CARNIVAL DEED POLL GUARANTEE
THIS DEED is made by way of DEED POLL on . 200[2][3] by Carnival Corporation
("Carnival") in favour of each Creditor.
BACKGROUND
Under the Implementation Agreement referred to below, Carnival has agreed with
P&O Princess to issue this Guarantee in respect of certain obligations of P&O
Princess (including, without limitation, guarantees by P&O Princess of certain
obligations of Principal Debtors).
THIS DEED WITNESSES as follows:
1. Definitions and Interpretation
1.1 Definitions
In this Guarantee:
"Business Day" means any day other than a Saturday, Sunday or day on which
banking institutions in the City of New York or London are authorised or
obligated by law or executive order to close in the United States or
England (or on which such banking institutions are open solely for trading
in euros);
"Creditor" means any Person to whom or to which any Obligation is owed;
"Equalization and Governance Agreement" means the Agreement headed
"Equalization and Governance Agreement" entered into between P&O Princess
and Carnival as of even date with this Guarantee;
"Existing Obligation" means, in relation to:
(a) any agreement or exclusion referred to in Clause 4; or
(b) any termination of this Guarantee; or
(c) any amendment to this Guarantee,
any Obligation incurred before, or arising out of any credit or similar
facility (whether committed or uncommitted) available for use at, the time
at which the relevant agreement, exclusion, termination or amendment
becomes effective;
"Group" means, in relation to Carnival or P&O Princess, such company and
its Subsidiaries from time to time;
"Implementation Agreement" means the Agreement headed "Offer and
Implementation Agreement" entered into between P&O Princess and Carnival as
of . 200[2][3];
"Obligation" means:
(a) any contractual monetary obligation (whether primary or secondary
(and including, for the avoidance of doubt, any guarantee of the
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contractual monetary obligations of any Principal Debtor))
incurred by P&O Princess after the date of this Guarantee; and
(b) any other obligation of any kind which may be agreed in writing
between Carnival and P&O Princess (in their absolute
discretion) after the date of this Guarantee (in which case a
note of such Obligation will be appended as an exhibit to this
Guarantee),
other than, in each case, any obligation:
(i) to the extent that (without reference to the effect of this
Guarantee) it is covered by the terms of any policy of
insurance (or any indemnity in the nature of insurance) of
which P&O Princess (or, where relevant, the Principal Debtor)
has the benefit and which is in full force and effect;
(ii) explicitly guaranteed in writing by Carnival (otherwise than
under this Guarantee);
(iii) where the arrangement under which the obligation was or is
incurred, or the terms of issue of the obligation, explicitly
provided or provide(s) that the obligation is not to be
guaranteed by Carnival, or where the Creditor has explicitly
agreed or explicitly agrees that the obligation is not to be
guaranteed by Carnival;
(iv) owed to Carnival or to any Subsidiary or Subsidiary Undertaking
of Carnival or to any of the Subsidiaries or Subsidiary
Undertakings of P&O Princess;
(v) of P&O Princess under or in connection with the P&O Princess
Guarantee or any other guarantee by P&O Princess of any
obligation of Carnival or any Subsidiary or Subsidiary
Undertaking of Carnival;
(vi) excluded from the scope of this Guarantee as provided in Clause
4 (Exclusion Of Certain Obligations) or Clause 5 (Termination);
or
(vii) of P&O Princess under a guarantee to the extent that the
guaranteed obligation of the Principal Debtor is not a
contractual monetary obligation and/or is of a type referred to
in any of paragraphs (i) to (vi) of this definition;
"Person" includes an individual, company, corporation, firm, partnership,
joint venture, association, trust, state or agency of a state (in each
case, whether or not having a separate legal personality);
"P&O Princess" means P&O Princess Cruises plc, whose registered office at
the date of this Guarantee is 77 New Oxford Street, London, WC1A lPP,
United Kingdom;
"P&O Princess Guarantee" means the deed poll guarantee entered into by P&O
Princess on or about the date of this Guarantee pursuant to the
Implementation Agreement;
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"Principal Debtor" means, at any time, any Person any of whose obligations
are at that time guaranteed by P&O Princess;
"Relevant Creditor" has the meaning given in Clause 3.1;
"Subsidiary" means, with respect to Carnival or P&O Princess, any entity,
whether incorporated or unincorporated, in which such company owns,
directly or indirectly, a majority of the securities or other ownership
interests having by their terms ordinary voting power to elect a majority
of the directors or other persons performing similar functions, or the
management and policies of which such company otherwise has the power to
direct; and
"Subsidiary Undertaking" has the meaning as defined in section 258 of the
Companies Act 1985.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(A) The singular includes the plural and conversely.
(B) One gender includes all genders.
(C) Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
(D) A reference to a person includes a body corporate, an unincorporated
body or other entity and conversely.
(E) A reference to a Clause is to a Clause of this Guarantee.
(F) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced from
time to time, except to the extent prohibited by this Guarantee.
(G) A reference to any legislation (including any listing rules of a stock
exchange or voluntary codes) or to any provision of any legislation
includes any modification or re-enactment of it, any legislative
provision substituted for it and all regulations and statutory
instruments issued under it.
(H) A reference to writing includes a facsimile transmission and any means
of reproducing words in a tangible and permanently visible form.
(I) Mentioning anything after include, includes, or including does not
limit what else might be included. Where particular words are
following by general words, the general words are not limited by the
particular.
(J) Reference to a body other than Carnival or P&O Princess (including any
government agency), whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
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is a reference to the body which replaces it or which substantially
succeeds to its powers or functions.
(K) All references to time are to the local time in the place where the
relevant obligation is to be performed (or right exercised).
2. Effect Of This Deed Poll
The Guarantee shall take effect as a deed poll for the benefit of each
Creditor severally.
3. Guarantee and Indemnity
3.1 Carnival unconditionally and irrevocably guarantees, as a continuing
obligation, to the Creditor to whom or to which it is owed (the "Relevant
Creditor") the proper and punctual payment by P&O Princess of each
Obligation and unconditionally and irrevocably undertakes that, if for any
reason P&O Princess does not make such payment on its due date, Carnival
shall pay the amount due and unpaid to the Relevant Creditor upon written
demand by the Relevant Creditor. In this Clause 3, references to the
Obligations include references to any part of them.
3.2 The obligations of Carnival under this Guarantee shall be continuing
obligations and shall not be satisfied, discharged or affected by any
intermediate payment or settlement of account.
3.3 For the avoidance of doubt, nothing in this Guarantee shall require, bind
or oblige Carnival to fulfil any non-monetary Obligation of P&O Princess of
any kind.
3.4 Carnival shall, for the avoidance of doubt, be entitled without limitation
to all available rights of subrogation against P&O Princess in order to
obtain repayment of any moneys paid by it to Creditors under this
Guarantee.
3.5 Subject to Clause 3.6, Carnival shall be deemed to be liable for the
Obligations as sole or principal debtor and not merely as surety.
3.6 A demand may not be made under this Guarantee without:
(A) a demand first having been made by the Relevant Creditor on P&O
Princess; and/or
(B) to the extent, if any, that the terms of the relevant Obligation of
P&O Princess (or the underlying obligation of the relevant Principal
Debtor) require such recourse, recourse first being had to any other
Person or to any security.
3.7 Unless otherwise provided in this Guarantee, the liabilities and
obligations of Carnival under this Guarantee shall remain in force
notwithstanding any act, omission, neglect, event or matter which would not
affect or discharge the liabilities of P&O Princess owed to the Relevant
Creditor. Without prejudice to its generality, the foregoing shall apply in
relation to:
(A) anything which would have discharged Carnival (wholly or in part) but
not P&O Princess;
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(B) anything which would have offered Carnival (but not P&O Princess) any
legal or equitable defence; and
(C) any winding-up, insolvency, dissolution and/or analogous proceeding
of, or any change in constitution or corporate identity or loss of
corporate identity by, P&O Princess or any other Person.
3.8 Any discharge or release of any liabilities and obligations of Carnival
under this Guarantee, and any composition or arrangement which Carnival may
effect with any Creditor in respect of any such liabilities or obligations,
shall be deemed to be made subject to the condition that it will be void to
the extent that any or all of the payment or security which the Creditor
may previously have received or may thereafter receive from any Person in
respect of the relevant Obligations is set aside or reduced under any
applicable law or proves to have been for any reason invalid.
3.9 Without prejudice to the generality of this Clause 3, and to Clause 3.10 in
particular, none of the liabilities or obligations of Carnival under this
Guarantee shall be impaired by any Creditor:
(A) agreeing with P&O Princess any variation of or departure from (however
substantial) the terms of any Obligation and any such variation or
departure shall, whatever its nature, be binding upon Carnival in all
circumstances; or
(B) releasing or granting any time or any indulgence whatsoever to P&O
Princess.
3.10 Despite anything else in this Guarantee (including Clause 3.9), no
variation of or departure from the terms of any Obligation (or any
underlying obligation of any Principal Debtor) agreed with P&O Princess or
any Principal Debtor, as applicable, after termination of this Guarantee or
exclusion of that Obligation shall be binding on Carnival (or extend its
liabilities and obligations under this Guarantee) except to the extent, if
any, that:
(A) Carnival explicitly agrees in writing to that variation or departure
at the same time as P&O Princess or that Principal Debtor; or
(B) it reduces Carnival's obligations or liability under this Guarantee.
3.11 As a separate, additional and continuing obligation, Carnival
unconditionally and irrevocably agrees that, should any Obligation not be
recoverable from Carnival under Clause 3.1 as a result of the Obligation
becoming void, voidable or unenforceable against P&O Princess, then
Carnival will, as a sole, original and independent obligor, make payment of
the Obligation by way of a full indemnity on the due date provided for
payment by the terms of the Obligation.
4. Exclusion Of Certain Obligations
4.1 Subject to Clauses 4.2 and 4.3, Carnival and P&O Princess may at any time
agree that obligations of a particular type, or a particular obligation or
particular obligations, incurred after the time at which such exclusion
becomes effective shall be excluded from the scope of this Guarantee (and
shall not be "Obligations" for the purpose of this Guarantee) with effect
from such future time (being at least 3 months after the date on which
notice of the relevant exclusion is given in accordance with Clause 8.2 or,
where the Obligation is a particular obligation, at least 5 Business Days
after the
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date on which notice of the relevant exclusion is given in accordance with
Clause 4.5) as they may agree.
4.2 No such agreement or exclusion shall be effective with respect to any
Existing Obligation.
4.3 No such agreement or exclusion shall be effective unless and until Carnival
enters into a supplemental deed poll specifying the relevant exclusion and
the time at which it is to become effective.
4.4 Notice of any such exclusion of obligations of a particular type, of the
time at which such exclusion is to become effective, and of the date of the
related supplemental deed poll, shall be given in accordance with Clause
8.2.
4.5 Notice of any such exclusion of a particular obligation and of the time at
which it is to become effective shall be given to the relevant Creditor in
writing addressed to that Creditor at the last address of that Creditor
known to Carnival and shall be effective when delivered to that address. It
shall not be necessary for the related supplemental deed poll to have been
entered into before that notice is sent, nor for the notice to state the
date of the related supplemental deed poll.
5. Termination
5.1 Subject to Clause 5.3, this Guarantee shall automatically terminate if, and
with effect from, the same time as:
(A) the Equalization and Governance Agreement terminates or otherwise
ceases to have effect; or
(B) the P&O Princess Guarantee terminates or otherwise ceases to have
effect.
5.2 Subject to Clause 5.3, Carnival may at any time terminate this Guarantee by
giving notice under Clause 8.2 with effect from such future time (being at
least 3 months after the date on which such notice of termination is given)
as it may determine. Subject to the next sentence, no such termination
under this Clause 5.2 shall be effective unless P&O Princess agrees to such
termination before such notice is given. However, such termination shall
not require the agreement of P&O Princess if:
(A) Carnival has given notice of the proposed termination of this
Guarantee in accordance with Clause 8.2; and
(B) prior to the date set out in such notice, a resolution is passed or an
order is made for the liquidation of P&O Princess.
5.3 No such termination shall be effective with respect to any Existing
Obligation.
5.4 Notice of any automatic termination under Clause 5.1, and of the time at
which it became effective, shall be given in accordance with Clause 8.2
within 10 Business Days of such termination.
6. Amendments
6.1 Subject to Clause 6.2, Carnival may at any time amend this Guarantee by
giving notice under Clause 8.2 with effect from such future time (being at
least 3 months
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after the date on which notice of such amendment is given) as it may
determine. Any such amendment shall require the prior agreement of P&O
Princess if P&O Princess' agreement would then be required to a termination
of this Guarantee under Clause 5.2.
6.2 No such amendment shall be effective with respect to any Existing
Obligation.
6.3 No such amendment shall be effective unless and until Carnival enters into
a supplemental deed poll specifying the relevant amendment and the time at
which it is to become effective.
6.4 Notice of any such amendment, of the time at which it is to become
effective, and of the date of the related supplemental deed poll, shall be
given in accordance with Clause 8.2.
7. Currency
7.1 All payments to be made under this Guarantee shall be made in the currency
or currencies in which the Obligations are expressed to be payable by P&O
Princess.
7.2 If, under any applicable law, whether as a result of a judgment against
Carnival or P&O Princess or the liquidation of Carnival or P&O Princess or
for any other reason, any payment under or in connection with this
Guarantee is made or is recovered in a currency (the "other currency")
other than that in which it is required to be paid under the terms of the
relevant Obligation (the "agreed currency") then, to the extent that the
payment to the Creditor (when converted at the rate of exchange on the date
of payment, or in the case of a liquidation, the latest date for the
determination of liabilities permitted by the applicable law) falls short
of the amount due and unpaid in respect of that Obligation, Carnival shall,
as a separate and independent obligation, fully indemnify the Creditor
against the amount of the shortfall, and for the purposes of this Clause 7,
"rate of exchange" means the spot rate at which the Creditor is able on the
relevant date to purchase the agreed currency with the other currency.
8. Notices
8.1 Any notice to or demand upon Carnival under this Guarantee shall be in
writing addressed to it at its principal place of business in the U.S.A.
for the time being (marked for the attention of the Chief Financial
Officer, with a copy sent to the General Counsel and Secretary) and shall
be effective when delivered to that principal place of business.
8.2 Any notice by Carnival under Clause 4.4, 5.4 or 6.4 shall be given by
advertisements in the Financial Times (London Edition) and the Wall Street
Journal (but, if at any time Carnival determines that advertisement in such
newspaper(s) is not practicable, the relevant advertisement shall instead
be published in such other newspaper(s) circulating generally in the United
Kingdom or the U.S.A., as the case may be, as Carnival shall determine).
Any such notice shall be deemed given on the date of publication in such
newspaper in the United Kingdom or the U.S.A., as the case may be (or,
where such advertisements are published on different dates, on the later of
such dates).
8.3 The original of this Guarantee and of any related supplemental deed poll
shall be kept at the principal place of business in the U.S.A. for the time
being of Carnival and shall
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be available for inspection there on reasonable notice during the normal
business hours of that office.
9. General
9.1 Prohibition and Enforceability
Any provision of, or the application of any provision of, this Guarantee
which is void, illegal or unenforceable in any jurisdiction does not affect
the validity, legality or enforceability of that provision in any other
jurisdiction or of the remaining provisions in that or any other
jurisdiction.
9.2 Further Assurances
Carnival shall take all steps, execute all documents and do everything
reasonably required to give effect to its liabilities and obligations
contemplated by this Guarantee.
9.3 No Novation
Carnival may not novate any of its liabilities or obligations under this
Guarantee, in whole or part.
10. Law and Jurisdiction
10.1 This Guarantee shall be governed by and construed in accordance with the
laws of England.
10.2 Any legal action or proceeding arising out of or in connection with this
Guarantee shall be brought exclusively in the courts of England.
10.3 Carnival irrevocably submits to the jurisdiction of such courts and waives
any objection to proceedings in any such court on the ground of venue or on
the ground that the proceedings have been brought in an inconvenient forum.
IN WITNESS WHEREOF
Executed as a deed by )
CARNIVAL CORPORATION )
acting by [.] [and [.]] [who, in )
accordance with the laws of the ) _______________________________
territory in ) _______________________________
which Carnival Corporation ) (Authorised
is ) signatory(ies))
incorporated, is/are] acting under
the
authority of Carnival Corporation
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[Proposed Form]
DATED 200[2][3]
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CARNIVAL CORPORATION DEED POLL GUARANTEE
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