EXHIBIT 4.2
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EXECUTION COPY
CARNIVAL CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
__________________________
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 10, 2003
__________________________
Supplemental to Indenture
DATED AS OF APRIL 25, 2001
__________________________
Creating a series of Securities
designated
3 3/4% Senior Notes due 2007
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions..................................................2
ARTICLE TWO
THE 2007 NOTES
Section 201 Designation of 2007 Notes; Establishment of Form.............6
Section 202 Transfer and Exchange........................................8
Section 203 Amount......................................................18
Section 204 Interest....................................................18
Section 205 Additional Interest.........................................19
Section 206 Denominations...............................................19
Section 207 Place of Payment............................................19
Section 208 Redemption..................................................19
Section 209 Reserved....................................................20
Section 210 Stated Maturity.............................................20
Section 211 Reserved....................................................20
Section 212 Discharge of Liability on 2007 Notes........................20
Section 213 Other Terms of 2007 Notes...................................20
Section 214 Reserved....................................................20
Section 215 Payments of Additional Amounts..............................20
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
Section 301 Provisions Applicable Only to 2007 Notes....................20
Section 302 Registration, Registration of Transfer and Exchange.........21
Section 303 Reserved....................................................21
Section 304 Reserved....................................................21
Section 305 Discharge of Liability on Securities........................21
Section 306 Repayment to the Company....................................21
Section 307 Events of Default...........................................22
Section 308 Acceleration of Maturity; Rescission and Annulment..........24
Section 309 Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................25
Section 310 Reports by Company..........................................25
Section 311 Consolidation, Merger and Sale..............................26
Section 312 Supplemental Indentures Without Consent of Holders..........27
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Section 313 Supplemental Indentures with Consent of Holders.............27
Section 314 Maintenance of Office or Agency.............................28
Section 315 Reserved....................................................28
Section 316 Reserved....................................................28
Section 317 Optional Redemption or Assumption of Securities under
Certain Circumstances.......................................28
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 Integral Part...............................................28
Section 402 General Definitions.........................................28
Section 403 Adoption, Ratification and Confirmation.....................29
Section 404 Counterparts................................................29
Section 405 Governing Law...............................................29
Section 406 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.......................................29
Section 407 Effect of Headings..........................................29
Section 408 Severability of Provisions..................................29
Section 409 Successors and Assigns......................................30
Section 410 Benefit of Supplemental Indenture...........................30
Section 411 Acceptance by Trustee.......................................30
Exhibit A................................................................ A-1
Exhibit B................................................................ B-1
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CARNIVAL CORPORATION
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of November 10, 2003,
between Carnival Corporation, a corporation organized and existing under the
laws of the Republic of Panama (the "Company"), and U.S. Bank National
Association, a national banking association organized and existing under the
laws of the United States of America (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of April 25, 2001 (the "Indenture"), providing
for the issuance from time to time of its debentures, notes, bonds or other
evidences of indebtedness (hereinafter called "Securities") in one or more fully
registered series;
WHEREAS, Section 9.1(7) of the Indenture provides that the Company and
the Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Section 3.1 of the Indenture provides that the Company may
enter into supplemental indentures to establish the terms and provisions of a
series of Securities issued pursuant to the Indenture;
WHEREAS, on April 25, 2001, the Company issued its 2% Convertible
Senior Debentures due 2021 under a First Supplemental Indenture dated as of
April 25, 2001;
WHEREAS, on October 24, 2001, the Company issued its Liquid Yield
Option Notes due 2021 under a Second Supplemental Indenture dated as of October
24, 2001;
WHEREAS, on April 29, 2003, the Company issued its Senior Convertible
Debentures due 2033 under a Third Supplemental Indenture dated as of April 29,
2003;
WHEREAS, the Company desires to issue 3 3/4% Senior Notes due 2007 (the
"2007 Notes") guaranteed by Carnival plc, a public limited company incorporated
in England and Wales in July 2000 as P&O Princess Cruises plc ("Carnival plc"),
under the Deed of Guarantee, dated as of April 17, 2003, between the Company and
Carnival plc, and P&O Princess Cruises International Limited ("POPCIL" and
together with Carnival plc, the "Guarantors") under the Deed of Guarantee dated
as of June 19, 2003, among the Company, Carnival plc and POPCIL, such 2007 Notes
being a new series of Security, the issuance of which was authorized by a
resolution of the Executive Committee of the Board of Directors of the Company,
dated October 27, 2003;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Fourth Supplemental Indenture (the "Fourth Supplemental Indenture")
to supplement and amend in certain respects the Indenture insofar as it will
apply only to the 2007 Notes (and not to any other series);
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WHEREAS, all things necessary have been done to make the 2007 Notes,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Fourth Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms; and
WHEREAS, the Company, pursuant to the foregoing authority, has entered
into a Registration Rights Agreement for the benefit of Holders of the 2007
Notes to file and cause to be declared effective an Exchange Offer Registration
Statement with the SEC, and consummate the related exchange offer for the
Exchange Notes, which will have terms identical in all material respects to the
2007 Notes, except that the Exchange Notes will not contain terms with respect
to transfer restrictions.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the 2007 Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of the Indenture and this Fourth Supplemental
Indenture relating to the series of Securities created hereby, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article have the meanings assigned to them in this Article. Each
capitalized term that is used in this Fourth Supplemental Indenture but not
defined herein shall have the meaning specified in the Indenture.
"2007 NOTES" has the meaning specified in the recitals.
"144A GLOBAL NOTE" means a Global Security substantially in the form of
EXHIBIT A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee, that shall be issued in a denomination equal to the
outstanding principal amount of the 2007 Notes sold in reliance on Rule 144A.
"ADDITIONAL INTEREST" shall have the meaning set forth in the
Registration Rights Agreement.
"AGENT MEMBERS" has the meaning specified in Section 201(c).
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the Depositaries that are applicable to such transfer or exchange.
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"CARNIVAL PLC" has the meaning specified in the recitals.
"CARNIVAL PLC GUARANTEE" means the guarantee of the 2007 Notes issued
under the Deed of Guarantee, dated as of April 17, 2003, between the Company and
Carnival plc, as amended, supplemented or modified.
"CERTIFICATED SECURITY" means a certificated 2007 Note registered in
the name of the Holder thereof, substantially in the form attached hereto as
EXHIBIT A, and such 2007 Note shall not bear the Global Security Legend and
shall not have the "Schedule of Exchanges of Securities" attached thereto.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"CONSOLIDATED NET WORTH" means, at any time, the Net Worth of the
Company, Carnival plc and their combined Subsidiaries on a consolidated basis
determined in accordance with GAAP.
"DEPOSITARIES" has the meaning specified in Section 201(a).
"DTC" has the meaning specified in Section 201(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"EXCHANGE NOTES" means any securities of the Company containing terms
identical in all material respects to the 2007 Notes, except that such Exchange
Notes will not bear legends restricting their transfer, and will be issued and
exchanged for the 2007 Notes pursuant to the Registration Rights Agreement and
this Indenture.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"FOURTH SUPPLEMENTAL INDENTURE " has the meanings specified in the
recitals.
"GAAP" means generally accepted accounting principles as in effect on
the date of this Fourth Supplemental Indenture in the United States.
"GLOBAL SECURITIES" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities,
substantially in the form of EXHIBIT A hereto.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
202(f)(2), which is required to be placed on all Global Securities issued under
this Indenture.
"INDENTURE" has the meaning specified in the recitals.
"ISSUE DATE" of any 2007 Note means the date on which the 2007 Note was
originally issued or deemed issued as set forth on the face of the 2007 Note.
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"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the 2007 Notes for use by such Holders
in connection with the Exchange Offer.
"NET WORTH" means, at any time with respect to the Company, Carnival
plc or any of their respective Subsidiaries, the net worth of the Company,
Carnival plc or any such respective Subsidiary, as the case may be, determined
in accordance with GAAP.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Securities which have been cancelled pursuant to
Section 3.9 of the Indenture or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Principal Amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" shall be the agent specified in Section 201(e).
"PERMANENT REGULATION S GLOBAL NOTE" means a permanent Global Security
in the form of EXHIBIT A hereto bearing the Global Note Legend, deposited with
or on behalf of and registered in the name of the Depositary or its nominee and
issued upon expiration of the Restricted Period.
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"POPCIL GUARANTEE" means the guarantee of the 2007 Notes issued under
the Deed of Guarantee, dated as of June 19, 2003, among the Company, Carnival
plc and POPCIL, as amended, supplemented or modified.
"PRINCIPAL AMOUNT" of any 2007 Note means the principal amount as set
forth on the face of the 2007 Note.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
202(f)(1) to be placed on all 2007 Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" has the meaning specified in Section 201(a).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 10, 2003, among the Company, Carnival plc and
POPCIL and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and UBS Securities LLC, as representatives of the initial
purchasers listed on Schedule I to the Purchase Agreement dated November 5,
2003, as amended, supplemented or modified.
"REGISTRATION STATEMENT" means a Registration Statement as defined and
described in the Registration Rights Agreement.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means the Temporary Regulation S Global Note
and the Permanent Regulation S Global Note.
"RESTRICTED CERTIFICATED SECURITY" means a Certificated Security, which
shall bear a Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security, which shall bear
a Private Placement Legend.
"RESTRICTED PERIOD" means the "distribution compliance period" as
defined in Regulation S.
"RULE 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"RULE 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURITIES" has the meaning specified in the preamble of this Fourth
Supplemental Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute.
"SECURITIES CUSTODIAN" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
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"SIGNIFICANT SUBSIDIARY" means any Subsidiary, the Net Worth of which
represents more than 10% of the Consolidated Net Worth.
"SUBSIDIARY" means, with respect to any Person, (i) a corporation, a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is, at the date of determination, directly or indirectly
owned by such Person, by one or more Subsidiaries of the such Person or by such
Person and one or more Subsidiaries of such Person, (ii) a partnership in which
such Person or a Subsidiary of such Person holds a majority interest in the
equity capital or profits of such partnership, or (iii) any other Person (other
than a corporation or a partnership) in which such Person, a Subsidiary of such
Person or such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination, has (x) at least a majority equity
ownership interest or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such other Person.
"TEMPORARY REGULATION S GLOBAL NOTE" means a Global Security in the
form of EXHIBIT A hereto bearing the Global Security Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the 2007 Notes initially sold in reliance on
Rule 903 of Regulation S.
"TRANSFER CERTIFICATE" means a written certification substantially in
the form set forth in EXHIBIT B hereto.
"UNRESTRICTED CERTIFICATED SECURITY" means a Certificated Security
which does not bear a Private Placement Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent Global Security
substantially in the form of EXHIBIT A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Securities" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of 2007 Notes, and that does not bear
the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
ARTICLE TWO
THE 2007 NOTES
Section 201 Designation of 2007 Notes; Establishment of Form.
There shall be a series of Securities designated "3 3/4% Senior Notes
due 2007" of the Company, and the form thereof shall be substantially as set
forth in EXHIBIT A hereto, which is incorporated into and shall be deemed a part
of this Fourth Supplemental Indenture, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such 2007 Notes, as evidenced by their execution of the 2007 Notes.
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(a) RESTRICTED GLOBAL SECURITIES. The 2007 Notes are
initially being offered and sold to qualified institutional buyers as defined in
Rule 144A (collectively, "QIBs" or individually a "QIB") in reliance on Rule
144A under the Securities Act or in offshore transactions in reliance on
Regulation S under the Securities Act and shall be issued initially in the form
of one or more Restricted Global Securities, which shall be deposited on behalf
of the purchasers of the 2007 Notes represented thereby with the Trustee, at its
Corporate Trust Office, as Securities Custodian for the depositaries, The
Depository Trust Company ("DTC"), Clearstream Banking, S.A. ("Clearstream
Luxembourg") and Euroclear Bank S.A./N.V., as operator of the Euroclear System
("Euroclear") (together such depositaries, or any successors thereto, being
hereinafter referred to as the "Depositaries"), and registered in the name of
their nominees, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. During the Restricted Period, beneficial interests in the
Temporary Regulation S Notes may be held only through Participants or Indirect
Participants of Euroclear or Clearstream Luxembourg. Upon the issuance of the
2007 Notes, the Company will only deliver beneficial interests in the Temporary
Regulation S Global Notes solely through Euroclear and Clearstream. The
aggregate Principal Amount of a Restricted Global Security may from time to time
be increased or decreased by adjustments made on the records of the Securities
Custodian as hereinafter provided, subject in each case to compliance with the
Applicable Procedures.
(b) REGULATION S GLOBAL SECURITY. The 2007 Notes offered
and sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of a Temporary Regulation S Global Note registered in the
name of a nominee of Euroclear and/or Clearstream, as applicable, deposited on
behalf of the purchasers of the 2007 Notes represented thereby with
Depositaries, and duly executed by the Company and authenticated by the Trustee
as hereinafter provided. After the Restricted Period, one or more Permanent
Regulation S Global Notes, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, shall be deposited with the Depositaries.
Prior to the expiration of the Restricted Period, beneficial interests
in a Temporary Regulation S Global Note may be exchanged for beneficial
interests in a 144A Global Note only if the transferor first delivers to the
Trustee a Transfer Certificate to the effect that:
(1) the transfer of the Temporary Regulation S Global
Note is being made in accordance with Rule 144A; and
(2) the Temporary Regulation S Global Note is being
transferred to a person:
(A) whom the transferor reasonably believes to
be a QIB within the meaning of Rule 144A purchasing for its
own account or the account of a QIB in a transaction meeting
the requirements of Rule 144A; and
(B) in accordance with all applicable securities
laws of the states of the United States.
(c) GLOBAL SECURITIES IN GENERAL. Each Global Security
shall represent such of the Outstanding 2007 Notes as shall be specified therein
and each shall provide that it shall
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represent the aggregate Principal Amount of Outstanding 2007 Notes from time to
time endorsed thereon and that the aggregate Principal Amount of Outstanding
2007 Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions or purchases of such 2007 Notes.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the Principal Amount of Outstanding 2007 Notes represented thereby
shall be made by the Securities Custodian in accordance with the standing
instructions and procedures existing between the Depositaries and the Securities
Custodian.
Neither any members of, or participants in, the Depositaries ("Agent
Members") nor any other Persons on whose behalf Agent Members may act shall have
rights under this Indenture with respect to any Global Security held in the name
of the Depositaries or any nominees thereof, or under the Global Security, and
the Depositaries (including, for this purpose, their nominees) may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owners and Holders of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositaries or (B) impair, as between the Depositaries, their Agent Members and
any other Person on whose behalf an Agent Member may act, the operation of
customary practices governing the exercise of the rights of a Holder of any 2007
Note.
(d) CERTIFICATED SECURITIES. Certificated Securities
shall be issued only under the limited circumstances provided in Section
202(a)(1) hereof.
(e) PAYING AGENT. The Company shall maintain an office or
agency where 2007 Notes may be presented for purchase or payment ("Paying
Agent"). The Company may have one or more additional paying agents.
The Company shall enter into an appropriate agency agreement with any
Paying Agent (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 6.7 of the Indenture. The
Company or any Subsidiary or an Affiliate of either of them may act as Paying
Agent.
The Company initially appoints the Trustee as Paying Agent in
connection with the 2007 Notes.
Section 202 Transfer and Exchange.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(1) Certificated Securities shall be issued in exchange
for interests in the Global Securities only if (x) the Depositaries
notify the Company that they are unwilling or unable to continue as
depositaries for the Global Securities or if they at any time cease to
be "clearing agencies" registered under the Exchange Act if so required
by applicable law or regulation and a successor depositary is not
appointed by the Company within 90 days, (y) at any time the Company so
determines, in its sole discretion, or (z) an Event of
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Default has occurred and is continuing with respect to the 2007 Notes.
In any of the foregoing cases, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), authenticate and deliver Certificated
Securities in an aggregate Principal Amount equal to the Principal
Amount of such Global Securities in exchange therefor. Only Restricted
Certificated Securities shall be issued in exchange for beneficial
interests in Restricted Global Securities, and only Unrestricted
Certificated Securities shall be issued in exchange for beneficial
interests in Unrestricted Global Securities. Certificated Securities
issued in exchange for beneficial interests in Global Securities shall
be registered in such names and shall be in such authorized
denominations as the Depositaries, pursuant to instructions from their
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver or cause to be delivered such
Certificated Securities to the persons in whose names such Securities
are so registered. Such exchange shall be effected in accordance with
the Applicable Procedures. Nothing herein shall require the Trustee to
communicate directly with beneficial owners, and the Trustee shall in
connection with any transfers hereunder be entitled to rely on
instructions received through the registered Holder.
In the event that Certificated Securities
are issued in exchange for beneficial interests in Global Securities in
accordance with the foregoing paragraph and, thereafter, the events or
conditions specified in this Section 202(a)(1) which required such
exchange shall have ceased to exist, the Company shall give notice to
the Trustee and to the Holders stating that Holders may exchange
Certificated Securities for interests in Global Securities by complying
with the procedures set forth in this Indenture and briefly describing
such procedures and the events or circumstances requiring that such
notice be given.
(2) Notwithstanding any other provisions of this Fourth
Supplemental Indenture other than the provisions set forth in Section
202(a)(1) hereof, a Global Security may not be transferred, except as a
whole by the Depositaries to a nominee of the Depositaries or by a
nominee of the Depositaries to the Depositaries or another nominee of
the Depositaries or by the Depositaries or any such nominee to
successor Depositaries or a nominee of such successor Depositaries.
Nothing in this Section 202(a)(2) shall prohibit or render ineffective
any transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 202.
(b) TRANSFER AND EXCHANGE. The 2007 Notes are issuable
only in registered form. Subject to Section 201(b) hereof, a Holder may transfer
a 2007 Note only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Security Register. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee and any agent
of the Company shall treat the person in whose name the 2007 Note is registered
as the owner thereof for all purposes whether or not the 2007 Note shall be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global Security
shall, by acceptance of such Global
9
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent) and that ownership of a beneficial interest
in the 2007 Note shall be required to be reflected in a book entry. When 2007
Notes are presented to the Registrar or a co-Registrar with a request to
register the transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations (including an exchange of 2007
Notes for Exchange Notes), the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including that such 2007 Notes are duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and Registrar duly
executed by the Holder thereof or by an attorney who is authorized in writing to
act on behalf of the Holder); PROVIDED that no exchanges of 2007 Notes for
Exchange Notes shall occur until a Registration Statement shall have been
declared effective by the SEC and that any 2007 Notes that are exchanged for
Exchange Notes shall be canceled by the Trustee. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate 2007 Notes at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange or redemption of the 2007
Notes, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 3.5).
The Registrar shall not be required (i) to issue, register the transfer
of or exchange any 2007 Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of 2007
Notes under Section 11.8 and ending at the close of business on the day of such
mailing, (ii) to register the transfer of or exchange any 2007 Note so selected
for redemption in whole or in part, except the unredeemed portion of any 2007
Note being redeemed in part, or (iii) register a 2007 Note that has matured or
been redeemed or cancelled, except for registration of transfer, exchange or
replacement of such 2007 Note.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any 2007 Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(c) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES.
When Certificated Securities are presented by a Holder to a Security Registrar
with a request:
(1) to register the transfer of the Certificated
Securities to a person who will take delivery thereof in the form of
Certificated Securities only; or
(2) to exchange such Certificated Securities for an equal
Principal Amount of Certificated Securities of other authorized
denominations,
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such Security Registrar shall register the transfer or make the exchange as
requested; PROVIDED, HOWEVER, that the Certificated Securities presented or
surrendered for register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the fifth paragraph of
Section 3.5 of the Indenture; and
(2) in the case of a Restricted Certificated Security,
such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Certificated Security is
being delivered to the Security Registrar by a Holder for
registration in the name of such Holder, without transfer, or
such Restricted Certificated Security is being transferred to
the Company or a Subsidiary of the Company, a certification to
that effect from such Holder (in substantially the form set
forth in the Transfer Certificate);
(B) if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes
is a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate);
or
(C) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or such Security
Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to
the Company and such Security Registrar to the effect that
such transfer is in compliance with the Securities Act.
(d) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL SECURITIES. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositaries, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (1) or (2) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
SECURITY. Beneficial interests in any Restricted Global Securities may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement
11
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Temporary
Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser)
except in connection with a transfer pursuant to Section 201(b).
Beneficial interests in any Unrestricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security. No written
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 202(d)(1).
(2) TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL SECURITIES NOT SUBJECT TO SECTION 202(d)(1). In connection with
all transfers and exchanges of beneficial interests that are not
subject to Section 202(d)(1) above, the transferor of such beneficial
interest must deliver to the Registrar either (i) a written order from
a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be
transferred or exchanged and (ii) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase. Upon
consummation of an Exchange Offer by the Company in accordance with
Section 202(h) hereof, the requirements of this Section 202(d)(2) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global
Securities. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Securities contained in
this Indenture and the 2007 Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount at
maturity of the relevant Global Securities.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER
RESTRICTED GLOBAL SECURITY. A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Security if the transfer complies with the requirements of
Section 202(d)(2) above and the Registrar receives the following:
(A) if the transferee is to take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a Transfer Certificate, including
the certifications in item (1) thereof; and
(B) if the transferee is to take delivery in the
form of a beneficial interest in a Temporary Regulation S
Global Note, then the transferor must deliver a Transfer
Certificate, including the certifications in item (2) thereof.
(4) TRANSFER OF A BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. Any person having a beneficial interest in a Restricted
Global Security may upon request, subject to the Applicable Procedures,
transfer such beneficial interest to a person who is required or
permitted to take delivery thereof in the form of an Unrestricted
Global Security. Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the Depositaries,
from the Depositaries or their nominee on behalf of any person having a
beneficial interest in a Restricted Global Security and the following
additional information and documents in such form as is customary for
the
12
depositaries from the Depositaries or their nominee on behalf of the
person having such beneficial interest in the Restricted Global
Security (all of which may be submitted by facsimile or
electronically):
(A) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
the transferor (in substantially the form set forth in the
Transfer Certificate); or
(B) if such beneficial interest is being
transferred (i) pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
or (ii) pursuant to an exemption from the registration
requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case
of a Security transferred pursuant to this clause (ii), such
Security shall cease to be a "restricted security" within the
meaning of Rule 144, a certification to that effect from the
transferor (in substantially the form set forth in the
Transfer Certificate) and, if the Company or the Trustee so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and the
Trustee to the effect that such transfer is in compliance with
the Securities Act,
the Trustee, as a Security Registrar and Securities Custodian, shall reduce or
cause to be reduced the aggregate Principal Amount of the Restricted Global
Security by the appropriate Principal Amount and shall increase or cause to be
increased the aggregate Principal Amount of the Unrestricted Global Security by
a like Principal Amount. Such transfer shall otherwise be effected in accordance
with the Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver an Unrestricted Global Security.
(e) TRANSFERS OF CERTIFICATED SECURITIES FOR BENEFICIAL
INTEREST IN GLOBAL SECURITIES. If Certificated Securities are presented by a
Holder to a Security Registrar with a request:
(1) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall specify
whether such Global Security will be a Restricted Global Security or an
Unrestricted Global Security; or
(2) to exchange such Certificated Securities for an equal
Principal Amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (PROVIDED that in the case of such an exchange,
Restricted Certificated Securities may be exchanged only for Restricted
Global
13
Securities and Unrestricted Certificated Securities may be exchanged
only for Unrestricted Global Securities),
the Security Registrar shall register the transfer or make the exchange as
requested by canceling such Certificated Security and causing, or directing the
Securities Custodian to cause, the aggregate Principal Amount of the applicable
Global Security to be increased accordingly and, if no such Global Security is
then outstanding, the Company shall issue and the Trustee shall authenticate and
deliver a new Global Security; PROVIDED, HOWEVER, that the Certificated
Securities presented or surrendered for registration of transfer or exchange:
(3) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the fifth paragraph of
Section 3.5 of the Indenture;
(4) in the case of a Restricted Certificated Security to
be transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Certificated Security is
being transferred pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form set forth
in the Transfer Certificate);
(B) if such Restricted Certificated Security is
being transferred pursuant to (i) an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from such Holder (in substantially the form set forth in item
3(a) of the Transfer Certificate, and, if the Company or the
Security Registrar so requests, a customary opinion of
counsel, certificates and other information reasonably
acceptable to the Company and the Trustee to the effect that
such transfer is in compliance with the Securities Act; or
(C) if such Restricted Security is being
transferred pursuant to and in accordance with Rule 903 or 904
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in item 3(b)
of the Transfer Certificate);
(5) in the case of a Restricted Certificated Security to
be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A; and
14
(6) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in an
Unrestricted Global Security, such request need not be accompanied by
any additional information or documents.
(f) LEGENDS.
(1) PRIVATE PLACEMENT LEGEND. Except as permitted below,
each Restricted Global Security shall bear the legend in substantially
the following form:
THIS SECURITY, THE CARNIVAL PLC GUARANTEE AND THE POPCIL GUARANTEE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NONE OF THIS SECURITY,
THE CARNIVAL PLC GUARANTEE, THE POPCIL GUARANTEE OR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY, CARNIVAL PLC, POPCIL OR ANY AFFILIATE OF ANY OF THE FOREGOING
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
ONLY (A) TO THE COMPANY, CARNIVAL PLC, POPCIL OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS IN OFFSHORE TRANSACTIONS OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING UNDER RULE 144, IF AVAILABLE, SUBJECT TO THE
COMPANY'S, CARNIVAL PLC'S, POPCIL'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO, PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE, REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR,
15
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
(2) GLOBAL SECURITY LEGEND. Each Global Security shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR
BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 202 OF THE INDENTURE, (2)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 202(b) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE
INDENTURE AND (3) THIS GLOBAL NOTE MAY BE DELIVERED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(3) TEMPORARY REGULATION S GLOBAL NOTE LEGEND. The
Temporary Regulation S Global Note shall bear a legend in substantially
the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE TRANSFERRED IN THE UNITED STATES OR TO, OR
16
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED
ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
(4) DTC LEGEND. For so long as DTC is the Depositary,
each Global Security shall bear a legend in substantially the following
form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(5) Upon any sale or transfer of a Restricted Global
Security or Restricted Certificated Security (x) pursuant to Rule 144,
(y) pursuant to an effective registration statement under the
Securities Act or (z) pursuant to any other available exemption (other
than Rule 144A) from the registration requirements of the Securities
Act and as a result of which, in the case of a Security transferred
pursuant to this clause (z), such Security shall cease to be a
"restricted security" within the meaning of Rule 144:
(A) in the case of any Restricted Certificated
Security, any Security Registrar shall permit the Holder
thereof to exchange such Restricted Certificated Security for
an Unrestricted Certificated Security, or (under the
circumstances described in Section 202(e) hereof) to transfer
such Restricted Certificated Security to a transferee who
shall take such Security in the form of a beneficial interest
in an Unrestricted Global Security, and in each case shall
rescind any restriction on the transfer of such Security;
PROVIDED, HOWEVER, that the Holder of such Restricted
Certificated Security shall, in connection with such exchange
or transfer, comply with the other applicable provisions of
this Section 202; and
(B) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; PROVIDED, HOWEVER, that such Unrestricted Global
Security shall continue to be subject to the provisions of
Section 202(a)(2) hereof, and PROVIDED FURTHER, HOWEVER, that
the owner of such
17
beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section
202.
(6) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in paragraph
(1) above, the Company shall execute, and the Trustee shall
authenticate and deliver, Securities that do not bear such legend and
which do not have a Transfer Certificate attached thereto.
(g) TRANSFERS TO THE COMPANY. Nothing in this Fourth
Supplemental Indenture or in the Securities shall prohibit the sale or other
transfer of any Securities (including beneficial interests in Global Securities)
to the Company, Carnival plc or any of their respective Subsidiaries, which
Securities (if transferred to the Company or any of its Subsidiaries) shall
thereupon be canceled in accordance Section 3.9 of the Indenture.
(h) EXCHANGE OFFER. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
3.3 of the Indenture, the Trustee shall authenticate (i) one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Securities
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not participating in a distribution of the 2007
Notes and (y) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Certificated Securities
in an aggregate principal amount equal to the principal amount of the Restricted
Certificated Securities accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such 2007 Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Restricted
Global Securities so accepted Unrestricted Global Securities in the appropriate
principal amount.
Section 203 AMOUNT.
(a) The Trustee shall authenticate and deliver 2007 Notes
for original issue in an aggregate Principal Amount of up to $550,000,000 upon a
Company Order for the authentication and delivery of 2007 Notes, without any
further action by the Company. The aggregate Principal Amount of 2007 Notes that
may be authenticated and delivered under the Indenture, as supplemented hereby,
is unlimited. The Company may issue additional 2007 Notes having the same
ranking and the same interest rate, maturity and other terms. Any additional
2007 Notes, together with the original issuance of 2007 Notes, including the
Exchange Notes, will constitute a single series of 2007 Notes under the
Indenture.
(b) The Company may not issue new 2007 Notes to replace
2007 Notes that it has paid or delivered to the Trustee for cancellation.
Section 204 INTEREST.
Outstanding 2007 Notes shall bear interest at the rate of 3 3/4% per
annum on the Principal Amount from November 10, 2003, or from the most recent
Interest Payment Date to which
18
interest has been paid or duly provided for, to, but excluding, November 15,
2007 (or such earlier date as determined pursuant to Section 317 of this Fourth
Supplemental Indenture), payable semiannually in arrears on May 15 and November
15 of each year, commencing May 15, 2004, to the Persons in whose names the 2007
Notes are registered at the close of business on the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date; PROVIDED, HOWEVER, that interest on each Exchange Note
will accrue from the last Interest Payment Date to which interest was paid on
the 2007 Note surrendered in exchange for the Exchange Note or, if no interest
has been paid on such 2007 Note, from the Issuance Date of such 2007 Note.
Interest on the 2007 Notes will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Each payment of interest on the 2007 Notes
shall include interest accrued through the day before the applicable Interest
Payment Date. Any payment required to be made on any day that is not a Business
Day shall be made on the next succeeding Business Day. Interest will cease to
accrue on a 2007 Note upon its maturity or redemption.
Section 205 ADDITIONAL INTEREST.
Additional Interest with respect to the 2007 Notes shall be payable in
accordance with the provisions and in the amounts set forth in the Registration
Rights Agreement.
Section 206 DENOMINATIONS.
Each 2007 Note shall be in fully registered form without coupons in the
denominations of $1,000 of Principal Amount or any integral multiple thereof.
Section 207 PLACE OF PAYMENT.
The Place of Payment for the 2007 Notes and the place or places where
the 2007 Notes may be surrendered for registration of transfer, exchange or
redemption and where notices may be given to the Company in respect of the 2007
Notes is at the office of the Trustee in New York, New York and at the agency of
the Trustee maintained for that purpose at the office of the Trustee; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register (as defined in the Indenture).
Section 208 REDEMPTION
(a) There shall be no sinking fund for the retirement of
the 2007 Notes.
(b) The Company may redeem the 2007 Notes in accordance
with the provisions of the Indenture and this Fourth Supplemental Indenture.
19
Section 209 RESERVED.
Section 210 STATED MATURITY.
The date on which the principal of the 2007 Notes is due and payable,
unless earlier accelerated or redeemed pursuant to the Indenture or this Fourth
Supplemental Indenture, shall be November 15, 2007.
Section 211 RESERVED.
Section 212 DISCHARGE OF LIABILITY ON 2007 NOTES.
The 2007 Notes may be discharged by the Company in accordance with the
provisions of Article IV of the Indenture, as amended by Section 305 hereof.
Section 213 OTHER TERMS OF 2007 NOTES.
Without limiting the foregoing provisions of this Article, the terms of
the 2007 Notes shall be as set forth in the form of the 2007 Notes set forth in
EXHIBIT A hereto and as provided in the Indenture.
Section 214 RESERVED.
Section 215 PAYMENTS OF ADDITIONAL AMOUNTS.
Sections 10.5 and 11.8 of the Indenture shall apply to the 2007 Notes;
PROVIDED that Section 10.5 of the Indenture shall be amended by replacing the
first clause (i) of such Section 10.5 with the following clause:
(i) any present or future Panamanian Taxes which would not have
been so imposed, assessed, levied or collected if the Holder or beneficial owner
of such Security did not have some present or former connection with the
Republic of Panama (or the jurisdiction of incorporation of a successor
corporation to the Company pursuant to Section 8.1) or any political subdivision
thereof (or of any such jurisdiction of incorporation) other than holding or
ownership of a Security, or the collection of principal and interest, if any,
on, or the enforcement of such Security, which connection may include its
domicile, residence or physical presence in the Republic of Panama or such
jurisdiction of incorporation, or its conduct of a business or maintenance of a
permanent establishment therein.
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
Section 301 PROVISIONS APPLICABLE ONLY TO 2007 NOTES.
The Provisions contained herein shall apply to the 2007 Notes only and
not to any other series of Security issued under the Indenture and any covenants
provided herein are expressly being included solely for the benefit of the 2007
Notes and not for the benefit of any other series
20
of Security issued under the Indenture. These amendments shall be effective for
so long as there remain any 2007 Notes Outstanding.
Section 302 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing the seventh paragraph of Section
3.5 with the following paragraph:
The Company shall not be required (i) to issue, register the transfer
of or exchange the 2007 Notes of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of the 2007 Notes and ending at the close of business on the day of
such mailing or (ii) to register the transfer of or exchange any 2007 Notes so
selected for redemption.
Section 303 RESERVED.
Section 304 RESERVED.
Section 305 DISCHARGE OF LIABILITY ON SECURITIES.
When (i) the Company delivers to the Trustee or any Paying Agent all
Outstanding 2007 Notes (other than 2007 Notes replaced pursuant to Section 3.6
of the Indenture) for cancellation or (ii) all Outstanding 2007 Notes have
become due and payable and the Company deposits with the Trustee or any Paying
Agent cash sufficient to pay all amounts due and owing on all Outstanding 2007
Notes (other than 2007 Notes replaced pursuant to Section 3.6), and if in either
case the Company pays all other sums payable hereunder by the Company, then this
Fourth Supplemental Indenture shall, subject to Section 6.7 of the Indenture,
cease to be of further effect, except for the indemnification of the Trustee,
which shall survive. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this Fourth
Supplemental Indenture on demand of the Company accompanied by an Officers'
Certificate and Opinion of Counsel and at the reasonable cost and expense of the
Company.
Section 306 REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the 2007 Notes that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person and the Trustee and the Paying Agent shall have no further
liability to the Holders of 2007 Notes with respect to such money or securities
for that period commencing after the return thereof.
21
Section 307 EVENTS OF DEFAULT.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing Section 5.1 with the following
paragraph:
"Event of Default," wherever used herein, means with respect to the
2007 Notes any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including
Additional Interest) upon any 2007 Note when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal amount of or
any premium on the 2007 Notes at Maturity or the Redemption Price in
respect of the 2007 Notes when the same become due and payable; or
(3) a default under any bonds, debentures, notes or other
evidences of indebtedness for money borrowed by the Company, Carnival
plc or any of their respective Subsidiaries or under any mortgages,
indentures or instruments under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Company, Carnival plc or any of their respective Subsidiaries,
whether such indebtedness now exists or shall hereafter be created,
which indebtedness, individually or in the aggregate, is in excess of
$50,000,000 principal amount (excluding any such indebtedness of any
Subsidiary other than a Significant Subsidiary, all the indebtedness of
which Subsidiary is nonrecourse to the Company, or its Subsidiaries),
which default shall constitute a failure to pay any portion of the
principal of or interest on such indebtedness when due and payable
after the expiration of any applicable grace or cure period with
respect thereto or shall have resulted in such indebtedness 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 there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Outstanding 2007 Notes a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(4) default by the Company in the performance, or breach,
of any covenant or warranty of the Company in the Indenture or this
Fourth Supplemental Indenture for the benefit of the 2007 Notes (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section 307 specifically dealt with), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the
22
Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Outstanding 2007 Notes a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) unless Carnival plc has become or has been merged
with or has been otherwise consolidated with the primary obligor under
the 2007 Notes and the Indenture (as supplemented by this Fourth
Supplemental Indenture), the Carnival plc Guarantee ceases to be in
full force and effect or is declared null and void or Carnival plc
denies that it has any further liability under the Carnival plc
Guarantee in respect of the 2007 Notes and/or the Indenture, or gives
notice to such effect (other than by reason of the termination of this
Fourth Supplemental Indenture or the release of any such Carnival plc
Guarantee in accordance with this Fourth Supplemental Indenture) and
such condition shall have continued for a period of 30 days after
written notice of such failure requiring Carnival plc and the Company
to remedy the same shall have been given, by registered or certified
mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the holders of 25% in aggregate Principal Amount of the 2007
Notes then outstanding; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company,
Carnival plc or any of their respective Significant Subsidiaries in an
involuntary case or proceeding under any applicable Federal, State or
foreign bankruptcy, insolvency, reorganization or other similar law
(each, a "Bankruptcy Law") or (B) a decree or order adjudging the
Company, Carnival plc or any of their respective Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company, Carnival plc or any of their
respective Significant Subsidiaries under any applicable Federal, State
or foreign law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company, Carnival plc or any of their respective Significant
Subsidiaries or of any substantial part of their respective properties,
or ordering the winding up or liquidation of the affairs of the
Company, Carnival plc or any of their respective Significant
Subsidiaries, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company, Carnival plc or any
of their respective Significant Subsidiaries of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
either the Company, Carnival plc or any of their respective Significant
Subsidiaries to the entry of a decree or order for relief in respect of
the Company, Carnival plc or any of their respective Significant
Subsidiaries in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against any of the Company, Carnival plc or any of
their respective Significant Subsidiaries, or the filing by any of the
Company, Carnival plc or any of their respective Significant
Subsidiaries of a petition or answer or consent seeking reorganization
or relief under any applicable Federal, State or foreign law, or the
consent by any of the Company, Carnival plc or any
23
of their respective Significant Subsidiaries to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, Carnival plc or any of their respective
Significant Subsidiaries or of any substantial part of their respective
properties, or the making by any of the Company, Carnival plc or any of
their respective Significant Subsidiaries of an assignment for the
benefit of creditors, or the admission by any of the Company, Carnival
plc or any of their respective Significant Subsidiaries in writing of
an inability to pay the debts of any of the Company, Carnival plc or
any of their respective Significant Subsidiaries generally as they
become due, or the taking of corporate action by the Company, Carnival
plc or any of their respective Significant Subsidiaries in furtherance
of any such action.
Upon the occurrence of a default in payment of the Principal Amount
(whether upon acceleration pursuant to Section 5.2 of the Indenture, upon the
date set for payment of the Redemption Price or upon the Stated Maturity of the
2007 Note), from and after such date the 2007 Notes shall bear interest at the
rate of 3 3/4% per annum on the unpaid amount due and payable on such date,
compounded on a semi-annual basis (based on a 360-day year of 12 30-day months)
to the extent that payment of any interest is legally enforceable, payable upon
demand of the Holder or beneficial Holder of any such 2007 Note, in accordance
with the terms of the 2007 Notes, to the date that payment of such amount has
been made or provided for upon the terms set forth herein.
Section 308 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing Section 5.2 with the following
paragraphs:
If an Event of Default under clauses (1), (2), (3), (4) or (5) of the
definition of Event of Default in Section 307 above, with respect to 2007 Notes
at the time Outstanding, occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding 2007 Notes may declare the Principal Amount of all of the
Outstanding 2007 Notes, and accrued and unpaid interest, if any, on all of the
Outstanding 2007 Notes through the date of such declaration, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration, such Principal Amount shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
2007 Notes has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in Principal Amount of the Outstanding 2007
Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) the Principal Amount and accrued and unpaid
interest, if any, on the 2007 Notes to the date of such
payment or deposit;
24
(B) to the extent that payment of such interest
is enforceable under applicable law, interest on the Principal
Amount and accrued and unpaid interest, if any, on the 2007
Notes to the date of such payment or deposit, at the rate
borne by the 2007 Notes during the period of such default in
accordance with the last paragraph of Section 307 of this
Fourth Supplemental Indenture; and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to the 2007 Notes,
other than the non-payment of the Principal Amount of, and accrued and
unpaid interest, if any, on, the 2007 Notes which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13 of the Indenture.
No such waiver or rescission and annulment shall affect any subsequent default
or impair any right consequent thereon.
If an Event of Default described in clauses (6) and (7) of the
definition of Event of Default in Section 307 above, with respect to 2007 Notes
at the time Outstanding, occurs and is continuing, then the Principal Amount of,
and accrued and unpaid interest, if any, on, the Outstanding 2007 Notes shall
become due and payable immediately, without any declaration or other act by the
Trustee or any Holder.
Section 309 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Fourth Supplemental
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7 of the Indenture) interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or in the case of
redemption, to receive the Redemption Price on the Redemption Date), and to
institute suit for the enforcement of any such payment on or after such
respective dates, and such rights shall not be impaired without the consent of
such Holder.
Section 310 REPORTS BY COMPANY.
The Company shall:
(1) provide to the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections,
then it shall provide to the Trustee and file with the SEC, in
accordance with rules and regulations prescribed from time to time by
the SEC, such of
25
the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Securityholders, as their
names and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the SEC.
If at any time while any of the Securities are "restricted securities"
within the meaning of Rule 144, the Company is no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall prepare and shall furnish to any Holder, any beneficial owner of
Securities and any prospective purchaser of Securities designated by a Holder or
a beneficial owner of Securities, promptly upon request, the information
required pursuant to Rule 144A(d)(4) (or any successor thereto) under the
Securities Act in connection with the offer, sale or transfer of Securities.
Section 311 CONSOLIDATION, MERGER AND SALE.
Section 8.1 of the Indenture is, with respect to the 2007 Notes only,
hereby amended and restated in its entirety to read as follows:
The Company shall not consolidate with or merge into any other
entity or convey or transfer its properties and assets substantially as an
entirety to any entity, unless:
(a) the successor or transferee entity, if other than the
Company, expressly assumes by a supplemental indenture executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium on and any interest on, all
the Outstanding 2007 Notes and the performance of every covenant in the
Indenture (as supplemented by this Fourth Supplemental Indenture) to be
performed or observed by the Company;
(b) immediately after giving the effect to the
transaction, no Event of Default and no event which, after notice or lapse of
time or both, would become an Event of Default, has occurred and is continuing;
and
(c) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, each in the form required by the
Indenture and this Fourth Supplemental Indenture, stating that such
consolidation, merger, conveyance or transfer and such supplemental indenture
comply with the foregoing provisions relating to such transaction.
26
In case of any such consolidation, merger, conveyance or transfer, the
successor entity shall succeed to and be substituted for the Company as obligor
under the Indenture (as supplemented hereby), with the same effect as if it had
been named in the Indenture (as supplemented hereby) as the Company.
Section 312 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Section 9.1 of the Indenture is hereby amended, subject to Section 301
hereof and with respect to the 2007 Notes only, by inserting the following
clauses immediately following clause (11) thereof:
(12) to add any rights for the benefit of Holders of 2007
Notes; and
(13) to provide any additional events of default.
Section 313 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Section 9.2 of the Indenture is, with respect to the 2007 Notes only,
hereby amended and restated in its entirety to read as follows:
With the consent of the Holders of not less than a majority in
Principal Amount of the Outstanding 2007 Notes, by Act of said Holders delivered
to the Company and the Trustee, the Company (and Carnival plc or POPCIL to the
extent that any supplemental indenture relates to the Carnival plc Guarantee or
the POPCIL Guarantee, respectively), when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture, the Carnival plc Guarantee, the POPCIL
Guarantee or of any supplemental indenture or of modifying in any manner the
rights of the Holders of 2007 Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) change the Maturity of any payment of principal
of, or any premium on, or any installment of interest on any 2007 Note, or
reduce the Principal Amount thereof or any premium thereon or the rate of
interest thereon, or change the place of payment where, or the coin or currency
in which, any 2007 Note or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Maturity thereof (or, in the case of redemption, on or after the redemption
date), (ii) reduce the percentage in aggregate Principal Amount of the
Outstanding 2007 Notes, the consent of whose holders is required for any such
modification, or the consent of whose holders is required for any waiver of
compliance with the provisions of the Indenture or this Fourth Supplemental
Indenture or for any waiver of an Event of Default; or (iii) modify this Section
9.2, except to increase any percentages required for approval or to provide that
certain other provisions of the Indenture or this Fourth Supplemental Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding 2007 Note affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities or such
27
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
Upon the request of the Company accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture. It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 314 MAINTENANCE OF OFFICE OR AGENCY.
The first paragraph of Section 10.2 of the Indenture is hereby amended,
subject to Section 301 hereof and with respect to the 2007 Notes only, by
changing the first sentence thereof to read in its entirety as follows:
The Company shall maintain in each Place of Payment for the 2007 Notes
an office or agency where the 2007 Notes may be presented or surrendered for
payment, where the 2007 Notes may be surrendered for registration of transfer or
exchange, where notices and demands to or upon the Company in respect of the
2007 Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Section 315 RESERVED.
Section 316 RESERVED.
Section 317 OPTIONAL REDEMPTION OR ASSUMPTION OF SECURITIES UNDER CERTAIN
CIRCUMSTANCES.
The 2007 Notes may be redeemed in accordance with Section 11.8 of the
Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 INTEGRAL PART.
This Fourth Supplemental Indenture constitutes an integral part of the
Indenture with respect to the 2007 Notes only.
Section 402 GENERAL DEFINITIONS.
For all purposes of this Fourth Supplemental Indenture:
28
(a) capitalized terms used herein without definition
shall have the meanings specified in the Indenture, and
(b) the terms "herein," "hereof," "hereunder" and other
words of similar import refer to this Fourth Supplemental Indenture.
Section 403 ADOPTION, RATIFICATION AND CONFIRMATION.
The Indenture, as supplemented and amended by this Fourth Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed, and this
Fourth Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided. The provisions of this
Fourth Supplemental Indenture shall, subject to the terms hereof, supersede the
provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
Section 404 COUNTERPARTS.
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
Section 405 GOVERNING LAW.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE THAT WOULD INDICATE THE APPLICABILITY OF
THE LAWS OF ANY OTHER JURISDICTION.
Section 406 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939.
If and to the extent that any provision of this Fourth Supplemental
Indenture limits, qualifies or conflicts with a provision required under the
terms of the Trust Indenture Act of 1939, as amended, such Trust Indenture Act
provision shall control.
Section 407 EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 408 SEVERABILITY OF PROVISIONS.
In case any provision in this Fourth Supplemental Indenture or in the
2007 Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
29
Section 409 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Fourth Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their respective successors and assigns, whether so expressed
or not.
Section 410 BENEFIT OF SUPPLEMENTAL INDENTURE.
Nothing in this Fourth Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, and the Holders of the 2007
Notes, any benefit or any legal or equitable right, remedy or claim under this
Fourth Supplemental Indenture.
Section 411 ACCEPTANCE BY TRUSTEE.
The Trustee accepts the amendments to the Indenture effected by this
Fourth Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in
this Fourth Supplemental Indenture and the Indenture. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals contained herein, which shall be taken as the
statements of the Company and except as provided in the Indenture the Trustee
shall not be responsible or accountable in any way whatsoever for or with
respect to the validity or execution or sufficiency of this Fourth Supplemental
Indenture and the Trustee makes no representation with respect thereto.
30
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested as of the day and year
first written above.
CARNIVAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistance Vice Presideent
31
EXHIBIT A
GLOBAL SECURITY
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] (1)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1)
THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 202 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 202(b) OF THE INDENTURE, (3) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE
INDENTURE AND (3) THIS GLOBAL NOTE MAY BE DELIVERED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.](2)
------------------------
1 This paragraph should be included only if DTC is the Depositary.
2 These paragraphs should be included only if the Security is a Global
Security.
A-1
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.]3
[THIS SECURITY, THE CARNIVAL PLC GUARANTEE AND THE POPCIL GUARANTEE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NONE OF THIS SECURITY, THE
CARNIVAL PLC GUARANTEE, THE POPCIL GUARANTEE OR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY, CARNIVAL PLC, POPCIL OR ANY AFFILIATE OF ANY
OF THE FOREGOING WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, CARNIVAL PLC, POPCIL OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS IN OFFSHORE TRANSACTIONS OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING UNDER RULE
144, IF AVAILABLE, SUBJECT TO THE COMPANY'S, CARNIVAL PLC'S, POPCIL'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E)
TO, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE,
------------------------
3 This paragraph should be included only if the Security is a Temporary
Regulation S Global.
A-2
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR, OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION" AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.] (4)
------------------------
4 These paragraphs to be included only if the 2007 Note requires a Private
Placement Legend.
A-3
[FORM OF FACE OF SECURITY]
CARNIVAL CORPORATION
SENIOR NOTES DUE 2007
GUARANTEED BY CARNIVAL PLC
AND P&O PRINCESS CRUISES INTERNATIONAL LIMITED
Issue Date: November 10, 2003 Principal Amount:
$________________
Registered: No. R- CUSIP:
Carnival Corporation, a corporation organized and existing under the
laws of the Republic of Panama (herein called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________ DOLLARS ($____________) on November 15, 2007,
[or such greater or lesser amount as is indicated in the Schedule of Exchanges
of Securities on the other side of this 2007 Note],5 and to pay interest thereon
from November 10, 2003 or from the most recent date to which interest has been
paid or duly provided for, to, but excluding, November 15, 2007 (or to such
earlier date as determined pursuant to Section 317 of the Fourth Supplemental
Indenture) payable semiannually on May 15 and November 15 in each year (each, an
"Interest Payment Date"), commencing May 15, 2004, at the rate of 3 3/4% per
annum on the Principal Amount; PROVIDED, HOWEVER, that interest on each Exchange
Note will accrue from the last Interest Payment Date to which interest was paid
on the 2007 Note surrendered in exchange for the Exchange Note or, if no
interest has been paid on such 2007 Note, from the Issuance Date of such 2007
Note. Interest on this 2007 Note shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. Each payment of cash interest on the
2007 Notes shall include interest accrued through the day before the applicable
Interest Payment Date. Any payment required to be made on any day that is not a
Business Day shall be made on the next succeeding Business Day. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
2007 Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any interest which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this 2007 Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to the Holders of 2007 Notes not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any
------------------------
5 To be included only if the Security is a Global Security.
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securities exchange on which the 2007 Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in such
Indenture.
Payment of any amounts in respect of this 2007 Note will be made at the
office or agency of the Company maintained for that purpose in The City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company, payment of interest, if any, may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this 2007 Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this 2007
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 10, 2003
CARNIVAL CORPORATION
By:
---------------------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
___________________________________________
Authorized Signature
Date of Authentication: November 10, 2003
A-7
(FORM OF REVERSE SIDE OF SECURITY)
CARNIVAL CORPORATION
SENIOR NOTES DUE 2007
This Security is one of a duly authorized issue of senior securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of April 25, 2001, as amended by the
Fourth Supplemental Indenture thereto, dated as of November 10, 2003 (as so
amended, herein called the "Indenture"), between the Company and U.S. Bank
National Association, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof (herein called the
"2007 Notes"), with an aggregate principal amount at Stated Maturity set forth
on the face hereof (the "Principal Amount") created pursuant to the Indenture as
supplemented by the Fourth Supplemental Indenture. Capitalized terms used and
not otherwise defined in this 2007 Note are used as defined in the Indenture.
The 2007 Notes are general unsecured and unsubordinated obligations of
the Company. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
[Additional Interest may be paid in respect of this Note under the
circumstances described in the Registration Rights Agreement. The Holder of this
Note is entitled to the benefits of such Registration Rights Agreement.]6
INTEREST ON OVERDUE AMOUNTS
If the Principal Amount hereof or any portion of such principal amount
at Maturity is not paid when due (whether upon acceleration pursuant to Section
5.2 of the Indenture, upon the date set for payment of the Redemption Price or
upon the Stated Maturity of this 2007 Note) or of interest hereon, if any (or
any portion of such interest), then in each such case the overdue amount shall,
to the extent permitted by law, bear interest at the rate of 3 3/4% per annum
(computed on a semi-annual bond equivalent basis based on a 360-day year of
twelve 30-day months), which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
as set forth in the Indenture.
------------------------
6 Delete from all 2007 Notes that are not "Registrable Securities" as defined
in the Registration Rights Agreement.
A-8
METHOD OF PAYMENT
Payments in respect of the Principal Amount of, and interest on the
2007 Notes shall be made by the Company in immediately available funds.
PAYING AGENT AND SECURITY REGISTRAR
Initially, the Trustee shall act as Paying Agent and Security
Registrar. The Company may appoint and change any Paying Agent, Security
Registrar or co-registrar without notice, other than notice to the Trustee,
except that the Company shall maintain at least one Paying Agent in the State of
New York, City of New York, Borough of Manhattan, which shall initially be an
office or agency of the Trustee. The Company or any of its Subsidiaries or any
of their Affiliates may act as Paying Agent, Security Registrar or co-registrar.
TRANSFER
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this 2007 Note is registrable in the Security
Register, upon surrender of this 2007 Note for registration or transfer at the
office or agency in a Place of Payment for the 2007 Notes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new 2007 Notes,
of any authorized denominations and for the same aggregate Principal Amount,
executed by the Company and authenticated and delivered by the Trustee, will be
issued to the designated transferee or transferees.
The 2007 Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
of this 2007 Note, 2007 Notes are exchangeable for a like aggregate Principal
Amount of 2007 Notes of a different authorized denomination as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 2007 Note for registration of
transfer, the Company, the Trustee or any agent of the Company or the Trustee
may treat the Person in whose name this 2007 Note is registered as the owner
hereof for all purposes, whether or not this 2007 Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
AMENDMENT, SUPPLEMENT AND WAIVER
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the 2007 Notes under the Indenture, the
Carnival plc Guarantee and the POPCIL Guarantee at any time by the Company and
the Trustee with the consent of the Holders of a
A-9
majority in Principal Amount of the 2007 Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in Principal Amount of the 2007 Notes at the time Outstanding, on
behalf of the Holders of all 2007 Notes, to waive compliance by the Company with
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this 2007 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this 2007 Note and of
any 2007 Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this 2007 Note.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of its
predecessor under the 2007 Notes and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in the
payment of any interest on the 2007 Notes (including Additional Interest) when
it becomes due and payable and continuance of such default for a period of 30
days; (ii) default in payment of any premium on the 2007 Notes at Maturity or of
the Principal Amount or Redemption Price, in respect of the 2007 Notes when the
same becomes due and payable; (iii) default by the Company in the performance,
or breach, of any covenant or warranty of the Company in the Indenture, and
continuance of such default or breach for a period of 60 days after there has
been given notice to the Company; (iv) default under any bond, debenture, note
or other evidence of indebtedness for money borrowed by the Company, Carnival
plc or any of their respective Subsidiaries having an aggregate outstanding
principal amount in excess of $50,000,000 (excluding such indebtedness of any
Subsidiary other than a Significant Subsidiary, all the indebtedness of which is
nonrecourse to the Company, or its Subsidiaries), which default shall be with
respect to payment or shall have resulted in such indebtedness being
accelerated, without such indebtedness being discharged or such acceleration
having been rescinded or annulled, subject to notice and passage of time; (v)
unless Carnival plc has become or has been merged with or has been otherwise
consolidated with the primary obligor under the 2007 Notes and the Indenture,
the Carnival plc Guarantee ceases to be in full force and effect or is declared
null and void or any Carnival plc denies that it has any further liability under
the Carnival plc Guarantee in respect of the 2007 Notes and/or the Indenture, or
gives notice to such effect (other than by reason of the termination of the
Fourth Supplemental Indenture or the release of any such Carnival plc Guarantee
in accordance with the Fourth Supplemental Indenture) and continuance of such
default for a period of 30 days after written notice thereof; and (vi) certain
events of bankruptcy, insolvency or reorganization of the Company, Carnival plc
or any of their Significant Subsidiaries. If an Event of Default with respect to
2007 Notes shall occur and be continuing, the Principal Amount of, and accrued
and unpaid interest, if any, on, the 2007 Notes through the acceleration date
may be declared due and payable in the manner and with the effect provided in
the Indenture. If an Event of Default occurs as a result of certain events of
bankruptcy, insolvency or reorganization of the Company, Carnival plc or their
Significant Subsidiaries the Principal Amount of, and accrued and unpaid
interest, if any, on, the 2007 Notes Outstanding shall become due and
A-10
payable immediately without any declaration or other act on the part of the
Trustee or any Holder, all as and to the extent provided in the Indenture.
INDENTURE
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Securities themselves and
the Trust Indenture Act of 1939, as in effect from time to time (the "TIA"). The
2007 Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms.
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of or the
interest, if any, on this 2007 Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
AUTHENTICATION
This 2007 Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this 2007 Note.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this 2007 Note
and the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE THAT WOULD INDICATE THE APPLICABILITY OF
THE LAWS OF ANY OTHER JURISDICTION.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All terms defined in the Indenture and used in this 2007 Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
A-11
SCHEDULE OF EXCHANGES OF SECURITIES (6)
The following exchanges or redemptions of a part of this Global
Security have been made:
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF THIS OF THE
DATE OF TRANSACTION GLOBAL SECURITY GLOBAL SECURITY
------------------- --------------- ---------------
------------------------
6 This schedule should be included only if the Security is a Global Security.
A-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Carnival Corporation
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
CARNIVAL CORPORATION
3 3/4% SENIOR NOTES DUE 2007 ("2007 NOTES")
-------------------------------------------
Reference is hereby made to the Indenture dated as of April 25, 2001,
as supplemented by the Fourth Supplemental Indenture dated as of November 10,
2003 (the "Indenture"), among Carnival Corporation, a Panamanian corporation
(the "Company") and U.S. Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, as trustee, relating to the 2007 Notes issued by the Company and
guaranteed by the Guarantors. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the 2007 Note[s] or interest in such 2007 Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such 2007 Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
[_] 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A CERTIFICATED SECURITY. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Certificated Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Security for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable securities laws
of any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend.
B-1
[_] 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S GLOBAL NOTE OR A CERTIFICATED
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) the transfer is not being made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Security will be subject to the restrictions on transfer enumerated
in the Private Placement Legend.
3. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED
CERTIFICATED SECURITY.
[_] (a) Check if Transfer is Pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Security will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend.
[_] (b) Check if Transfer is Pursuant to Regulation S. (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and, in the case of a transfer from a
Restricted Global Security or a Restricted Certificated Security, the Transferor
hereby further certifies that (a) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (b) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (c) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities Act
and (d) the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person, and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in
B-2
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Security will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend.
[_] (c) Check if Transfer is Pursuant to Other Exemption. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States, (ii) an opinion of counsel, certification and/or other
information satisfactory to each of the Company, Carnival plc, POPCIL and the
Trustee has been obtained by the Transferor and (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Security will not
be subject to the restrictions on transfer enumerated in the Private Placement
Legend.
[_] 4. CHECK IF TRANSFEREE IS THE COMPANY OR CARNIVAL PLC OR
A SUBSIDIARY OF THE COMPANY OR CARNIVAL PLC. The Transferee is the Company or a
Subsidiary of the Company.
[_] 5. CHECK IF TRANSFER IS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT. The transfer is being effected pursuant to an effective
registration statement under the Securities Act (file no. _________________).
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Security will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: ____________________________
___________________________________________
[Insert Name of Transferor]
By: _______________________________________
Name:
Title:
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
[_] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
[_] (B) a Restricted Certificated Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[_] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) Unrestricted Global Security (CUSIP __________).
[_] (B) a Restricted Certificated Security; or
[_] (C) an Unrestricted Certificated Security.
in accordance with the terms of the Indenture.
B-5