FIRST AMENDMENT TO SUB-SUBLEASE AGREEMENT (City Agreement)

Transcription

1 Quint & Thimmig LLP 9/15/10 FIRST AMENDMENT TO SUB-SUBLEASE AGREEMENT (City Agreement) This First Amendment to Sub-Sublease Agreement, dated as of September 15, 2010 (the Amendment ), is by and between Carnival Corporation, a Panamanian corporation ( Carnival ), and the City of Long Beach, California, a chartered city and municipal corporation organized and existing under the laws of the State of California (the City ). RECITALS: A. Carnival and the City are parties to a Sub-Sublease Agreement, made and entered into as of November 13, 2002 (the Sub-Sublease Agreement ), which Sub-Sublease Agreement is also referred to as the City Agreement in the 2002 Indenture referenced in Recital C. below. Capitalized terms used in this Amendment and not otherwise defined herein have the meanings given to them in the Sub-Sublease Agreement. B. The Sub-Sublease Agreement was entered into in connection with the issuance by the City of its 2002 Taxable Revenue Bonds (Carnival Cruise Terminal Financing) (the 2002 Bonds ), and a portion of the proceeds of the 2002 Bonds was used to finance improvements to the Sublease Premises. C. Section 3 of the Sub-Sublease Agreement (the Termination Date Provision ) provides that the term of the Sub-Sublease Agreement shall terminate upon the earlier of (x) the first day after the 2002 Bonds are no longer outstanding, as defined in the Indenture of Trust pursuant to which the 2002 Bonds were issued (the 2002 Indenture ), and all other obligations payable from Wharfage under the 2002 Indenture, the Tariff Agreement and the Guaranty have been paid in full, and (y) the date upon which Carnival or its permitted assigns or successors is not the Subtenant under the Sublease unless, in either case, sooner terminated as provided in the Sub-Sublease Agreement. D. The City now desires to issue its 2010 Taxable Revenue Bonds (Carnival Cruise Terminal Financing) (the 2010 Bonds ) to refund the outstanding 2002 Bonds and to provide funds to finance additional improvements to the Sublease Premises, some of which additional improvements have already been completed. E. Carnival and the City now desire to amend the Termination Date Provision of the Sub-Sublease Agreement to allow the Term to coincide with the term of the 2010 Bonds and any future indebtedness of the City ( Additional Indebtedness ) that may be incurred by the City to (i) refinance outstanding 2010 Bonds or other bonds issued to finance additional improvements to the Sublease Premises, or (ii) to finance additional improvements to the Sublease Premises, in each case if and only if the payment of scheduled debt service on such Additional Indebtedness is guaranteed by Carnival, as further set forth below. AGREEMENT: 1. Notwithstanding any provision of the Sub-Sublease Agreement to the contrary, the terms Bonds, Indenture, City Agreement, Tariff Agreement and Guaranty, when used in clause (x) of Section 3 of the Sub-Sublease Agreement are each modified to have the respective meanings set forth below: a. Bonds, shall mean and include, so long as any of the same are Outstanding under and as such term is used in the Indenture pursuant to which they are issued: (i) the City of Long Beach, California 2002 Taxable Revenue Bonds (Carnival :J10897

2 Cruise Terminal Financing) (the 2002 Bonds ); (ii) the City of Long Beach, California 2010 Taxable Revenue Bonds (Carnival Cruise Terminal Financing) (the 2010 Bonds ); and (iii) any Additional Indebtedness, as hereafter defined. The term Additional Indebtedness as used in the preceding sentence shall mean and include (i) Additional Bonds, as that term is defined in the Indenture of Trust pursuant to which the 2010 Bonds are issued; and (ii) any indebtedness incurred by the City the net proceeds of which are used to refund, in whole or in part, the 2010 Bonds or any outstanding Additional Indebtedness (including, but not limited to, Additional Bonds as such term is used in the preceding clause (i)) and/or to finance or refinance improvements made or to be made to the Sublease Premises; provided, however, that the timely payment of scheduled debt service on any indebtedness described in this clause (ii) is guaranteed by Carnival in a manner similar to the Guaranty executed by Carnival in conjunction with the issuance of the 2010 Bonds. b. Indenture shall mean and include: (i) the Indenture of Trust, dated as of November 20, 2002, pursuant to which the 2002 Bonds referred to in a. above were issued; (ii) the Indenture of Trust pursuant to which the 2010 Bonds referred to in a. above are to be issued, including any amendment or supplement thereto entered into in accordance with terms thereof (the 2010 Indenture ); and (iii) any indenture, loan agreement, trust agreement or other instrument pursuant to which any Additional Indebtedness, as referred to in a. above, is incurred or issued, as originally executed and as it may be thereafter amended or supplemented in accordance with its respective terms. c. City Agreement means the Sub-Sublease Agreement, made and entered into as of November 13, 2002, by and between Carnival Corporation and the City of Long Beach, as amended and supplemented by the First Amendment to Sub-Sublease Agreement, dated as of September 15, 2010, between Carnival Corporation and the City of Long Beach, and as it may thereafter be further amended or supplemented by the parties thereto. d. Tariff Agreement shall mean and include: (i) the Tariff Collection and Assignment Agreement, dated as of November 20, 2002, among the parties thereto as originally executed by such parties and as it may be amended or supplemented in accordance with its terms; and (ii) any agreement with provisions that allow for the collection and use of Wharfage to pay debt service on Bond or to pay costs to administer Bonds or an Indenture, as those capitalized terms are defined in a. and b., respectively, above. e. Guaranty shall mean and include: (i) the Guaranty referred to in the sixth recital of the Sub-Sublease Agreement; (ii) the Guaranty Agreement, as defined in Section 1.01 of the 2010 Indenture referred to in clause (ii) of the term Indenture in b. above; and (iii) any agreement of Carnival, similar to the Guaranty Agreement referred to in the preceding clause (ii), pursuant to which Carnival guarantees the timely payment of scheduled debt service on any Additional Indebtedness, as contemplated by the proviso in clause (ii) of the second sentence of a. above, together with any amendments thereto. Notwithstanding the foregoing, it is hereby acknowledged that, as of the date of this Amendment, the City has no obligation whatsoever to issue the 2010 Bonds or to issue or incur any Additional Indebtedness; and Carnival has no obligation whatsoever to guaranty the timely payment of the 2010 Bonds or any Additional Indebtedness. However, if and when the City issues the 2010 Bonds, it is expected that (a) Carnival will enter into a Guaranty Agreement, guaranteeing the timely payment of the scheduled principal of and interest on the 2010 Bonds; -2-

3 and (b) the 2002 Bonds will be legally defeased with proceeds of the 2010 Bonds and certain other funds, so that the 2002 Bonds will no longer be Outstanding under and as such term is defined in the 2002 Indenture and the Guaranty referred to in clause (i) of subparagraph d. above will no longer be effective immediately following the issuance of the 2010 Bonds. 2. All references to Queen s Seaport Development, Inc. or Tenant in the Sub- Sublease Agreement shall mean and include Save The Queen, LLC, a Delaware limited liability company, and any subsequent tenant under the Master Lease and the Port Lease. 3. It is hereby acknowledged that, pursuant to the amendments to the definitions set forth in Section 1 above, the Termination Date Provision of the Sub-Sublease Agreement has been effectively amended to coincide with the term of the 2010 Bonds and any Additional Indebtedness (as defined in Section 1a. above). 4. Except to the extent modified by this Amendment, the terms and provisions of the Sub-Sublease Agreement are hereby ratified and confirmed, and shall remain in full force and effect. 5. This Amendment may be executed in multiple counterparts, all of which taken together shall constitute one document. 6. This Amendment shall become effective on the later of (a) the date on which it is executed by both of the parties hereto, (b) the date on which the consents hereto of the City and Save The Queen, LLC set forth below have both been executed, or (c) the date of issuance of the 2010 Bonds referred to in Recital D. above. -3-

4 IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as of the date first written above. CARNIVAL CORPORATION Giora Israel, Vice President Strategic Planning CITY OF LONG BEACH, CALIFORNIA Approved as to form: David S. Nakamoto, City Treasurer City Attorney The foregoing Amendment is hereby consented to: CITY OF LONG BEACH, CALIFORNIA, as landlord under the Master Lease, as such lease is identified in the first recital to the Sub-Sublease Agreement David S. Nakamoto, City Treasurer CITY OF LONG BEACH, CALIFORNIA, through its Board of Harbor Commissioners, as landlord under the Port Lease, as such lease is identified in the second recital to the Sub-Sublease Agreement Its: [Signature page to First Amendment to Sub-Sublease Agreement] -4-

5 SAVE THE QUEEN, LLC, a Delaware limited liability company, as tenant under the Master Lease and the Port Lease as such leases are identified in the first two recitals to the Sub-Sublease Agreement, and as landlord under the Sublease referred to in the third recital to the Sub-Sublease Agreement Its: :J10897 [Signature page to First Amendment to Sub-Sublease Agreement] -5-