or delayed. The Guarantor will advise the Secured Party
promptly, in reasonable detail, (a) of any Lien or claim made or
asserted against any of the Collateral, and (b) of the occurrence
of any other event which could have an adverse effect on the
aggregate value of the Collateral or on the Security Interests
created hereunder.
6. Covenants. The Guarantor covenants and agrees with Secured Party that
from and after the date hereof and until the Termination Date:
(i) At any time, upon the written request of the Secured Party and at
the sole expense of the Guarantor, the Guarantor shall promptly
and duly execute and deliver any and all such further instruments
and documents and take such further actions as the Secured Party
may deem desirable to obtain the full benefits of this Security
and Pledge Agreement and of the rights and powers herein granted.
The Guarantor also hereby authorizes the Secured Party to file
any financing or continuation statements under the UCC without
the signature of the Guarantor to the extent permitted by
applicable law.
(ii) The Guarantor shall keep and maintain, at its own cost and
expense, satisfactory and complete records of the Collateral,
including a record of any and all payments received and any and
all credits granted with respect to the Collateral and all other
dealings with the Collateral. The Guarantor shall mark its books
and records pertaining to the Collateral to evidence this
Security and Pledge Agreement and the security interests granted
hereby.
(iii) The Guarantor shall provide the Secured Party with quarterly
reports regarding the status of the Marriott Loan, including the
amount of principal and interest outstanding.
(iv) The Guarantor shall provide the Secured Party with written notice
within ten (10) days of the occurrence of any of the following:
(a) Any amendment of any documents relating to the Marriott
Loan;
(b) The satisfaction of the Marriott Loan;
(c) Any notice, report, threat or other information regarding
the failure of GBHP or any of its property failing to
materially comply with all applicable laws, rules,
regulations and orders or to pay when due all taxes,
assessments and governmental charges imposed upon it or upon
its property;
(d) Any event which is or may become a default or breach of
GBHP's obligations under the documents relating to the
Marriott Loan or results in a default or event of default
thereunder, or any event which materially adversely affects
GBHP's ability to fully perform any of its obligations under
the documents relating to the Marriott Loan, or any event
which has occurred and is continuing under thy material
agreement to which GBHP or any of its subsidiaries is a
party;
(e) As soon as they become available, but in any event within
120 days after the end of each of its fiscal years, a copy
of the financial statements of GBHP and the Ritz-Carlton
Hotel located in Key Biscayne, Florida;
(f) Any material change in any facts or circumstances warranted
or represented by Guarantor in this Security and Pledge
Agreement or in any other instrument furnished by Guarantor
to Secured Party in connection with the Collateral or the
Obligations;
(g) Any claim, action or proceeding affecting title, or any
other matter relating to the Collateral, or any part
thereof, or the security interest created herein;
(h) Any notice of default sent or received by Guarantor with
respect to any agreements relating to the Collateral; and
(i) From time to time on request, such information and documents
as Secured Party may reasonably request.
(v) The Guarantor shall ensure that GBHP shall not (i) obtain additional
financing or (ii) refinance any of its existing or future
indebtedness, unless (a) with regard to a refinancing, there is no
increase in the aggregate principal amount outstanding immediately
prior to such refinancing; or (b) the value of the Collateral
immediately following any such financing or refinancing is
reasonably acceptable to the Secured Party. For purposes this
Section 6(v), the value of the Collateral shall be deemed
reasonably acceptable if the Collateral value equals at least the
Minimum Value (defined below) based upon an independent third party
appraisal and such appraiser and appraisal is reasonably acceptable
to the Secured Party. "Minimum Value" means (x) prior to the
effectiveness of the Security and Pledge Agreement as provided in
Section 3 thereof, three times the amount outstanding under the
Promissory Note and (y) following effectiveness of the Security and
Pledge Agreement as provided in Section 3 thereof, two times the
amount outstanding under the Promissory Note.
7. Events of Default. As used herein, the term "Event of Default" shall
include any or all of the following:
(i) the assignment, voluntary or involuntary conveyance of legal or
beneficial interests, mortgage, pledge or grant of a security
interest in any of the Collateral (except for the existing pledge
of the Collateral in connection with the Marriott Loan); or
(ii) the filing or issuance of a notice of any lien, warrant for
distraint or notice of levy for taxes or assessment against the
Collateral which remains undismissed for a period of thirty (30)
days or more; or
(iii) the failure of the Guarantor to duly and timely perform any
agreement, obligation or covenant contained in this Security and
Pledge Agreement or the Guaranty Agreement, and in each case, any
such failure shall remain unremedied for ten (10) days after
written notice thereof shall have been given to the Guarantor by
the Lender; or
(iv) the adjudication of the Guarantor as bankrupt, or the taking of
any voluntary action by the Guarantor or any involuntary action
against the Guarantor seeking an adjudication of the Guarantor as
bankrupt, or seeking relief by or against the Guarantor under any
provision of the Bankruptcy Code; or
(v) the death of the Guarantor; provided, however, that the death of
the Guarantor shall not constitute an Event of Default if, within
sixty (60) days of the opening of the estate of the Guarantor
(the "Estate"), the Estate, by written instrument acceptable to
the Secured Party becomes a substitute guarantor, and upon the
Estate distributing its assets, a substitute guarantor reasonably
acceptable to the Secured Party is provided to the Secured Party
(all costs incurred by the Secured Party in connection with the
preparation and delivery of any documentation relating to the
foregoing shall be borne solely by CHH); or
(vi) Any representation or warranty made by Guarantor under this
Security and Pledge Agreement or any report, certificate,
financial statement, or other information provided by or on
behalf of Guarantor to Secured Party in connection herewith is
false or misleading in any material respect and any such failure
shall remain unremedied to the reasonable satisfaction of the
Lender for ten (10) days after written notice thereof shall have
been given to the Borrower by the Lender; or
(vii) the occurrence of a default not cured within the applicable
grace period under the Promissory Note, the Guaranty Agreement or
the Redemption Agreement.
8. Remedies; Rights upon Default. Upon the occurrence and during the
continuation of an Event of Default, and following five (5) days
following written demand for payment in full delivered to the Guarantor,
in addition to all other rights and remedies granted to it under this
Security and Pledge Agreement, the Promissory Note, and the UCC, the
Secured Party may at its option: (i) reduce its claim to judgment or
foreclosure or otherwise enforce the security interests granted herein,
in whole or in part, by any available judicial procedure; (ii) sell, or
otherwise dispose of, at the office of the Secured Party, or elsewhere,
all or any part of the Collateral, and any such sale or disposition, may
be as a unit or in parcels, by public or private proceedings, and by way
of one or more contracts (the sale of any part of the Collateral shall
not exhaust the Secured Party's power of sale, but sales may be made
from time to time, until all of the Collateral has been sold or until the
obligations under the Guaranty Agreement have been paid and performed in
full); (iii) at its discretion, retain the Collateral in satisfaction of
the obligations under the Guaranty Agreement whenever the circumstances
are such that the Secured Party is entitled to do so under the UCC or
otherwise; and (iv) exercise any and all other rights, remedies and
privileges it may have under the Guaranty Agreement, and all the other
documents defining the Obligations.
9. Applications of Proceeds by the Secured Party. Any and all proceeds ever
received by the Secured Party from any sale or other disposition of the
Collateral, or any part thereof, or the exercise or any other remedy
pursuant hereto shall be applied by the Secured Party to the obligations
under the Guaranty Agreement in such order and manner as the Secured
Party, in its sole discretion, may deem appropriate, notwithstanding any
directions or instructions to the contrary by the Guarantor; provided,
that (i) the proceeds and/or accounts shall be applied toward
satisfaction of the obligations under the Guaranty Agreement; and (ii) if
such proceeds and/or accounts are not sufficient to pay the obligations
under the Guaranty Agreement in full, the Guarantor shall remain liable
to the Secured Party for the deficiency. Any proceeds received by the
Secured Party under this Security and Pledge Agreement in excess of those
necessary for full and complete satisfaction of the obligations under the
Guaranty Agreement (as well as the Secured Party's costs and expenses
incurred in connection with its exercise of remedies hereunder) shall be
distributed to the Guarantor.
10. Notice of Sale. Reasonable notification of the time and place of any
public sale of the Collateral or reasonable notification of the time
after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to the Guarantor and to any other
persons entitled under the UCC to notice. It is agreed that notice sent
or given not less than ten (10) calendar days prior to the taking of the
action to which the notice relates is reasonable notification and notice
for the purposes of this Section. Except as otherwise may be
specifically provided herein, the Guarantor hereby waives presentment,
demand, protest or any notice (to the maximum extent permitted by
applicable law) of any kind in connection with this Security and Pledge
Agreement or any Collateral.
11. Limitation on Secured Party's Duty in Respect of Collateral. Secured
Party shall use reasonable care with respect to the Collateral in its
possession or under its control. Secured Party shall not have any other
duty as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of Secured Party, or any
income thereon or as to the preservation of rights against prior parties
or any other rights pertaining thereto.
12. Indemnification. In any suit, proceeding or action brought by the
Secured Party relating to any of the Collateral for any sum owing
thereunder or to enforce any provision of any of the Collateral, the
Guarantor will save, indemnify and keep the Secured Party harmless from
and against all expense (including reasonable attorneys' fees and
expenses), loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder, arising out of a breach by the Guarantor of any
obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to, or in favor of, such obligor or its
successors from the Guarantor, except in the case of the Secured Party,
to the extent such expense, loss, or damage is attributable solely to the
gross negligence or willful misconduct of the Secured Party as finally
determined by a court of competent jurisdiction. All such obligations of
the Guarantor shall be and remain enforceable against and only against
the Guarantor and shall not be enforceable against the Secured Party.
13. Notices. Notices required or permitted to be given under this
Security and Pledge Agreement shall be in writing and effective upon
delivery in person, by telecopy, or by certified mail, return receipt
requested, to the parties at the addresses below or to another address as
either party shall direct by notice to the other parties as provided in
this Section.
If to Guarantor, to: Mr. Sherwood M. Weiser
3250 Mary Street
Miami, Florida 33133
Telecopy: (305) 569-7803
With a copy to: Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street
Miami, Florida 33130
Attn: Richard E. Schatz, Esq.
Telecopy: (305) 789-3395
If to Secured Party, to: CC U.S. Ventures, Inc.
c/o Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Attn: Gerald R. Cahill
Telecopy: (305) 406-4700
with a copy (which shall
not constitute notice) to: Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178
Attn: Arnaldo Perez, Esq.
Telecopy: (305) 406-4758
14. Reinstatement. This Security and Pledge Agreement shall remain in
full force and effect and continue to be effective should any petition
be filed by or against the Guarantor for liquidation or reorganization
or should the Guarantor become insolvent or make an assignment for the
benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of the Guarantor's assets, and
shall continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the obligations under the
Guaranty Agreement, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the obligations under the Guaranty Agreement,
whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the obligations under the Guaranty
Agreement shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
15. Severability. Whenever possible, each provision of this Security and
Pledge Agreement shall be interpreted in a manner as to be effective and
valid under applicable law, but if any provision of this Security and
Pledge Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the
remaining provisions of this Security and Pledge Agreement. This
Security and Pledge Agreement is to be read, construed and applied
together with the Promissory Note and the Redemption Agreement which,
taken together, set forth the complete understanding and agreement of
the Guarantor and the Secured Party with respect to the matters referred
to herein and therein.
16. No Waiver; Cumulative Remedies. The Secured Party shall not by any
act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies hereunder, and no waiver shall be valid unless in
writing, signed by the Secured Party and then only to the extent therein
set forth. A waiver by the Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any
right or remedy that the Secured Party would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on
the part of the Secured Party, any right, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder provided are cumulative
and may be exercised singly or concurrently, and are not exclusive of
any rights and remedies provided by law. None of the terms or
provisions of this Security and Pledge Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by
the Secured Party and the Guarantor.
17. Successors and Assigns. All rights of the Secured Party under this
Security and Pledge Agreement shall inure to the benefit of its
successors and assigns. All obligations of the Guarantor shall bind the
Guarantor's successors and assigns; provided, however, the Guarantor may
not assign or transfer any of its rights and obligations hereunder or
any interest herein without the prior consent of the Secured Party and
the Secured Party may not assign or transfer any of its rights and
obligations hereunder or any interest herein to anyone other than one of
its affiliates without the prior consent of the Guarantor.
18. Counterparts. This Security and Pledge Agreement may be executed in
any number of separate counterparts, each of which when so executed
shall be deemed an original and all of which shall constitute but one
and the same agreement.
19. Governing Law. This Security and Pledge Agreement and the obligations
arising hereunder shall be governed by, and construed and enforced in
accordance with, the laws of the State of Florida applicable to
contracts made and performed in that State and any applicable laws of
the United States of America. The Guarantor hereby consents and agrees
that the state or federal courts located in Miami-Dade County, Florida,
shall have exclusive jurisdiction to hear and determine any claims or
disputes between the Guarantor and the Secured Party pertaining to this
Security and Pledge Agreement, the Promissory Note, the Redemption
Agreement, or any of the other documents or to any matter arising out of
or relating to this Security and Pledge Agreement or any of the other
documents, provided, that nothing in this Security and Pledge Agreement
shall be deemed or operate to preclude the Secured Party from bringing
suit or taking other legal action in any other jurisdiction to realize
on the Collateral or any other security for the obligations under the
Guaranty Agreement, or to enforce a judgment or other court order in
favor of the Secured Party. The Guarantor expressly submits and
consents in advance to such jurisdiction in any action or suit commenced
in any such court, and the Guarantor hereby waives any objection which
it may have based upon lack of personal jurisdiction, improper venue or
forum non conveniens and hereby consents to the granting of such legal
or equitable relief as is deemed appropriate by such court. The
Guarantor hereby waives personal service of the summons, complaint and
other process issued in any such action or suit and agrees that service
of such summons, complaints and other process may be made by registered
or certified mail addressed to the Guarantor at the address provided for
herein and that service so made shall be deemed completed upon the
earlier of actual receipt thereof or three (3) days after deposit in the
U.S. mails, proper postage prepaid.
20. Limitation by Law. All rights, remedies and powers provided in this
Security and Pledge Agreement may be exercised only to the extent that
the exercise thereof does not violate any applicable provision of law,
and all the provisions of this Security and Pledge Agreement are
intended to be subject to all applicable mandatory provisions of law
that may be controlling and to be limited to the extent necessary so
that they shall not render this Security and Pledge Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
21. Headings. The headings contained in this Security and Pledge
Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties.
22. Waiver of Jury Trial. GUARANTOR AND SECURED PARTY (BY ITS ACCEPTANCE
HEREOF) HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THIS SECURITY AND PLEDGE AGREEMENT, THE LIABILITIES,
OR ANY OTHER DOCUMENTS EXECUTED IN CONJUNCTION WITH THIS SECURITY AND
PLEDGE AGREEMENT, OR ARISING OUT OF, UNDER, OR IN CONNECTION THEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL
OR WRITTEN), OR ACTION OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR SECURED PARTY TO ENTER INTO THIS SECURITY AND PLEDGE
AGREEMENT AND THE LOAN TRANSACTION SECURED HEREBY.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security and Pledge Agreement to be executed and delivered as of the date
first set forth above.
Guarantor: /s/ Sherwood M. Weiser
Sherwood M. Weiser
Secured Party: CC U.S. VENTURES, INC.
By:/s/ Howard S. Frank
Name: Howard S. Frank
Title: Vice President and Treasurer
JOINDER AND CONSENT OF GENERAL PARTNERS
KEY RESORT, INC. and GB (KEY BISCAYNE) OPERATING CORPORATION, the
General Partners of G.B. Hotel Partners, Ltd., join in the Security and
Pledge Agreement for the purpose of consenting to the transactions
contemplated therein, and to acknowledge that no further consents or
approvals are required under the partnership agreement for G.B. Hotel
Partners, Ltd. for the transaction contemplated therein.
KEY RESORT, INC.
By:/s/ Donald E. Lefton
Name: Donald E. Lefton
Title:
GB (KEY BISCAYNE) OPERATING
CORPORATION
By:/s/ Karim Alibhai
Name: Karim Alibhai
Title:
SCHEDULE 1
TO
SECURITY AND PLEDGE AGREEMENT
Principal Residence of Guarantor
Principal Residence of Guarantor: 10 Edgewater Drive, TSK
Coral Gables, Florida 33133
Principal Place of Business
and location of Books and Records: 3250 Mary Street, 5th Floor
Miami, Florida 33133
EXHIBIT 12
CARNIVAL CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands, except ratios)
Nine Months Ended August 31,
2002 2001
Net income $824,605 $809,888
Income tax benefit, net (36,472) (1,695)
Income before income tax benefit, net 788,133 808,193
Adjustment to earnings:
Loss from affiliate operations
and dividends received, net 56,910
Earnings, as adjusted 788,133 865,103
Fixed charges:
Interest expense, net 86,440 92,210
Interest portion of rent expense(1) 3,689 2,737
Capitalized interest 25,334 21,320
Total fixed charges 115,463 116,267
Fixed charges not affecting earnings:
Capitalized interest (25,334) (21,320)
Earnings before fixed charges $878,262 $960,050
Ratio of earnings to fixed charges 7.6x 8.3x
(1) Represents one-third of rent expense, which we believe to be
representative of the interest portion of rent expense.
EXHIBIT 99.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Carnival Corporation (the "Company") Quarterly
Report on Form 10-Q for the quarter ended August 31, 2002 as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I,
Micky Arison, certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Date: October 14, 2002
By: /s/ Micky Arison
Micky Arison
Chairman of the Board of Directors
and Chief Executive Officer
EXHIBIT 99.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Carnival Corporation (the "Company") Quarterly
Report on Form 10-Q for the quarter ended August 31, 2002 as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I,
Howard S. Frank, certify pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Date: October 14, 2002
By: /s/ Howard S. Frank
Howard S. Frank
Vice Chairman of the Board of
Directors and Chief
Operating Officer
EXHIBIT 99.3
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Carnival Corporation (the "Company") Quarterly
Report on Form 10-Q for the quarter ended August 31, 2002 as filed with the
Securities and Exchange Commission on the date hereof (the "Report"), I,
Gerald R. Cahill, certify pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the
Company.
Date: October 14, 2002
By: /s/ Gerald R. Cahill
Gerald R. Cahill
Senior Vice President-Finance
and Chief Financial and
Accounting Officer