Exhibit 99.10
P&O PRINCESS DEED OF GUARANTEE
This Deed of Guarantee ("Guarantee") is made on ________, 2003 between P&O
Princess Cruises plc ("P&O Princess") and Carnival for the benefit of each
Creditor.
BACKGROUND
Under the Implementation Agreement referred to below, P&O Princess has agreed
with Carnival to enter into 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" shall have the meaning given in the Equalization and
Governance Agreement;
"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 of 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;
"Implementation Agreement" means the Agreement headed "Offer and
Implementation Agreement" entered into between P&O Princess and
Carnival, dated as of 8 January 2003;
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"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) or for which P&O Princess agrees in
writing to act as co-obligor or co-issuer;
(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 an
Obligation within the meaning of this Guarantee, or where the
Creditor has explicitly agreed or explicitly agrees that the
obligation is not to be an Obligation within the meaning of this
Guarantee;
(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);
(vii) of Carnival incurred under any instrument or agreement existing
on or prior to the date of this Guarantee; or
(viii) 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 (vii) 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 (an Act of Parliament).
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 Guarantee
This Guarantee shall take effect as a deed and it is intended that each
Creditor severally shall be entitled to benefit from the terms of this
Guarantee pursuant to the terms of the Contracts (Rights of Third Parties)
Xxx 0000 save that the parties hereto shall be entitled to make any
variation or rescission of its terms, in accordance with its terms
(including, without limitation, pursuant to Clause 4), without the consent
of any Creditor or of any third party.
3. Guarantee and Indemnity
3.1 Subject to the terms of this Guarantee, P&O Princess unconditionally and
irrevocably undertakes and promises to Carnival that it shall make to the
Creditor to whom or to which it is owed (the "Relevant Creditor") the
proper and punctual payment of each Obligation if for any reason Carnival
does not make such payment on its due date. 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 upon P&O
Princess 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 In the event that P&O Princess is required to make any payment to any
Creditor pursuant to Clause 3.1 and/or 3.11 and does make such payment,
Carnival unconditionally and irrevocably agrees by way of a full indemnity
to reimburse P&O Princess in respect of such payments.
3.5 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.
3.6 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.
3.7 Section 3(2) and (4) of the Contracts (Rights of Third Parties) Act 2001
shall not apply to this Guarantee and accordingly:
(A) In respect of any claim against P&O Princess by a Creditor, P&O
Princess shall not have available to it by way of defence or set
off any matter that arises from or in connection with this
Guarantee, and which would have been available to P&O Princess by
way of defence or set-off if the proceedings had been brought
against P&O Princess by Carnival.
(B) P&O Princess shall not have available to it by way of defence or
set-off any matter that would have been available to it by way of
defence or set-off against the Creditor if the Creditor had been
a party to this Guarantee.
(C) P&O Princess shall not have available to it by way of
counterclaim any matter not arising from this Guarantee that
would have been available to it by way of counterclaim against
the Creditor if the Creditor had been a party to this Guarantee.
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 Debtor; or
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(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, P&O
Princess undertakes with Carnival that it will, as a sole, original and
independent obligor, make payment of the Obligation to the Relevant
Creditor by way of a full indemnity on the due date provided for payment by
the terms of the Obligation.
3.12 P&O Princess shall, if requested by Carnival, (i) enter into agreements to
act as a co-issuer or co-borrower with respect to any Obligation of
Carnival or (ii) execute and deliver a separate guarantee agreement of any
Obligation of Carnival, in each case, on terms satisfactory to P&O Princess
and Carnival. If P&O Princess enters into such agreements with respect to
any Obligation of Carnival, P&O Princess and Carnival may agree that such
Obligation shall be excluded from the scope of this Guarantee in accordance
with Clause 4 hereof.
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,
or such shorter period as the relevant Creditor may agree, after the 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 P&O
Princess and Carnival enter into a supplemental deed 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, 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 to
have been entered into before that notice is sent, nor for the notice to
state the date of the related supplemental deed.
5. Termination
5.1 Subject to Clause 5.3, this Guarantee shall automatically terminate if, and
with effect from, the same time as:
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(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 and 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 after the date on which notice of such
amendment is given) as they may determine.
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 and
Carnival enter into a supplemental deed 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, 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
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liabilities permitted by the applicable law) falls short of the amount
due and unpaid in respect of that Obligation, P&O Princess undertakes
with Carnival that it 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 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.
8.3 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).
8.4 The original counterparts of this Guarantee and of any related
supplemental deeds shall be kept at, respectively, the principal place
of business in the U.S.A. for the time being of P&O Princess and the
principal place of business in the U.S.A. for the time being of
Carnival 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 and Carnival shall take all steps, execute all documents
and do everything reasonably required to give effect to their rights,
liabilities and obligations contemplated by this Guarantee.
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9.3 No Novation
Neither P&O Princess nor Carnival may not novate any of their rights,
liabilities or obligations under this Guarantee, in whole or in part.
9.4 Counterparts
This Guarantee may be executed in any number of counterparts. All
counterparts taken together will be taken to constitute one and the
same instrument.
10. Law and Jurisdiction
10.1 This Guarantee shall be governed by and construed in accordance with
the laws of the Isle of Man.
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 and Carnival irrevocably submit to the jurisdiction of
such courts and waive 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.
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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
EXECUTED as a DEED by )
CARNIVAL CORPORATION )
acting by [.] [and [.]] [who, in )
accordance with the laws of the ) ............................
territory in which Carnival Corporation ) ............................
is incorporated, is/are] acting under ) (Authorised signatory(ies))
the authority of Carnival Corporation
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AGREED FORM
DATED 2003
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P&O PRINCESS CRUISES PLC DEED OF GUARANTEE
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