Exhibit 4.14
CARNIVAL PLC
(formerly known as P&O PRINCESS CRUISES PLC)
CARNIVAL CORPORATION
P&O PRINCESS CRUISES INTERNATIONAL LIMITED
TO
THE BANK OF NEW YORK
Trustee
7.30% NOTES DUE 2007
7.875% DEBENTURES DUE 2027
----------------------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 1, 2003
----------------------------------------------
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture"), dated as of December 1, 2003, among CARNIVAL PLC (formerly known as
P&O Princess Cruises plc), a public limited company existing under the laws of
England and Wales ("Carnival plc"), CARNIVAL CORPORATION, a corporation
organized under the laws of the Republic of Panama ("Carnival Corporation"), 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, Carnival plc, the Guarantor and the Trustee are parties to
that certain Indenture, dated as of October 23, 2000, and amended by a First
Supplemental Indenture, dated as of July 15, 2003 (as amended, the "Original
Indenture" and, together with this Second Supplemental Indenture, the
"Indenture," capitalized terms used but not otherwise defined in this Second
Supplemental Indenture having the meanings ascribed to them in the Original
Indenture), pursuant to which Carnival plc 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 pursuant to the Original
Indenture and guaranteed by Carnival Corporation pursuant to a Deed of
Guarantee, dated as of April 17, 2003, between Carnival Corporation and Carnival
plc and an Agreement relating to the Deed of Guarantee, dated as of July 15,
2003, between such parties (the "Carnival Corporation Guarantee");
WHEREAS, Carnival plc, the Guarantor and Carnival Corporation have
entered into a series of related transactions (the "Transfer") in which (i)
Carnival plc has transferred all or substantially all of its assets to Carnival
Corporation and (ii) the Guarantor has transferred all or substantially all of
its assets to Carnival Corporation;
WHEREAS, as required by Section 5.01 of the Original Indenture,
Carnival Corporation wishes to expressly assume, by this Second Supplemental
Indenture, the due and punctual performance and observance of all of the
covenants and conditions to be performed and observed by Carnival plc and the
Guarantor under the Original Indenture, the Securities and the Guarantee, as the
case may be;
WHEREAS, Carnival plc wishes to guarantee Carnival Corporation's
obligations under the Indenture and the Securities;
WHEREAS, POPCIL will be guaranteeing Carnival Corporation's and
Carnival plc's obligations as "Obligations" pursuant to the Deed of Guarantee,
dated as of June 19, 2003, among POPCIL, Carnival Corporation and Carnival plc
(the "POPCIL Deed of Guarantee");
WHEREAS, Carnival Corporation wishes to cause Carnival plc and its
Subsidiaries to comply with certain of the covenants in the Indenture and to
provide for certain additional Events of Default;
WHEREAS, Section 9.01 of the Original Indenture provides that
Carnival plc, the Guarantor and the Trustee may amend or supplement the Original
Indenture with respect to the Securities without the consent of any Holder of
any Security (i) to provide for the assumption of Carnival plc's and/or the
Guarantor's obligations to Holders of Securities in the case of a merger or
consolidation or sale of all or substantially all of Carnival plc's assets or
(ii) to make any change that would provide any additional rights or benefits to
the Holders of Securities or that does not adversely affect the legal rights
under the Original Indenture of any such Holder; and
WHEREAS, (i) the execution of this Second Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the
Original Indenture and Carnival plc has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel with respect to such authorization, (ii)
Carnival plc, Carnival Corporation and the Guarantor have each delivered to the
Trustee a resolution of its Board of Directors authorizing the execution of this
Second Supplemental Indenture, and (iii) all things necessary to make this
Second Supplemental Indenture a valid agreement of Carnival plc, Carnival
Corporation, the Guarantor and the Trustee in accordance with its terms have
been done;
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. As required by Section 5.01(b) of the Original Indenture,
Carnival Corporation hereby assumes, by this Second Supplemental Indenture, the
due and punctual performance and observance of all of the covenants and
conditions to be performed and observed by Carnival plc and the Guarantor under
the Original Indenture, the Securities and the Guarantee, as the case may be. As
required by Section 5.01(c) of the Original Indenture, Carnival Corporation
hereby assumes Carnival plc's and the Guarantor's obligations under Section 4.09
of the Original Indenture to pay Additional Amounts, substituting "The Republic
of Panama" for "the United Kingdom" in each place that it appears in Section
4.09 of the Original Indenture.
Section 2. Pursuant to Section 5.02(a) of the Original Indenture,
Carnival Corporation shall succeed to, and be substituted for (so that from and
after the date hereof, the provisions of the Indenture referring to the
"Company" shall refer instead to Carnival Corporation and not to Carnival plc
and to the "Guarantor" shall refer instead to Carnival Corporation and not to
the Guarantor), and may exercise every right and power of Carnival plc or the
Guarantor, as the case may, under the Indenture with the same effect as if
Carnival Corporation had been named as the Company or the Guarantor in the
Original Indenture. As a result of the succession and substitution pursuant to
the preceding sentence, Carnival plc and the Guarantor are hereby released from
their obligations under the Original Indenture.
Section 3. The following definition shall be added to Section 1.01
of the Original Indenture:
"Carnival plc" means Carnival plc, a public limited company existing
under the laws of England and Wales, and any successor thereto.
Section 4. The Original Indenture is hereby amended by adding a new
Section 2.19 to read in its entirety as follows:
"Section 2.19. Carnival plc Guarantee.
(a) Carnival plc, for value received, hereby unconditionally
guarantees (the "Carnival plc Guarantee") to the Holders of the Securities
and to the Trustee on behalf of each such Holder the due and punctual
payment of the principal of, premium, if any, and interest on such
Securities, when and as the same shall become due and payable (subject to
any period of grace provided with respect thereto), whether at the Stated
Maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms thereof and of the Indenture referred to
therein. In the case of the failure of the Company punctually to make any
such payment of principal, premium, if any, or interest, Carnival plc
hereby agrees to cause any such payment to be made punctually when and as
the same shall become due and payable, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Company.
(b) All payments by Carnival plc in respect of the Carnival plc
Guarantee and the Securities shall be made free and clear of and without
withholding or deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of the United Kingdom or any political subdivision
or authority thereof or therein having power to tax ("UK Taxes"), unless
the withholding or deduction is then required by law. If any deduction or
withholding for any present or future taxes, duties, assessments or other
governmental charges of the United Kingdom (or any political subdivision
or taxing authority within the United Kingdom) will at any time be
required by the United Kingdom (or any political subdivision or taxing
authority within the United Kingdom) in respect of the payment of any
amounts by Carnival plc on the Securities, Carnival plc will pay to a
Holder of a Security who is not a resident in the United Kingdom for U.K.
tax purposes such additional amounts ("Carnival plc Additional Amounts")
as may be necessary in order that the net amounts paid to such Holder,
after such deduction or withholding, will be not less than the amounts
specified in new security affected to which its holder is entitled;
provided that the foregoing obligation to pay Carnival plc Additional
Amounts does not apply to (i) any tax, duty, assessment or other
governmental charge which would not have been imposed, withheld or
deducted but for (1) the existence of any present or former connection
between the Holder or beneficial owner of a Security (or between a
fiduciary, settler, beneficiary, member or shareholder or possessor of a
power over, such holder or
beneficial owner, if such Holder or beneficial owner is an estate, trust,
partnership or corporation) and the United Kingdom (or any political
subdivision or territory or possession within the United Kingdom or area
subject to its jurisdiction), including, without limitation, the holder or
beneficial owner (or the fiduciary, settler, beneficiary, member,
shareholder or possessor) being or having been domiciliary, national or
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment,
office, branch or fixed base therein or otherwise having or having had
some connection with the United Kingdom (or such political subdivision,
territory or possession of the United Kingdom or area subject to its
jurisdiction) 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 or (2) the presentation of a Security (where presentation
is required) for payment (x) in the United Kingdom or (y) on a date more
than 30 days after the date on which such payment became due and payable
or the date on which payment thereof is duly provided for, whichever
occurs later, except to the extent that the Holder would have been
entitled to the Additional Amounts if it had presented its Security for
payment on any day within the 30 day period; (ii) any estate, inheritance,
gift, sale, transfer, personal property or similar tax, assessment or
other governmental charge; (iii) 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; (iv) any tax, duty, assessment or other governmental
charge that is imposed, deducted or withheld by reason of the failure to
comply by the Holder or the beneficial owner of a Security or the
beneficial owner of any payment on the Security with a request of Carnival
plc addressed to the Holder to provide information concerning the
nationality, residence, identity or connection with the United Kingdom or
any political subdivision or taxing authority thereof of the Holder or
such beneficial owner or to make any declaration or other similar claim to
satisfy any information or reporting requirement, which in either case, is
required or imposed by a statute, treaty, regulation, ruling or
administrative practice of the taxing jurisdiction as a precondition to
exemption from withholding or deduction of all or part of such tax, duty,
assessment or other governmental charge; (v) 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 (vi) any combination of the above
items; nor will Carnival plc Additional Amounts be paid with respect to
any payment of the 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 United Kingdom (or any political subdivision or taxing
authority within the United Kingdom) 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 plc Additional Amounts had it been the
Holder of the Security.
Carnival plc shall use commercially reasonable efforts to
facilitate administrative actions necessary to assist Holders to obtain
any refund of or credit against UK Taxes for which Carnival plc Additional
Amounts are not paid as a result of the conditions in the second preceding
sentence.
(c) Carnival plc agrees that its obligations under the Carnival plc
Guarantee shall be absolute and unconditional, irrespective of, and shall
be unaffected by, any invalidity, irregularity or unenforceability of any
Security or this Indenture, any failure to enforce the provisions of any
Security or this Indenture, or any waiver, modification or indulgence
granted to the Company with respect thereto, by the Holder of any Security
or the Trustee or any other circumstance which may otherwise constitute a
legal or equitable discharge of a surety or guarantor; provided, however,
that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of Carnival plc, increase the
principal amount of any Security, or increase the interest rate thereon,
or increase any premium payable upon redemption thereof, or alter the
Stated Maturity thereof. Carnival plc hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of a merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protect or notice with respect to
any Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that the Carnival plc Guarantee will not be
discharged except by payment in full of the principal of, premium, if any,
and interest on such Security.
(d) The Carnival plc Guarantee is limited to the maximum amount that
will result in the obligations of Carnival plc not constituting a
fraudulent conveyance or fraudulent transfer under applicable law.
(e) Carnival plc shall not consolidate or merge with or into
(whether or not the Carnival plc is the surviving corporation), or sell,
convey or transfer or otherwise dispose of all or substantially all of its
assets in one or more related transactions to another Person, and shall
not permit any of its Restricted Subsidiaries to enter into any such
transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, transfer, lease or disposal
of all or substantially all of the assets of Carnival plc, as the case may
be, and its respective Subsidiaries to another Person, unless the
purchasing or transferee corporation or the successor, continuing or
resulting corporation in the case of a merger or consolidation (if the
Carnival plc is not the surviving corporation), as the case may be: (i) is
an entity in an EU member state, an Organization for Economic Co-operation
and Development member nation, or a European Free Trade Association member
nation, in each case other than Greece, Liechtenstein, Mexico or Turkey;
and (ii) expressly assumes, by an amendment to this Indenture and the
Securities, pursuant to this Indenture, the obligations of Carnival plc
under the Carnival plc Guarantee It will be a condition to any
consolidation, merger, sale of assets or assumption under this section
that immediately after giving effect to such consolidation, merger, sale
of assets or assumption no Event of Default (and no event which, after
notice or lapse of time
or both, would become an Event of Default) will have occurred and be
continuing. Notwithstanding the foregoing, in the case of (1) any merger
or consolidation by (x) Carnival plc or any of its Restricted Subsidiaries
with (y) Carnival Corporation or any of its Subsidiaries, (2) any sale,
conveyance, transfer or other disposition of assets by (x) Carnival plc or
any of its Restricted Subsidiaries to (y) Carnival Corporation or any of
its Subsidiaries, clause (i) of the first sentence of this Section 2.19(e)
shall be deemed to have been satisfied.
(f) Upon any consolidation or merger or any transfer of all or
substantially all of the assets of Carnival plc in accordance with Section
2.19(e) hereof, the successor corporation formed by such consolidation or
into or with which Carnival plc, is merged or to which such transfer is
made shall succeed to, and be substituted for (so that from and after the
date of such consolidation merger, or transfer, the provisions of this
Indenture referring to "Carnival plc" shall refer instead to the successor
corporation and not to Carnival plc), and may exercise every right and
power of Carnival plc under this Indenture with the same effect as if such
successor Person had been named as Carnival plc herein. Notwithstanding
the foregoing or any provision of Section 2.19(e), upon any consolidation
or merger or any transfer of all or substantially all of the assets of
Carnival plc to the primary obligor under this Indenture or the
Securities, the Carnival plc Guarantee shall terminate automatically, and
this Section 2.19 shall be of no further force or effect.
(g) Carnival plc shall be subrogated to all rights of the Holder of
each Security and the Trustee against the Company in respect of any
amounts paid to such Holder by Carnival plc pursuant to the provisions of
the Carnival plc Guarantee, provided, however, that Carnival plc shall not
be entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation until the principal of, premium, if any,
and interest on all Securities of the same series issued under such
Indenture shall have been paid in full."
Section 5. The Original Indenture is hereby amended by adding a new
Section 4.11 to read in its entirety as follows:
"Section 4.11 Carnival Corporation & plc Limitation on Liens.
(a) This Section 4.11 shall be effective only so long as Carnival
Corporation is a primary obligor under this Indenture. At any time that
Carnival Corporation is not a primary obligor under this Indenture, this
Section 4.11 shall be of no force or effect. All definitions used in this
Section 4.11 shall be read for purposes of this Section 4.11 as if the
term, "Carnival plc", were substituted in such definitions for the term,
"Carnival Corporation".
(b) The Company shall not, and shall not permit Carnival plc or any
Subsidiary of which the Company and/or Carnival plc owns, directly or
indirectly, at least 80% of such Subsidiary's voting shares to, create,
incur, guarantee or assume any Debt secured by a Mortgage 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 plc, provided that any
such Mortgage was not created in contemplation of such Person becoming a
Subsidiary of the Company or Carnival plc; (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 Carnival
plc or any Subsidiary of Carnival plc existing on October 23, 2000; (iv)
Mortgages of the Company or any Subsidiary of the Company 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 plc; (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 plc 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 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.
(c) Notwithstanding Clause (b) of this Section 4.11, the Company,
Carnival plc or any Subsidiary of which the Company and/or Carnival plc
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 Carnival
Corporation & plc Sale and Leaseback Transactions (as defined in Section
4.12) (other than Attributable Debt in respect of Carnival Corporation &
plc 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 Carnival Corporation & plc 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 4.12)), does not at
the time such Debt is incurred exceed 20% of Consolidated Net Tangible
Assets."
Section 6. The Original Indenture is hereby amended by adding a new
Section 4.12 to read in its entirety as follows:
"Section 4.12 Limitation on Sale and Leaseback Transactions for
Carnival Corporation & plc.
(a) This Section 4.12 shall be effective so long as Carnival
Corporation is a primary obligor under this Indenture. At any time that
Carnival Corporation is not a primary obligor under this Indenture, this
Section 4.12 shall be of no force or effect. All definitions used in this
Section 4.12 shall be read for purposes of this Section 4.12 as if the
term, "Carnival plc", were substituted in such definitions for the term,
"Carnival Corporation".
(b) The Company shall not, and shall not permit Carnival plc or any
Subsidiary of which the Company and/or Carnival plc 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 "Carnival Corporation & plc Sale and Leaseback Transaction") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt
with respect to all of these Carnival Corporation & plc 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 4.11) does not exceed 20% of Consolidated Net Tangible Assets.
This restriction will not apply to any Carnival Corporation & plc 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 the Principal Property to be leased without
equally and ratably securing the Securities pursuant to the provisions of
the Securities pursuant to Section 4.11, (ii) within a period commencing
twelve months prior to the consummation of the Carnival Corporation & plc
Sale and Leaseback Transaction and ending twelve months after the
consummation of such Carnival Corporation & plc 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 Carnival Corporation & plc 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 the Company or Carnival plc. 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. Section 6.01 of the Original Indenture is hereby amended
by deleting the "and" after subclause (v) of Clause (e) thereof, adding the word
"and" after the final semicolon in Clause (f) thereof and adding a new Clause
(g) following such Clause (f), but prior to the proviso to such Section 6.01, to
read in its entirety as follows:
"(g) if Carnival Corporation is a primary obligor under this
Indenture, the occurrence of any of the following events (all defined terms used
in this Clause (g) being read as if the term, "Carnival plc", were substituted
in such definitions for the term, "Carnival Corporation"):
(i) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by Carnival plc or any Principal
Subsidiary of it 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 Carnival plc or any Principal
Subsidiary of it, 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;
(ii) Carnival plc or any Principal Subsidiary of it pursuant
to or within the meaning of Bankruptcy Law: (1) commences a
voluntary case, (2) consents to the entry of an order for relief
against it in an involuntary case, (3) consents to the appointment
of a Custodian of it or for all or substantially all of its
property, (4) makes a general assignment for the
benefit of its creditors, or (5) generally is not paying its debts
as they become due;
(iii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (1) is for relief against
Carnival plc in an involuntary case, (2) appoints a Custodian of
Carnival plc or any Principal Subsidiary of it or for all or
substantially all of the property of Carnival plc or any Principal
Subsidiary of it; or (3) orders the liquidation of Carnival plc or
any Principal Subsidiary of it; and, in any such case, the order or
decree remains unstayed and in effect for 90 consecutive days;"
Section 8. Section 6.01 of the Original Indenture is hereby amended
by adding the following prior to the final period in such Section:
"; provided, further, that there will not be an Event of Default
under Clause (g)(i) 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 Carnival plc or any Principal Subsidiary of it; and provided further, that it
will not be an Event of Default under Clause (g)(ii) or (g)(iii) if the event in
question relates solely to property of Carnival plc or a Principal Subsidiary of
it 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 Carnival plc or a Principal Subsidiary of it."
Section 9. Section 6.02 of the Original Indenture is hereby amended
by adding the following after the final sentence thereof: "If Carnival
Corporation is a primary obligor under this Indenture and if an Event of Default
specified in subclauses (ii) or (iii) of Clause (g) of Section 6.01 hereof
occurs with respect to Carnival plc, the Securities then outstanding shall ipso
facto become and be immediately due and payable at 100% of the outstanding
principal amount thereof plus premium and accrued and unpaid interest, to the
date of such Event of Default, without any declaration or other act on the part
of the Trustee or any Holder."
Section 10. Notices to the Company under the Indenture shall be sent
to: Carnival Corporation, 3655 N.W. 87th Avenue, Miami, Florida, 33178,
Attention: General Counsel (Facsimile: 305-406-4758), with a copy to Paul,
Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York,
New York, 10019, Attention: John C. Kennedy, Esq. (Facsimile: 212-757-3990).
Section 11. Carnival Corporation, Carnival plc and POPCIL
acknowledge that the Securities, the Indenture and the "Carnival plc Guarantee"
(as defined in the Indenture) shall be deemed to be "Obligations" for purposes
of the POPCIL Deed of Guarantee.
Section 12. Each of Carnival Corporation and Carnival plc (i)
acknowledges that it has, by separate written instrument, designated and
appointed National Registered Agents as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to the
Indenture, the Securities or the Carnival plc Guarantee that may be instituted
in any federal or state court in the Borough of Manhattan, The City of New York
or brought under federal or state securities laws or brought by the Trustee in
its capacity as a trustee under the Indenture, and acknowledges that National
Registered Agents has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding or any claim of inconvenient forum, and (iii) agrees that service of
process upon National Registered Agents and written notice of said service to it
(mailed or delivered to its secretary at its registered office at 875 Avenue of
the Americas, Suite 501, New York, New York, 10001 or at any other address
previously furnished in writing to the Trustee) shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of
Carnival Corporation and Carnival plc further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
National Registered Agents with respect to it in full force and effect so long
as the Indenture shall be in full force and effect and so long as any of the
Securities shall be outstanding, subject to the appointment of a successor
pursuant to the following sentence. Carnival Corporation or Carnival plc may
appoint a successor to National Registered Agents, provided that such successor
shall be located in the Borough of Manhattan, The City of New York and
designated and appointed as above, that such successor accepts such designation
in writing prior to or simultaneously with its succession and that written
notice of designation has been given prior to such successor to the remaining
party or parties hereto; thereafter, the relevant company shall take any and all
action as may be necessary to continue such designation and appointment of such
successor in full force and effect so long as the Indenture is in full force and
effect. To the extent that Carnival Corporation or Carnival plc has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
respective obligations under the Indenture and the Securities to the fullest
extent permitted by law.
Section 13. This Second Supplemental Indenture shall become
effective immediately following completion of the Transfer.
Section 14. Carnival Corporation and Carnival plc agree that the
Trustee is permitted to place a notation about this Second Supplemental
Indenture on the Securities in accordance with the provisions of Section 9.05 of
the Indenture.
Section 15. The Trustee accepts this Second 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 16. 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 17. The recitals contained in this Second Supplemental
Indenture shall be taken as the statements made solely by Carnival plc, Carnival
Corporation 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 Second Supplemental
Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereof by Carnival plc, Carnival Corporation and the Guarantor by
corporate action or otherwise, (iii) the due execution hereof by Carnival plc,
Carnival Corporation 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 18. THIS SECOND 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 19. In case any provision in this Second 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 20. If any provision of this Second 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 Second 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 Second Supplemental Indenture, as the case may be.
Section 21. This Second 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.]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
CARNIVAL PLC
By:
-----------------------------------
Name: David Bernstein
Title: Vice President and Treasurer
CARNIVAL CORPORATION
By: /s/ David Bernstein
-----------------------------------
Name: David Bernstein
Title: Vice President and Treasurer
P&O PRINCESS CRUISES
INTERNATIONAL LIMITED
By: /s/ David Bernstein
-----------------------------------
Name: David Bernstein
Title: Attorney-in-fact
THE BANK OF NEW YORK,
as Trustee
By: /s/ Alison Mitchell
-----------------------------------
Name: Alison Mitchell
Title: Assistant Treasurer