P&O PRINCESS DEED POLL GUARANTEE
THIS DEED is made by way of DEED POLL on . 200[2][3] by P&O Princess Cruises plc
("P&O Princess") in favour of each Creditor.
BACKGROUND
Under the Implementation Agreement referred to below, P&O Princess has agreed
with Carnival to issue this Guarantee in respect of certain obligations of
Carnival (including, without limitation, guarantees by Carnival 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);
"Carnival" means Carnival Corporation, a Panamanian company, having its
principal place of business at Carnival Place, 0000, 00 Xxxxxx, Xxxxx,
Xxxxxxx, 00000-0000;
"Carnival Guarantee" means the deed poll guarantee entered into by
Carnival on or about the date of this Guarantee pursuant to the
Implementation Agreement;
"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 Carnival
and P&O Princess as of even date with this Guarantee;
"Existing Obligation" means, in relation to:
(i) any agreement or exclusion referred to in Clause 4; or
(ii) any termination of this Guarantee; or
(iii) 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;
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"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 contractual monetary obligations of any
Principal Debtor)) incurred by Carnival 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 Carnival (or, where relevant, the Principal Debtor) has
the benefit and which is in full force and effect;
(ii) explicitly guaranteed in writing by P&O Princess (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 P&O Princess, or where the Creditor has
explicitly agreed or explicitly agrees that the obligation is
not to be guaranteed by P&O Princess;
(iv) owed to P&O Princess or to any Subsidiary or Subsidiary
Undertaking of P&O Princess or to any of the Subsidiaries or
Subsidiary Undertakings of Carnival;
(v) of Carnival under or in connection with the Carnival Guarantee
or any other guarantee by Carnival of any obligation of P&O
Princess or any Subsidiary or Subsidiary Undertaking of P&O
Princess;
(vi) excluded from the scope of this Guarantee as provided in
Clause 4 (Exclusion Of Certain Obligations) or Clause 5
(Termination); or
(vii) of Carnival 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);
"Principal Debtor" means, at any time, any Person any of whose
obligations are at that time guaranteed by Carnival;
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"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 any 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 P&O Princess or Carnival (including
any government agency), whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions.
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(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 P&O Princess 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 Carnival
of each Obligation and unconditionally and irrevocably undertakes that,
if for any reason Carnival does not make such payment on its due date,
P&O Princess 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 P&O Princess 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 P&O Princess to fulfil any non-monetary Obligation of
Carnival of any kind.
3.4 P&O Princess shall, for the avoidance of doubt, be entitled without
limitation to all available rights of subrogation against Carnival in
order to obtain repayment of any moneys paid by it to Creditors under
this Guarantee.
3.5 Subject to Clause 3.6, P&O Princess 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
Carnival; and/or
(B) to the extent, if any, that the terms of the relevant Obligation
of Carnival (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 P&O Princess under this Guarantee shall remain in force
notwithstanding any act, omission, neglect, event or matter which would
not affect or discharge the liabilities of Carnival owed to the
Relevant Creditor. Without prejudice to its generality, the foregoing
shall apply in relation to:
(A) anything which would have discharged P&O Princess (wholly or in
part) but not Carnival;
(B) anything which would have offered P&O Princess (but not Carnival)
any legal or equitable defence; and
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(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, Carnival or any other Person.
3.8 Any discharge or release of any liabilities and obligations of P&O
Princess under this Guarantee, and any composition or arrangement which
P&O Princess 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 P&O
Princess under this Guarantee shall be impaired by any Creditor:
(A) agreeing with Carnival 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 P&O Princess
in all circumstances; or
(B) releasing or granting any time or any indulgence whatsoever to
Carnival.
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 Carnival or
any Principal Debtor, as applicable, after termination of this
Guarantee or exclusion of that Obligation shall be binding on P&O
Princess (or extend its liabilities and obligations under this
Guarantee) except to the extent, if any, that:
(A) P&O Princess explicitly agrees in writing to that variation or
departure at the same time as Carnival or that Principal Xxxxxx;
or
(B) it reduces P&O Princess' obligations or liability under this
Guarantee.
3.11 As a separate, additional and continuing obligation, P&O Princess
unconditionally and irrevocably agrees that, should any Obligation not
be recoverable from P&O Princess under Clause 3.1 as a result of the
Obligation becoming void, voidable or unenforceable against Carnival,
then P&O Princess 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, P&O Princess and Carnival 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 date on which notice of
the relevant exclusion is given in accordance with Clause 4.5) as they
may agree.
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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 P&O
Princess 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 P&O Princess 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 Carnival Guarantee terminates or otherwise ceases to have effect.
5.2 Subject to Clause 5.3, P&O Princess 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 Carnival
agrees to such termination before such notice is given. However, such
termination shall not require the agreement of Carnival if:
(A) P&O Princess 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 Carnival.
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, P&O Princess 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 after the date on which notice of such amendment is given)
as it may determine. Any
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such amendment shall require the prior agreement of Carnival if Carnival's
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 P&O Princess 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
Carnival.
7.2 If, under any applicable law, whether as a result of a judgment against P&O
Princess or Carnival or the liquidation of P&O Princess or Carnival 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, P&O Princess
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 P&O Princess 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 P&O Princess 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 P&O Princess 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 P&O Princess 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 P&O Princess
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and shall 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
P&O Princess 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
P&O Princess 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 P&O Princess 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 )
P&O PRINCESS CRUISES PLC )
acting by two of its directors/a director and )
secretary )
Director
Director/Secretary
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[Proposed Form]
DATED 200[2][3]
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P&O PRINCESS CRUISES PLC DEED POLL GUARANTEE
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