EXHIBIT 35
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Execution Version
Consent, Waiver and Agreement dated as of April 13, 2005 (this
"AGREEMENT"), to the Credit Agreement dated as of December 17, 2003 (the "CREDIT
AGREEMENT"), by and among ARISON HOLDINGS (1998) LTD., the LENDERS named therein
and SUNTRUST BANK, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") and as collateral agent for the Lenders (in such
capacity, the "COLLATERAL AGENT", together with the Administrative Agent, the
"AGENTS"). Capitalized terms used herein and not otherwise defined shall have
the respective meanings ascribed thereto in the Credit Agreement.
R E C I T A L S
WHEREAS, the Borrower has requested that the Collateral Agent (i)
release two million shares of Carnival Corporation common stock (the "CCL
STOCK") from the Pledged Accounts, which CCL Stock constitutes a portion of the
Collateral which is pledged as security pursuant to the Assignment and Pledge
Agreement in support of the Loans and (ii) waive the thirty (30) day prior
written notice requirement in Section 4(f) of the Assignment and Pledge
Agreement with respect to the name change of the sole trustee of Eternity Four
Trust, "Xxxxx Xxxxxx Corporate Trust Company" to "Citigroup Institutional Trust
Company", on December 8, 2004, which notice was given to the Collateral Agent on
March 24, 2005;
WHEREAS, pursuant to Section 9.8(b) of the Credit Agreement, none of
the provisions of the Credit Agreement or of any other Loan Document may be
waived, amended or modified to release any Collateral (including any withdrawals
of principal from the Pledged Accounts pursuant to Section 2.3.1 of the Control
Agreement ) or amend or modify any of the Collateral Documents, without the
prior written consent of each Lender;
WHEREAS, pursuant to Section 4(b) of the Assignment and Pledge
Agreement, the Pledgors shall neither attempt to modify nor attempt to terminate
the Control Agreement or the customer agreements with the Securities
Intermediary under which the Pledged Accounts were established;
WHEREAS, pursuant to Section 4(f) of the Assignment and Pledge
Agreement, each Pledgor is required to notify the Collateral Agent at least
thirty (30) days before any proposed name change;
WHEREAS, pursuant to Section 9(b) of the Assignment and Pledge
Agreement, no waiver of the Assignment and Pledge Agreement shall be effective
unless the same shall be in writing and signed by the Collateral Agent; and
WHEREAS, the Lenders and the Agents are willing to grant their consent
to release the CCL Stock and to waive the notice requirement in Section 4(f) of
the Assignment and Pledge Agreement, on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the premises, the sum of $1.00 and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1. CONSENT; WAIVERS. The Lenders hereby consent and
agree to the release of the CCL Stock pledged pursuant to the Assignment and
Pledge Agreement and held by Northern Trust Bank, FSB, as Securities
Intermediary pursuant to the Control Agreement. In addition, the Lenders and the
Agents hereby (i) waive any breach, Default or Event of Default relating to such
release of CCL Stock under the Credit Agreement or any breach, default or Event
of Default relating to such release of CCL Stock under any other Loan Document
and (ii) hereby waive the notice requirement in Section 4(f) of the Assignment
and Pledge Agreement with respect to the name change of "Xxxxx Xxxxxx Corporate
Trust Company" to "Citigroup Institutional Trust Company".
Section 2. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Agents and the Lenders as of the date hereof:
(i) After giving effect to this Agreement, no Default or
Event of Default has occurred or is continuing.
(ii) The execution, delivery and performance by the
Borrower of this Agreement are within the scope of its corporate powers, and
have been duly authorized by all necessary corporate action, and no
authorizations, approvals or consents of, and no filings or registrations with,
any governmental or regulatory authority or agency are necessary for the
execution or delivery of this Agreement or for the validity or enforceability
hereof. The Credit Agreement, as amended by this Agreement, constitutes the
legal, valid and binding obligations of the Borrower, enforceable against it in
accordance with its terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability affecting the enforcement of creditors' rights and (ii)
the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii) All representations and warranties of the Borrower
contained in the Credit Agreement (other than those representations or
warranties expressly made only on as of the Closing Date) are true and correct
in all material respects on and as of the date hereof with the same force and
effect as if made on and as of the date hereof.
Section 3. NO OTHER CONSENTS OR WAIVERS; CONFIRMATION. Except
for the consent and waivers expressly granted in Section 1 hereof, the
provisions of the Credit Agreement and of the other Loan Documents are and shall
remain in full force and effect.
Section 4. DIRECTION. The Collateral Agent hereby directs the
Securities Intermediary to release (i) 857,143 shares from account number:
26-23759, held by SunTrust Delaware Trust Company, as account holder and sole
trustee of Artsfare 1992 Irrevocable Trust and (ii) 1,142,857 shares from
account number: 26-23758, held by Citigroup Institutional Trust Company
(formerly Xxxxx Xxxxxx Corporate Trust Company), as account holder and sole
trustee of Eternity Four Trust.
Section 5. EFFECTIVENESS. This Agreement shall become effective
upon the receipt by the Collateral Agent or its counsel of counterparts hereof,
duly executed and delivered by the Borrower, the Lenders and the Agents party
hereto (the "CONSENT EFFECTIVE DATE").
Section 6. EXPENSES. The Borrower agrees to reimburse the
Collateral Agent for its out-of-pocket expenses in connection with the
preparation, execution and delivery of this Agreement, including the fees,
charges and disbursements of Xxxxxxxxx Traurig, LLP, counsel for the Collateral
Agent.
Section 7. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
Section 8. BENEFIT OF CONSENT. This Agreement shall be binding
upon each party to the Credit Agreement, its successors and assigns. No other
person (other than the Pledgors) shall be entitled to claim any right or benefit
hereunder, as a third-party beneficiary or otherwise.
Section 9. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
giving effect to the conflict of laws provisions thereof.
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
ARISON HOLDINGS (1998) LTD.,
as Borrower
By: /s/ Moddi Keret
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Name: Moddi Keret
Title: Vice President & CFO
SUNTRUST BANK, as Administrative Agent,
Collateral Agent and Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
CITICORP USA, INC., as Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, as Lender
By: /s/ Xxxxx X. X'Xxxxxx
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Name: Xxxxx X. X'Xxxxxx
Title: Vice President
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Acknowledged:
NORTHERN TRUST BANK, FSB, as Securities Intermediary
(pursuant to Section 2.3.1 of the Control Agreement):
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Vice President
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The Sole Trustee of Eternity Four Trust
By: CITIGROUP INSTITUTIONAL TRUST COMPANY (formerly
Xxxxx Xxxxxx Corporate Trust Company), not in its
individual capacity but solely as trustee (with respect
to the waiver of Section 4(f) of the Assignment and
Pledge Agreement)
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Executive Vice President
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