EXHIBIT 4.4
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CARNIVAL PLC
(formerly known as P&O PRINCESS CRUISES PLC)
ISSUER
P&O PRINCESS CRUISES INTERNATIONAL LIMITED
GUARANTOR
TO
THE BANK OF NEW YORK
TRUSTEE
7.30% NOTES DUE 2007
7.875% DEBENTURES DUE 2027
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FIRST SUPPLEMENTAL INDENTURE
Dated as of July 15, 2003
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FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental
Indenture"), dated as of July 15, 2003, among CARNIVAL PLC (formerly known as
P&O Princess Cruises plc), a public limited company existing under the laws of
England and Wales (the "Company"), P&O PRINCESS CRUISES INTERNATIONAL LIMITED
(formerly known as P&O Cruises Limited), a limited liability company existing
under the laws of England and Wales (the "Guarantor"), and THE BANK OF NEW YORK,
as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company, the Guarantor and the Trustee are
parties to that certain Indenture, dated as of October 23, 2000 (the "Original
Indenture" and, together with this First Supplemental Indenture, the
"Indenture"), pursuant to which the Company duly issued its 7.30% Notes due 2007
(the "Notes") and the 7.875% Debentures due 2027 (the "Debentures"), both of
which are unconditionally guaranteed by the Guarantor (capitalized terms used
but not otherwise defined in this First Supplemental Indenture having the
meanings ascribed to them in the Original Indenture);
WHEREAS, the Company and Carnival Corporation, a Panamanian
corporation ("Carnival Corporation"), have entered into an Offer and
Implementation Agreement, dated as of January 8, 2003 (the "Offer and
Implementation Agreement"), pursuant to which the Company and Carnival
Corporation established a dual-listed company structure (the "DLC Transaction");
WHEREAS, Section 9.02 of the Original Indenture provides that
the Company, the Guarantor and the Trustee may amend or supplement the Original
Indenture with respect to the Notes or Debentures, as the case may be, with the
written consent of Holders of not less than a majority in aggregate principal
amount at maturity of the Notes or Debentures outstanding, as the case may be;
WHEREAS, in connection with the DLC Transaction, the Company
wishes to amend the Original Indenture with respect to both the Notes and the
Debentures to provide for the amendments contemplated by Sections 1 through 11
of this First Supplemental Indenture (the "Indenture Amendments");
WHEREAS, Holders of a majority of the principal amount at
maturity of both the Notes and Debentures outstanding have given and not
withdrawn their written consent to the Indenture Amendments;
WHEREAS, the execution of this First Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the
Original Indenture, the Company has delivered to the Trustee a resolution of its
Board of Directors, satisfactory evidence of the consenting Securities, an
Officers' Certificate and an Opinion of Counsel, with respect to such
authorization, and all things necessary to make this First Supplemental
Indenture a valid agreement of the Company, the Guarantor and the Trustee in
accordance with its terms have been done;
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WHEREAS, as consideration for the Indenture Amendments,
Carnival Corporation has offered to issue a guarantee of the Securities, on a
senior, unsecured basis pursuant to a Deed of Guarantee, dated as of April 17,
2003, between Carnival Corporation and the Company and an Agreement relating to
the Deed of Guarantee, dated as of July 15, 2003, between such parties (the
"Carnival Corporation Guarantee"); and
NOW, THEREFORE, for and in consideration of the premises
contained herein, it is mutually covenanted and agreed for the benefit of all
Holders of the Securities as follows:
SECTION 1. Each of the following definitions is hereby
added to Section 1.01 of the Original Indenture:
"CARNIVAL CORPORATION" means Carnival Corporation, a
Panamanian corporation and any successor thereto.
"CARNIVAL 8-KS" means the current reports on Form 8-K of
Carnival Corporation (or any successor or equivalent form thereto).
"CARNIVAL 10-KS" means the annual reports on Form 10-K of
Carnival Corporation (or any successor or equivalent form thereto).
"CARNIVAL 10-QS" means the quarterly reports on Form 10-Q of
Carnival Corporation (or any successor or equivalent form thereto).
"CARNIVAL CORPORATION GUARANTEE" means the Deed of Guarantee,
dated as of April 17, 2003, between Carnival Corporation and the Company and an
Agreement relating to the Deed of Guarantee, dated as of July 15, 2003, between
such parties, pursuant to which Carnival Corporation has guaranteed the payment
obligations of the Company under the Securities.
"CARNIVAL CORPORATION & PLC" means, taken as a whole, (i)
Carnival Corporation and each of its Subsidiaries and (ii) the Group.
"CARNIVAL CORPORATION & PLC COMPANY" means any of Carnival
Corporation, the Company and any of their respective Subsidiaries.
"DLC AGREEMENTS" means the agreements, deeds, instruments and
constituent documents of Carnival Corporation and the Company, as amended from
time to time, establishing the dual-listed company structure between the Company
and Carnival Corporation, entered into as contemplated by the Offer and
Implementation Agreement between the Company and Carnival Corporation, dated as
of January 8, 2003.
"FIRST SUPPLEMENTAL INDENTURE" means the First Supplemental
Indenture among the Company, the Guarantor and the Trustee, dated as of July 15,
2003.
"PREFERRED STOCK" means, with respect to any Person, any and
all shares, interests or other participations in, and other equivalents (however
designated and
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whether voting or non-voting) of such Person's preferred stock or preference
shares, whether or not outstanding at the Issue Date, and include, without
limitation, all series and classes of such preferred stock or preference shares.
SECTION 2. Each of the following definitions contained
in Section 1.01 of the Original Indenture is hereby amended and restated in its
entirety to read as provided below:
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount
of total assets of Carnival Corporation & plc after deducting therefrom (i) all
current liabilities and (ii) all goodwill, trade names, trademarks, patents and
other like intangible assets, as shown in the latest Carnival 10-K (reflecting
Carnival Corporation & plc) provided that with respect to any calculation made
prior to the availability of the Carnival 10-K for the year ending November 30,
2003, such amount shall be calculated based upon the pro forma combined balance
sheet of Carnival Corporation and the Company as of November 30, 2002, as filed
with the Commission.
"CONSOLIDATED OPERATING REVENUE" means Carnival Corporation &
plc's total revenue for the most recent fiscal year as shown in the audited
consolidated accounts contained in the latest Carnival 10-K (reflecting Carnival
Corporation & plc) provided that with respect to any calculation made prior to
the availability of the Carnival 10-K for the year ending November 30, 2004,
such amount shall be calculated based upon the pro forma combined statement of
operations of Carnival Corporation and the Company for the year ended November
30, 2002 or the year ended November 30, 2003, as available and filed with the
Commission or otherwise provided to the Trustee by the Company.
"CONSOLIDATED RELEVANT TOTAL ASSETS" means Carnival
Corporation & plc's total assets less all intangible assets (including, without
limitation, goodwill) as of the end of the most recent fiscal year as shown in
the audited consolidated balance sheet contained in the latest Carnival 10-K
(reflecting Carnival Corporation & plc) provided that with respect to any
calculation made prior to the availability of the Carnival 10-K for the year
ending November 30, 2003, such amount shall be calculated based upon the pro
forma combined balance sheet of Carnival Corporation and the Company as of
November 30, 2002 as filed with the Commission.
"NET PROCEEDS" means the greater of (1) the net proceeds
received by the Company, Carnival Corporation or any Restricted Subsidiary from
a Sale and Leaseback Transaction and (2) the fair market value of the Principal
Property so sold at the time of entering into such transaction, as determined by
the Board of Directors of the Company.
"OFFICER" means, with respect to any Person, the chairman of
the board, the vice-chairman of the board, the chief executive officer, the
president, the chief operating officer, the chief financial officer, the
treasurer, any assistant treasurer, the controller, the secretary or any
vice-president of such Person, or any officer designated by the board of
directors of such Person as an officer of such Person.
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"OPERATING REVENUE" means, in relation to a Subsidiary, its
total revenue for the most recent fiscal year as shown in such entity's latest
audited or unaudited, as the case may be, unconsolidated accounts.
"PRINCIPAL PROPERTY" means (i) any ship or real estate
property, owned or leased by a Carnival Corporation & plc Company which has a
net book value exceeding the greater of $25,000,000 or 0.5% of the Consolidated
Net Tangible Assets, and (ii) any shares of Capital Stock of any Carnival
Corporation & plc Company owning any of these ships or real estate properties.
"PRINCIPAL SUBSIDIARY" means a Subsidiary of the Company or
Carnival Corporation whose Relevant Total Assets are 10% or more of Consolidated
Relevant Total Assets or whose Operating Revenue is 10% or more of Consolidated
Operating Revenue.
"RELEVANT TOTAL ASSETS" means, in relation to a Subsidiary of
the Company or Carnival Corporation, its total assets, less the aggregate of all
receivables due from other Carnival Corporation & plc Companies and all
intangible assets (including, without limitation, goodwill), as shown as of the
end of the most recent fiscal year in its latest annual audited or unaudited, as
the case may be, unconsolidated balance sheet from time to time.
"RESTRICTED SUBSIDIARY" means any Subsidiary of Carnival
Corporation or the Company (including any newly acquired or newly formed
Subsidiary of Carnival Corporation or the Company) which owns a Principal
Property.
"UK GAAP" means generally accepted accounting principles in
effect in the United Kingdom on the date of the First Supplemental Indenture.
"US GAAP" means generally accepted accounting principles in
effect in the United States on the date of the First Supplemental Indenture.
SECTION 3. Section 1.04(2) of the Original Indenture is
hereby amended by replacing the words "UK GAAP" with the words "US GAAP".
SECTION 4. Section 4.04 of the Original Indenture is
hereby amended by:
(a) Adding the following text at the end of the first
paragraph thereof:
"Notwithstanding the foregoing, (1) the requirement that the Company
furnish to the Trustee and to all the Holders of such Securities or
make available at the offices of the Paying Agent in London (as the
case may be) the information described in clause (a) of the preceding
sentence shall be deemed to have been satisfied if the Company
furnishes to the Trustee or makes available at the offices of the
Paying Agent in London (as the case may be) a Carnival 10-K or Carnival
10-Q for the applicable fiscal year or fiscal quarter, in each case,
within 15 days
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after the expiration of the time periods specified in the Commission's
rules and regulations, and (2) the requirement that the Company furnish
to the Trustee and to all the Holders of such Securities or make
available at the offices of the Paying Agent in London (as the case may
be) the information described in clause (b) of the preceding sentence
shall be deemed to have been satisfied if the Company furnishes to the
Trustee or makes available at the offices of the Paying Agent in London
(as the case may be) any Carnival 8-K that Carnival Corporation is or
would be required to file under the Exchange Act (assuming that it is
required to file such forms under the Exchange Act), in each case,
within 15 days after the expiration of the time periods specified in
the Commission's rules and regulations."; and
(b) Deleting the second sentence of the third paragraph
thereof.
SECTION 5. Section 4.07 of the Original Indenture is
hereby amended and restated in its entirety to read as follows:
"Section 4.07. LIENS. The Company shall not, and shall not
permit Carnival Corporation or any Subsidiary of which the Company and/or
Carnival Corporation owns, directly or indirectly, at least 80% of such
Subsidiary's voting shares to, create, incur, guarantee or assume any
securities, bonds, debentures or other similar evidences of indebtedness for
money borrowed ("DEBT") secured by a mortgage, pledge, security interest, lien
or other similar encumbrance ("MORTGAGE" or "MORTGAGES"), on any Principal
Property or on any shares of stock or indebtedness of any Restricted Subsidiary,
without effectively providing concurrently with the creation, incurrence,
guarantee or assumption of such Debt that the Securities (together with, if the
relevant obligor so determines, any other Debt of any Carnival Corporation & plc
Company, then existing or thereafter created ranking equally with the
Securities) will be secured equally and ratably with (or prior to) that Debt, so
long as that Debt will be so secured, except that this restriction will not
apply to: (i) Mortgages on property, shares of stock or indebtedness of any
Person existing at the time such Person becomes a Subsidiary of the Company or
Carnival Corporation, provided that any such Mortgage was not created in
contemplation of such Person becoming a Subsidiary of the Company or Carnival
Corporation; (ii) Mortgages on property or shares of stock existing at the time
of acquisition thereof or to secure the payment of all or any part of the
purchase price thereof or all or part of the cost of the improvement,
construction, alteration or repair of any property, ship, building, equipment or
facilities or of any other improvements on all or any part of such property or
to secure any Debt incurred prior to, at the time of, or within twelve months
after, in the case of shares of stock, the acquisition of such shares and, in
the case of property, the later of the acquisition, the completion of
construction (including any improvements, alterations or repairs on an existing
property) or the commencement of commercial operation of such property, which
Debt is incurred for the purpose of financing all or any part of the purchase
price thereof or all or part of the cost of improvement, construction,
alteration or repair thereon; (iii) Mortgages of the Company or any Subsidiary
of the Company existing on October 23, 2000; (iv) Mortgages of Carnival
Corporation or any Subsidiary of Carnival Corporation
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existing at the date of the First Supplemental Indenture; (v) Mortgages on
property owned or held by any Person or on shares of stock, other equity
interests or indebtedness of any Person, in either case existing at the time
such Person is merged into or consolidated or amalgamated with a Carnival
Corporation & plc Company or at the time of a sale, lease or other disposition
of property of a Person or a sale or other disposition of stock of a Person as
an entirety or substantially as an entirety to a Carnival Corporation & plc
Company, provided that any such Mortgage was not created in contemplation of
such Person becoming a Subsidiary of the Company or Carnival Corporation; (vi)
Mortgages arising by operation of law (other than by reason of default); (vii)
Mortgages arising through litigation, legal proceeding or judgment and not
giving rise to an Event of Default; (viii) Mortgages to secure Debt incurred in
the ordinary course of business, including, but not limited to, (1) any
mechanic's, materialmen's, carrier's, workmen's, vendor's or other like
Mortgages, (2) any Mortgages securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security, (3) any
easements, rights-of-way, restrictions and other similar charges, (4) any
Mortgages arising out of consignment or similar arrangements for the sale of
goods entered into by a Carnival Corporation & plc Company, and (5) any
Mortgages to secure Debt maturing not more than 12 months from the date
incurred; (ix) Mortgages to secure indebtedness for borrowed money incurred in
connection with a specifically identifiable project where the Mortgage relates
to a Principal Property to which such project has been undertaken and recourse
of the creditors in respect of such Mortgage is substantially limited to such
project and Principal Property; (x) Mortgages created to secure Debt of a
Carnival Corporation & plc Company under any options, futures, swaps, short sale
contracts or similar or related instruments which relate to the purchase or sale
of securities, commodities or currencies; (xi) Mortgages in favor of customs and
revenues authorities to secure payment of customs duties in connection with the
importation of goods; (xii) leases or subleases granted to others not
interfering in any material respect with the business of a Carnival Corporation
& plc Company; (xiii) Mortgages encumbering property or assets under
construction arising from progress or partial payments by a customer of a
Carnival Corporation & plc Company relating to such property or assets; (xiv)
rights of financial institutions to offset credit balances in connection with
the operation of cash management programs established for the benefit of a
Carnival Corporation & plc Company; (xv) Mortgages encumbering deposits made to
secure obligations arising from statutory, regulatory, contractual or warranty
requirements of a Carnival Corporation & plc Company; (xvi) Mortgages on any
property of the Company, Carnival Corporation or a Restricted Subsidiary in
favor of the federal government of the United States or the government of any
state thereof or the government of the United Kingdom, or the European Union, or
any instrumentality of any of them, securing the obligations of a Carnival
Corporation & plc Company pursuant to any contract or payments owed to such
entity pursuant to applicable laws, rules, regulations or statutes; (xvii)
Mortgages securing taxes or assessments or other applicable charges or levies;
(xviii) Mortgages securing industrial revenue, development or similar bonds
issued by or for the benefit of a Carnival Corporation & plc Company, PROVIDED
that such industrial revenue, development or similar bonds are nonrecourse to
such Carnival Corporation & plc Company; and (xix) any extension, renewal or
replacement (or successive extensions, renewals or replacements), as a whole or
in part, of any
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Mortgage referred to in the foregoing clauses, or of any Debt secured thereby;
PROVIDED that the principal amount of Debt secured thereby will not exceed the
principal amount of Debt so secured at the time of such extension, renewal, or
replacement, and that such extension, renewal or replacement Mortgage will be
limited to all or any part of the same property or shares of stock that secured
the Mortgage extended, renewed or replaced (plus improvements on such property),
or property received or shares of stock issued in substitution or exchange
therefor.
Notwithstanding the foregoing, the Company, Carnival
Corporation or any Subsidiary of which the Company and/or Carnival Corporation
owns, directly or indirectly, at least 80% of such Subsidiary's voting shares
may create, incur, guarantee or assume Debt secured by a Mortgage or Mortgages
which would otherwise be subject to the foregoing restrictions in an aggregate
amount which, together with all other such Debt of Carnival Corporation & plc
secured by a Mortgage or Mortgages and Carnival Corporation & plc's Attributable
Debt in respect of Sale and Leaseback Transactions (other than Attributable Debt
in respect of Sale and Leaseback Transactions permitted because the relevant
Carnival Corporation & plc Company would be entitled to create, incur, guarantee
or assume such Debt secured by a Mortgage on the property to be leased without
equally and ratably securing the Securities pursuant to the preceding paragraph
and other than a Sale and Leaseback Transaction the proceeds of which have been
applied within twelve months after its consummation to the Net Proceeds to the
retirement or repayment of Funded Debt (as described in Section 4.08)), does not
at the time such Debt is incurred exceed 20% of Consolidated Net Tangible
Assets."
SECTION 6. Section 4.08 of the Original Indenture is
hereby amended and restated in its entirety to read as follows:
"Section 4.08. SALE AND LEASEBACK TRANSACTIONS. The Company
shall not, and shall not permit Carnival Corporation or any Subsidiary of which
the Company and/or Carnival Corporation owns, directly or indirectly, at least
80% of such Subsidiary's voting shares to, enter into any arrangement with a
third party (not including any Carnival Corporation & plc Company) providing for
the leasing by such Carnival Corporation & plc Company for a period, including
renewals, in excess of three years, of any Principal Property which has been
owned by such Carnival Corporation & plc Company for more than 270 days and
which has been or is to be sold or transferred by such Carnival Corporation &
plc Company to the third party (a "SALE AND LEASEBACK TRANSACTION") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt with
respect to all of these Sale and Leaseback Transactions plus all the debt of
Carnival Corporation & plc incurred, issued, assumed or guaranteed and secured
by a Mortgage or Mortgages (with the exception of debt secured by a Mortgage or
Mortgages on property that any Carnival Corporation & plc Company would be
entitled to create, incur, issue, guarantee or assume without equally and
ratably securing the Securities pursuant to the provisions of the Securities
pursuant to Section 4.07) does not exceed 20% of Consolidated Net Tangible
Assets. This restriction will not apply to any Sale and Leaseback Transaction if
(i) such Carnival Corporation & plc Company would be entitled to create, incur,
issue, guarantee or assume Debt secured by a Mortgage or Mortgages on
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the Principal Property to be leased without equally and ratably securing the
Securities pursuant to the provisions of the Securities pursuant to Section
4.07, (ii) within a period commencing twelve months prior to the consummation of
the Sale and Leaseback Transaction and ending twelve months after the
consummation of such Sale and Leaseback Transaction, such Carnival Corporation &
plc Company has expended or will expend for any Principal Property (including
capital improvements thereon) an amount equal to (x) the Net Proceeds or (y) the
part of the Net Proceeds which such Carnival Corporation & plc Company has
elected not to apply in the manner described in the following clause (iii); or
(iii) such Carnival Corporation & plc Company, within twelve months after the
consummation of any Sale and Leaseback Transaction, applies an amount equal to
the Net Proceeds (less any amount expended for Principal Property under the
preceding clause (ii)(y)) to the retirement or repayment of Funded Debt of a
Carnival Corporation & plc Company ranking equally in right of payment with the
Securities or Funded Debt of a Subsidiary of Carnival Corporation or the
Company. No retirement referred to in the preceding clause (iii) may be effected
by payment at maturity or pursuant to any mandatory sinking fund or prepayment
provision (unless such repayment is required due to the receipt of the Net
Proceeds)."
SECTION 7. The Original Indenture is hereby amended by
adding a new Section 4.10 to read in its entirety as follows:
"SECTION 4.10 AMOUNTS PAYABLE BY CARNIVAL CORPORATION. The
Company shall cause all payments made by Carnival Corporation pursuant to the
Carnival Corporation Guarantee in respect of the Securities to be paid without
deduction or withholding for any and all present and future taxes, levies,
imposts or other governmental charges whatsoever imposed, assessed, levied or
collected by or for the account of the Republic of Panama (or by or for the
account of the jurisdiction of incorporation (other than the United States) of a
successor corporation to Carnival Corporation, to the extent that such taxes
become applicable as a result of the successor corporation becoming the obligor
on the Securities) or any political subdivision or taxing authority thereof or
therein ("Panamanian Taxes") or, if deduction or withholding of any Panamanian
Taxes shall at any time be required by the Republic of Panama (or the
jurisdiction of incorporation (other than the United States) of a successor
corporation to Carnival Corporation) or any such subdivision or authority, the
Company shall cause Carnival Corporation to pay such additional amounts
("Carnival Additional Amounts") as may be necessary in order that the net
amounts paid to each holder pursuant to the terms of this Agreement after such
deduction or withholding shall equal the amounts then due and payable under the
terms of this Agreement; PROVIDED, HOWEVER, that the foregoing shall not apply
to (i) any present or future Panamanian Taxes which would not have been so
imposed, assessed, levied or collected but for the fact that the holder or
beneficial owner of such Security being or having been a domiciliary, national
or resident of, or engaging or having been engaged in business or maintaining or
having maintained a permanent establishment or being or having been physically
present in, the Republic of Panama (or the jurisdiction of incorporation of a
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successor corporation to Carnival Corporation) or such political subdivision or
otherwise having or having had some connection with the Republic of Panama (or
the jurisdiction of incorporation of a successor corporation to Carnival
Corporation) or such political subdivision other than the holding or ownership
of a Security, or the collection of principal of and interest, if any, on, or
the enforcement of, a Security, (ii) any present or future Panamanian Taxes
which would not have been so imposed, assessed, levied or collected but for the
fact that, where presentation is required, such Security was presented for
payment on a date more than thirty days after the date such payment became due
and payable or was provided for, whichever is later, except to the extent that
the holder would have been entitled to Carnival Additional Amounts if it had
presented its Security for payment on any day within the 30 day period, (iii)
any present or future Panamanian Taxes which would not have been so imposed,
assessed, levied or collected but for the failure to comply by the holder with a
request of Carnival Corporation addressed to the holder to provide information
concerning the nationality, residence, identity or connection with the Republic
of Panama (or the jurisdiction of incorporation of a successor corporation to
Carnival Corporation) or any political subdivision or taxing authority thereof
of the holder or beneficial owner of such Security or to make any declaration or
other similar claim to satisfy any information or reporting requirement, which
in either case, is required by statute or by rules or regulations of the
Republic of Panama (or the jurisdiction of incorporation of a successor
corporation to Carnival Corporation) or such political subdivision or taxing
authority as a precondition to relief or exemption from withholding or deduction
of any Panamanian Taxes, (iv) any estate, inheritance, gift, sale, transfer,
personal property or similar tax, assessment or other governmental charge; (v)
any tax, duty, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payment of (or in respect of)
principal of, or any interest on, the Securities; (vi) any tax, duty, assessment
or other governmental charge which is payable in respect of any payments on a
certificated Security issued at the request of the Holder on or after the
occurrence of an Event of Default; or (vii) any combination of the above items;
nor will Carnival Additional Amounts be paid with respect to any payment of
principal of, or any interest on, any Security to any Holder who is a fiduciary
or partnership or other than the sole beneficial owner of such payment to the
extent the payment would be required by the laws of the Republic of Panama (or
the jurisdiction of incorporation of a successor corporation to Carnival
Corporation) or any political subdivision or taxing authority thereof or therein
to be included in the income for tax purposes of a beneficiary or settler with
respect to such fiduciary or a member of such partnership or to a beneficial
owner who would not have been entitled to such Carnival Additional Amounts had
it been the Holder of the Security. The provisions described in (i) through
(vii) above are referred to herein as "Excluded Taxes." The Company shall cause
Carnival Corporation to indemnify and hold harmless each holder of a Security
and upon written request reimburse each holder for the amount of (i) any
Panamanian Taxes levied or imposed and paid by such holder of a Security (other
than Excluded Taxes) as a result of payments made with respect to such Security,
(ii) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, and (iii) any Panamanian Taxes with respect
to payment of Carnival Additional Amounts or any reimbursement pursuant to this
sentence. The Company shall cause Carnival Corporation to (1) make such
withholding or deduction and (2) remit the full amount deducted or withheld to
the relevant authority in accordance with applicable law.
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The Company shall, and shall cause Carnival Corporation to,
use commercially reasonable efforts to facilitate administrative actions
necessary to assist Holders to obtain any refund of or credit against Panamanian
Taxes for which Carnival Additional Amounts are not paid as a result of the
conditions in the preceding paragraph."
SECTION 8. Section 5.01 of the Original Indenture is
hereby amended by adding the following text at the end of the first paragraph
thereof:
"Notwithstanding the foregoing, if the Carnival Corporation
Guarantee is in effect immediately prior to a consolidation, merger, sale,
conveyance, transfer or other disposition of assets and such transaction is not
prohibited by the DLC Agreements, in the case of (i) any merger or consolidation
by (x) the Company, the Guarantor or any Restricted Subsidiaries with (y)
Carnival Corporation or any of its Subsidiaries, (ii) any sale, conveyance,
transfer or other disposition of assets by (x) the Company, the Guarantor or any
Restricted Subsidiaries to (y) Carnival Corporation or any of its Subsidiaries,
clause (a) of the first sentence of this Section 5.01 shall be deemed to have
been satisfied."
SECTION 9. Section 6.01(d) of the Original Indenture is
hereby amended and restated in its entirety to read as follows:
"(d) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company, Carnival Corporation or any
Principal Subsidiary having an aggregate principal amount outstanding of the
greater of (pound)25,000,000 or 0.5% of Consolidated Net Tangible Assets (or
their respective equivalents in any other currency) or under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company,
Carnival Corporation or any Principal Subsidiary, whether such indebtedness now
exists or will hereafter be created which default will have resulted in such
indebtedness of the greater of (pound)25,000,000 or 0.5% (or their respective
equivalents in any other currency) of Consolidated Net Tangible Assets becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged,
or such acceleration having been rescinded or annulled, within a period of 30
days after written notice is provided to the Company;"
SECTION 10. Section 6.01(e) of the Original Indenture is
hereby amended and restated in its entirety to read as follows:
"(e) the Company, Carnival Corporation, the Guarantor or any
Principal Subsidiary pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
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(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) generally is not paying its debts as they
become due; and"
SECTION 11. Section 6.01(f) of the Original Indenture is
hereby amended and restated in its entirety to read as follows:
"(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company, Carnival
Corporation or the Guarantor in an
involuntary case,
(ii) appoints a Custodian of the Company,
Carnival Corporation, the Guarantor or any
Principal Subsidiary or for all or
substantially all of the property of the
Company, the Guarantor, Carnival Corporation
or any Principal Subsidiary; or
(iii) orders the liquidation of the Company,
Carnival Corporation, the Guarantor or any
Principal Subsidiary;
and the order or decree remains unstayed and in effect for 90
consecutive days;
PROVIDED, HOWEVER, that there will not be an Event of Default
under Section 6.01(d) if the bond, debenture, note or other evidence of
indebtedness in question is the subject of non-recourse financing arrangement
under which the lender's right of recourse is limited to a specific asset and
there is no further recourse by the relevant creditor against the general assets
of the Company, Carnival Corporation, the Guarantor or any Principal Subsidiary;
and PROVIDED FURTHER, that it will not be an Event of Default under Clause (e)
and (f) if the event in question relates solely to property of the Company,
Carnival Corporation, the Guarantor or a Principal Subsidiary that is the
subject of a non-recourse financing arrangement described in the previous
proviso, and if such event does not, directly or indirectly, give further
recourse by the relevant creditor to the general assets (or any other property)
of the Company, Carnival Corporation, the Guarantor or a Principal Subsidiary."
SECTION 12. This First Supplemental Indenture shall
become effective upon its execution and delivery by the parties hereto.
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SECTION 13. The Company and the Guarantor agree that the
Trustee is permitted to place a notation about this First Supplemental Indenture
on the Securities in accordance with the provisions of Section 9.05 of the
Indenture.
SECTION 14. The Trustee accepts this First Supplemental
Indenture and agrees to execute the trust created by the Indenture as hereby
supplemented, but only upon the terms and conditions set forth in the Indenture,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall in like manner
define and limit its liabilities and responsibilities in the performance of the
trust created by the Indenture.
SECTION 15. The Indenture, as hereby amended, is in all
respects ratified and confirmed, and the terms and conditions thereof shall be
and remain in full force and effect.
SECTION 16. The recitals contained in this First
Supplemental Indenture shall be taken as the statements made solely by the
Company and the Guarantor, and the Trustee shall have no liability or
responsibility for their correctness and, without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for or
with respect to (i) the validity or sufficiency of this First Supplemental
Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by the Company and the Guarantor by corporate action or
otherwise, (iii) the due execution hereof by the Company and the Guarantor or
(iv) the consequences (direct or indirect and whether deliberate or inadvertent)
of any amendment herein provided for, and the Trustee makes no representation
with respect to any such matters.
SECTION 17. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PROVISIONS THEREOF THAT WOULD
REQUIRE APPLICATION OF THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
SECTION 18. In case any provision in this First
Supplemental Indenture is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 19. If any provision of this First Supplemental
Indenture limits, qualifies or conflicts with any provision of the TIA that is
required under the TIA to be part of and govern the Indenture, such provision of
the TIA shall control. If any provision of this First Supplemental Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this First Supplemental Indenture, as the case
may be.
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SECTION 20. This First Supplemental Indenture may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
CARNIVAL PLC
By: /s/ Gerald R. Cahill
---------------------------------------
Name: Gerald R. Cahill
Title: Senior Vice President-Finance
and Chief Financial and
Accounting Officer
P&O PRINCESS CRUISES INTERNATIONAL LIMITED
By: /s/ Gerald R. Cahill
---------------------------------------
Name: Gerald R. Cahill
Title: Director, Chief Financial
and Accounting Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Alison Mitchell
---------------------------------------
Name: Alison Mitchell
Title: Assistant Treasurer