UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the quarterly period ended February 28, 2023
OR
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to
Commission file number: | Commission file number: | |||||||||||||||||||
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| (Exact name of registrant as specified in its charter) | (Exact name of registrant as specified in its charter) | |||||||||||||||||||
Republic of | ||||||||||||||||||||
| (State or other jurisdiction of incorporation or organization) | (State or other jurisdiction of incorporation or organization) | |||||||||||||||||||
| (I.R.S. Employer Identification No.) | (I.R.S. Employer Identification No.) | |||||||||||||||||||
| (Address of principal executive offices) (Zip Code) | (Address of principal executive offices) (Zip Code) | |||||||||||||||||||
| (Registrant’s telephone number, including area code) | (Registrant’s telephone number, including area code) | |||||||||||||
| None | None | |||||||||||||
| (Former name, former address and former fiscal year, if changed since last report) | (Former name, former address and former fiscal year, if changed since last report) | |||||||||||||
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days. Yes ☑ No ☐
Indicate by check mark whether the registrants have submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrants were required to submit such files). Yes ☑ No ☐
Indicate by check mark whether the registrants are large accelerated filers, accelerated filers, non-accelerated filers, smaller reporting companies, or emerging growth companies. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| ☑ | Accelerated filers | ☐ | Non-accelerated filers | ☐ | Smaller reporting companies | Emerging growth companies | |||||||||||||||||||||||
1
If emerging growth companies, indicate by check mark if the registrants have elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrants are shell companies (as defined in Rule 12b-2 of the Exchange Act). Yes ☐
At March 22, 2023, Carnival Corporation had outstanding | At March 22, 2023, Carnival plc had outstanding | |||||||
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CARNIVAL CORPORATION & PLC
TABLE OF CONTENTS
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| Item 2. | ||||||||||||||
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| Item 4. | ||||||||||||||
| Item 1. | ||||||||||||||
| Item 1A. | ||||||||||||||
| Item 2. | ||||||||||||||
| Item 6. | ||||||||||||||
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF INCOME (LOSS)
(UNAUDITED)
(in millions, except per share data)
| Three Months Ended February 28, | |||||||||||
| 2023 | 2022 | ||||||||||
| Revenues | |||||||||||
| Passenger ticket | $ | $ | |||||||||
| Onboard and other | |||||||||||
| Operating Expenses | |||||||||||
| Commissions, transportation and other | |||||||||||
| Onboard and other | |||||||||||
| Payroll and related | |||||||||||
| Fuel | |||||||||||
| Food | |||||||||||
| Ship and other impairments | |||||||||||
| Other operating | |||||||||||
| Cruise and tour operating expenses | |||||||||||
| Selling and administrative | |||||||||||
| Depreciation and amortization | |||||||||||
| Operating Income (Loss) | ( | ( | |||||||||
| Nonoperating Income (Expense) | |||||||||||
| Interest income | |||||||||||
| Interest expense, net of capitalized interest | ( | ( | |||||||||
| Other income (expense), net | ( | ( | |||||||||
| ( | ( | ||||||||||
| Income (Loss) Before Income Taxes | ( | ( | |||||||||
| Income Tax Benefit (Expense), Net | ( | ( | |||||||||
| Net Income (Loss) | $ | ( | $ | ( | |||||||
| Earnings Per Share | |||||||||||
| Basic | $ | ( | $ | ( | |||||||
| Diluted | $ | ( | $ | ( | |||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(UNAUDITED)
(in millions)
| Three Months Ended February 28, | |||||||||||
| 2023 | 2022 | ||||||||||
| Net Income (Loss) | $ | ( | $ | ( | |||||||
| Items Included in Other Comprehensive Income (Loss) | |||||||||||
| Change in foreign currency translation adjustment | ( | ||||||||||
| Other | |||||||||||
| Other Comprehensive Income (Loss) | |||||||||||
| Total Comprehensive Income (Loss) | $ | ( | $ | ( | |||||||
The accompanying notes are an integral part of these consolidated financial statements.
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CARNIVAL CORPORATION & PLC
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(in millions, except par values)
| February 28, 2023 | November 30, 2022 | ||||||||||
| ASSETS | |||||||||||
| Current Assets | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Restricted cash | |||||||||||
| Trade and other receivables, net | |||||||||||
| Inventories | |||||||||||
| Prepaid expenses and other | |||||||||||
| Total current assets | |||||||||||
| Property and Equipment, Net | |||||||||||
| Operating Lease Right-of-Use Assets | |||||||||||
| Goodwill | |||||||||||
| Other Intangibles | |||||||||||
| Other Assets | |||||||||||
| $ | $ | ||||||||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | |||||||||||
| Current Liabilities | |||||||||||
| Short-term borrowings | $ | $ | |||||||||
| Current portion of long-term debt | |||||||||||
| Current portion of operating lease liabilities | |||||||||||
| Accounts payable | |||||||||||
| Accrued liabilities and other | |||||||||||
| Customer deposits | |||||||||||
| Total current liabilities | |||||||||||
| Long-Term Debt | |||||||||||
Long-Term Operating Lease Liabilities | |||||||||||
| Other Long-Term Liabilities | |||||||||||
| Contingencies and Commitments | |||||||||||
| Shareholders’ Equity | |||||||||||
Carnival Corporation common stock, $ | |||||||||||
Carnival plc ordinary shares, $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Retained earnings (accumulated deficit) | ( | ||||||||||
| Accumulated other comprehensive income (loss) (“AOCI”) | ( | ( | |||||||||
Treasury stock, | ( | ( | |||||||||
| Total shareholders’ equity | |||||||||||
| $ | $ | ||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
6
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(in millions)
| Three Months Ended February 28, | |||||||||||
| 2023 | 2022 | ||||||||||
| OPERATING ACTIVITIES | |||||||||||
| Net income (loss) | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities | |||||||||||
| Depreciation and amortization | |||||||||||
| Impairments | |||||||||||
| (Income) loss from equity-method investments | |||||||||||
| Share-based compensation | |||||||||||
| Amortization of discounts and debt issue costs | |||||||||||
| Noncash lease expense | |||||||||||
| Other, net | |||||||||||
| ( | ( | ||||||||||
| Changes in operating assets and liabilities | |||||||||||
| Receivables | ( | ( | |||||||||
| Inventories | ( | ( | |||||||||
| Prepaid expenses and other | ( | ( | |||||||||
| Accounts payable | ( | ( | |||||||||
| Accrued liabilities and other | ( | ||||||||||
| Customer deposits | |||||||||||
| Net cash provided by (used in) operating activities | ( | ||||||||||
| INVESTING ACTIVITIES | |||||||||||
| Purchases of property and equipment | ( | ( | |||||||||
| Proceeds from sales of ships | |||||||||||
| Purchase of short-term investments | ( | ||||||||||
| Other, net | ( | ||||||||||
| Net cash provided by (used in) investing activities | ( | ( | |||||||||
| FINANCING ACTIVITIES | |||||||||||
| Proceeds from (repayments of) short-term borrowings, net | ( | ||||||||||
| Principal repayments of long-term debt | ( | ( | |||||||||
| Proceeds from issuance of long-term debt | |||||||||||
| Issuance of common stock, net | |||||||||||
| Issuance of common stock under the Stock Swap Program | |||||||||||
| Purchase of treasury stock under the Stock Swap Program | ( | ||||||||||
| Debt issue costs and other, net | ( | ( | |||||||||
| Net cash provided by (used in) financing activities | |||||||||||
| Effect of exchange rate changes on cash, cash equivalents and restricted cash | ( | ( | |||||||||
| Net increase (decrease) in cash, cash equivalents and restricted cash | ( | ( | |||||||||
| Cash, cash equivalents and restricted cash at beginning of period | |||||||||||
| Cash, cash equivalents and restricted cash at end of period | $ | $ | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
7
CARNIVAL CORPORATION & PLC
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
(UNAUDITED)
(in millions)
| Three Months Ended | |||||||||||||||||||||||||||||||||||||||||
| Common stock | Ordinary shares | Additional paid-in capital | Retained earnings (accumulated deficit) | AOCI | Treasury stock | Total shareholders’ equity | |||||||||||||||||||||||||||||||||||
| At November 30, 2021 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| Net income (loss) | — | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss) | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuances of common stock, net | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Purchases and issuances under the Stock Swap program, net | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| Issuance of treasury shares for vested share-based awards | — | — | — | ( | — | ||||||||||||||||||||||||||||||||||||
| Share-based compensation and other | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| At February 28, 2022 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| At November 30, 2022 | $ | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||||||||||||||||||||||
| Change in accounting principle (a) | — | — | ( | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
| Net income (loss) | — | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss) | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuance of treasury shares for vested share-based awards | — | — | ( | — | — | ||||||||||||||||||||||||||||||||||||
| Share-based compensation and other | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| At February 28, 2023 | $ | $ | $ | $ | ( | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
8
CARNIVAL CORPORATION & PLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 – General
The consolidated financial statements include the accounts of Carnival Corporation and Carnival plc and their respective subsidiaries. Together with their consolidated subsidiaries, they are referred to collectively in these consolidated financial statements and elsewhere in this joint Quarterly Report on Form 10-Q as “Carnival Corporation & plc,” “our,” “us” and “we.”
Liquidity and Management’s Plans
In the face of the global impact of COVID-19, we paused our guest cruise operations in March 2020 and began resuming guest cruise operations in 2021.
As part of our liquidity management, we rely on estimates of our future liquidity, which includes numerous assumptions that are subject to various risks and uncertainties. The principal assumptions used to estimate our future liquidity consist of:
•Our continued cruise operations and expected timing of cash collections for cruise bookings
•Expected increases in revenue in 2023 on a per passenger basis compared to 2019
•Expected improvement in occupancy on a year-over-year basis returning to historical levels in the summer of 2023
•Stabilization of fuel prices around or below November 2022 year-end prices
•Continued stabilization of inflationary pressures on costs compared to 2022, moderated by a larger-more efficient fleet as compared to 2019
In addition, we make certain assumptions about new ship deliveries, improvements and removals, and consider the future export credit financings that are associated with the new ship deliveries.
We have a substantial debt balance as a result of the pause in guest cruise operations and require a significant amount of liquidity or cash provided by operating activities to service our debt. In addition, the continued effects of the pandemic, inflation, higher fuel prices, higher interest rates and fluctuations in foreign currency rates are collectively having a material negative impact on our financial results. The full extent of the collective impact of these items is uncertain and may be amplified by our substantial debt balance. We believe we have made reasonable estimates and judgments of the impact of these events within our consolidated financial statements and there may be changes to those estimates in future periods.
For the past three years we have taken appropriate actions to manage our liquidity, including completing various capital market transactions, obtaining relevant financial covenant amendments or waivers (see Note 3 - “Debt”), accelerating the removal of certain ships from the fleet, and during the pause, reducing capital expenditures and operating expenses. As of February 28, 2023, our return to guest cruise operations was essentially complete.
Based on these actions and our assumptions, and considering our $8.1 billion of liquidity including cash and cash equivalents and borrowings available under our $1.7 billion, €1.0 billion and £0.2 billion multi-currency revolving credit facility (the “Revolving Facility”) at February 28, 2023, we believe that we have sufficient liquidity to fund our obligations and expect to remain in compliance with our financial covenants for at least the next twelve months from the issuance of these financial statements.
We will continue to pursue various opportunities to refinance future debt maturities and/or to extend the maturity dates associated with our existing indebtedness and obtain relevant financial covenant amendments or waivers, if needed.
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In March 2020, the Financial Accounting Standards Board (“FASB”) issued guidance, Reference Rate Reform: Facilitation of the Effects of Reference Rate Reform on Financial Reporting, which provides temporary optional expedients and exceptions to accounting guidance on contract modifications and hedge accounting to ease entities’ financial reporting burdens as the market transitions from the London Interbank Offered Rate (“LIBOR”) and other interbank offered rates to alternative reference rates. In December 2022, the FASB deferred the date through which this guidance can be applied from December 31, 2022 to December 31, 2024. The use of LIBOR was phased out at the end of 2021, although the phase-out of U.S. dollar LIBOR for existing agreements has been delayed until June 2023. We continue to monitor developments related to the LIBOR transition and identification of an alternative, market-accepted rate.
As of February 28, 2023, approximately $5.8 billion of our outstanding indebtedness bears interest at floating rates referenced to U.S. dollar LIBOR with maturity dates extending beyond June 30, 2023. We are currently evaluating our contracts referenced to U.S. dollar LIBOR and working with our creditors on updating credit agreements as necessary to include language regarding the successor or alternate rate to LIBOR. We do not expect the adoption of this standard to have a material impact on our consolidated financial statements during the LIBOR transition period.
The FASB issued guidance, Debt - Debt with Conversion and Other Options and Derivative and Hedging - Contracts in Entity’s Own Equity, which simplifies the accounting for convertible instruments. This guidance eliminates certain models that require separate accounting for embedded conversion features, in certain cases. Additionally, among other changes, the guidance eliminates certain of the conditions for equity classification for contracts in an entity’s own equity. The guidance also requires entities to use the if-converted method for all convertible instruments in the diluted earnings per share calculation and include the effect of share settlement for instruments that may be settled in cash or shares, except for certain liability-classified share-based payment awards. On December 1, 2022, we adopted this guidance using the modified retrospective approach to recognize our convertible notes as single unit liability instruments, as they do not qualify as derivatives under ASC 815 and were not issued at a substantial premium. Accordingly, upon adoption we recorded a $239 million increase to debt, primarily as a result of the reversal of the remaining non-cash convertible debt discount, as well as a reduction of $229 million to additional paid in capital. The cumulative effect of the adoption of this guidance resulted in a $10 million decrease to retained earnings.
In September 2022, the FASB issued guidance, Liabilities-Supplier Finance Programs - Disclosure of Supplier Finance Program Obligations. This guidance requires that a buyer in a supplier finance program disclose sufficient information about the program to allow a user of financial statements to understand the program’s nature, activity during the period, changes from period to period, and potential magnitude. This guidance is expected to improve financial reporting by requiring new disclosures about the programs, thereby allowing financial statement users to better consider the effect of the programs on an entity’s working capital, liquidity, and cash flows. This guidance is effective for fiscal years beginning after December 15, 2022, except for the amendment on roll forward information which is effective for fiscal years beginning after December 15, 2023. We are currently evaluating the impact of the new guidance on the disclosures to our consolidated financial statements.
NOTE 2 – Revenue and Expense Recognition
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Our sales to guests of air and other transportation to and from airports near the home ports of our ships are included in passenger ticket revenues, and the related costs of purchasing these services are included in transportation costs. The proceeds that we collect from the sales of third-party shore excursions are included in onboard and other revenues and the related costs are included in onboard and other costs. The amounts collected on behalf of our onboard concessionaires, net of the amounts remitted to them, are included in onboard and other revenues as concession revenues. All of these amounts are recognized on a completed voyage or pro rata basis as discussed above.
Passenger ticket revenues include fees, taxes and charges collected by us from our guests. The fees, taxes and charges that vary with guest head counts and are directly imposed on a revenue-producing arrangement are expensed in commissions, transportation and other costs when the corresponding revenues are recognized. For the three months ended February 28, 2023 and 2022, fees, taxes, and charges included in commissions, transportation and other costs were $172 million and $68 million. The remaining portion of fees, taxes and charges are expensed in other operating expenses when the corresponding revenues are recognized.
Customer Deposits
Our payment terms generally require an initial deposit to confirm a reservation, with the balance due prior to the voyage. Cash received from guests in advance of the cruise is recorded in customer deposits and in other long-term liabilities on our Consolidated Balance Sheets. These amounts include refundable deposits. In certain situations, we have provided flexibility to guests by allowing guests to rebook at a future date, receive future cruise credits (“FCCs”) or elect to receive refunds in cash. We have at times issued enhanced FCCs. Enhanced FCCs provide the guest with an additional credit value above the original cash deposit received, and the enhanced value is recognized as a discount applied to the future cruise in the period used. We record a liability for unexpired FCCs to the extent we have received and not refunded cash from guests for cancelled bookings. We had total customer deposits of $5.7 billion as of February 28, 2023 and $5.1 billion as of November 30, 2022, which includes approximately $174 million of unredeemed FCCs as of February 28, 2023, of which approximately $124 million are refundable. Given the uncertainty of travel demand caused by COVID-19 and lack of comparable historical experience of FCC redemptions, we are unable to estimate the amount of FCCs that will be used in future periods or that may be refunded. Refunds payable to guests who have elected cash refunds are recorded in accounts payable. During the three months ended February 28, 2023 and 2022, we recognized revenues of $2.8 billion and $1.0 billion related to our customer deposits as of November 30, 2022 and 2021. Our customer deposits balance changes due to the seasonal nature of cash collections, the recognition of revenue, refunds of customer deposits and foreign currency changes.
Trade and Other Receivables
Although we generally require full payment from our customers prior to or concurrently with their cruise, we grant credit terms to a relatively small portion of our revenue source. We have receivables from credit card merchants and travel agents for cruise ticket purchases and onboard revenue. These receivables are included within trade and other receivables, net. We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. These reserve funds are included in other assets.
Contract Costs
We recognize incremental travel agent commissions and credit and debit card fees incurred as a result of obtaining the ticket contract as assets when paid prior to the start of a voyage. We record these amounts within prepaid expenses and other and subsequently recognize these amounts as commissions, transportation and other at the time of revenue recognition or at the time of voyage cancellation. We had incremental costs of obtaining contracts with customers recognized as assets of $228 million as of February 28, 2023 and $218 million as of November 30, 2022.
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NOTE 3 – Debt
| February 28, | November 30, | ||||||||||||||||||||||
| (in millions) | Maturity | Rate (a) (b) | 2023 | 2022 | |||||||||||||||||||
| Secured Subsidiary Guaranteed | |||||||||||||||||||||||
| Notes | |||||||||||||||||||||||
| Notes | Feb 2026 | $ | $ | ||||||||||||||||||||
| EUR Notes | Feb 2026 | ||||||||||||||||||||||
| Notes | Jun 2027 | ||||||||||||||||||||||
| Notes | Aug 2027 | ||||||||||||||||||||||
| Notes | Aug 2028 | ||||||||||||||||||||||
| Loans | |||||||||||||||||||||||
| EUR floating rate | Jun 2025 | EURIBOR + | |||||||||||||||||||||
| Floating rate | Jun 2025 - Oct 2028 | LIBOR + | |||||||||||||||||||||
| Total Secured Subsidiary Guaranteed | |||||||||||||||||||||||
| Senior Priority Subsidiary Guaranteed | |||||||||||||||||||||||
| Notes | May 2028 | ||||||||||||||||||||||
| Unsecured Subsidiary Guaranteed | |||||||||||||||||||||||
| Revolver | |||||||||||||||||||||||
| Facility | (c) | LIBOR + | |||||||||||||||||||||
| Notes | |||||||||||||||||||||||
| Convertible Notes | Apr 2023 | ||||||||||||||||||||||
| Convertible Notes | Oct 2024 | ||||||||||||||||||||||
| Notes | Mar 2026 | ||||||||||||||||||||||
| EUR Notes | Mar 2026 | ||||||||||||||||||||||
| Notes | Mar 2027 | ||||||||||||||||||||||
| Convertible Notes | Dec 2027 | ||||||||||||||||||||||
| Notes | May 2029 | ||||||||||||||||||||||
| Notes | Jun 2030 | ||||||||||||||||||||||
| Loans | |||||||||||||||||||||||
| Floating rate | Jul 2024 - Sep 2024 | LIBOR + | |||||||||||||||||||||
| GBP floating rate | Feb 2025 | SONIA + | |||||||||||||||||||||
| EUR floating rate | Apr 2023 - Mar 2026 | EURIBOR + | |||||||||||||||||||||
| Export Credit Facilities | |||||||||||||||||||||||
| Floating rate | Oct 2024 - Dec 2031 | LIBOR + | |||||||||||||||||||||
| Fixed rate | Aug 2027 - Dec 2032 | ||||||||||||||||||||||
| EUR floating rate | Mar 2023 - Nov 2034 | EURIBOR + | |||||||||||||||||||||
| EUR fixed rate | Feb 2031 - Dec 2034 | ||||||||||||||||||||||
| Total Unsecured Subsidiary Guaranteed | |||||||||||||||||||||||
| Unsecured Notes (No Subsidiary Guarantee) | |||||||||||||||||||||||
| Notes | Oct 2023 | ||||||||||||||||||||||
| Notes | Jan 2028 | ||||||||||||||||||||||
| EUR Notes | Oct 2029 | ||||||||||||||||||||||
| Total Unsecured Notes (No Subsidiary Guarantee) | |||||||||||||||||||||||
| Total Debt | |||||||||||||||||||||||
| Less: unamortized debt issuance costs and discounts | ( | ( | |||||||||||||||||||||
| Total Debt, net of unamortized debt issuance costs and discounts | |||||||||||||||||||||||
| Less: short-term borrowings | ( | ( | |||||||||||||||||||||
12
| Less: current portion of long-term debt | ( | ( | |||||||||||||||||||||
| Long-Term Debt | $ | $ | |||||||||||||||||||||
(a)The reference rates for substantially all of our LIBOR and EURIBOR based variable debt have 0.0 % to 0.75 % floors.
(b)The above debt table excludes the impact of our interest rate swaps and as of February 28, 2023, it also excludes the impact of our foreign currency swaps. As of November 30, 2022, we had no foreign currency swaps. The interest rates on some of our debt, including our Revolving Facility, fluctuate based on the applicable rating of senior unsecured long-term securities of Carnival Corporation or Carnival plc.
(c)Amounts outstanding under our Revolving Facility were drawn in 2020 for an initial six-month term. See “Short-Term Borrowings” below.
(d)The interest rate for the GBP unsecured loan is subject to a credit adjustment spread ranging from 0.03 % to 0.28 %. The referenced SONIA rate with the credit adjustment spread is subject to a 0 % floor.
Carnival Corporation and/or Carnival plc is the primary obligor of all our outstanding debt excluding $0.5 billion under a term loan facility of Costa Crociere S.p.A. (“Costa”), a subsidiary of Carnival plc, and $2.0 billion of senior priority notes (the “2028 Senior Priority Notes”) issued by Carnival Holdings (Bermuda) Limited (“Carnival Holdings”), a subsidiary of Carnival Corporation.
All our outstanding debt is issued or guaranteed by substantially the same entities with the exception of the following:
•Up to $250 million of the Costa term loan facility, which is guaranteed by certain subsidiaries of Carnival plc and Costa that do not guarantee our other outstanding debt
•Our 2028 Senior Priority Notes, issued by Carnival Holdings, which does not guarantee our other outstanding debt
As of February 28, 2023, the scheduled maturities of our debt are as follows:
| (in millions) | ||||||||
| Year | Principal Payments | |||||||
| 2Q 2023 (a) | $ | |||||||
| 3Q 2023 | ||||||||
| 4Q 2023 | ||||||||
| 2024 (a) (b) | ||||||||
| 2025 | ||||||||
| 2026 | ||||||||
| 2027 | ||||||||
| Thereafter | ||||||||
| Total | $ | |||||||
(a)Subsequent to February 28, 2023, we extended the maturity of $211 million of principal payments from second quarter 2023 to 2024.
(b)Includes borrowings of $0.2 billion under our Revolving Facility.
Short-Term Borrowings
As of February 28, 2023 and November 30, 2022, our short-term borrowings consisted of $0.2 billion under our Revolving Facility. We may continue to re-borrow or otherwise utilize available amounts under the Revolving Facility through August 2024, subject to satisfaction of the conditions in the facility. We had $2.6 billion available for borrowing under our Revolving Facility as of February 28, 2023. The Revolving Facility also includes an emissions linked margin adjustment whereby, after the initial applicable margin is set per the margin pricing grid, the margin may be adjusted based on performance in achieving certain agreed annual carbon emissions goals. We are required to pay a commitment fee on any unutilized portion.
New Revolving Facility
In February 2023, Carnival Holdings (Bermuda) II Limited (“Carnival Holdings II”) entered into a $2.1 billion multi-currency revolving facility (“New Revolving Facility”). The New Revolving Facility may be utilized beginning on August 6, 2024, and will replace the existing Revolving Facility upon its maturity in August 2024. The termination date of the New Revolving Facility is August 6, 2025, subject to two, mutual one-year extension options. The new facility also contains an accordion
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feature, allowing for additional commitments, up to an aggregate of $2.9 billion, which are the aggregate commitments under our Revolving Facility.
Borrowings under the New Revolving Facility will bear interest at a rate of term SOFR, in relation to any loan in U.S. dollars, EURIBOR, in relation to any loan in euros or daily compounding SONIA, in relation to any loan in sterling, plus a margin based on the long-term credit ratings of Carnival Corporation. The New Revolving Facility also includes an emissions linked margin adjustment whereby, after the initial applicable margin is set per the margin pricing grid, the margin may be adjusted based on performance in achieving certain agreed annual carbon emissions goals. In addition, we are required to pay certain fees on the aggregate unused commitments under the New Revolving Facility and the Revolving Facility.
In connection with the New Revolving Facility, Carnival Corporation, Carnival plc and its subsidiaries will contribute three unencumbered vessels (net book value of $2.9 billion as of February 28, 2023) to Carnival Holdings II (which must be completed no later than February 28, 2024). Each of the vessels will continue to be operated under one of the Carnival Corporation & plc brands. Carnival Holdings II does not guarantee our other outstanding debt.
Export Credit Facility Borrowings
During the three months ended February 28, 2023, we borrowed $0.8 billion under an export credit facility due in semi-annual installments through 2034. As of February 28, 2023, the net book value of the vessels subject to negative pledges was $15.3 billion.
Collateral and Priority Pool
As of February 28, 2023, the net book value of our ships and ship improvements, excluding ships under construction, is $37.2 billion. Our secured debt is secured on either a first or second-priority basis, depending on the instrument, by certain collateral, which includes vessels and certain assets related to those vessels and material intellectual property (combined net book value of approximately $23.5 billion, including $21.8 billion related to vessels and certain assets related to those vessels) as of February 28, 2023 and certain other assets.
As of February 28, 2023, $8.3 billion in net book value of our ships and ship improvements have been contributed to Carnival Holdings and included in the vessel priority pool of 12 unencumbered vessels (the “Senior Priority Notes Subject Vessels”) for our 2028 Senior Priority Notes. As of February 28, 2023, there was no change in the identity of the Senior Priority Notes Subject Vessels.
Covenant Compliance
As of February 28, 2023, our Revolving Facility, unsecured loans and export credit facilities contain certain covenants listed below:
•Maintain minimum interest coverage (adjusted EBITDA to consolidated net interest charges, as defined in the agreements) (the “Interest Coverage Covenant”) at the end of each fiscal quarter from August 31, 2023, at a ratio of not less than 2.0 to 1.0 for the August 31, 2023 testing date, 2.5 to 1.0 for the November 30, 2023 testing date, and 3.0 to 1.0 for the February 29, 2024 testing date onwards, or through their respective maturity dates
•Maintain minimum issued capital and consolidated reserves (as defined in the agreements) of $5.0 billion
•Limit our debt to capital (as defined in the agreements) percentage from the November 30, 2021 testing date until the May 31, 2023 testing date, to a percentage not to exceed 75 %, following which it will be tested at levels which decline ratably to 65 % from the May 31, 2024 testing date onwards
•Maintain minimum liquidity of $1.5 billion through November 30, 2026
•Adhere to certain restrictive covenants through November 30, 2024
•Limit the amounts of our secured assets as well as secured and other indebtedness
As of March 13, 2023, we entered into letter agreements to waive compliance with the Interest Coverage Covenant through the May 31, 2024 testing date under our Revolving Facility and unsecured loans that contain the covenant. In addition, we entered into amendments for substantially all of our export credit facilities to maintain a minimum interest coverage ratio of not less than 2.0 to 1.0 for the May 31, 2024 testing date. We also entered into amendments for certain of our unsecured loans with an aggregate principal amount of $150 million to maintain a minimum interest coverage ratio of not less than 2.0 to 1.0 for the August 31, 2024 testing date.
At February 28, 2023, we were in compliance with the applicable covenants under our debt agreements. Generally, if an event of default under any debt agreement occurs, then, pursuant to cross default and/or cross-acceleration clauses therein,
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NOTE 4 – Contingencies and Commitments
Litigation
We are routinely involved in legal proceedings, claims, disputes, regulatory matters and governmental inspections or investigations arising in the ordinary course of or incidental to our business, including those noted below. Additionally, as a result of the impact of COVID-19, litigation claims, enforcement actions, regulatory actions and investigations, including, but not limited to, those arising from personal injury and loss of life, have been and may, in the future, be asserted against us. We expect many of these claims and actions, or any settlement of these claims and actions, to be covered by insurance and historically the maximum amount of our liability, net of any insurance recoverables, has been limited to our self-insurance retention levels.
We record provisions in the consolidated financial statements for pending litigation when we determine that an unfavorable outcome is probable and the amount of the loss can be reasonably estimated.
Legal proceedings and government investigations are subject to inherent uncertainties, and unfavorable rulings or other events could occur. Unfavorable resolutions could involve substantial monetary damages. In addition, in matters for which conduct remedies are sought, unfavorable resolutions could include an injunction or other order prohibiting us from selling one or more products at all or in particular ways, precluding particular business practices or requiring other remedies. An unfavorable outcome might result in a material adverse impact on our business, results of operations, financial position or liquidity.
As previously disclosed, on May 2, 2019, the Havana Docks Corporation filed a lawsuit against Carnival Corporation in the U.S. District Court for the Southern District of Florida under Title III of the Cuban Liberty and Democratic Solidarity Act, also known as the Helms-Burton Act, alleging that Carnival Corporation “trafficked” in confiscated Cuban property when certain ships docked at certain ports in Cuba, and that this alleged “trafficking” entitles the plaintiffs to treble damages. The hearings on motions for summary judgment were concluded on January 18, 2022. On March 21, 2022, the court granted summary judgment in favor of Havana Docks Corporation as to liability. On August 31, 2022, the court determined that the trebling provision of the Helms-Burton statute applies to damages and interest and accordingly, we adjusted our estimated liability for this matter. The court held a status conference on September 22, 2022, at which time it was determined that a jury trial is no longer necessary. On December 30, 2022, the court entered judgment against Carnival in the amount of $110 million plus $4 million in fees and costs. We have filed a notice of appeal.
As previously disclosed, on April 8, 2020, DeCurtis LLC (“DeCurtis”), a former vendor, filed an action against Carnival Corporation in the U.S. District Court for the Middle District of Florida seeking declaratory relief that DeCurtis is not infringing on several of Carnival Corporation’s patents in relation to its OCEAN Medallion systems and technology. The action also raises certain monopolization claims under The Sherman Antitrust Act of 1890, unfair competition and tortious interference, and seeks declaratory judgment that certain Carnival Corporation patents are unenforceable. DeCurtis seeks damages, including its fees and costs, and seeks declarations that it is not infringing and/or that Carnival Corporation’s patents are unenforceable. On April 10, 2020, Carnival Corporation filed an action against DeCurtis in the U.S. District Court for the Southern District of Florida for breach of contract, trade secrets violations and patent infringement. Carnival Corporation seeks damages, including its fees and costs, as well as an order permanently enjoining DeCurtis from engaging in such activities. These two cases were consolidated in the Southern District of Florida. On February 8, 2023, the Court granted summary judgment in Carnival’s favor on DeCurtis’ antitrust, unfair competition, and tortious interference claims. The trial began on February 27, 2023, with the patent issues narrowed to certain claims of one Carnival patent. On March 10, 2023, the jury returned a verdict finding that DeCurtis had breached its contract with Carnival and infringed the asserted claims of the Carnival patent. The jury also found that the same claims of the challenged patent were valid. The jury awarded Carnival a total of $21 million in damages.
COVID-19 Actions
We have been named in a number of individual actions related to COVID-19. These actions include tort claims based on a variety of theories, including negligence and failure to warn. The plaintiffs in these actions allege a variety of injuries: some plaintiffs confined their claim to emotional distress, while others allege injuries arising from testing positive for COVID-19. A smaller number of actions include wrongful death claims. Substantially all of these individual actions have now been dismissed or settled for immaterial amounts.
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As of February 28, 2023, 11 purported class actions have been brought by former guests in several U.S. federal courts, the Federal Court in Australia, and in Italy. These actions include tort claims based on a variety of theories, including negligence, gross negligence and failure to warn, physical injuries and severe emotional distress associated with being exposed to and/or contracting COVID-19 onboard. As of February 28, 2023, nine of these class actions have either been settled individually for immaterial amounts or had their class allegations dismissed by the courts and only the Australian and Italian matters remain.
All COVID-19 matters seek monetary damages and most seek additional punitive damages in unspecified amounts.
We continue to take actions to defend against the above claims.
Regulatory or Governmental Inquiries and Investigations
We have been, and may continue to be, impacted by breaches in data security and lapses in data privacy, which occur from time to time. These can vary in scope and intent from inadvertent events to malicious motivated attacks.
We have incurred legal and other costs in connection with cyber incidents that have impacted us. The penalties and settlements paid in connection with cyber incidents over the last three years were not material. While these incidents did not have a material adverse effect on our business, results of operations, financial position or liquidity, no assurances can be given about the future and we may be subject to future litigation, attacks or incidents that could have such a material adverse effect.
On March 14, 2022, the U.S. Department of Justice and the U.S. Environmental Protection Agency notified us of potential civil penalties and injunctive relief for alleged Clean Water Act violations by owned and operated vessels covered by the 2013 Vessel General Permit. We are working with these agencies to reach a resolution of this matter. We believe the ultimate outcome will not have a material impact on our consolidated financial statements.
Other Contingent Obligations
Some of the debt contracts we enter into include indemnification provisions obligating us to make payments to the counterparty if certain events occur. These contingencies generally relate to changes in taxes or changes in laws which increase the lender’s costs. There are no stated or notional amounts included in the indemnification clauses, and we are not able to estimate the maximum potential amount of future payments, if any, under these indemnification clauses.
We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. Although the agreements vary, these requirements may generally be satisfied either through a withheld percentage of customer payments or providing cash funds directly to the credit card processor. As of February 28, 2023 and November 30, 2022, we had $1.7 229 million in compensating deposits we are required to maintain and $30 million of cash collateral in escrow which is included within other assets.
Ship Commitments
As of February 28, 2023, we expect the timing of our new ship growth capital commitments to be as follows:
(in millions) Year | ||||||||
| Remainder of 2023 | $ | |||||||
| 2024 | ||||||||
| 2025 | ||||||||
| Thereafter | ||||||||
| $ | ||||||||
NOTE 5 – Fair Value Measurements, Derivative Instruments and Hedging Activities and Financial Risks
Fair Value Measurements
Fair value is defined as the amount that would be received for selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date and is measured using inputs in one of the following three categories:
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•Level 1 measurements are based on unadjusted quoted prices in active markets for identical assets or liabilities that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.
•Level 2 measurements are based on quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active or market data other than quoted prices that are observable for the assets or liabilities.
•Level 3 measurements are based on unobservable data that are supported by little or no market activity and are significant to the fair value of the assets or liabilities.
Considerable judgment may be required in interpreting market data used to develop the estimates of fair value. Accordingly, certain estimates of fair value presented herein are not necessarily indicative of the amounts that could be realized in a current or future market exchange.
Financial Instruments that are not Measured at Fair Value on a Recurring Basis
| February 28, 2023 | November 30, 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Carrying Value | Fair Value | Carrying Value | Fair Value | ||||||||||||||||||||||||||||||||||||||||||||
| (in millions) | Level 1 | Level 2 | Level 3 | Level 1 | Level 2 | Level 3 | |||||||||||||||||||||||||||||||||||||||||
| Liabilities | |||||||||||||||||||||||||||||||||||||||||||||||
| Fixed rate debt (a) | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||
| Floating rate debt (a) | |||||||||||||||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||
(a)The debt amounts above do not include the impact of interest rate swaps or debt issuance costs. The fair values of our publicly-traded notes were based on their unadjusted quoted market prices in markets that are not sufficiently active to be Level 1 and, accordingly, are considered Level 2. The fair values of our other debt were estimated based on current market interest rates being applied to this debt.
| February 28, 2023 | November 30, 2022 | ||||||||||||||||||||||||||||||||||
| (in millions) | Level 1 | Level 2 | Level 3 | Level 1 | Level 2 | Level 3 | |||||||||||||||||||||||||||||
| Assets | |||||||||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | $ | — | $ | — | $ | $ | — | $ | — | |||||||||||||||||||||||||
| Restricted cash | — | — | — | — | |||||||||||||||||||||||||||||||
| Derivative financial instruments | — | — | — | — | |||||||||||||||||||||||||||||||
| Total | $ | $ | $ | — | $ | $ | $ | — | |||||||||||||||||||||||||||
| Liabilities | |||||||||||||||||||||||||||||||||||
| Derivative financial instruments | $ | — | $ | $ | — | $ | — | $ | — | $ | — | ||||||||||||||||||||||||
| Total | $ | — | $ | $ | — | $ | — | $ | — | $ | — | ||||||||||||||||||||||||
The restricted cash amount at February 28, 2023 includes $20 million, which is included in other assets.
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Nonfinancial Instruments that are Measured at Fair Value on a Nonrecurring Basis
Valuation of Goodwill and Trademarks
As of February 28, 2023 and November 30, 2022, goodwill for our North America and Australia (“NAA”) segment was $579
| Trademarks | |||||||||||||||||
| (in millions) | NAA Segment | Europe Segment | Total | ||||||||||||||
| November 30, 2022 | $ | $ | $ | ||||||||||||||
| Exchange movements | |||||||||||||||||
| February 28, 2023 | $ | $ | $ | ||||||||||||||
Derivative Instruments and Hedging Activities
| (in millions) | Balance Sheet Location | February 28, 2023 | November 30, 2022 | ||||||||||||||
| Derivative assets | |||||||||||||||||
| Derivatives designated as hedging instruments | |||||||||||||||||
| Cross currency swaps (a) | Prepaid expenses and other | $ | $ | ||||||||||||||
| Interest rate swaps (b) | Prepaid expenses and other | ||||||||||||||||
| Other assets | |||||||||||||||||
| Total derivative assets | $ | $ | |||||||||||||||
| Derivative liabilities | |||||||||||||||||
| Derivatives designated as hedging instruments | |||||||||||||||||
| Interest rate swaps (b) | Other long-term liabilities | — | |||||||||||||||
| Total derivative liabilities | $ | $ | — | ||||||||||||||
(a)At February 28, 2023, we had a cross currency swap totaling $643 million that is designated as a hedge of our net investment in foreign operations with euro-denominated functional currencies. At February 28, 2023, this cross currency swap settles through 2024.
(b)We have interest rate swaps designated as cash flow hedges whereby we receive floating interest rate payments in exchange for making fixed interest rate payments. These interest rate swap agreements effectively changed $91 million at February 28, 2023 and $89 million at November 30, 2022 of EURIBOR-based floating rate euro debt to fixed rate euro debt. During the three months ended February 28, 2023 we entered into interest rate swap agreements which effectively changed $2.5 billion at February 28, 2023 of LIBOR-based floating rate USD debt to fixed rate USD debt. At February 28, 2023, these interest rate swaps settle through 2027.
Our derivative contracts include rights of offset with our counterparties. We have elected to net certain of our derivative assets and liabilities within counterparties, when applicable.
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| February 28, 2023 | ||||||||||||||||||||||||||||||||
| (in millions) | Gross Amounts | Gross Amounts Offset in the Balance Sheet | Total Net Amounts Presented in the Balance Sheet | Gross Amounts not Offset in the Balance Sheet | Net Amounts | |||||||||||||||||||||||||||
| Assets | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Liabilities | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| November 30, 2022 | ||||||||||||||||||||||||||||||||
| (in millions) | Gross Amounts | Gross Amounts Offset in the Balance Sheet | Total Net Amounts Presented in the Balance Sheet | Gross Amounts not Offset in the Balance Sheet | Net Amounts | |||||||||||||||||||||||||||
| Assets | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
| Liabilities | $ | — | $ | $ | — | $ | $ | |||||||||||||||||||||||||
| Three Months Ended February 28, | |||||||||||
| (in millions) | 2023 | 2022 | |||||||||
| Gains (losses) recognized in AOCI: | |||||||||||
Cross currency swaps – net investment hedges - included component | $ | $ | |||||||||
Cross currency swaps – net investment hedges - excluded component | $ | ( | $ | ( | |||||||
| Interest rate swaps – cash flow hedges | $ | $ | |||||||||
| Gains (losses) reclassified from AOCI – cash flow hedges: | |||||||||||
| Interest rate swaps – Interest expense, net of capitalized interest | $ | $ | ( | ||||||||
| Foreign currency zero cost collars – Depreciation and amortization | $ | $ | |||||||||
Gains (losses) recognized on derivative instruments (amount excluded from effectiveness testing – net investment hedges) | |||||||||||
Cross currency swaps – Interest expense, net of capitalized interest | $ | $ | |||||||||
The amount of estimated cash flow hedges’ unrealized gains and losses that are expected to be reclassified to earnings in the next twelve months is not material.
Financial Risks
Fuel Price Risks
We manage our exposure to fuel price risk by managing our consumption of fuel. Substantially all of our exposure to market risk for changes in fuel prices relates to the consumption of fuel on our ships. We manage fuel consumption through ship maintenance practices, modifying our itineraries and implementing innovative technologies.
Foreign Currency Exchange Rate Risks
Overall Strategy
We manage our exposure to fluctuations in foreign currency exchange rates through our normal operating and financing activities, including netting certain exposures to take advantage of any natural offsets and, when considered appropriate, through the use of derivative and non-derivative financial instruments. Our primary focus is to monitor our exposure to, and manage, the economic foreign currency exchange risks faced by our operations and realized if we exchange one currency for another. We consider hedging certain of our ship commitments and net investments in foreign operations. The financial impacts of our hedging instruments generally offset the changes in the underlying exposures being hedged.
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Operational Currency Risks
Our operations primarily utilize the U.S. dollar, Euro, Sterling or the Australian dollar as their functional currencies. Our operations also have revenue and expenses denominated in non-functional currencies. Movements in foreign currency exchange rates affect our financial statements.
Investment Currency Risks
We consider our investments in foreign operations to be denominated in stable currencies and of a long-term nature. We partially mitigate the currency exposure of our investments in foreign operations by designating a portion of our foreign currency debt and derivatives as hedges of these investments. As of February 28, 2023, we have designated $418 million of our sterling-denominated debt as non-derivative hedges of our net investments in foreign operations and also had a cross currency swap with a notional amount of $643 million, which is designated as a hedge of our net investments in foreign operations. For the three months ended February 28, 2023, we recognized $11 million of gains on these net investment hedges in the cumulative translation adjustment section of other comprehensive income (loss). We also have euro-denominated debt which provides an economic offset for our operations with euro functional currency.
Newbuild Currency Risks
Our shipbuilding contracts are typically denominated in euros. Our decision to hedge a non-functional currency ship commitment for our cruise brands is made on a case-by-case basis, considering the amount and duration of the exposure, market volatility, economic trends, our overall expected net cash flows by currency and other offsetting risks.
At February 28, 2023, our remaining newbuild currency exchange rate risk primarily relates to euro-denominated newbuild contract payments for non-euro functional currency brands, which represent a total unhedged commitment of $3.7 billion for newbuilds scheduled to be delivered through 2025.
The cost of shipbuilding orders that we may place in the future that are denominated in a different currency than our cruise brands’ will be affected by foreign currency exchange rate fluctuations. These foreign currency exchange rate fluctuations may affect our decision to order new cruise ships.
Interest Rate Risks
We manage our exposure to fluctuations in interest rates through our debt portfolio management and investment strategies. We evaluate our debt portfolio to determine whether to make periodic adjustments to the mix of fixed and floating rate debt through the use of interest rate swaps and the issuance of new debt.
Concentrations of Credit Risk
As part of our ongoing control procedures, we monitor concentrations of credit risk associated with financial and other institutions with which we conduct significant business. We seek to manage these credit risk exposures, including counterparty nonperformance primarily associated with our cash and cash equivalents, investments, notes receivables, reserve funds related to customer deposits, future financing facilities, contingent obligations, derivative instruments, insurance contracts and new ship progress payment guarantees, by:
•Conducting business with well-established financial institutions, insurance companies and export credit agencies
•Diversifying our counterparties
•Having guidelines regarding credit ratings and investment maturities that we follow to help safeguard liquidity and minimize risk
•Generally requiring collateral and/or guarantees to support notes receivable on significant asset sales and new ship progress payments to shipyards
We also monitor the creditworthiness of travel agencies and tour operators in Australia and Europe and credit and debit card providers to which we extend credit in the normal course of our business. Our credit exposure also includes contingent obligations related to cash payments received directly by travel agents and tour operators for cash collected by them on cruise sales in Australia and most of Europe where we are obligated to honor our guests’ cruise payments made by them to their travel agents and tour operators regardless of whether we have received these payments.
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NOTE 6 – Segment Information
Our operating segments are reported on the same basis as the internally reported information that is provided to our chief operating decision maker (“CODM”), who is the President, Chief Executive Officer and Chief Climate Officer of Carnival Corporation and Carnival plc. The CODM assesses performance and makes decisions to allocate resources for Carnival Corporation & plc based upon review of the results across all of our segments. Our four reportable segments are comprised of (1) NAA cruise operations, (2) Europe cruise operations, (3) Cruise Support and (4) Tour and Other.
The operating segments within each of our NAA and Europe reportable segments have been aggregated based on the similarity of their economic and other characteristics, including geographic guest sourcing. Our Cruise Support segment includes our portfolio of leading port destinations and other services, all of which are operated for the benefit of our cruise brands. Our Tour and Other segment represents the hotel and transportation operations of Holland America Princess Alaska Tours and other operations.
We have renamed the EA segment given that China has not reopened to international cruise travel. As a result, we have significantly reduced operations in Asia and leveraged the mobility of our cruise ships and our brand portfolio to build alternate deployments. In 2019, our most recent full year of guest cruise operations, China accounted for 7 % of our guests.
| Three Months Ended February 28, | |||||||||||||||||||||||||||||
| (in millions) | Revenues | Operating costs and expenses | Selling and administrative | Depreciation and amortization | Operating income (loss) | ||||||||||||||||||||||||
| 2023 | |||||||||||||||||||||||||||||
| NAA | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Europe | ( | ||||||||||||||||||||||||||||
| Cruise Support | ( | ||||||||||||||||||||||||||||
| Tour and Other | ( | ||||||||||||||||||||||||||||
| $ | $ | $ | $ | $ | ( | ||||||||||||||||||||||||
| 2022 | |||||||||||||||||||||||||||||
| NAA | $ | $ | $ | $ | $ | ( | |||||||||||||||||||||||
| Europe | ( | ||||||||||||||||||||||||||||
| Cruise Support | ( | ||||||||||||||||||||||||||||
| Tour and Other | ( | ||||||||||||||||||||||||||||
| $ | $ | $ | $ | $ | ( | ||||||||||||||||||||||||
| Three Months Ended February 28, | |||||||||||
| (in millions) | 2023 | 2022 | |||||||||
| North America | $ | $ | |||||||||
| Europe | |||||||||||
| Australia | |||||||||||
| Other | |||||||||||
| $ | $ | ||||||||||
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NOTE 7 – Earnings Per Share
| Three Months Ended February 28, | |||||||||||
| (in millions, except per share data) | 2023 | 2022 | |||||||||
| Net income (loss) for basic and diluted earnings per share | $ | ( | $ | ( | |||||||
| Weighted-average shares outstanding | |||||||||||
| Dilutive effect of equity plans | |||||||||||
| Diluted weighted-average shares outstanding | |||||||||||
| Basic earnings per share | $ | ( | $ | ( | |||||||
| Diluted earnings per share | $ | ( | $ | ( | |||||||
Antidilutive shares excluded from diluted earnings per share computations were as follows:
| Three Months Ended February 28, | |||||||||||
| (in millions) | 2023 | 2022 | |||||||||
| Equity awards | |||||||||||
| Convertible Notes | |||||||||||
| Total antidilutive securities | |||||||||||
NOTE 8 – Supplemental Cash Flow Information
| (in millions) | February 28, 2023 | November 30, 2022 | |||||||||
| Cash and cash equivalents (Consolidated Balance Sheets) | $ | $ | |||||||||
| Restricted cash (Consolidated Balance Sheets) | |||||||||||
| Restricted cash (included in other assets) | |||||||||||
| Total cash, cash equivalents and restricted cash (Consolidated Statements of Cash Flows) | $ | $ | |||||||||
NOTE 9 – Property and Equipment
Ship Sales
During the three months ended February 28, 2023 we completed the sale of one Europe segment ship and entered into an agreement to sell one Europe segment ship, which was subsequently completed in March 2023. These ship sales collectively represent a passenger-capacity reduction of 3,970 berths for our Europe segment. Additionally, in March 2023 we sold one NAA segment ship, which represents a passenger-capacity reduction of 460 berths. The net book value of the ships sold subsequent to quarter end was $186 million and will result in gains on the sales. We will continue to operate the NAA segment ship under a bareboat charter agreement through September 2024.
NOTE 10 – Shareholders’ Equity
We have a program that allows us to realize a net cash benefit when Carnival Corporation common stock is trading at a premium to the price of Carnival plc ordinary shares (the “Stock Swap Program”).
During the three months ended February 28, 2023 under the Stock Swap Program, there were no 1.3 2
During the three months ended February 28, 2023, there were no sales of Carnival Corporation common stock. During the three months ended February 28, 2022, we sold 0.8 million shares of Carnival Corporation common stock at an average price per share of $20.18 , resulting in net proceeds of $15 million.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Cautionary Note Concerning Factors That May Affect Future Results
Some of the statements, estimates or projections contained in this document are “forward-looking statements” that involve risks, uncertainties and assumptions with respect to us, including some statements concerning future results, operations, outlooks, plans, goals, reputation, cash flows, liquidity and other events which have not yet occurred. These statements are intended to qualify for the safe harbors from liability provided by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other than statements of historical facts are statements that could be deemed forward-looking. These statements are based on current expectations, estimates, forecasts and projections about our business and the industry in which we operate and the beliefs and assumptions of our management. We have tried, whenever possible, to identify these statements by using words like “will,” “may,” “could,” “should,” “would,” “believe,” “depends,” “expect,” “goal,” “aspiration,” “anticipate,” “forecast,” “project,” “future,” “intend,” “plan,” “estimate,” “target,” “indicate,” “outlook,” and similar expressions of future intent or the negative of such terms.
Forward-looking statements include those statements that relate to our outlook and financial position including, but not limited to, statements regarding:
•Pricing | •Adjusted net income (loss) | ||||
•Booking levels | •Adjusted EBITDA | ||||
•Occupancy | •Adjusted earnings per share | ||||
•Interest, tax and fuel expenses | •Adjusted free cash flow | ||||
•Currency exchange rates | •Net per diems | ||||
•Goodwill, ship and trademark fair values | •Net yields | ||||
•Liquidity and credit ratings | •Adjusted cruise costs per ALBD | ||||
•Estimates of ship depreciable lives and residual values | •Adjusted cruise costs excluding fuel per ALBD | ||||
Because forward-looking statements involve risks and uncertainties, there are many factors that could cause our actual results, performance or achievements to differ materially from those expressed or implied by our forward-looking statements. This note contains important cautionary statements of the known factors that we consider could materially affect the accuracy of our forward-looking statements and adversely affect our business, results of operations and financial position. Additionally, many of these risks and uncertainties are currently, and in the future may continue to be, amplified by our substantial debt balance as a result of the pause of our guest cruise operations. There may be additional risks that we consider immaterial or which are unknown. These factors include, but are not limited to, the following:
•Events and conditions around the world, including war and other military actions, such as the invasion of Ukraine, inflation, higher fuel prices, higher interest rates and other general concerns impacting the ability or desire of people to travel have led, and may in the future lead, to a decline in demand for cruises, impacting our operating costs and profitability.
•Pandemics have in the past and may in the future have a significant negative impact on our financial condition and operations.
•Incidents concerning our ships, guests or the cruise industry have in the past and may, in the future, negatively impact the satisfaction of our guests and crew and lead to reputational damage.
•Changes in and non-compliance with laws and regulations under which we operate, such as those relating to health, environment, safety and security, data privacy and protection, anti-corruption, economic sanctions, trade protection, labor and employment, and tax have in the past and may, in the future, lead to litigation, enforcement actions, fines, penalties and reputational damage.
•Factors associated with climate change, including evolving and increasing regulations, increasing global concern about climate change and the shift in climate conscious consumerism and stakeholder scrutiny, and increasing frequency and/or severity of adverse weather conditions could adversely affect our business.
•Inability to meet or achieve our sustainability related goals, aspirations, initiatives, and our public statements and disclosures regarding them, may expose us to risks that may adversely impact our business.
•Breaches in data security and lapses in data privacy as well as disruptions and other damages to our principal offices, information technology operations and system networks and failure to keep pace with developments in technology may adversely impact our business operations, the satisfaction of our guests and crew and may lead to reputational damage.
•The loss of key team members, our inability to recruit or retain qualified shoreside and shipboard team members and increased labor costs could have an adverse effect on our business and results of operations.
•Increases in fuel prices, changes in the types of fuel consumed and availability of fuel supply may adversely impact our scheduled itineraries and costs.
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•We rely on supply chain vendors who are integral to the operations of our businesses. These vendors and service providers are also affected by COVID-19 and may be unable to deliver on their commitments which could negatively impact our business.
•Fluctuations in foreign currency exchange rates may adversely impact our financial results.
•Overcapacity and competition in the cruise and land-based vacation industry may negatively impact our cruise sales, pricing and destination options.
•Inability to implement our shipbuilding programs and ship repairs, maintenance and refurbishments may adversely impact our business operations and the satisfaction of our guests.
•Failure to successfully implement our business strategy following our resumption of guest cruise operations would negatively impact the occupancy levels and pricing of our cruises and could have a material adverse effect on our business. We require a significant amount of cash to service our debt and sustain our operations. Our ability to generate cash depends on many factors, including those beyond our control, and we may not be able to generate cash required to service our debt and sustain our operations.
The ordering of the risk factors set forth above is not intended to reflect our indication of priority or likelihood.
Forward-looking statements should not be relied upon as a prediction of actual results. Subject to any continuing obligations under applicable law or any relevant stock exchange rules, we expressly disclaim any obligation to disseminate, after the date of this document, any updates or revisions to any such forward-looking statements to reflect any change in expectations or events, conditions or circumstances on which any such statements are based.
Forward-looking and other statements in this document may also address our sustainability progress, plans and goals (including climate change and environmental-related matters). In addition, historical, current and forward-looking sustainability- and climate-related statements may be based on standards and tools for measuring progress that are still developing, internal controls and processes that continue to evolve, and assumptions and predictions that are subject to change in the future and may not be generally shared.
New Accounting Pronouncements
Refer to Note 1 - “General, Accounting Pronouncements” of the consolidated financial statements for additional discussion regarding Accounting Pronouncements.
Critical Accounting Estimates
For a discussion of our critical accounting estimates, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that is included in the Form 10-K.
Seasonality
Our passenger ticket revenues are seasonal. Demand for cruises has been greatest during our third quarter, which includes the Northern Hemisphere summer months. This higher demand during the third quarter results in higher ticket prices and occupancy levels and, accordingly, the largest share of our operating income is typically earned during this period. The seasonality of our results also increases due to ships being taken out-of-service for maintenance, which we schedule during non-peak demand periods. In addition, substantially all of Holland America Princess Alaska Tours’ revenue and net income (loss) is generated from May through September in conjunction with Alaska’s cruise season.
Known Trends and Uncertainties
•We believe the increased cost of fuel and other related costs are reasonably likely to continue to impact our profitability in both the short and long-term.
•We believe inflation and higher interest rates are reasonably likely to continue to impact our profitability.
•We believe the increasing global focus on climate change, including the reduction of carbon emissions and new and evolving regulatory requirements, is reasonably likely to have a material negative impact on our future financial results. The full impact of climate change to our business is not yet known.
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Statistical Information
| Three Months Ended February 28, | |||||||||||
| 2023 | 2022 | ||||||||||
Passenger Cruise Days (“PCDs”) (in millions) (a) | 20.2 | 7.2 | |||||||||
Available Lower Berth Days (“ALBDs”) (in millions) (b) | 22.1 | 13.3 | |||||||||
| Occupancy percentage (c) | 91 | % | 54 | % | |||||||
Passengers carried (in millions) | 2.7 | 1.0 | |||||||||
Fuel consumption in metric tons (in millions) | 0.7 | 0.6 | |||||||||
| Fuel consumption in metric tons per thousand ALBDs | 33.4 | 42.5 | |||||||||
| Fuel cost per metric ton consumed | $ | 730 | $ | 648 | |||||||
| Currencies (USD to 1) | |||||||||||
| AUD | $ | 0.69 | $ | 0.72 | |||||||
| CAD | $ | 0.74 | $ | 0.79 | |||||||
| EUR | $ | 1.07 | $ | 1.13 | |||||||
| GBP | $ | 1.22 | $ | 1.35 | |||||||
Notes to Statistical Information
(a)PCD represents the number of cruise passengers on a voyage multiplied by the number of revenue-producing ship operating days for that voyage.
(b)ALBD is a standard measure of passenger capacity for the period that we use to approximate rate and capacity variances, based on consistently applied formulas that we use to perform analyses to determine the main non-capacity driven factors that cause our cruise revenues and expenses to vary. ALBDs assume that each cabin we offer for sale accommodates two passengers and is computed by multiplying passenger capacity by revenue-producing ship operating days in the period.
(c)Occupancy, in accordance with cruise industry practice, is calculated using a numerator of PCDs and a denominator of ALBDs, which assumes two passengers per cabin even though some cabins can accommodate three or more passengers. Percentages in excess of 100% indicate that on average more than two passengers occupied some cabins.
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Results of Operations
| Consolidated | |||||||||||||||||
| Three Months Ended February 28, | |||||||||||||||||
| (in millions) | 2023 | 2022 | Change | ||||||||||||||
| Revenues | |||||||||||||||||
| Passenger ticket | $ | 2,870 | $ | 873 | $ | 1,997 | |||||||||||
| Onboard and other | 1,563 | 750 | 812 | ||||||||||||||
| 4,432 | 1,623 | 2,809 | |||||||||||||||
| Operating Costs and Expenses | |||||||||||||||||
| Commissions, transportation and other | 655 | 251 | 404 | ||||||||||||||
| Onboard and other | 484 | 209 | 275 | ||||||||||||||
| Payroll and related | 582 | 506 | 77 | ||||||||||||||
| Fuel | 535 | 365 | 170 | ||||||||||||||
| Food | 311 | 136 | 175 | ||||||||||||||
| Ship and other impairments | — | 8 | (8) | ||||||||||||||
| Other operating | 743 | 557 | 187 | ||||||||||||||
| Cruise and tour operating expenses | 3,311 | 2,030 | 1,280 | ||||||||||||||
| Selling and administrative | 712 | 530 | 182 | ||||||||||||||
| Depreciation and amortization | 582 | 554 | 28 | ||||||||||||||
| 4,604 | 3,114 | 1,490 | |||||||||||||||
| Operating Income (Loss) | (172) | (1,491) | 1,320 | ||||||||||||||
| Nonoperating Income (Expense) | |||||||||||||||||
| Interest income | 56 | 3 | 52 | ||||||||||||||
| Interest expense, net of capitalized interest | (539) | (368) | (171) | ||||||||||||||
| Other income (expense), net | (30) | (32) | 2 | ||||||||||||||
| (514) | (397) | (117) | |||||||||||||||
| Income (Loss) Before Income Taxes | $ | (686) | $ | (1,888) | $ | 1,203 | |||||||||||
| NAA | |||||||||||||||||
| Three Months Ended February 28, | |||||||||||||||||
| (in millions) | 2023 | 2022 | Change | ||||||||||||||
| Revenues | |||||||||||||||||
| Passenger ticket | $ | 1,892 | $ | 586 | $ | 1,306 | |||||||||||
| Onboard and other | 1,187 | 540 | 647 | ||||||||||||||
| 3,078 | 1,126 | 1,953 | |||||||||||||||
| Operating Costs and Expenses | 2,189 | 1,288 | 901 | ||||||||||||||
| Selling and administrative | 440 | 344 | 96 | ||||||||||||||
| Depreciation and amortization | 363 | 334 | 29 | ||||||||||||||
| 2,993 | 1,966 | 1,027 | |||||||||||||||
| Operating Income (Loss) | $ | 86 | $ | (840) | $ | 926 | |||||||||||
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| Europe | |||||||||||||||||
| Three Months Ended February 28, | |||||||||||||||||
| (in millions) | 2023 | 2022 | Change | ||||||||||||||
| Revenues | |||||||||||||||||
| Passenger ticket | $ | 992 | $ | 341 | $ | 650 | |||||||||||
| Onboard and other | 302 | 116 | 187 | ||||||||||||||
| 1,294 | 457 | 837 | |||||||||||||||
| Operating Costs and Expenses | 1,078 | 698 | 380 | ||||||||||||||
| Selling and administrative | 213 | 176 | 37 | ||||||||||||||
| Depreciation and amortization | 169 | 181 | (12) | ||||||||||||||
| 1,460 | 1,055 | 406 | |||||||||||||||
| Operating Income (Loss) | $ | (166) | $ | (598) | $ | 431 | |||||||||||
The effects of the pause in guest cruise operations in March 2020 and subsequent resumption of our guest cruise operations, inflation, higher fuel prices, higher interest rates and fluctuations in foreign currency rates are collectively having a material negative impact on all aspects of our business, including our results of operations, liquidity and financial position. We have a substantial debt balance and require a significant amount of cash to service our debt and sustain our operations. Our ability to generate cash will be affected by our ability to successfully implement our business strategy, which includes increasing our occupancy levels and pricing of our cruises, as well as general macroeconomic, financial, geopolitical, competitive, regulatory and other factors beyond our control. The full extent of these impacts is uncertain and may be amplified by our substantial debt balance.
Three Months Ended February 28, 2023 (“2023”) Compared to Three Months Ended February 28, 2022 (“2022”)
Revenues
Consolidated
Cruise passenger ticket revenues made up 65% of our total revenues in 2023 while onboard and other revenues made up 35%. Revenues in 2023 increased by $2.8 billion to $4.4 billion from $1.6 billion in 2022 due to the ongoing resumption of guest cruise operations, including the significant increase of ships in service and higher occupancy. As of February 28, 2023, 96% of our capacity was serving guests, compared to 71% as of February 28, 2022. ALBDs increased to 22.1 million in 2023 as compared to 13.3 million in 2022. Occupancy for 2023 was 91% compared to 54% in 2022.
NAA Segment
Cruise passenger ticket revenues made up 61% of our NAA segment’s total revenues in 2023 while onboard and other cruise revenues made up 39%. NAA segment revenues in 2023 increased by $2.0 billion to $3.1 billion from $1.1 billion in 2022 due to the ongoing resumption of guest cruise operations, including the significant increase of ships in service and higher occupancy. Our NAA segment’s full fleet was serving guests as of February 28, 2023, compared to 69% as of February 28, 2022. ALBDs increased to 13.9 million in 2023 as compared to 8.7 million in 2022. Occupancy for 2023 was 98% compared to 59% in 2022.
Europe Segment
Cruise passenger ticket revenues made up 77% of our Europe segment’s total revenues in 2023 while onboard and other cruise revenues made up 23%. Europe segment revenues in 2023 increased by $0.8 billion to $1.3 billion from $0.5 billion in 2022 due to the ongoing resumption of guest cruise operations, including the significant increase of ships in service and higher occupancy. Our Europe segment had 93% of its capacity serving guests as of February 28, 2023, compared to 73% as of February 28, 2022. ALBDs increased to 8.2 million in 2023 as compared to 4.6 million in 2022. Occupancy for 2023 was 80% compared to 45% in 2022.
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Operating Cost and Expenses
Consolidated
Operating costs and expenses increased by $1.3 billion to $3.3 billion in 2023 from $2.0 billion in 2022. These increases were driven by our resumption of guest cruise operations and an increase in ships in service.
Fuel costs increased by $170 million to $535 million in 2023 from $365 million in 2022. $110 million of this increase was driven by higher fuel consumption of 0.2 million metric tons, due to the resumption of guest cruise operations, and $60 million was driven by a combination of increases in fuel prices and changes in fuel mix of $81 per metric ton consumed in 2023 compared to 2022.
Selling and administrative expenses increased by $182 million to $712 million in 2023 from $530 million in 2022. The increase was caused by increased administrative expenses and advertising costs incurred as part of our resumption of guest cruise operations.
The drivers in changes in costs and expenses for our NAA and Europe segments are the same as those described for our consolidated results.
Nonoperating Income (Expense)
Interest expense, net of capitalized interest, increased by $171 million to $539 million in 2023 from $368 million in 2022. The increase was caused by a higher average interest rate and a higher average debt balance in 2023 compared to 2022.
Liquidity, Financial Condition and Capital Resources
As of February 28, 2023, we had $8.1 billion of liquidity including cash and cash equivalents and borrowings available under our Revolving Facility. We will continue to pursue various opportunities to refinance future debt maturities and/or to extend the maturity dates associated with our existing indebtedness and obtain relevant financial covenant amendments or waivers, if needed.
We had a working capital deficit of $3.9 billion as of February 28, 2023 compared to working capital deficit of $3.1 billion as of November 30, 2022. The increase in working capital deficit was caused by an increase in customer deposits and an overall decrease in cash and cash equivalents and restricted cash. We operate with a substantial working capital deficit. This deficit is mainly attributable to the fact that, under our business model, substantially all of our passenger ticket receipts are collected in advance of the applicable sailing date. These advance passenger receipts generally remain a current liability until the sailing date. The cash generated from these advance receipts is used interchangeably with cash on hand from other sources, such as our borrowings and other cash from operations. The cash received as advanced receipts can be used to fund operating expenses, pay down our debt, make long-term investments or any other use of cash. Included within our working capital are $5.5 billion and $4.9 billion of customer deposits as of February 28, 2023 and November 30, 2022, respectively. We have agreements with a number of credit card processors that transact customer deposits related to our cruise vacations. Certain of these agreements allow the credit card processors to request, under certain circumstances, that we provide a reserve fund in cash. In addition, we have a relatively low level of accounts receivable and limited investment in inventories.
Refer to Note 1 - “General, Liquidity and Management’s Plans” of the consolidated financial statements for additional discussion regarding our liquidity.
Sources and Uses of Cash
Operating Activities
Our business provided $0.4 billion of net cash flows in operating activities during the three months ended February 28, 2023, an increase of $1.6 billion, compared to $1.2 billion used for the same period in 2022. This was driven by a decrease in the net loss compared to the same period in 2022 and an increase in customer deposits.
Investing Activities
During the three months ended February 28, 2023, net cash used in investing activities was $1.0 billion. This was driven by:
•Capital expenditures of $0.8 billion for our ongoing new shipbuilding program
28
•Capital expenditures of $243 million for ship improvements and replacements, information technology and buildings and improvements
•Proceeds from sale of ships of $23 million
During the three months ended February 28, 2022, net cash used in investing activities was $3.0 billion. This was driven by:
•Capital expenditures of $2.5 billion for our ongoing new shipbuilding program
•Capital expenditures of $221 million for ship improvements and replacements, information technology and buildings and improvements
•Proceeds from sale of ships and other of $18 million
•Purchases of short-term investments of $315 million
Financing Activities
During the three months ended February 28, 2023, net cash provided by financing activities of $0.1 billion was caused by:
•Issuances of $0.8 billion of long-term debt
•Repayments of $0.7 billion of long-term debt
•Payments of $40 million related to debt issuance costs
During the three months ended February 28, 2022, net cash provided by financing activities of $1.7 billion was caused by:
•Issuances of $2.3 billion of long-term debt
•Repayments of $503 million of long-term debt
•Payments of $85 million related to debt issuance costs
•Net repayments of short-term borrowings of $48 million
•Purchases of $23 million of Carnival plc ordinary shares and issuances of $27 million of Carnival Corporation common stock under our Stock Swap Program
Funding Sources
As of February 28, 2023, we had $8.1 billion of liquidity including $5.5 billion of cash and cash equivalents and $2.6 billion of borrowings available under our Revolving Facility, which matures in 2024. In February 2023, Carnival Holdings II entered into the New Revolving Facility, which may be utilized beginning in August 2024, at which date it will replace our existing Revolving Facility. Refer to Note 3 - “Debt” of the consolidated financial statements for additional discussion. In addition, we had $3.2 billion of undrawn export credit facilities to fund ship deliveries planned through 2025. We plan to use existing liquidity and future cash flows from operations to fund our cash requirements including capital expenditures not funded by our export credit facilities. We seek to manage our credit risk exposures, including counterparty nonperformance associated with our cash and cash equivalents, and future financing facilities by conducting business with well-established financial institutions, and export credit agencies and diversifying our counterparties.
| (in billions) | 2023 | 2024 | 2025 | |||||||||||||||||
Future export credit facilities at February 28, 2023 | $ | 316 | $ | 2,165 | $ | 716 | ||||||||||||||
Our export credit facilities contain various financial covenants as described in Note 3 - “Debt”. At February 28, 2023, we were in compliance with the applicable covenants under our debt agreements.
Off-Balance Sheet Arrangements
We are not a party to any off-balance sheet arrangements, including guarantee contracts, retained or contingent interests, certain derivative instruments and variable interest entities that either have, or are reasonably likely to have, a current or future material effect on our consolidated financial statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
For a discussion of our hedging strategies and market risks, see the discussion below and Note 10 - “Fair Value Measurements, Derivative Instruments and Hedging Activities and Financial Risks” in our consolidated financial statements and Management’s Discussion and Analysis of Financial Condition and Results of Operations within our Form 10-K.
29
Interest Rate Risks
The composition of our debt, interest rate swaps and cross currency swaps, was as follows:
| February 28, 2023 | |||||
Fixed rate | 59 | % | |||
EUR fixed rate | 16 | % | |||
| Floating rate | 9 | % | |||
EUR floating rate | 15 | % | |||
GBP floating rate | 1 | % | |||
Item 4. Controls and Procedures.
A. Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, is recorded, processed, summarized and reported, within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Securities Exchange Act of 1934 is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate, to allow timely decisions regarding required disclosure.
Our President, Chief Executive Officer and Chief Climate Officer and our Chief Financial Officer and Chief Accounting Officer have evaluated our disclosure controls and procedures and have concluded, as of February 28, 2023, that they are effective at a reasonable level of assurance, as described above.
B. Changes in Internal Control over Financial Reporting
There have been no changes in our internal control over financial reporting during the quarter ended February 28, 2023 that have materially affected or are reasonably likely to materially affect our internal control over financial reporting.
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PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
The legal proceedings described in Note 4 – “Contingencies and Commitments” of our consolidated financial statements, including those described under “COVID-19 Actions” and “Regulatory or Governmental Inquiries and Investigations,” are incorporated in this “Legal Proceedings” section by reference. Additionally, SEC rules require disclosure of certain environmental matters when a governmental authority is a party to the proceedings and such proceedings involve potential monetary sanctions that we believe may exceed $1 million.
On June 20, 2022, Princess Cruises notified the Australian Maritime Safety Authorization (“AMSA”) and the flag state, Bermuda, regarding approximately six cubic meters of comminuted food waste (liquid biodigester effluent) inadvertently discharged by Coral Princess inside the Great Barrier Reef Marine Park. On June 23, 2022, the UK P&I Club N.V. provided a letter of undertaking for approximately $1.9 million (being the estimated maximum combined penalty). We believe the ultimate outcome will not have a material impact on our consolidated financial statements.
Item 1A. Risk Factors.
The risk factors in this Form 10-Q below should be carefully considered, including the risk factors discussed in “Risk Factors” and other risks discussed in our Form 10-K. These risks could materially and adversely affect our results, operations, outlooks, plans, goals, growth, reputation, cash flows, liquidity, and stock price. Our business also could be affected by risks that we are not presently aware of or that we currently consider immaterial to our operations.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
A.Stock Swap Program
We have a program that allows us to realize a net cash benefit when Carnival Corporation common stock is trading at a premium to the price of Carnival plc ordinary shares. Under the Stock Swap Program, we may elect to offer and sell shares of Carnival Corporation common stock at prevailing market prices in ordinary brokers’ transactions and repurchase an equivalent number of Carnival plc ordinary shares in the UK market.
Under the Stock Swap Program effective as of June 2021, the Board of Directors authorized the sale of up to $500 million shares of Carnival Corporation common stock in the U.S. market and the purchase of Carnival plc ordinary shares on at least an equivalent basis.
We may in the future implement a program to allow us to obtain a net cash benefit when Carnival plc ordinary shares are trading at a premium to the price of Carnival Corporation common stock.
Any sales of Carnival Corporation common stock and Carnival plc ordinary shares have been or will be registered under the Securities Act of 1933, as amended. During the three months ended February 28, 2023, there were no sales or repurchases under the Stock Swap Program. Since the beginning of the Stock Swap Program, first authorized in June 2021, we have sold 14.9 million shares of Carnival Corporation common stock and repurchased the same amount of Carnival plc ordinary shares, resulting in net proceeds of $27 million. No ordinary shares of Carnival plc were purchased outside of publicly announced plans or programs.
B. Repurchases
No shares of Carnival Corporation common stock and Carnival plc ordinary shares were purchased outside of publicly announced plans or programs.
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Item 6. Exhibits.
INDEX TO EXHIBITS | ||||||||||||||||||||||||||||||||
| Incorporated by Reference | Filed/ Furnished Herewith | |||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||||||||
| Articles of incorporation and by-laws | ||||||||||||||||||||||||||||||||
| 3.1 | 8-K | 3.1 | 4/17/2003 | |||||||||||||||||||||||||||||
| 3.2 | 8-K | 3.1 | 4/20/2009 | |||||||||||||||||||||||||||||
| 3.3 | 8-K | 3.3 | 4/20/2009 | |||||||||||||||||||||||||||||
| Material Contracts | ||||||||||||||||||||||||||||||||
| 10.1 | X | |||||||||||||||||||||||||||||||
| 10.2 | X | |||||||||||||||||||||||||||||||
| 10.3 | X | |||||||||||||||||||||||||||||||
| 10.4 | X | |||||||||||||||||||||||||||||||
| 10.5 | X | |||||||||||||||||||||||||||||||
| Rule 13a-14(a)/15d-14(a) certifications | ||||||||||||||||||||||||||||||||
| 31.1 | X | |||||||||||||||||||||||||||||||
| 31.2 | X | |||||||||||||||||||||||||||||||
| 31.3 | X | |||||||||||||||||||||||||||||||
| 31.4 | X | |||||||||||||||||||||||||||||||
| Section 1350 certifications | ||||||||||||||||||||||||||||||||
| 32.1* | X | |||||||||||||||||||||||||||||||
| 32.2* | X | |||||||||||||||||||||||||||||||
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INDEX TO EXHIBITS | ||||||||||||||||||||||||||||||||
| Incorporated by Reference | Filed/ Furnished Herewith | |||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | Exhibit | Filing Date | ||||||||||||||||||||||||||||
| 32.3* | X | |||||||||||||||||||||||||||||||
| 32.4* | X | |||||||||||||||||||||||||||||||
| Interactive Data File | ||||||||||||||||||||||||||||||||
| 101 | The consolidated financial statements from Carnival Corporation & plc’s joint Quarterly Report on Form 10-Q for the quarter ended February 28, 2023, as filed with the Securities and Exchange Commission on March 29, 2023, formatted in Inline XBRL, are as follows: | |||||||||||||||||||||||||||||||
(i) the Consolidated Statements of Income (Loss) for the three months ended February 28, 2023 and 2022; | X | |||||||||||||||||||||||||||||||
(ii) the Consolidated Statements of Comprehensive Income (Loss) for the three months ended February 28, 2023 and 2022; | X | |||||||||||||||||||||||||||||||
(iii) the Consolidated Balance Sheets at February 28, 2023 and November 30, 2022; | X | |||||||||||||||||||||||||||||||
(iv) the Consolidated Statements of Cash Flows for the three months ended February 28, 2023 and 2022; | X | |||||||||||||||||||||||||||||||
(v) the Consolidated Statements of Shareholders’ Equity for the three months ended February 28, 2023 and 2022; | X | |||||||||||||||||||||||||||||||
| (vi) the notes to the consolidated financial statements, tagged in summary and detail. | X | |||||||||||||||||||||||||||||||
| 104 | The cover page from Carnival Corporation & plc’s joint Quarterly Report on Form 10-Q for the quarter ended February 28, 2023, as filed with the Securities and Exchange Commission on March 29, 2023, formatted in Inline XBRL (included as Exhibit 101). | |||||||||||||||||||||||||||||||
| * | These items are furnished and not filed. | ||||
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each of the registrants has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| CARNIVAL CORPORATION | CARNIVAL PLC | |||||||||||||
| By: | /s/ Josh Weinstein | By: | /s/ Josh Weinstein | |||||||||||
| Josh Weinstein | Josh Weinstein | |||||||||||||
| President, Chief Executive Officer and Chief Climate Officer | President, Chief Executive Officer and Chief Climate Officer | |||||||||||||
| By: | /s/ David Bernstein | By: | /s/ David Bernstein | |||||||||||
| David Bernstein | David Bernstein | |||||||||||||
| Chief Financial Officer and Chief Accounting Officer | Chief Financial Officer and Chief Accounting Officer | |||||||||||||
| Date: March 29, 2023 | Date: March 29, 2023 | |||||||||||||
34
FORM OF 2022 PERFORMANCE-BASED
RESTRICTED STOCK UNIT AGREEMENT
FOR THE CARNIVAL CORPORATION 2020 STOCK PLAN
THIS PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) shall apply to the grant of the fiscal 2022 Performance-Based Restricted Stock Units made to Executives of Carnival Corporation, a corporation organized under the laws of the Republic of Panama, (the “Company”) or executives of an Affiliate, on [GRANT DATE] (the “Grant Date”) under the Carnival Corporation 2020 Stock Plan (the “Plan”).
1. Grant of Performance-Based Restricted Stock Units.
(a) Grant. The Company hereby makes to the Executive the fiscal 2022 Performance-Based restricted stock unit grant consisting of that number of Performance-Based restricted stock units (the “PBS RSUs”) set forth in the Executive’s EquatePlus portfolio, on the terms and conditions set forth in the Plan and this Agreement. Each PBS RSU represents the right to receive payment in respect of one Share as of the Settlement Date (as defined below), to the extent the Executive is vested in such PBS RSUs as of the Settlement Date, subject to the terms of this Agreement and the Plan. The PBS RSUs are subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the PBS RSUs shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement, and to make any and all determinations under them, and its decision shall be binding and conclusive upon the Executive and his legal representative in respect of any questions arising under the Plan or this Agreement. In the event there is any inconsistency between the provisions of the Plan and this Agreement, the provisions of the Plan shall govern.
2. Terms and Conditions.
(a) Vesting. Except as otherwise provided in Section 3 hereof, the PBS RSUs shall vest and become non-restricted [VESTING QUANTITY] on [VESTING DATE(S)] or the next market trading day if February 15th falls on a holiday or weekend. Notwithstanding the foregoing, the Committee shall have the authority to remove the Restrictions on the PBS RSUs whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the Grant Date, such action is appropriate.
(b) Settlement. The obligation to make payments and distributions with respect to PBS RSUs shall be satisfied through the issuance of one Share for each vested and non-restricted PBS RSU, less applicable withholding taxes (the “settlement”), and the settlement of the PBS RSUs may be subject to such conditions, restrictions and contingencies as the Committee shall determine. The PBS RSUs shall be settled on the first trading date occurring on or after the date that the PBS RSUs vest and are non-restricted (as applicable, the “Settlement Date”), except as otherwise provided in Sections 3 and 6 (a).
(c) Dividends and Voting Rights. Each outstanding PBS RSU shall be credited with dividend equivalents equal to the dividends (including extraordinary dividends if so determined by the Committee) declared and paid to shareholders of the Company in respect of one Share. Dividend equivalents shall not bear interest and shall be subject to the same Restrictions as the PBS RSUs to which they are attributable. On the Settlement Date, such dividend equivalents in
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respect of each vested PBS RSU shall be settled by delivery to the Executive of a number of Shares equal to the quotient obtained by dividing (i) the aggregate accumulated value of such dividend equivalents by (ii) the Fair Market Value of a Share on the date that is 30 days prior to the applicable vesting date, rounded down to the nearest whole share, less any applicable withholding taxes. No dividend equivalents shall be accrued for the benefit of the Executive with respect to record dates occurring prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Executive has forfeited the PBS RSUs. The Executive shall have no voting rights with respect to the PBS RSUs or any dividend equivalents.
(d) The dates set forth in this Section 2 (which include by reference Sections 3 and 6(a)) and disregarding any discretionary early release of restrictions in Section 2 for amounts which would not be a short-term deferral pursuant to Section 409A, have been specified for the purpose of complying with Section 409A of the Code. To the extent payments are made during the periods permitted under Section 409A of the Code, the Company shall be deemed to have satisfied its obligations under the Plan and shall not be in breach of its payment obligations hereunder.
3. Termination of Employment or Service with the Company.
(a) Termination by the Company for Cause. If the Executive’s employment or service with the Company or an Affiliate terminates for Cause, then all outstanding PBS RSUs shall immediately terminate on the date of termination of employment or service.
(b) Termination by the Company Not for Cause. If the Executive’s employment is terminated by the Combined Group and its Affiliates other than for Cause (as defined below) (and other than by reason of Disability or pursuant to Section 3(f) below), then the Executive shall be deemed to have vested on the date of termination in a number of PBS RSUs equal to the product of (i) the number of PBS RSUs granted multiplied by (ii) a fraction, the numerator of which is the number of days elapsed during the period commencing on the Grant Date through and including the date of termination, and the denominator of which is [NUMBER OF DAYS IN VESTING PERIOD], rounded down to the nearest whole PBS RSU, and the remaining unvested portion of the PBS RSUs shall terminate on the date of termination of employment or service. These PBS RSUs shall vest in accordance with the schedule set forth in Section 2(a) and shall be settled in accordance with Section 2(b) (without regard to the requirement that Executive remain employed by a member of the Combined Group or an Affiliate).
(c) Death or Disability. If the Executive’s employment or service with the Company or an Affiliate terminates by reason of his or her death or Disability, the Restrictions shall lapse as to 100% of the PBS RSUs and the PBS RSUs shall fully vest and become non-restricted on the date of termination and shall be settled in accordance with Section 2(b).
(d) PBS Termination Upon Attaining Retirement Age for US Taxpayers. With respect to a termination to occur on or after attaining Retirement Age, if (i) the Participant provides three months advance notice of resignation in writing via email to ownership@carnival.com (or by other means deemed acceptable by the Company) and completes such service or (ii) is involuntarily terminated without cause, then the PBS RSUs shall be fully vested on the date of termination and shall become non-restricted and be settled on a date selected by the Company provided such date falls within permitted section 409A and section 457A short-term deferral periods. If notice of resignation and applicable service is not provided, then the PBS RSUs shall be governed by 3(f) below.
(e) Termination Upon Attaining Retirement Age for Non-US Taxpayers. The PBS RSUs shall become non-forfeitable upon the Participant’s attainment of Retirement Age while in the employ of the Company or an Affiliate but shall remain subject to all other Restrictions.
(f) Termination After Change in Control. In accordance with Section 13(a) of the Plan, if the Executive’s employment is terminated by the Combined Group and its Affiliates other
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than for Cause upon or within 12 months following a Change in Control, the Restrictions shall lapse as to 100% of the PBS RSUs and the PBS RSUs shall fully vest on the date of termination and shall be settled in accordance with Section 2(b) without regard to Section 2(a).
(g) Other Termination. If the Executive’s employment or service with the Company terminates for any reason other than as otherwise described in the foregoing provisions of this Section 3 (whether due to voluntary termination or otherwise), then all outstanding PBS RSUs shall immediately terminate on the date of termination of employment or service.
(h) Breach of Restrictive Covenants. Notwithstanding anything herein to the contrary, no release of PBS RSUs shall be made, and all unreleased PBS RSUs issued hereunder and all rights under this Agreement shall be forfeited, if (i) the Executive shall engage in competition, as more particularly described in Section 4, or (ii) the Executive violates the nondisclosure provisions set forth in Section 5.
(i) Released PBS RSUs. Following Executive’s termination of employment or service with the Company or an Affiliate for any reason, the Executive (or the Executive’s beneficiary or legal representative, if applicable) must provide for all Stock underlying released PBS RSUs (including those issued under this Agreement as well as Shares underlying released PBS RSUs issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) Executive’s date of termination or (ii) the latest Settlement Date or other applicable vesting or settlement date (whether under this Agreement or a similar agreement) occurring following the Executive’s termination. If the Executive (or the Executive’s beneficiary, as applicable) fails to liquidate or transfer the Stock prior to the end of the applicable six month period, the Company is hereby authorized and directed by the Executive either, in the Company’s discretion: (i) to sell any such remaining Stock on the Executive’s (or the Executive’s beneficiary’s) behalf on the first trading date following the end of such period on which the Company is not prohibited from selling such Stock; or (ii) to transfer such Shares to the Company’s stock transfer agent for registration in the Executive’s (or the Executive’s beneficiary’s) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Stock underlying the released PBS RSUs in connection with such liquidation or transfer.
4. Non-Competition. The services of the Executive are unique, extraordinary and essential to the business of the Combined Group and its Affiliates. Accordingly, in consideration of the PBS RSUs granted hereunder, the Executive agrees that he/she will not, without the prior written approval of the Board, at any time during the term of his/her employment with the Combined Group or its Affiliates and (except as provided below) for the then remaining duration of the Restrictions on the PBS RSUs, if any, following the date on which the Executive’s employment with the Combined Group or its Affiliates terminates, directly or indirectly, within the cruise industry wherever located, engage in any business activity directly or indirectly competitive with the business of the Combined Group or its Affiliates, or serve as an officer, director, owner, consultant, or employee of any organization then in competition with the Combined Group or its Affiliates. In addition, the Executive agrees that during such restricted period following his/her employment with the Combined Group or its Affiliates, he/she will not solicit, either directly or indirectly, any employee of the Combined Group or its Affiliates, its subsidiaries or division, who was such at the time of the Executive’s separation from employment hereunder. In the event that the provisions of this Section 4 should ever be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by applicable law.
5. Non-Disclosure. The Executive expressly agrees and understands that Combined Group or its Affiliates own and/or control information and material which is not generally available to third parties and which Combined Group or its Affiliates consider confidential, including, without limitation, methods, products, processes, customer lists, trade secrets and other information
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applicable to its business and that it may from time to time acquire, improve or produce additional methods, products, processes, customers lists, trade secrets and other information (collectively, the ”Confidential Information”). The Executive hereby acknowledges that each element of the Confidential Information constitutes a unique and valuable asset of Combined Group or its Affiliates, and that certain items of the Confidential Information have been acquired from third parties upon the express condition that such items would not be disclosed to Combined Group or its Affiliates and its officers and agents other than in the ordinary course of business. The Executive hereby acknowledges that disclosure of Combined Group or its Affiliates’ Confidential Information to and/or use by anyone other than in Combined Group or its Affiliates’ ordinary course of business would result in irreparable and continuing damage to Combined Group or its Affiliates. Accordingly, the Executive agrees to hold the Confidential Information in the strictest secrecy, and covenants that, during the term of his/her employment with Combined Group or its Affiliates (or any member of the Combined Group or its Affiliates) or at any time thereafter, he/she will not, without the prior written consent of the Board, directly or indirectly, allow any element of the Confidential Information to be disclosed, published or used, nor permit the Confidential Information to be discussed, published or used, either by himself or by any third parties, except in effecting Executive’s duties for Combined Group or its Affiliates in the ordinary course of business. The Executive agrees to keep all such records in connection with the Executive’s employment as Combined Group or its Affiliates may direct, and all such records shall be the sole and absolute property of Combined Group or its Affiliates. The Executive further agrees that, within five (5) days of Combined Group or its Affiliates’ request, he/she shall surrender to Combined Group or its Affiliates any and all documents, memoranda, books, papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen records, customer lists, activity reports, video or audio recordings, computer programs and any and all other data and information and any and all copies thereof relating to Combined Group or its Affiliates’ business or any Confidential Information.
Notwithstanding the foregoing, nothing in this Agreement prohibits the Executive from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, the Executive shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Executive may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if the Executive files a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret in the court proceeding, if the Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
6. Miscellaneous.
(a) Compliance with Legal Requirements. The granting and settlement of the PBS RSUs, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required. If the settlement of the PBS RSUs would be prohibited by law, the settlement shall be delayed until the earliest date on which the settlement would not be so prohibited.
(b) Transferability. Unless otherwise provided by the Committee in writing, the PBS RSUs shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Executive other than by will or the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that, the designation of a beneficiary
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shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Tax Withholding. The Executive acknowledges that, regardless of any action taken by the Company or, if different, the Executive’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Executive’s participation in the Plan and legally applicable to the Executive (Tax-Related Items), is and remains the Executive’s responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. The Executive further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the PBS RSUs, including, but not limited to, the grant, vesting or settlement of the PBS RSUs, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the PBS RSUs to reduce or eliminate the Executive’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Executive is subject to Tax-Related Items in more than one jurisdiction, the Executive acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, the Executive agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Executive authorizes the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Executive’s wages or other cash compensation paid to the Executive by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the PBS RSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on the Executive’s behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the PBS RSUs. Further, notwithstanding anything herein to the contrary, the Company may cause a portion of the PBS RSUs to vest prior to the applicable date set forth in Sections 2 or 3 of this Agreement in order to satisfy any Tax-Related Items that arise prior to the date of settlement of the PBS RSUs; provided that to the extent necessary to avoid a prohibited distribution under Section 409A of the Code, the number of PBS RSUs so accelerated and settled shall be with respect to a number of Shares with a value that does not exceed the liability for such Tax-Related Items.
Notwithstanding the foregoing, if the Executive is an officer subject to Section 16 of the Exchange Act, the Company will not withhold in Shares upon the relevant taxable or tax withholding event other than where U.S. federal tax withholding is required upon lapse of the forfeiture restrictions pursuant to Sections 3(b), (d) or 3(e) of this Agreement, or if otherwise approved in advance by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax- Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Executive will receive a refund of any over-withheld amount in cash and will have no entitlement to the Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Executive is deemed to have been issued the full number of Shares subject to the vested Award, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, the Executive agrees to pay to the Company or the Employer any amount of Tax- Related Items that the Company or the Employer may be required to withhold or account for as a result of the Executive’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of
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Shares, if the Executive fails to comply with the Executive’s obligations in connection with the Tax-Related Items.
(d) Nature of Grant. In accepting the grant, the Executive acknowledges, understands and agrees that:
(i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(ii) the grant of the PBS RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of PBS RSUs, or benefits in lieu of PBS RSUs, even if PBS RSUs have been granted in the past;
(iii) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
(iv) the Executive is voluntarily participating in the Plan;
(v) the PBS RSUs and the Shares subject to the PBS RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation;
(vi) the PBS RSUs and the Shares subject to the PBS RSUs, and the income from and value of same, are not part of normal or expected compensation for purposes of, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
(vii) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(viii) no claim or entitlement to compensation or damages shall arise from forfeiture of the PBS RSUs resulting from the termination of the Executive’s employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Executive is employed or the terms of the Executive’s employment agreement, if any);
(ix) unless otherwise agreed with the Company, the PBS RSUs and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service the Executive may provide as a director of the Company or any member of the Combined Group and its Affiliates;
(x) unless otherwise provided in the Plan or by the Company in its discretion, the PBS RSUs and the benefits evidenced by this Agreement do not create any entitlement to have the PBS RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
(xi) if the Executive resides outside the United States or is otherwise subject to the laws of a country outside the United States:
(A) the PBS RSUs and the Shares subject to the PBS RSUs, and the income from and value of same, are not part of normal or expected compensation for any purpose; and
(B) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between the Executive’s local currency and the United States Dollar that may affect the value of the PBS
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RSUs or of any amounts due to the Executive pursuant to the settlement of the PBS RSUs or the subsequent sale of any Shares acquired upon settlement.
(e) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Executive’s
participation in the Plan, or the Executive’s acquisition or sale of the underlying Shares. The Executive should consult with the Executive’s own personal tax, legal and financial advisors regarding the Executive’s participation in the Plan before taking any action related to the Plan.
(f) Clawback/Forfeiture. Notwithstanding anything to the contrary contained herein, in the case of fraud, negligence, intentional or gross misconduct or other wrongdoing on the part of Executive (or any other event or circumstance set forth in any clawback policy implemented by the Company, including, without limitation, any clawback policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) that results in a material restatement of the Company’s issued financial statements, such Executive will (i) forfeit any unvested PBS RSUs and (ii) be required to reimburse the Company for all or a portion, as determined by the Committee in its sole discretion, of any income or gain realized on the settlement of the PBS RSUs or the subsequent sale of Shares acquired upon settlement of the PBS RSUs with respect to any fiscal year in which the Company’s financial results are negatively impacted by such restatement. The Executive agrees to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding grants, under the Dodd- Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Grant Date and the Company shall promptly notify the Executive of such additional provision. In addition, if a Executive has engaged or is engaged in Detrimental Activity after the Executive’s employment or service with the Company or its subsidiaries has ceased, then the Executive, within 30 days after written demand by the Company, shall return any income or gain realized on the settlement of the PBS RSUs or the subsequent sale of Shares acquired upon settlement of the PBS RSUs.
(g) Code Section 409A. To the extent that the Executive is subject to U.S. federal tax and the PBS RSUs are considered “nonqualified deferred compensation” subject to Section 409A of the Code: (i) references in this Agreement to “termination of employment” or “termination of service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code; and (ii) if the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, any settlement of the PBS RSUs upon the Executive’s separation from service shall be made to the Executive on the first trading date following the date that is six months after the date of the Executive’s separation from service or, if earlier, the Executive’s date of death. For purposes of Section 409A of the Code, each payment that may be made in respect of the PBS RSUs is designated as a separate payment.
(h) No Rights as Stockholder. The Executive shall not be deemed for any purpose to be the owner of any Shares subject to the PBS RSUs. The Company shall not be required to set aside any fund for the payment of the PBS RSUs.
(i) Waiver. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
(j) Notices. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or
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overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Executive, at the Executive’s address indicated by the Company’s records, or if to the Company, at the Company’s principal executive office.
(k) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(l) No Rights to Continued Employment. Nothing in the Plan or in this Agreement shall be construed as giving the Executive any right to be retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Executive at any time for any reason whatsoever. The rights and obligations of the Executive under the terms and conditions of the Executive’s office or employment shall not be affected by this Agreement. The Executive waives all and any rights to compensation and damages in consequence of the termination of the Executive’s office or employment with any member of the Combined Group or any of its Affiliates for any reason whatsoever (whether lawfully or unlawfully) insofar as those rights arise, or may arise, from the Executive’s ceasing to have rights under or the Executive’s entitlement to the PBS RSUs under this Agreement as a result of such termination or from the loss or diminution in value of such rights or entitlements. In the event of conflict between the terms of this Section 6(l) and the Executive’s terms of employment, this Section will take precedence.
(m) Beneficiary. In the event of the Executive’s death, any Shares that vest pursuant to Section 3(b) of this Agreement will be issued to the legal representative of the Executive’s estate.
(n) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Executive and the beneficiaries, legal representatives, executors, administrators, heirs and successors of the Executive.
(o) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted without consent of the Executive in accordance with the Plan.
(p) Governing Law; JURY TRIAL WAIVER. This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Florida. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
(q) Data Protection. The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose the Executive’s Personal Information for the purpose of implementing, administering and managing the Executive’s participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice the Executive previously received. (The Executive should contact ownership@carnival.com if he or she would like to receive another copy of this notice.) For example, the Executive’s Personal Information may be directly or indirectly transferred to Computershare or Equatex or any other
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stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
(r) Insider Trading/Market Abuse Laws. The Executive may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and the Executive’s country, which may affect the Executive’s ability to directly or indirectly, for his- or her- self or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times as the Executive is considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and the Executive’s country), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Executive placed before the Executive possessed inside information. Furthermore, the Executive could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. The Executive acknowledges that it is the Executive’s responsibility to be informed of and compliant with such regulations, and the Executive should speak to the Executive’s personal advisor on this matter.
(s) Foreign Asset/Account, Exchange Control and Tax Reporting. The Executive may be subject to foreign asset/account, exchange control and/or tax reporting requirements as a result of the acquisition, holding and/or transfer of Shares or cash (including dividends, dividend equivalents and the proceeds arising from the sale of Shares) derived from the Executive’s participation in the Plan, to and/or from a brokerage/bank account or legal entity located outside the Executive’s country. The applicable laws of the Executive’s country may require that the Executive report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the applicable authorities in such country. The Executive also may be required to repatriate sale proceeds or other funds received as a result of his or her participation in the Plan to the Executive’s country through a designated bank or broker within a certain time after receipt. The Executive acknowledges that the Executive is responsible for ensuring compliance with any applicable foreign asset/account, exchange control and tax reporting requirements and should consult the Executive’s personal legal advisor on this matter.
(t) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(u) Language. The Executive acknowledges that he or she is proficient in the English language or has consulted with an advisor who is sufficiently proficient, so as to allow him or her to understand the terms and conditions of this Agreement. If the Executive has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
(v) Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Executive hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
(w) Country-Specific Provisions. The PBS RSUs shall be subject to the additional terms and conditions set forth in Appendix A to this Agreement for the Executive's country, if any.
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Moreover, if the Executive relocates to one of the countries included in Appendix A, the terms and conditions for such country will apply to the Executive, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons.
(x) Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Executive's participation in the Plan, on the PBS RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Executive to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
CARNIVAL CORPORATION
By: _________________________
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APPENDIX A
Country Specific Information
TERMS AND CONDITIONS
This Appendix A includes additional terms and conditions that govern the Award granted to the Executive if the Executive resides in one of the countries listed herein. This Appendix A forms part of the Agreement. These terms and conditions are in addition to, or if so indicated, in place of, the terms and conditions in the Agreement.
If the Executive is a citizen or resident of a country other than the one in which the Executive is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the Company shall, in its sole discretion, determine to what extent the additional terms and conditions included herein will apply to the Executive under these circumstances.
NOTIFICATIONS
This Appendix A also includes information regarding exchange controls, securities laws and certain other issues of which the Executive should be aware with respect to the Executive's participation in the Plan. The information is based on the exchange control, securities laws and other laws in effect in the respective countries as of December 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Executive not rely on the information noted herein as the only source of information relating to the consequences of the Executive's participation in the Plan because the information may be out of date at the time the Executive vests in the Award or when the Executive sell the Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to the Executive's particular situation, and the Company is not in a position to assure the Executive of any particular result. Accordingly, the Executive is advised to seek appropriate professional advice as to how the relevant laws in the Executive's country may apply to the Executive's situation.
Finally, if the Executive is a citizen or resident of a country other than the one in which the Executive is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the information contained herein may not be applicable in the same manner to the Executive.
Capitalized terms not explicitly defined in this Appendix A but defined in the Agreement or Plan shall have the same definitions as in the Plan and/or the Agreement.
AUSTRALIA
NOTIFICATIONS
Tax Information. The Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act of 1997 (Cth) (the “Act”) applies (subject to the conditions of the Act).
Securities Law Information. If the Executive acquires Shares under the Plan and offers the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. The Executive should consult with the Executive’s legal advisor before making any such offer in Australia.
CHINA
TERMS AND CONDITIONS
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The following terms and conditions will be applicable to the Executive to the extent that the Company, in its sole discretion, determines that the Executive's participation in the Plan will be subject to exchange control restrictions in the People’s Republic of China (“PRC”), as implemented by the PRC State Administration of Foreign Exchange (“SAFE”):
Vesting. This provision supplements Section 2(a) - Vesting of the Agreement:
Notwithstanding anything to the contrary in the Agreement, the Award will not vest and no Shares will be issued to the Executive unless and until all necessary exchange control or other approvals with respect to the Award under the Plan are obtained from SAFE or its local counterpart (“SAFE Approval”), as determined by the Company in its sole discretion. In the event that SAFE Approval has not been obtained, or the Company is unable to maintain its SAFE Approval, prior to any date(s) on which the Award is scheduled to vest, the Award will not vest until the seventh day of the month following the month in which SAFE Approval is obtained or reinstated (the “Actual Vesting Date”). If the Executive's employment terminates prior to the Actual Vesting Date, the Executive shall not be entitled to vest in any portion of the Award and the Award shall be forfeited without any liability to the Company, the Employer or any member of the Combined Group and its Affiliates.
If or to the extent the Company is unable to obtain or maintain SAFE Approval, no Shares subject to the PBS RSUs for which SAFE Approval has not been obtained or maintain shall be issued. In this case, the Company retains the discretion to settle any PBS RSUs in cash paid through local payroll in an amount equal to the market value of the Shares subject to the PBS RSUs less any Tax-Related Items; provided, however, that in case the Company is able to obtain or reinstate its SAFE Approval with respect to any PBS RSUs, the cash payment for PBS RSUs not covered by the SAFE Approval shall not be made until the SAFE Approval has been obtained or reinstated.
Settlement of PBS RSUs and Sale of Shares. This provision supplements Section 2(b) - Settlement of the Agreement:
Notwithstanding anything to the contrary in the Plan or the Agreement, to facilitate compliance with PRC exchange control restrictions the Executive agrees that any Shares acquired at settlement of the Award may be immediately sold at settlement or, at the Company’s discretion, at a later time (including when the Executive's employment terminates for any reason). If, however, the sale of the Shares is not permissible under the Company’s insider trading policy, the Company retains the discretion to postpone the issuance of the Shares subject to the vested Award until such time that the sale is again permissible and to then immediately sell the Shares subject to the Award. The Executive further agrees that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the Shares (on the Executive's behalf pursuant to this authorization), and the Executive expressly authorizes such broker to complete the sale of the Shares. The Executive acknowledges that the Company’s designated broker is under no obligation to arrange for the sale of Shares at any particular price. Upon the sale of the Shares, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to the Executive in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the settlement date and (if later) the date on which the Shares are sold, the sale proceeds may be more or less than the fair market value of the Shares on the settlement date (which is the amount relevant to determining the Executive's tax liability). The Executive understands and agrees that the Company is not responsible for the amount of any loss the Executive may incur and that the Company assumes no liability for any fluctuation in the share price and/or United States Dollar exchange rate.
The Executive further agrees that any Shares to be issued to the Executive shall be deposited directly into an account with the Company’s designated broker. The deposited shares shall not be transferable (either electronically or in certificate form) from the brokerage account. This limitation shall apply both to transfers to different accounts with the same broker and to transfers to other brokerage firms. The limitation shall apply to all Shares issued to the Executive under the Plan, whether or not the Executive continues to be employed by the Company, the Combined Group or one of its Affiliates.
Exchange Control Restrictions. By accepting the Award, the Executive understands and agrees that the Executive will be required to immediately repatriate to China the proceeds from the sale of any Shares acquired under the Plan or from any cash dividends paid on such Shares. The Executive further understands that such repatriation of the proceeds may need to be effected through a special exchange control account established by the Company or any Affiliate, and the Executive hereby consents and
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agrees that the proceeds may be transferred to such account by the Company (or its designated broker) on the Executive's behalf prior to being delivered to the Executive. The Executive also acknowledges and understands that there may be a delay between the date the Shares are sold and the date the cash proceeds are distributed to the Executive. The Executive further agrees to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Company’s designated broker) to effectuate such transfers.
The proceeds may be paid to the Executive in United States Dollars or local currency, at the Company’s discretion. If the proceeds are paid to the Executive in United States Dollars, the Executive understands that the Executive will be required to set up a United States Dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to the Executive in local currency, (i) the Executive acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions, and (ii) the Executive agrees to bear any currency fluctuation risk between the time the Shares are sold or dividends are paid and the time the proceeds are converted to local currency and distributed to the Executive. The Executive agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
GERMANY
NOTIFICATIONS
Exchange Control Information. Cross-border payments in excess of €12,500 (including transactions made in connection with the sale of securities) must be reported monthly to the German Federal Bank (“Bundesbank”). If the Executive makes or receives a payment in excess of this amount, the Executive must report the payment to Bundesbank electronically using the “General Statistics Reporting Portal” (Allgemeines Meldeportal Statistik) available via Bundesbank’s website (www.bundesbank.de).
Foreign Asset/Account Reporting Information. If the Executive’s acquisition of Shares under the Plan leads to a so-called qualified participation at any point during the calendar year, he or she will need to report the acquisition when the Executive files his or her tax return for the relevant year. A qualified participation is attained if (i) the value of the Shares acquired exceeds EUR 150,000 or (ii) in the unlikely event the Executive holds Shares exceeding 10% of the Company’s Common Stock.
HONG KONG
TERMS AND CONDITIONS
Sale Restriction. Shares received at vesting are accepted as a personal investment. In the event that the Award vests and Shares are issued to the Executive (or the Executive's legal representatives) within six months of the Grant Date, the Executive (or the Executive's legal representatives) agrees that the Shares will not be offered to the public or otherwise disposed of prior to the six-month anniversary of the Grant Date.
NOTIFICATIONS
Securities Law Information. WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. The Executive is advised to exercise caution in relation to the offer. If the Executive is in any doubt about any of the contents of the Agreement, including this Appendix A, or the Plan, the Executive should obtain independent professional advice. Neither the grant of the Award nor the issuance of Shares upon settlement of the Award constitutes a public offering of securities under Hong Kong law and is available only to employees of the Company and members of the Combined Group and its Affiliates. The Agreement, the Plan and other incidental communication materials distributed in connection with the Award have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong and are intended only for the personal use of each eligible employee of the Company or members of the Combined Group and its Affiliates and may not be distributed to any other person.
Nature of Scheme. The Plan is not intended to be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
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ITALY
TERMS AND CONDITIONS
Plan Document Acknowledgment. In accepting the Award, the Executive acknowledges that the Executive has received a copy of the Plan and the Agreement, has reviewed the Plan and the Agreement in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.
The Executive acknowledges that the Executive has read and specifically and expressly approve the following sections of the Agreement: Section 2 - Terms and Conditions; Section 3 - Termination of Employment or Service with the Company; Section 6(c) - Tax Withholding; Section 6(d) - Nature of Grant; Section 6(p) - Governing Law; JURY TRIAL WAIVER; and Section 6(t) - Language.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If the Executive is an Italian resident and holds investments or financial assets outside Italy (e.g., cash, PBS RSUs, Shares) during any fiscal year which may generate income taxable in Italy (or if the Executive is the beneficial owner of such an investment or asset even if the Executive does not directly hold the investment or asset), the Executive is required to report such investments or assets on the Executive's annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if the Executive is not required to file a tax return).
NETHERLANDS
There are no country specific provisions.
SINGAPORE
TERMS AND CONDITIONS
Restrictions on Sale. The Executive agrees that, in the event that any portion of the Award vests prior to the six-month anniversary of the Grant Date, the Executive will not sell any Shares acquired at vesting prior to the six-month anniversary of the Grant Date, unless such sale or offer is made pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”).
NOTIFICATIONS
Securities Law Information. The grant of the Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA under which it is exempt from the prospectus and registration requirements under the SFA and is not made to the Executive with a view to the Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore.
Chief Executive Officer and Director Notification Requirement. The Chief Executive Officer (“CEO”) and the directors, associate directors or shadow directors1 of a Singapore Subsidiary or Affiliate are subject to certain notification requirements under the Singapore Companies
Act. Specifically, the CEO and directors must notify the Singapore Subsidiary or Affiliate in writing of an interest (e.g., PBS RSUs, Shares, etc.) in the Company or any related company within two business days of (i) its acquisition or disposal, (ii) any change in a previously- disclosed interest (e.g., upon vesting / settlement of the Award or when Shares acquired under the Plan are subsequently sold), or (iii) becoming the CEO or a director.
UNITED KINGDOM
TERMS AND CONDITIONS
This provision supplements Section 6(c) - Tax Withholding of the Agreement:
Tax Withholding. Without limitation to Section 6(c) of the Agreement, the Executive agrees that the Executive is liable for all Tax-Related Items and hereby covenants to pay all such Tax- Related Items as
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and when requested by the Company or any Affiliate or by Her Majesty's Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority).
The Executive also agrees to indemnify and keep indemnified the Company and any Affiliate against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on the Executive’s behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, if the Executive is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), the Executive understands that he or she may not be able to indemnify the Company for the amount of any income tax not collected from or paid by the Executive, in case the indemnification could be considered a loan. In this case, the income tax not collected or paid may constitute a benefit to the Executive on which additional income tax and National Insurance contributions may be payable. The Executive will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer, as applicable, for the value of any employee National Insurance contributions due on this additional benefit, which the Company or the Employer may recover from the Executive by any of the means referred to in this Agreement.
In addition, the Executive agrees that the Company and/or the Employer may calculate the income tax to be withheld and accounted for by reference to the maximum applicable rates, without prejudice to any right the Executive may have to recover any overpayment from HMRC or any applicable tax authority.
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C A R N I V A L
plc
Form of 2022 Performance-Based Restricted Share Unit Grant Agreement
for the Carnival plc 2014 Employee Share Plan (the Plan)
Conditional Right to Receive
This Performance-Based Restricted Share Unit Grant Agreement (the Agreement) shall apply to the grant of the fiscal 2022 Performance-Based Restricted Share Units made to select Executives of Carnival plc (the Company), on [GRANT DATE] (the Grant Date) under the Carnival plc 2014 Employee Share Plan (the Plan).
The Company hereby makes to you a Performance-Based restricted share unit (the PBS RSUs) grant consisting of that number of PBS RSUs set forth in your EquatePlus portfolio, on the terms and conditions set forth in the Plan and this Agreement. In the event of any inconsistency, the rules of the Plan shall take precedence. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan.
1. Nature of Grant
Each PBS RSU comprised in your grant is equivalent to a hypothetical investment in one ordinary share of $1.66 each in the capital of the Company (a Share). Your grant is in the form of a conditional right to acquire the number of Shares equal to the number of PBS RSUs comprised in your grant at a nil cost.
You will have no beneficial interest in any Shares during the Restricted Period.
2. Restricted Period
Your grant is subject to a Restricted Period. In this case, the Restricted Period on the PBS RSUs shall expire as to [VESTING QUANTITY] of the TBS RSUs on [VESTING DATE(S)] or on the next market day if such date falls on a weekend, or UK or US market holiday.
Generally, your grant will be forfeited automatically on you ceasing to be an employee of the plc Group (whether lawfully or unlawfully) before the expiry of the Restricted Period. However, upon the termination of your employment with the Combined Group or an Affiliate due to death, Disability or Retirement or as otherwise set forth in subsections c) and d) below, the grant shall be released according to the following, unless and until you engage in competition in violation of the Competition and Nondisclosure provisions below:
a) In the event you terminate by reason of death or Disability, the Restricted Period shall lapse on the date of your death or Disability.
b) In the event you terminate by reason of Retirement, the PBS RSUs shall become non-forfeitable, but shall remain subject to all other restrictions until the end of the Restricted Period.
c) In the event a member of the Combined Group or an Affiliate terminates your employment with such company for a reason other than for Cause and other than in the circumstances set forth in subsection d) below, you shall be deemed to have vested on the date of termination in a number of PBS RSUs equal to the product of (i) the number of PBS RSUs granted multiplied by (ii) a fraction, the numerator of which is the number of days elapsed during the period commencing on the Grant Date through and including the date of termination, and the denominator of which is [NUMBER OF DAYS IN RESTRICTED PERIOD], rounded down to the nearest whole PBS RSU, and the remaining unvested portion of the PBS RSUs shall terminate on the date of termination of employment or service. The Restricted Period for these MTE RSUs shall lapse as set forth in the first paragraph of this Section 2.
d) In accordance with Section 12(a) of the Plan, in the event a member of the Combined Group or an Affiliate terminates your employment with such company other than for Cause upon or within 12 months following a Change in Control, the Restricted Period shall lapse on the date of your termination of employment.
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Notwithstanding anything herein to the contrary, but subject to the above, no release of the grant shall be made, and all rights to this grant shall be forfeited, if any of the following events shall occur:
a) Your employment with the Combined Group or an Affiliate is terminated for Cause. For purposes of this Agreement, “Cause” shall be defined set forth in the Plan;
b) You voluntarily terminate employment with the Combined Group or an Affiliate prior to Retirement unless such voluntary termination is directly related to death or Disability;
c) You engage in competition, as more particularly described below, either (i) during the term of your employment with the Combined Group or an Affiliate; (ii) following your voluntary termination of employment with the Combined Group or an Affiliate; or (iii) following the employing company’s termination of your employment for any reason; or
d) You violate the nondisclosure provisions set forth below.
3. Release of Grant
You will be deemed to have called for the release of your grant on the date on which your grant vests following expiration of the Restricted Period and attainment of the vesting criteria set out in the Restricted Period clause above unless the release of your grant would be prohibited by law, the Model Code for Securities Transactions by Directors of Listed Companies or the Company’s dealing code. In such a case you will be deemed to have called for the release of your grant on the first date following vesting of your grant on which the release of your grant would not be prohibited. This grant may only be settled in Shares.
4. Dividends
The Compensation Committee has determined that on each occasion on which a dividend is paid in respect of one Share, a notional amount of cash and shares equal to the cash and share dividend paid in respect of one Share will be credited to each PBS RSU comprised in your grant (the Dividend Equivalents). Dividend Equivalents will be withheld by the Company for your account and will be distributed to you in the form of additional Shares on settlement of your grant. If your grant is forfeited, you will have no entitlement to such Dividend Equivalents.
5. Taxation
You acknowledge that, regardless of any action taken by the Company or, if different, your employer (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (Tax-Related Items), is and remains your responsibility and may exceed the amount actually withheld by the Company or the Employer. You further acknowledge that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the grant, including, but not limited to, the grant, vesting or settlement of the grant, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or any Dividend Equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the grant to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to Tax-Related Items in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, you agree to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, you authorize the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from your wages or other cash compensation
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paid to you by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the grant either through a voluntary sale or through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the grant.
Notwithstanding the foregoing, if you are an officer subject to Section 16 of the Exchange Act, the Company will not withhold in Shares upon the relevant taxable or tax withholding event other than in the event that U.S. federal tax withholding is required upon lapse of the forfeiture restrictions pursuant to subsections (b), (c) or (d) in the “Restricted Period” section of this Agreement, or if otherwise approved in advance by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case you may receive a refund of any over-withheld amount in cash and will have no entitlement to the Share equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to the vested grant, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you agree to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if you fail to comply with your obligations in connection with the Tax-Related Items.
6. Nature of Grant
In accepting the grant, you acknowledge, understand and agree that:
a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
b) the grant of your grant is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of PBS RSUs, or benefits in lieu of PBS RSUs, even if PBS RSUs have been granted in the past;
c) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
d) the grant and your participation in the Plan shall not create a right to employment or be interpreted as forming or amending an employment or service contract with the Company, the Employer, or any member of the Combined Group and its Affiliates and shall not interfere with the ability of the Company, the Employer or any member of the Combined Group and its Affiliates, as applicable, to terminate your employment or service relationship (if any);
e) you are voluntarily participating in the Plan;
f) the grant and the Shares subject to the grant, and the income from and value of same, are not intended to replace any pension rights or compensation;
g) the grant and the Shares subject to the grant, and the income from and value of same, are not part of normal or expected compensation for any purpose, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
h) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
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i) no claim or entitlement to compensation or damages shall arise from forfeiture of the grant resulting from the termination of your employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any);
j) unless otherwise agreed with the Company, the grant and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of the Company or any member of the Combined Group and its Affiliates;
k) unless otherwise provided in the Plan or by the Company in its discretion, the grant, and the benefits evidenced by this Agreement do not create any entitlement to have the grant or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
l) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between your local currency and the British Pound Sterling that may affect the value of the grant or of any amounts due to you pursuant to the settlement of the grant or the subsequent sale of any Shares acquired upon settlement.
7. No Advice Regarding Grant
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
8. Data Privacy
The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose your Personal Information for the purpose of implementing, administering and managing your participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice you have previously received. (Please contact ownership@carnival.com if you would like to receive another copy of this notice.) For example, your Personal Information may be directly or indirectly transferred to Equatex AG or any other third party stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
9. Competition
The services you provide are unique, extraordinary and essential to the business of the Combined Group or its Affiliates, particularly in view of your access to the Combined Group or its Affiliates’ confidential information and trade secrets. Accordingly, in consideration of the grant, you agree that you will not, without the prior written approval of the Board of Directors, at anytime during the term of your employment with the Combined Group or its Affiliates and (except as provided below) for the then remaining duration of the Restricted Period, if any, following the date on which your employment with the Combined Group or its Affiliates terminates, directly or indirectly, within the cruise industry wherever located, engage in any business activity directly or indirectly competitive with the business of the Combined Group or its Affiliates, or serve as an officer, director, owner, consultant, or employee of any organization then in competition with the Combined Group or its Affiliates. In addition, you agree that during such restricted period following your employment with the Combined Group or its Affiliates, you will not solicit, either directly or indirectly, any employee of the Combined Group or its Affiliates, its subsidiaries or division, who was such at the time of your separation from employment hereunder. In the event that this provision should ever be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by applicable law.
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10. Nondisclosure
You expressly agree and understand that the Combined Group or its Affiliates own and/or control information and material which is not generally available to third parties and which Combined Group or its Affiliates consider confidential, including, without limitation, methods, products, processes, customer lists, trade secrets and other information applicable to its business and that it may from time to time acquire, improve or produce additional methods, products, processes, customers lists, trade secrets and other information (collectively, the Confidential Information). You acknowledge that each element of the Confidential Information constitutes a unique and valuable asset of Combined Group or its Affiliates, and that certain items of the Confidential Information have been acquired from third parties upon the express condition that such items would not be disclosed to Combined Group or its Affiliates and its officers and agents other than in the ordinary course of business. You acknowledge that disclosure of Combined Group or its Affiliates’ Confidential Information to and/or use by anyone other than in Combined Group or its Affiliates’ ordinary course of business would result in irreparable and continuing damage to Combined Group or its Affiliates. Accordingly, you agree to hold the Confidential Information in the strictest secrecy, and covenant that, during the term of your employment with Combined Group or its Affiliates (or any member of the Combined Group or its Affiliates) or at any time thereafter, you will not, without the prior written consent of the Board of Directors, directly or indirectly, allow any element of the Confidential Information to be disclosed, published or used, nor permit the Confidential Information to be discussed, published or used, either by himself or by any third parties, except in effecting your duties for Combined Group or its Affiliates in the ordinary course of business. You agree to keep all such records in connection with your employment as Combined Group or its Affiliates may direct, and all such records shall be the sole and absolute property of Combined Group or its Affiliates. You further agree that, within five (5) days of Combined Group or its Affiliates’ request, you shall surrender to Combined Group or its Affiliates any and all documents, memoranda, books, papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen records, customer lists, activity reports, video or audio recordings, computer programs and any and all other data and information and any and all copies thereof relating to Combined Group or its Affiliates’ business or any Confidential Information.
Notwithstanding the foregoing, nothing in this Agreement prohibits you from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, you shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, you may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if you file a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, you may disclose the trade secret to your attorney and use the trade secret in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret, except pursuant to court order.
11. Clawback / Forfeiture
a) In the case of fraud, negligence, intentional or gross misconduct or other wrongdoing on your part (or any other event or circumstance set forth in any clawback policy implemented by the Company, including, without limitation, any clawback policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) that results in a material restatement of the Company’s issued financial statements, you will (i) forfeit any unvested PBS RSUs and (ii) be required to reimburse the Company for all or a portion, as determined by the Committee in its sole discretion, of any income or gain realized on the settlement of the PBS RSUs or the subsequent sale of Shares acquired upon settlement of the PBS RSUs with respect to any fiscal year in which the Company’s financial results are negatively impacted by such restatement. You agree to and shall be required to repay any such
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amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding awards, under the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Grant Date and the Company shall promptly notify you of such additional provision. In addition, if you have engaged or are engaged in Detrimental Activity after your employment or service with the Company or its Affiliates has ceased, then, within 30 days after written demand by the Company, you shall return any income or gain realized on the settlement of the PBS RSUs or the subsequent sale of Shares acquired upon settlement of the PBS RSUs.
b) For purposes of this Agreement, “Detrimental Activity” means any of the following: (i) unauthorized disclosure of any Confidential Information or proprietary information of the Combined Group, (ii) any activity that would be grounds to terminate your employment or service with the Combined Group for Cause, (iii) whether in writing or orally, maligning, denigrating or disparaging the Combined Group or their respective predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light, or (iv) the breach of any noncompetition, nonsolicitation or other agreement containing restrictive covenants, with the Combined Group. For purposes of the preceding sentence the phrase “the Combined Group” shall mean “any member of the Combined Group or any Affiliate”.
12. General
The grant is not transferable and may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered, other than in the limited circumstances specified in rule 14(b) of the Plan.
13. Sale or Transfer of Shares upon Death / Separation from Employment
Following your death or termination of employment or service with the Company and its Affiliates for any reason, you (or your legal representative, if applicable) must provide for all Shares underlying the released grant (including those issued under this Agreement as well as Shares underlying released grants issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) your death or the date of termination, as applicable, or (ii) the latest Settlement Date (whether under this Agreement or a similar agreement) occurring following your death or termination. If you (or your legal representative, as applicable) fail to liquidate or transfer the Shares prior to the end of the applicable six month period, the Company is hereby authorized and directed by you to either, in the Company’s discretion: (i) sell any such remaining Shares on your (or your legal representative’s) behalf on the next trading date following the end of such period on which the Company is not prohibited from selling such Shares; or (ii) transfer such Shares to the Company’s stock transfer agent for registration in your (or your legal representative’s) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Shares underlying the released grants in connection with such liquidation or transfer.
14. Compliance with Law
Notwithstanding any other provision of the Plan or this Agreement, unless there is an available exemption from any registration, qualification or other legal requirement applicable to the Shares, the Company shall not be required to deliver any Shares issuable upon settlement of the grant prior to the completion of any registration or qualification of the Shares under any local, state, federal or foreign securities or exchange control law or under rulings or regulations of the U.S. Securities and Exchange Commission (SEC) or of any other governmental regulatory body, or prior to obtaining any approval or other clearance from any local, state, federal or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Shares with the
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SEC or any state or foreign securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Shares. Further, you agree that the Company shall have unilateral authority to amend the Plan and the Agreement without your consent to the extent necessary to comply with securities or other laws applicable to issuance of Shares.
15. Insider Trading/Market Abuse Laws
You may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and your country, which may affect your ability to directly or indirectly, for yourself or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times you are considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and your country of residence), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. You acknowledge that it is your responsibility to be informed of and compliant with such regulations, and you should speak to your personal advisor on this matter.
16. Foreign Asset/Account, Exchange Control and Tax Reporting
You may be subject to foreign asset/account, exchange control and/or tax reporting requirements as a result of the acquisition, holding and/or transfer of Shares or cash (including dividends, Dividend Equivalents and the proceeds arising from the sale of Shares) derived from your participation in the Plan, to and/or from a brokerage/bank account or legal entity located outside your country. The applicable laws of your country may require that you report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the applicable authorities in such country. You also may be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country through a designated bank or broker within a certain time after receipt. You acknowledge that you are responsible for ensuring compliance with any applicable foreign asset/account, exchange control and tax reporting requirements and should consult your personal legal advisor on this matter.
17. Governing Law
The grant and the provisions of this Agreement are governed by, and subject to, the laws of England. All disputes arising out of or in connection with the rules shall be subject to the exclusive jurisdiction of the courts of England and Wales.
18. Language
You acknowledge that you are proficient in the English language or have consulted with an advisor who is sufficiently proficient, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
19. Electronic Delivery and Acceptance
The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
20. Severability
If any provision of the Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or grant, or would disqualify the Plan or any grant under any law deemed applicable by the Committee, such provision shall be
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construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or grant, such provision shall be stricken as to such jurisdiction, person or grant and the remainder of the Plan and any such grant shall remain in full force and effect.
21. Waiver
You acknowledge that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of this Agreement.
22. Country-Specific Provisions
The grant shall be subject to the additional terms and conditions set forth in Appendix A for your country, if any. Moreover, if you relocate to one of the countries included in Appendix A, the special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Appendix A constitutes part of this Agreement.
23. Imposition of Other Requirements
The Company reserves the right to impose other requirements on your participation in the Plan, on the grant and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
This Agreement is notice of your grant under the Plan and should be kept in a safe place.
EXECUTED AND DELIVERED )
AS A DEED BY CARNIVAL PLC )
ACTING BY A DIRECTOR )
AND THE SECRETARY )
______________________________ ________________________________
Josh Weinstein, Director Arnaldo Perez, Secretary
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APPENDIX A
Country Specific Information
TERMS AND CONDITIONS
This Appendix A includes additional terms and conditions that govern the grant made to you if you reside in one of the countries listed herein. This Appendix A forms part of the Agreement. These terms and conditions are in addition to, or if so indicated, in place of, the terms and conditions in the Agreement.
If you are a citizen or resident of a country other than the one in which you are currently working, are considered a resident of another country for local law purposes or transfer employment and/or residency between countries after the Grant Date, the Company shall, in its sole discretion, determine to what extent the additional terms and conditions included herein will apply to you under these circumstances.
NOTIFICATIONS
This Appendix A also includes information regarding exchange controls, securities laws and certain other issues of which you should be aware with respect to your participation in the Plan. The information is based on the exchange control, securities laws and other laws in effect in the respective countries as of December 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the Plan because the information may be out of date at the time you vest in the grant or when you sell the Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is not in a position to assure you of any particular result. Accordingly, you are advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently working, are considered a resident of another country for local law purposes or transfer employment and/or residency between countries after the Grant Date, the information contained herein may not be applicable in the same manner to you.
Capitalized terms not explicitly defined in this Appendix A but defined in the Agreement or Plan shall have the same definitions as in the Plan and/or the Agreement.
AUSTRALIA
NOTIFICATIONS
Tax Information. The Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act of 1997 (Cth) (the Act) applies (subject to the conditions of the Act).
Australia Offer Document. The offer of the PBS RSUs is intended to comply with the provisions of the Corporations Act 2001, Australian Securities and Investments Commission (ASIC) Regulatory Guide 49 and ASIC Class Order 14/1000. Additional details are set forth in the Offer Document for the Offer of PBS RSUs to Australian Resident Employees.
CHINA
TERMS AND CONDITIONS
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The following terms and conditions will be applicable to you to the extent that the Company, in its sole discretion, determines that your participation in the Plan will be subject to exchange control restrictions in the People’s Republic of China (PRC), as implemented by the PRC State Administration of Foreign Exchange (SAFE):
Vesting. This provision supplements the “Restricted Period” section of the Agreement:
Notwithstanding anything to the contrary in the Agreement, the grant will not vest and no Shares will be issued to you unless and until all necessary exchange control or other approvals with respect to the grant under the Plan are obtained from SAFE or its local counterpart (SAFE Approval), as determined by the Company in its sole discretion. In the event that SAFE Approval has not been obtained, or the Company is unable to maintain its SAFE approval, prior to any date(s) on which the grant is scheduled to vest in accordance with the Vesting Schedule set forth in Appendix A to the Agreement, the grant will not vest until the seventh day of the month following the month in which SAFE Approval is obtained or reinstated (the Actual Vesting Date). If your Employment terminates prior to the Actual Vesting Date, you shall not be entitled to vest in any portion of the grant and the grant shall be forfeited without any liability to the Company, the Employer or any member of the Combined Group and its Affiliates.
If or to the extent the Company is unable to obtain or maintain SAFE Approval, no Shares subject to the PBS RSUs for which SAFE Approval has not been obtained or maintained shall be issued. In this case, the Company retains the discretion to settle any PBS RSUs in cash paid through local payroll in an amount equal to the market value of the Shares subject to the PBS RSUs less any Tax-Related Items; provided, however, that in case the Company is able to obtain or reinstate its SAFE Approval with respect to any PBS RSUs, the cash payment for PBS RSUs not covered by the SAFE Approval shall not be made until the SAFE Approval has been obtained or reinstated.
Settlement of PBS RSUs and Sale of Shares. This provision supplements the “Release of Grant” section of the Agreement:
Notwithstanding anything to the contrary in the Plan or the Agreement, to facilitate compliance with PRC exchange control restrictions you agree that any Shares acquired at settlement of the grant may be immediately sold at settlement or, at the Company’s discretion, at a later time (including when you terminate your Employment for any reason). If, however, the sale of the Shares is not permissible under the Company’s insider trading policy, the Company retains the discretion to postpone the issuance of the Shares subject to the vested grant until such time that the sale is again permissible and to then immediately sell the Shares subject to the grant. You further agree that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the Shares (on your behalf pursuant to this authorization), and you expressly authorize such broker to complete the sale of the Shares. You acknowledge that the Company’s designated broker is under no obligation to arrange for the sale of Shares at any particular price. Upon the sale of the Shares, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to you in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the settlement date and (if later) the date on which the Shares are sold, the sale proceeds may be more or less than the market value of the Shares on the settlement date (which is the amount relevant to determining your tax liability). You understand and agree that the Company is not responsible for the amount of any loss you may incur and that the Company assumes no liability for any fluctuation in the share price and/or United States Dollar exchange rate.
You further agree that any Shares to be issued to you shall be deposited directly into an account with the Company’s designated broker. The deposited Shares shall not be transferable (either electronically or in certificate form) from the brokerage account. This limitation shall apply both to transfers to different accounts with the same broker and to transfers to other brokerage firms. The limitation shall apply to all Shares issued to you
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under the Plan, whether or not you continue to be employed by the Company, the Combined Group or one of its Affiliates.
Exchange Control Restrictions. By accepting the grant, you understand and agree that you will be required to immediately repatriate to China the proceeds from the sale of any Shares acquired under the Plan or from any cash dividends paid or such Shares. You further understand that such repatriation of the proceeds may need to be effected through a special exchange control account established by the Company or any Affiliate, and you hereby consent and agree that the proceeds may be transferred to such account by the Company (or its designated broker) on your behalf prior to being delivered to you. You also acknowledge and understand that there may be a delay between the date the Shares are sold and the date the cash proceeds are distributed to you. You further agree to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Company’s designated broker) to effectuate such transfers.
The proceeds may be paid to you in United States Dollars or local currency, at the Company’s discretion. If the proceeds are paid to you in United States Dollars, you understand that you will be required to set up a United States Dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to you in local currency, (i) you acknowledge that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions, and (ii) you agree to bear any currency fluctuation risk between the time the Shares are sold or dividends are paid and the time the proceeds are converted to local currency and distributed to you. You agree to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
GERMANY
NOTIFICATIONS
Exchange Control Information. Cross-border payments in excess of €12,500 (including transactions made in connection with the sale of securities) must be reported monthly to the German Federal Bank (Bundesbank). If you make or receive a payment in excess of this amount, you must report the payment to Bundesbank electronically using the “General Statistics Reporting Portal” (Allgemeines Meldeportal Statistik) available via Bundesbank’s website (www.bundesbank.de).
Foreign Asset/Account Reporting Information. If your acquisition of Shares under the Plan leads to a so-called qualified participation at any point during the calendar year, you will need to report the acquisition when you file your tax return for the relevant year. A qualified participation is attained if (i) the value of the Shares acquired exceeds EUR 150,000 or (ii) in the unlikely event you hold Shares exceeding 10% of the ordinary shares in the capital of the Company.
HONG KONG
TERMS AND CONDITIONS
Sale Restriction. Shares received at vesting are accepted as a personal investment. In the event that the grant vests and Shares are issued to you (or your legal representatives) within six months of the Grant Date, you (or your legal representatives) agree that the Shares will not be offered to the public or otherwise disposed of prior to the six-month anniversary of the Grant Date.
NOTIFICATIONS
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Securities Law Information. WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of the Agreement, including this Appendix A, or the Plan, you should obtain independent professional advice. Neither the grant of the grant nor the issuance of Shares upon settlement of the grant constitutes a public offering of securities under Hong Kong law and is available only to employees of the Company and members of the Combined Group and its Affiliates. The Agreement, the Plan and other incidental communication materials distributed in connection with the grant have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong and are intended only for the personal use of each eligible employee of the Company or members of the Combined Group and its Affiliates and may not be distributed to any other person.
Nature of Scheme. The Plan is not intended to be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
ITALY
TERMS AND CONDITIONS
Plan Document Acknowledgment. In accepting the grant, you acknowledge that you have received a copy of the Plan and the Agreement, have reviewed the Plan and the Agreement in their entirety and fully understand and accept all provisions of the Plan and the Agreement.
You acknowledge that you have read and specifically and expressly approve the following sections of the Agreement: Restricted Period; Taxation; Nature of Grant; Governing Law; and Language.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If you are an Italian resident and hold investments or financial assets outside Italy (e.g., cash, PBS RSUs, Shares) during any fiscal year which may generate income taxable in Italy (or if you are the beneficial owner of such an investment or asset even if you do not directly hold the investment or asset), you are required to report such investments or assets on your annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if you are not required to file a tax return).
NETHERLANDS
There are no country specific provisions.
SINGAPORE
TERMS AND CONDITIONS
Restrictions on Sale. You agree that, in the event that any portion of the grant vests prior to the six-month anniversary of the Grant Date, you will not sell any Shares acquired at vesting prior to the six-month anniversary of the Grant Date, unless such sale or offer is made pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (SFA).
NOTIFICATIONS
Securities Law Information. The grant is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA under which it is exempt from the prospectus and registration requirements under the SFA and is not made to you with a view to the
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Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore.
Chief Executive Officer and Director Notification Requirement. The Chief Executive Officer (“CEO”) and the directors, associate directors or shadow directors1 of a Singapore Subsidiary or Affiliate are subject to certain notification requirements under the Singapore Companies Act. Specifically, the CEO and directors must notify the Singapore Subsidiary or Affiliate in writing of an interest (e.g., PBS RSUs, Shares, etc.) in the Company or any related company within two business days of (i) its acquisition or disposal, (ii) any change in a previously-disclosed interest (e.g., upon vesting / settlement of the grant or when Shares acquired under the Plan are subsequently sold), or (iii) becoming the CEO or a director.
UNITED KINGDOM
TERMS AND CONDITIONS
Taxation. This provision supplements the “Taxation” section of the Agreement:
Without limitation to the “Taxation” section of this Agreement, if you are a U.K. tax resident, you will be liable for all Tax-Related Items and hereby covenant to pay all such Tax-Related Items as and when requested by the Company or any Affiliate or by Her Majesty's Revenue and Customs (HMRC) (or any other tax authority or any other relevant authority). You also agree to indemnify and keep indemnified the Company and any Affiliate against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on your behalf to HMRC (or any other tax authority or any other relevant authority). Notwithstanding the foregoing, if you are a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), you may not be able to indemnify the Company for the amount of any income tax not collected from or paid by you, in case the indemnification could be considered a loan. In this case, the income tax not collected or paid may constitute a benefit to you on which additional income tax and National Insurance contributions may be payable. You will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer, as applicable, for the value of any employee National Insurance contributions due on this additional benefit, which the Company or the Employer may recover from you by any of the means referred to in this Agreement.
In addition, you agree that the Company and/or the Employer may calculate the income tax to be withheld and accounted for by reference to the maximum applicable rates, without prejudice to any right you may have to recover any overpayment from HMRC or any applicable tax authority.
UNITED STATES
TERMS AND CONDITIONS
Taxation. This provision supplements the “Taxation” section of the Agreement:
Notwithstanding anything in the Agreement to the contrary, the Company may cause a portion of the PBS RSUs to vest prior to the applicable date set forth in the “Restricted Period” section of this Agreement in order to satisfy any Tax-Related Items that arise prior to the date of settlement of the PBS RSUs; provided that to the extent necessary to avoid a prohibited distribution under Section 409A of the Code, the number of PBS RSUs so accelerated and settled shall be with respect to a number of Shares with a value that does not exceed the liability for such Tax-Related Items.
1 A shadow director is an individual who is not on the board of directors of the Singapore Subsidiary or Affiliate, but who has sufficient control so that the board of directors of the Singapore Subsidiary or Affiliate acts in accordance with the directions or instructions of the individual.
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FORM OF 2022 MANAGEMENT INCENTIVE PLAN-TIED
RESTRICTED STOCK UNIT AGREEMENT
FOR THE CARNIVAL CORPORATION 2020 STOCK PLAN
THIS MANAGEMENT INCENTIVE PLAN-TIED RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”) shall apply to the grant of the fiscal 2022 Management Incentive Plan-Tied Restricted Stock Units made to Executives of Carnival Corporation, a corporation organized under the laws of the Republic of Panama, (the “Company”) or executives of an Affiliate, on [GRANT DATE] (the “Grant Date”) under the Carnival Corporation 2020 Stock Plan (the “Plan”).
1. Grant of Management Incentive Plan Tied Restricted Stock Units.
(a) Grant. The Company hereby makes to the Executive the fiscal 2022 Management Incentive Plan-Tied restricted stock unit grant consisting of that number of Management Incentive Plan-Tied restricted stock units (the “MTE RSUs”) set forth in the Executive’s EquatePlus portfolio, on the terms and conditions set forth in the Plan and this Agreement. Each MTE RSU represents the right to receive payment in respect of one Share as of the Settlement Date (as defined below), to the extent the Executive is vested in such MTE RSUs as of the Settlement Date, subject to the terms of this Agreement and the Plan. The MTE RSUs are subject to the restrictions described herein, including forfeiture under the circumstances described in Section 3 hereof (the “Restrictions”). The Restrictions shall lapse and the MTE RSUs shall vest and become nonforfeitable in accordance with Section 2 and Section 3 hereof.
(b) Incorporation by Reference, Etc. The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise expressly set forth herein, this Agreement shall be construed in accordance with the provisions of the Plan and any interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan. The Committee shall have final authority to interpret and construe the Plan and this Agreement, and to make any and all determinations under them, and its decision shall be binding and conclusive upon the Executive and his legal representative in respect of any questions arising under the Plan or this Agreement. In the event there is any inconsistency between the provisions of the Plan and this Agreement, the provisions of the Plan shall govern.
2. Terms and Conditions.
(a) Vesting. Except as otherwise provided in Section 3 hereof, the MTE RSUs shall vest and become non-restricted [VESTING QUANTITY] on [VESTING DATE(S)] or the next market trading day if February 15th falls on a holiday or weekend. Notwithstanding the foregoing, the Committee shall have the authority to remove the Restrictions on the MTE RSUs whenever it may determine that, by reason of changes in applicable laws or other changes in circumstances arising after the Grant Date, such action is appropriate.
(b) Settlement. The obligation to make payments and distributions with respect to MTE RSUs shall be satisfied through the issuance of one Share for each vested and non-restricted MTE RSU, less applicable withholding taxes (the “settlement”), and the settlement of the MTE RSUs may be subject to such conditions, restrictions and contingencies as the Committee shall determine. The MTE RSUs shall be settled on the first trading date occurring on or after the date that the MTE RSUs vest and are non-restricted (as applicable, the “Settlement Date”), except as otherwise provided in Sections 3 and 6 (a).
(c) Dividends and Voting Rights. Each outstanding MTE RSU shall be credited with dividend equivalents equal to the dividends (including extraordinary dividends if so determined by the Committee) declared and paid to shareholders of the Company in respect of one Share. Dividend equivalents shall not bear interest and shall be subject to the same Restrictions as the MTE RSUs to which they are attributable. On the Settlement Date, such dividend equivalents in
respect of each vested MTE RSU shall be settled by delivery to the Executive of a number of Shares equal to the quotient obtained by dividing (i) the aggregate accumulated value of such dividend equivalents by (ii) the Fair Market Value of a Share on the date that is 30 days prior to the applicable vesting date, rounded down to the nearest whole share, less any applicable withholding taxes. No dividend equivalents shall be accrued for the benefit of the Executive with respect to record dates occurring prior to the Grant Date, or with respect to record dates occurring on or after the date, if any, on which the Executive has forfeited the MTE RSUs. The Executive shall have no voting rights with respect to the MTE RSUs or any dividend equivalents.
(d) The dates set forth in this Section 2 (which include by reference Sections 3 and 6(a)) and disregarding any discretionary early release of restrictions in Section 2 for amounts which would not be a short-term deferral pursuant to Section 409A, have been specified for the purpose of complying with Section 409A of the Code. To the extent payments are made during the periods permitted under Section 409A of the Code, the Company shall be deemed to have satisfied its obligations under the Plan and shall not be in breach of its payments obligations hereunder.
3. Termination of Employment or Service with the Company.
(a) Termination by the Company for Cause. If the Executive’s employment or service with the Company or an Affiliate terminates for Cause, then all outstanding MTE RSUs shall immediately terminate on the date of termination of employment or service.
(b) Termination by the Company Not for Cause. If the Executive’s employment is terminated by the Combined Group and its Affiliates other than for Cause (as defined below) (and other than by reason of Disability or pursuant to Section 3(f) below), then the Executive shall be deemed to have vested on the date of termination in a number of MTE RSUs equal to the product of (i) the number of MTE RSUs granted multiplied by (ii) a fraction, the numerator of which is the number of days elapsed during the period commencing on the Grant Date through and including the date of termination, and the denominator of which is [NUMBER OF DAYS IN VESTING PERIOD] rounded down to the nearest whole MTE RSU, and the remaining unvested portion of the MTE RSUs shall terminate on the date of termination of employment or service. These MTE RSUs shall vest in accordance with the schedule set forth in Section 2(a) and shall be settled in accordance with Section 2(b) (without regard to the requirement that Executive remain employed by a member of the Combined Group or an Affiliate).
(c) Death or Disability. If the Executive’s employment or service with the Company or an Affiliate terminates by reason of his or her death or Disability, the Restrictions shall lapse as to 100% of the MTE RSUs and the MTE RSUs shall fully vest and become non-restricted on the date of termination and shall be settled in accordance with Section 2(b).
(d) Termination Upon Attaining Retirement Age for US Taxpayers. With respect to a termination to occur on or after attaining Retirement Age, if (i) the Participant provides three months advance notice of resignation in writing via email to ownership@carnival.com (or by other means deemed acceptable by the Company) and completes such service or (ii) is involuntarily terminated without cause, then the MTE RSUs shall be fully vested on the date of termination and shall become non-restricted and be settled on a date selected by the Company provided such date falls within permitted section 409A and section 457A short-term deferral periods. If notice of resignation and applicable service is not provided, then the MTE RSUs shall be governed by 3(f) below.
(e) Termination Upon Attaining Retirement Age for Non-US Taxpayers. The MTE RSUs shall become non-forfeitable upon the Participant’s attainment of Retirement Age while in the employ of the Company or an Affiliate but shall remain subject to all other Restrictions.
(f) Termination After Change in Control. In accordance with Section 13(a) of the Plan, if the Executive’s employment is terminated by the Combined Group and its Affiliates other
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than for Cause upon or within 12 months following a Change in Control, the Restrictions shall lapse as to 100% of the MTE RSUs and the MTE RSUs shall fully vest on the date of termination and shall be settled in accordance with Section 2(b) without regard to Section 2(a).
(g) Other Termination. If the Executive’s employment or service with the Company terminates for any reason other than as otherwise described in the foregoing provisions of this Section 3 (whether due to voluntary termination or otherwise), then all outstanding MTE RSUs shall immediately terminate on the date of termination of employment or service.
(h) Breach of Restrictive Covenants. Notwithstanding anything herein to the contrary, no release of MTE RSUs shall be made, and all unreleased MTE RSUs issued hereunder and all rights under this Agreement shall be forfeited, if (i) the Executive shall engage in competition, as more particularly described in Section 4, or (ii) the Executive violates the nondisclosure provisions set forth in Section 5.
(i) Released MTE RSUs. Following Executive’s termination of employment or service with the Company or an Affiliate for any reason, the Executive (or the Executive’s beneficiary or legal representative, if applicable) must provide for all Stock underlying released MTE RSUs (including those issued under this Agreement as well as Shares underlying released MTE RSUs issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) Executive’s date of termination or (ii) the latest Settlement Date or other applicable vesting or settlement date (whether under this Agreement or a similar agreement) occurring following the Executive’s termination. If the Executive (or the Executive’s beneficiary, as applicable) fails to liquidate or transfer the Stock prior to the end of the applicable six month period, the Company is hereby authorized and directed by the Executive either, in the Company’s discretion: (i) to sell any such remaining Stock on the Executive’s (or the Executive’s beneficiary’s) behalf on the first trading date following the end of such period on which the Company is not prohibited from selling such Stock; or (ii) to transfer such Shares to the Company’s stock transfer agent for registration in the Executive’s (or the Executive’s beneficiary’s) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Stock underlying the released MTE RSUs in connection with such liquidation or transfer.
4. Non-Competition. The services of the Executive are unique, extraordinary and essential to the business of the Combined Group and its Affiliates. Accordingly, in consideration of the MTE RSUs granted hereunder, the Executive agrees that he/she will not, without the prior written approval of the Board, at any time during the term of his/her employment with the Combined Group or its Affiliates and (except as provided below) for the then remaining duration of the Restrictions on the MTE RSUs, if any, following the date on which the Executive’s employment with the Combined Group or its Affiliates terminates, directly or indirectly, within the cruise industry wherever located, engage in any business activity directly or indirectly competitive with the business of the Combined Group or its Affiliates, or serve as an officer, director, owner, consultant, or employee of any organization then in competition with the Combined Group or its Affiliates. In addition, the Executive agrees that during such restricted period following his/her employment with the Combined Group or its Affiliates, he/she will not solicit, either directly or indirectly, any employee of the Combined Group or its Affiliates, its subsidiaries or division, who was such at the time of the Executive’s separation from employment hereunder. In the event that the provisions of this Section 4 should ever be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by applicable law.
5. Non-Disclosure. The Executive expressly agrees and understands that Combined Group or its Affiliates own and/or control information and material which is not generally available to third parties and which Combined Group or its Affiliates consider confidential, including, without limitation, methods, products, processes, customer lists, trade secrets and other information
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applicable to its business and that it may from time to time acquire, improve or produce additional methods, products, processes, customers lists, trade secrets and other information (collectively, the ”Confidential Information”). The Executive hereby acknowledges that each element of the Confidential Information constitutes a unique and valuable asset of Combined Group or its Affiliates, and that certain items of the Confidential Information have been acquired from third parties upon the express condition that such items would not be disclosed to Combined Group or its Affiliates and its officers and agents other than in the ordinary course of business. The Executive hereby acknowledges that disclosure of Combined Group or its Affiliates’ Confidential Information to and/or use by anyone other than in Combined Group or its Affiliates’ ordinary course of business would result in irreparable and continuing damage to Combined Group or its Affiliates. Accordingly, the Executive agrees to hold the Confidential Information in the strictest secrecy, and covenants that, during the term of his/her employment with Combined Group or its Affiliates (or any member of the Combined Group or its Affiliates) or at any time thereafter, he/she will not, without the prior written consent of the Board, directly or indirectly, allow any element of the Confidential Information to be disclosed, published or used, nor permit the Confidential Information to be discussed, published or used, either by himself or by any third parties, except in effecting Executive’s duties for Combined Group or its Affiliates in the ordinary course of business. The Executive agrees to keep all such records in connection with the Executive’s employment as Combined Group or its Affiliates may direct, and all such records shall be the sole and absolute property of Combined Group or its Affiliates. The Executive further agrees that, within five (5) days of Combined Group or its Affiliates’ request, he/she shall surrender to Combined Group or its Affiliates any and all documents, memoranda, books, papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen records, customer lists, activity reports, video or audio recordings, computer programs and any and all other data and information and any and all copies thereof relating to Combined Group or its Affiliates’ business or any Confidential Information.
Notwithstanding the foregoing, nothing in this Agreement prohibits the Executive from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, the Executive shall not be held criminally, or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Executive may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if the Executive files a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, the Executive may disclose the trade secret to the Executive’s attorney and use the trade secret in the court proceeding, if the Executive files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
6. Miscellaneous.
(a) Compliance with Legal Requirements. The granting and settlement of the MTE RSUs, and any other obligations of the Company under this Agreement, shall be subject to all applicable federal, state, local and foreign laws, rules and regulations and to such approvals by any regulatory or governmental agency as may be required. If the settlement of the MTE RSUs would be prohibited by law, the settlement shall be delayed until the earliest date on which the settlement would not be so prohibited.
(b) Transferability. Unless otherwise provided by the Committee in writing, the MTE RSUs shall not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Executive other than by will or the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company; provided, that, the designation of a beneficiary
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shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(c) Tax Withholding. The Executive acknowledges that, regardless of any action taken by the Company or, if different, the Executive’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Executive’s participation in the Plan and legally applicable to the Executive (Tax-Related Items), is and remains the Executive’s responsibility and may exceed the amount, if any, actually withheld by the Company or the Employer. The Executive further acknowledges that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the MTE RSUs, including, but not limited to, the grant, vesting or settlement of the MTE RSUs, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the MTE RSUs to reduce or eliminate the Executive’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Executive is subject to Tax-Related Items in more than one jurisdiction, the Executive acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, the Executive agrees to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, the Executive authorizes the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from the Executive’s wages or other cash compensation paid to the Executive by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the MTE RSUs either through a voluntary sale or through a mandatory sale arranged by the Company (on the Executive’s behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the MTE RSUs. Further, notwithstanding anything herein to the contrary, the Company may cause a portion of the MTE RSUs to vest prior to the applicable date set forth in Sections 2 or 3 of this Agreement in order to satisfy any Tax-Related Items that arise prior to the date of settlement of the MTE RSUs; provided that to the extent necessary to avoid a prohibited distribution under Section 409A of the Code, the number of MTE RSUs so accelerated and settled shall be with respect to a number of Shares with a value that does not exceed the liability for such Tax-Related Items.
Notwithstanding the foregoing, if the Executive is an officer subject to Section 16 of the Exchange Act, the Company will not withhold in Shares upon the relevant taxable or tax withholding event other than where U.S. federal tax withholding is required upon lapse of the forfeiture restrictions pursuant to Sections 3(b), (d) or 3(e) of this Agreement, or if otherwise approved in advance by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax- Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Executive will receive a refund of any over-withheld amount in cash and will have no entitlement to the Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, the Executive is deemed to have been issued the full number of Shares subject to the vested Award, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, the Executive agrees to pay to the Company or the Employer any amount of Tax- Related Items that the Company or the Employer may be required to withhold or account for as a result of the Executive’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of
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Shares, if the Executive fails to comply with the Executive’s obligations in connection with the Tax-Related Items.
(d) Nature of Grant. In accepting the grant, the Executive acknowledges, understands and agrees that:
(i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(ii) the grant of the MTE RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of MTE RSUs, or benefits in lieu of MTE RSUs, even if MTE RSUs have been granted in the past;
(iii) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
(iv) the Executive is voluntarily participating in the Plan;
(v) the MTE RSUs and the Shares subject to the MTE RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation;
(vi) the MTE RSUs and the Shares subject to the MTE RSUs, and the income from and value of same, are not part of normal or expected compensation for purposes of, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
(vii) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
(viii) no claim or entitlement to compensation or damages shall arise from forfeiture of the MTE RSUs resulting from the termination of the Executive’s employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Executive is employed or the terms of the Executive’s employment agreement, if any);
(ix) unless otherwise agreed with the Company, the MTE RSUs and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service the Executive may provide as a director of the Company or any member of the Combined Group and its Affiliates;
(x) unless otherwise provided in the Plan or by the Company in its discretion, the MTE RSUs and the benefits evidenced by this Agreement do not create any entitlement to have the MTE RSUs or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
(xi) if the Executive resides outside the United States or is otherwise subject to the laws of a country outside the United States:
(A) the MTE RSUs and the Shares subject to the MTE RSUs, and the income from and value of same, are not part of normal or expected compensation for any purpose; and
(B) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between
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the Executive’s local currency and the United States Dollar that may affect the value of the MTE RSUs or of any amounts due to the Executive pursuant to the settlement of the MTE RSUs or the subsequent sale of any Shares acquired upon settlement.
(e) No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding the Executive’s
participation in the Plan, or the Executive’s acquisition or sale of the underlying Shares. The Executive should consult with the Executive’s own personal tax, legal and financial advisors regarding the Executive’s participation in the Plan before taking any action related to the Plan.
(f) Clawback/Forfeiture. Notwithstanding anything to the contrary contained herein, in the case of fraud, negligence, intentional or gross misconduct or other wrongdoing on the part of Executive (or any other event or circumstance set forth in any clawback policy implemented by the Company, including, without limitation, any clawback policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) that results in a material restatement of the Company’s issued financial statements, such Executive will (i) forfeit any unvested MTE RSUs and (ii) be required to reimburse the Company for all or a portion, as determined by the Committee in its sole discretion, of any income or gain realized on the settlement of the MTE RSUs or the subsequent sale of Shares acquired upon settlement of the MTE RSUs with respect to any fiscal year in which the Company’s financial results are negatively impacted by such restatement. The Executive agrees to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding grants, under the Dodd- Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Grant Date and the Company shall promptly notify the Executive of such additional provision. In addition, if a Executive has engaged or is engaged in Detrimental Activity after the Executive’s employment or service with the Company or its subsidiaries has ceased, then the Executive, within 30 days after written demand by the Company, shall return any income or gain realized on the settlement of the MTE RSUs or the subsequent sale of Shares acquired upon settlement of the MTE RSUs.
(g) Code Section 409A. To the extent that the Executive is subject to U.S. federal tax and the MTE RSUs are considered “nonqualified deferred compensation” subject to Section 409A of the Code: (i) references in this Agreement to “termination of employment” or “termination of service” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code; and (ii) if the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, any settlement of the MTE RSUs upon the Executive’s separation from service shall be made to the Executive on the first trading date following the date that is six months after the date of the Executive’s separation from service or, if earlier, the Executive’s date of death. For purposes of Section 409A of the Code, each payment that may be made in respect of the MTE RSUs is designated as a separate payment.
(h) No Rights as Stockholder. The Executive shall not be deemed for any purpose to be the owner of any Shares subject to the MTE RSUs. The Company shall not be required to set aside any fund for the payment of the MTE RSUs.
(i) Waiver. Any right of the Company contained in this Agreement may be waived in writing by the Committee. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach.
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(j) Notices. Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Executive, at the Executive’s address indicated by the Company’s records, or if to the Company, at the Company’s principal executive office.
(k) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(l) No Rights to Continued Employment. Nothing in the Plan or in this Agreement shall be construed as giving the Executive any right to be retained, in any position, as an employee, consultant or director of the Company or its Affiliates or shall interfere with or restrict in any way the right of the Company or its Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Executive at any time for any reason whatsoever. The rights and obligations of the Executive under the terms and conditions of the Executive’s office or employment shall not be affected by this Agreement. The Executive waives all and any rights to compensation and damages in consequence of the termination of the Executive’s office or employment with any member of the Combined Group or any of its Affiliates for any reason whatsoever (whether lawfully or unlawfully) insofar as those rights arise, or may arise, from the Executive’s ceasing to have rights under or the Executive’s entitlement to the MTE RSUs under this Agreement as a result of such termination or from the loss or diminution in value of such rights or entitlements. In the event of conflict between the terms of this Section 6(l) and the Executive’s terms of employment, this Section will take precedence.
(m) Beneficiary. In the event of the Executive’s death, any Shares that vest pursuant to Section 3(b) of this Agreement will be issued to the legal representative of the Executive’s estate.
(n) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of the Executive and the beneficiaries, legal representatives, executors, administrators, heirs and successors of the Executive.
(o) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein and supersede all prior communications, representations and negotiations in respect thereto. No change, modification or waiver of any provision of this Agreement shall be valid unless the same be in writing and signed by the parties hereto, except for any changes permitted without consent of the Executive in accordance with the Plan.
(p) Governing Law; JURY TRIAL WAIVER. This Agreement shall be construed and interpreted in accordance with the laws of the State of Florida without regard to principles of conflicts of law thereof, or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Florida. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
(q) Data Protection. The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose the Executive’s Personal Information for the purpose of implementing, administering and managing the Executive’s participation in the Plan, in
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accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice the Executive previously received. (The Executive should contact ownership@carnival.com if he or she would like to receive another copy of this notice.) For example, the Executive’s Personal Information may be directly or indirectly transferred to Equatex AG or any other stock plan service provider as may be selected by the Company, and any other third parties assisting the Company with the implementation, administration and management of the Plan.
(r) Insider Trading/Market Abuse Laws. The Executive may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and the Executive’s country, which may affect the Executive’s ability to directly or indirectly, for his- or her- self or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times as the Executive is considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and the Executive’s country), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Executive placed before the Executive possessed inside information. Furthermore, the Executive could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. The Executive acknowledges that it is the Executive’s responsibility to be informed of and compliant with such regulations, and the Executive should speak to the Executive’s personal advisor on this matter.
(s) Foreign Asset/Account, Exchange Control and Tax Reporting. The Executive may be subject to foreign asset/account, exchange control and/or tax reporting requirements as a result of the acquisition, holding and/or transfer of Shares or cash (including dividends, dividend equivalents and the proceeds arising from the sale of Shares) derived from the Executive’s participation in the Plan, to and/or from a brokerage/bank account or legal entity located outside the Executive’s country. The applicable laws of the Executive’s country may require that the Executive report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the applicable authorities in such country. The Executive also may be required to repatriate sale proceeds or other funds received as a result of his or her participation in the Plan to the Executive’s country through a designated bank or broker within a certain time after receipt. The Executive acknowledges that the Executive is responsible for ensuring compliance with any applicable foreign asset/account, exchange control and tax reporting requirements and should consult the Executive’s personal legal advisor on this matter.
(t) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.
(u) Language. The Executive acknowledges that he or she is proficient in the English language or has consulted with an advisor who is sufficiently proficient, so as to allow him or her to understand the terms and conditions of this Agreement. If the Executive has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
(v) Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Executive hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
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(w) Country-Specific Provisions. The MTE RSUs shall be subject to the additional terms and conditions set forth in Appendix A to this Agreement for the Executive's country, if any. Moreover, if the Executive relocates to one of the countries included in Appendix A, the terms and conditions for such country will apply to the Executive, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons.
(x) Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Executive's participation in the Plan, on the MTE RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Executive to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day first written above.
CARNIVAL CORPORATION
By: _________________________
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APPENDIX A
Country Specific Information
TERMS AND CONDITIONS
This Appendix A includes additional terms and conditions that govern the Award granted to the Executive if the Executive resides in one of the countries listed herein. This Appendix A forms part of the Agreement. These terms and conditions are in addition to, or if so indicated, in place of, the terms and conditions in the Agreement.
If the Executive is a citizen or resident of a country other than the one in which the Executive is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the Company shall, in its sole discretion, determine to what extent the additional terms and conditions included herein will apply to the Executive under these circumstances.
NOTIFICATIONS
This Appendix A also includes information regarding exchange controls, securities laws and certain other issues of which the Executive should be aware with respect to the Executive's participation in the Plan. The information is based on the exchange control, securities laws and other laws in effect in the respective countries as of December 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that the Executive not rely on the information noted herein as the only source of information relating to the consequences of the Executive's participation in the Plan because the information may be out of date at the time the Executive vests in the Award or when the Executive sell the Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to the Executive's particular situation, and the Company is not in a position to assure the Executive of any particular result. Accordingly, the Executive is advised to seek appropriate professional advice as to how the relevant laws in the Executive's country may apply to the Executive's situation.
Finally, if the Executive is a citizen or resident of a country other than the one in which the Executive is currently working, is considered a resident of another country for local law purposes or transfers employment and/or residency between countries after the Grant Date, the information contained herein may not be applicable in the same manner to the Executive.
Capitalized terms not explicitly defined in this Appendix A but defined in the Agreement or Plan shall have the same definitions as in the Plan and/or the Agreement.
AUSTRALIA
NOTIFICATIONS
Tax Information. The Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act of 1997 (Cth) (the “Act”) applies (subject to the conditions of the Act).
Securities Law Information. If the Executive acquires Shares under the Plan and offers the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. The Executive should consult with the Executive’s legal advisor before making any such offer in Australia.
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CHINA
TERMS AND CONDITIONS
The following terms and conditions will be applicable to the Executive to the extent that the Company, in its sole discretion, determines that the Executive's participation in the Plan will be subject to exchange control restrictions in the People’s Republic of China (“PRC”), as implemented by the PRC State Administration of Foreign Exchange (“SAFE”):
Vesting. This provision supplements Section 2(a) - Vesting of the Agreement:
Notwithstanding anything to the contrary in the Agreement, the Award will not vest and no Shares will be issued to the Executive unless and until all necessary exchange control or other approvals with respect to the Award under the Plan are obtained from SAFE or its local counterpart (“SAFE Approval”), as determined by the Company in its sole discretion. In the event that SAFE Approval has not been obtained, or the Company is unable to maintain its SAFE Approval, prior to any date(s) on which the Award is scheduled to vest, the Award will not vest until the seventh day of the month following the month in which SAFE Approval is obtained or reinstated (the “Actual Vesting Date”). If the Executive's employment terminates prior to the Actual Vesting Date, the Executive shall not be entitled to vest in any portion of the Award and the Award shall be forfeited without any liability to the Company, the Employer or any member of the Combined Group and its Affiliates.
If or to the extent the Company is unable to obtain or maintain SAFE Approval, no Shares subject to the MTE RSUs for which SAFE Approval has not been obtained or maintain shall be issued. In this case, the Company retains the discretion to settle any MTE RSUs in cash paid through local payroll in an amount equal to the market value of the Shares subject to the MTE RSUs less any Tax-Related Items; provided, however, that in case the Company is able to obtain or reinstate its SAFE Approval with respect to any MTE RSUs, the cash payment for MTE RSUs not covered by the SAFE Approval shall not be made until the SAFE Approval has been obtained or reinstated.
Settlement of MTE RSUs and Sale of Shares. This provision supplements Section 2(b) - Settlement of the Agreement:
Notwithstanding anything to the contrary in the Plan or the Agreement, to facilitate compliance with PRC exchange control restrictions the Executive agrees that any Shares acquired at settlement of the Award may be immediately sold at settlement or, at the Company’s discretion, at a later time (including when the Executive's employment terminates for any reason). If, however, the sale of the Shares is not permissible under the Company’s insider trading policy, the Company retains the discretion to postpone the issuance of the Shares subject to the vested Award until such time that the sale is again permissible and to then immediately sell the Shares subject to the Award. The Executive further agrees that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the Shares (on the Executive's behalf pursuant to this authorization), and the Executive expressly authorizes such broker to complete the sale of the Shares. The Executive acknowledges that the Company’s designated broker is under no obligation to arrange for the sale of Shares at any particular price. Upon the sale of the Shares, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to the Executive in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the settlement date and (if later) the date on which the Shares are sold, the sale proceeds may be more or less than the fair market value of the Shares on the settlement date (which is the amount relevant to determining the Executive's tax liability). The Executive understands and agrees that the Company is not responsible for the amount of any loss the Executive may incur and that the Company assumes no liability for any fluctuation in the share price and/or United States Dollar exchange rate.
The Executive further agrees that any Shares to be issued to the Executive shall be deposited directly into an account with the Company’s designated broker. The deposited shares shall not be transferable (either electronically or in certificate form) from the brokerage account. This limitation shall apply both to transfers to different accounts with the same broker and to transfers to other brokerage firms. The limitation shall apply to all Shares issued to the Executive under the Plan, whether or not the Executive continues to be employed by the Company, the Combined Group or one of its Affiliates.
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Exchange Control Restrictions. By accepting the Award, the Executive understands and agrees that the Executive will be required to immediately repatriate to China the proceeds from the sale of any Shares acquired under the Plan or from any cash dividends paid on such Shares. The Executive further understands that such repatriation of the proceeds may need to be effected through a special exchange control account established by the Company or any Affiliate, and the Executive hereby consents and agrees that the proceeds may be transferred to such account by the Company (or its designated broker) on the Executive's behalf prior to being delivered to the Executive. The Executive also acknowledges and understands that there may be a delay between the date the Shares are sold and the date the cash proceeds are distributed to the Executive. The Executive further agrees to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Company’s designated broker) to effectuate such transfers.
The proceeds may be paid to the Executive in United States Dollars or local currency, at the Company’s discretion. If the proceeds are paid to the Executive in United States Dollars, the Executive understands that the Executive will be required to set up a United States Dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to the Executive in local currency, (i) the Executive acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions, and (ii) the Executive agrees to bear any currency fluctuation risk between the time the Shares are sold or dividends are paid and the time the proceeds are converted to local currency and distributed to the Executive. The Executive agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
GERMANY
NOTIFICATIONS
Exchange Control Information. Cross-border payments in excess of €12,500 (including transactions made in connection with the sale of securities) must be reported monthly to the German Federal Bank (“Bundesbank”). If the Executive makes or receives a payment in excess of this amount, the Executive must report the payment to Bundesbank electronically using the “General Statistics Reporting Portal” (Allgemeines Meldeportal Statistik) available via Bundesbank’s website (www.bundesbank.de).
Foreign Asset/Account Reporting Information. If the Executive’s acquisition of Shares under the Plan leads to a so-called qualified participation at any point during the calendar year, he or she will need to report the acquisition when the Executive files his or her tax return for the relevant year. A qualified participation is attained if (i) the value of the Shares acquired exceeds EUR 150,000 or (ii) in the unlikely event the Executive holds Shares exceeding 10% of the Company’s Common Stock.
HONG KONG
TERMS AND CONDITIONS
Sale Restriction. Shares received at vesting are accepted as a personal investment. In the event that the Award vests and Shares are issued to the Executive (or the Executive's legal representatives) within six months of the Grant Date, the Executive (or the Executive's legal representatives) agrees that the Shares will not be offered to the public or otherwise disposed of prior to the six-month anniversary of the Grant Date.
NOTIFICATIONS
Securities Law Information. WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. The Executive is advised to exercise caution in relation to the offer. If the Executive is in any doubt about any of the contents of the Agreement, including this Appendix A, or the Plan, the Executive should obtain independent professional advice. Neither the grant of the Award nor the issuance of Shares upon settlement of the Award constitutes a public offering of securities under Hong Kong law and is available only to employees of the Company and members of the Combined Group and its Affiliates. The Agreement, the Plan and other incidental communication materials distributed in connection with the Award have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in
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Hong Kong and are intended only for the personal use of each eligible employee of the Company or members of the Combined Group and its Affiliates and may not be distributed to any other person.
Nature of Scheme. The Plan is not intended to be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
ITALY
TERMS AND CONDITIONS
Plan Document Acknowledgment. In accepting the Award, the Executive acknowledges that the Executive has received a copy of the Plan and the Agreement, has reviewed the Plan and the Agreement in their entirety and fully understands and accepts all provisions of the Plan and the Agreement.
The Executive acknowledges that the Executive has read and specifically and expressly approve the following sections of the Agreement: Section 2 - Terms and Conditions; Section 3 - Termination of Employment or Service with the Company; Section 6(c) - Tax Withholding; Section 6(d) - Nature of Grant; Section 6(p) - Governing Law; JURY TRIAL WAIVER; and Section 6(t) - Language.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If the Executive is an Italian resident and holds investments or financial assets outside Italy (e.g., cash, MTE RSUs, Shares) during any fiscal year which may generate income taxable in Italy (or if the Executive is the beneficial owner of such an investment or asset even if the Executive does not directly hold the investment or asset), the Executive is required to report such investments or assets on the Executive's annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if the Executive is not required to file a tax return).
NETHERLANDS
There are no country specific provisions.
SINGAPORE
TERMS AND CONDITIONS
Restrictions on Sale. The Executive agrees that, in the event that any portion of the Award vests prior to the six-month anniversary of the Grant Date, the Executive will not sell any Shares acquired at vesting prior to the six-month anniversary of the Grant Date, unless such sale or offer is made pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”).
NOTIFICATIONS
Securities Law Information. The grant of the Award is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA under which it is exempt from the prospectus and registration requirements under the SFA and is not made to the Executive with a view to the Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore.
Chief Executive Officer and Director Notification Requirement. The Chief Executive Officer (“CEO”) and the directors, associate directors or shadow directors1 of a Singapore Subsidiary or Affiliate are subject to certain notification requirements under the Singapore Companies Act. Specifically, the CEO and directors must notify the Singapore Subsidiary or Affiliate in writing of an interest (e.g., MTE RSUs, Shares, etc.) in the Company or any related company within two business days of (i) its acquisition or disposal, (ii) any change in a previously- disclosed interest (e.g., upon vesting / settlement of the Award or when Shares acquired under the Plan are subsequently sold), or (iii) becoming the CEO or a director.
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1 A shadow director is an individual who is not on the board of directors of the Singapore Subsidiary or Affiliate, but who has sufficient control so that the board of directors of the Singapore Subsidiary or Affiliate acts in accordance with the directions or instructions of the individual.
UNITED KINGDOM
TERMS AND CONDITIONS
This provision supplements Section 6(c) - Tax Withholding of the Agreement:
Tax Withholding. Without limitation to Section 6(c) of the Agreement, the Executive agrees that the Executive is liable for all Tax-Related Items and hereby covenants to pay all such Tax- Related Items as and when requested by the Company or any Affiliate or by Her Majesty's Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority).
The Executive also agrees to indemnify and keep indemnified the Company and any Affiliate against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on the Executive’s behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, if the Executive is a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), the Executive understands that he or she may not be able to indemnify the Company for the amount of any income tax not collected from or paid by the Executive, in case the indemnification could be considered a loan. In this case, the income tax not collected or paid may constitute a benefit to the Executive on which additional income tax and National Insurance contributions may be payable. The Executive will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer, as applicable, for the value of any employee National Insurance contributions due on this additional benefit, which the Company or the Employer may recover from the Executive by any of the means referred to in this Agreement.
In addition, the Executive agrees that the Company and/or the Employer may calculate the income tax to be withheld and accounted for by reference to the maximum applicable rates, without prejudice to any right the Executive may have to recover any overpayment from HMRC or any applicable tax authority.
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C A R N I V A L
plc
Form of 2022 Management Incentive Plan-Tied Restricted Share Unit
Grant Agreement for the Carnival plc 2014 Employee Share Plan (the Plan)
Conditional Right to Receive
This Management Incentive Plan-Tied Restricted Share Unit Grant Agreement (the Agreement) shall apply to the grant of the fiscal 2022 Management Incentive Plan Tied Restricted Share Units made to select Executives of Carnival plc (the Company), on [GRANT DATE] (the Grant Date) under the Carnival plc 2014 Employee Share Plan (the Plan).
The Company hereby makes to you a Management Incentive Plan-Tied restricted share unit (the MTE RSUs) grant consisting of that number of MTE RSUs set forth in your EquatePlus portfolio, on the terms and conditions set forth in the Plan and this Agreement. In the event of any inconsistency, the rules of the Plan shall take precedence. Any capitalized terms not otherwise defined in this Agreement shall have the definitions set forth in the Plan.
1. Nature of Grant
Each MTE RSU comprised in your grant is equivalent to a hypothetical investment in one ordinary share of $1.66 each in the capital of the Company (a Share). Your grant is in the form of a conditional right to acquire the number of Shares equal to the number of MTE RSUs comprised in your grant at a nil cost.
You will have no beneficial interest in any Shares during the Restricted Period.
2. Restricted Period
Your grant is subject to a Restricted Period. In this case, the Restricted Period on the MTE RSUs shall expire as to [VESTING QUANTITY] of the TBS RSUs on [VESTING DATE(S)] or on the next market day if such date falls on a weekend, or UK or US market holiday.
Generally, your grant will be forfeited automatically on you ceasing to be an employee of the plc Group (whether lawfully or unlawfully) before the expiry of the Restricted Period. However, upon the termination of your employment with the Combined Group or an Affiliate due to death, Disability or Retirement or as otherwise set forth in subsections c) and d) below, the grant shall be released according to the following, unless and until you engage in competition in violation of the Competition and Nondisclosure provisions below:
a) In the event you terminate by reason of death or Disability, the Restricted Period shall lapse on the date of your death or Disability.
b) In the event you terminate by reason of Retirement, the MTE RSUs shall become non-forfeitable, but shall remain subject to all other restrictions until the end of the Restricted Period.
c) In the event a member of the Combined Group or an Affiliate terminates your employment with such company for a reason other than for Cause and other than in the circumstances set forth in subsection d) below, you shall be deemed to have vested on the date of termination in a number of MTE RSUs equal to the product of (i) the number of MTE RSUs granted multiplied by (ii) a fraction, the numerator of which is the number of days elapsed during the period commencing on the Grant Date through and including the date of termination, and the denominator of which is [NUMBER OF DAYS IN THE RESTRICTED PERIOD], rounded down to the nearest whole MTE RSU, and the remaining unvested portion of the MTE RSUs shall terminate on the date of termination of employment or service. The Restricted Period for these MTE RSUs shall lapse as set forth in the first paragraph of this Section 2.
d) In accordance with Section 12(a) of the Plan, in the event a member of the Combined Group or an Affiliate terminates your employment with such company other than for Cause upon or within 12 months following a Change in Control, the Restricted Period shall lapse on the date of your termination of employment.
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Notwithstanding anything herein to the contrary, but subject to the above, no release of the grant shall be made, and all rights to this grant shall be forfeited, if any of the following events shall occur:
a) Your employment with the Combined Group or an Affiliate is terminated for Cause. For purposes of this Agreement, “Cause” shall be defined set forth in the Plan;
b) You voluntarily terminate employment with the Combined Group or an Affiliate prior to Retirement unless such voluntary termination is directly related to death or Disability;
c) You engage in competition, as more particularly described below, either (i) during the term of your employment with the Combined Group or an Affiliate; (ii) following your voluntary termination of employment with the Combined Group or an Affiliate; or (iii) following the employing company’s termination of your employment for any reason; or
d) You violate the nondisclosure provisions set forth below.
3. Release of Grant
You will be deemed to have called for the release of your grant on the date on which your grant vests following expiration of the Restricted Period and attainment of the vesting criteria set out in the Restricted Period clause above unless the release of your grant would be prohibited by law, the Model Code for Securities Transactions by Directors of Listed Companies or the Company’s dealing code. In such a case you will be deemed to have called for the release of your grant on the first date following vesting of your grant on which the release of your grant would not be prohibited. This grant may only be settled in Shares.
4. Dividends
The Compensation Committee has determined that on each occasion on which a dividend is paid in respect of one Share, a notional amount of cash and shares equal to the cash and share dividend paid in respect of one Share will be credited to each MTE RSU comprised in your grant (the Dividend Equivalents). Dividend Equivalents will be withheld by the Company for your account and will be distributed to you in the form of additional Shares on settlement of your grant. If your grant is forfeited, you will have no entitlement to such Dividend Equivalents.
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5. Taxation
You acknowledge that, regardless of any action taken by the Company or, if different, your employer (the Employer), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable to you (Tax-Related Items), is and remains your responsibility and may exceed the amount actually withheld by the Company or the Employer. You further acknowledge that the Company and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the grant, including, but not limited to, the grant, vesting or settlement of the grant, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or any Dividend Equivalents; and (2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the grant to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to Tax-Related Items in more than one jurisdiction, you acknowledge that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, you agree to make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. In this regard, you authorize the Company or its agent to satisfy any applicable withholding obligations with regard to all Tax-Related Items by one or a combination of the following: (i) withholding from your wages or other cash compensation paid to you by the Company and/or the Employer; or (ii) withholding from proceeds of the sale of Shares acquired upon settlement of the grant either through a voluntary sale or through a mandatory sale arranged by the Company (on your behalf pursuant to this authorization without further consent); or (iii) withholding in Shares to be issued upon settlement of the grant.
Notwithstanding the foregoing, if you are an officer subject to Section 16 of the Exchange Act, the Company will not withhold in Shares upon the relevant taxable or tax withholding event other than in the event that U.S. federal tax withholding is required upon lapse of the forfeiture restrictions pursuant to subsections (b), (c) or (d) in the “Restricted Period” section of this Agreement, or if otherwise approved in advance by the Committee or the Board.
Depending on the withholding method, the Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case you may receive a refund of any over-withheld amount in cash and will have no entitlement to the Share equivalent. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, you are deemed to have been issued the full number of Shares subject to the vested grant, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items.
Finally, you agree to pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of your participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Shares or the proceeds of the sale of Shares if you fail to comply with your obligations in connection with the Tax-Related Items.
6. Nature of Grant
In accepting the grant, you acknowledge, understand and agree that:
e) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
b) the grant of your grant is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of MTE RSUs, or benefits in lieu of MTE RSUs, even if MTE RSUs have been granted in the past;
c) all decisions with respect to future awards or other grants, if any, will be at the sole discretion of the Company;
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d) the grant and your participation in the Plan shall not create a right to employment or be interpreted as forming or amending an employment or service contract with the Company, the Employer, or any member of the Combined Group and its Affiliates and shall not interfere with the ability of the Company, the Employer or any member of the Combined Group and its Affiliates, as applicable, to terminate your employment or service relationship (if any);
e) you are voluntarily participating in the Plan;
f) the grant and the Shares subject to the grant, and the income from and value of same, are not intended to replace any pension rights or compensation;
g) the grant and the Shares subject to the grant, and the income from and value of same, are not part of normal or expected compensation for any purpose, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;
h) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;
i) no claim or entitlement to compensation or damages shall arise from forfeiture of the grant resulting from the termination of your employment or other service relationship (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any);
j) unless otherwise agreed with the Company, the grant and the Shares, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of the Company or any member of the Combined Group and its Affiliates;
k) unless otherwise provided in the Plan or by the Company in its discretion, the grant, and the benefits evidenced by this Agreement do not create any entitlement to have the grant or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the shares of the Company; and
l) neither the Company, the Employer or any member of the Combined Group or its Affiliates shall be liable for any foreign exchange rate fluctuation between your local currency and the British Pound Sterling that may affect the value of the grant or of any amounts due to you pursuant to the settlement of the grant or the subsequent sale of any Shares acquired upon settlement.
7. No Advice Regarding Grant
The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
8. Data Privacy
The Employer, the Company and any Affiliate may collect, use, process, transfer or disclose your Personal Information for the purpose of implementing, administering and managing your participation in the Plan, in accordance with the Carnival Corporation & plc Equity Plans Participant Privacy Notice you have previously received. (Please contact ownership@carnival.com if you would like to receive another copy of this notice.) For example, your Personal Information may be directly or indirectly transferred to Equatex AG or any other third party stock plan service provider as may be selected by the Company, and
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any other third parties assisting the Company with the implementation, administration and management of the Plan.
9. Competition
The services you provide are unique, extraordinary and essential to the business of the Combined Group or its Affiliates, particularly in view of your access to the Combined Group or its Affiliates’ confidential information and trade secrets. Accordingly, in consideration of the grant, you agree that you will not, without the prior written approval of the Board of Directors, at anytime during the term of your employment with the Combined Group or its Affiliates and (except as provided below) for the then remaining duration of the Restricted Period, if any, following the date on which your employment with the Combined Group or its Affiliates terminates, directly or indirectly, within the cruise industry wherever located, engage in any business activity directly or indirectly competitive with the business of the Combined Group or its Affiliates, or serve as an officer, director, owner, consultant, or employee of any organization then in competition with the Combined Group or its Affiliates. In addition, you agree that during such restricted period following your employment with the Combined Group or its Affiliates, you will not solicit, either directly or indirectly, any employee of the Combined Group or its Affiliates, its subsidiaries or division, who was such at the time of your separation from employment hereunder. In the event that this provision should ever be adjudicated to exceed the time, geographic or other limitations permitted by applicable law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic or other limitations permitted by applicable law.
10. Nondisclosure
You expressly agree and understand that the Combined Group or its Affiliates own and/or control information and material which is not generally available to third parties and which Combined Group or its Affiliates consider confidential, including, without limitation, methods, products, processes, customer lists, trade secrets and other information applicable to its business and that it may from time to time acquire, improve or produce additional methods, products, processes, customers lists, trade secrets and other information (collectively, the Confidential Information). You acknowledge that each element of the Confidential Information constitutes a unique and valuable asset of Combined Group or its Affiliates, and that certain items of the Confidential Information have been acquired from third parties upon the express condition that such items would not be disclosed to Combined Group or its Affiliates and its officers and agents other than in the ordinary course of business. You acknowledge that disclosure of Combined Group or its Affiliates’ Confidential Information to and/or use by anyone other than in Combined Group or its Affiliates’ ordinary course of business would result in irreparable and continuing damage to Combined Group or its Affiliates. Accordingly, you agree to hold the Confidential Information in the strictest secrecy, and covenant that, during the term of your employment with Combined Group or its Affiliates (or any member of the Combined Group or its Affiliates) or at any time thereafter, you will not, without the prior written consent of the Board of Directors, directly or indirectly, allow any element of the Confidential Information to be disclosed, published or used, nor permit the Confidential Information to be discussed, published or used, either by himself or by any third parties, except in effecting your duties for Combined Group or its Affiliates in the ordinary course of business. You agree to keep all such records in connection with your employment as Combined Group or its Affiliates may direct, and all such records shall be the sole and absolute property of Combined Group or its Affiliates. You further agree that, within five (5) days of Combined Group or its Affiliates’ request, you shall surrender to Combined Group or its Affiliates any and all documents, memoranda, books, papers, letters, price lists, notebooks, reports, logbooks, code books, salesmen records, customer lists, activity reports, video or audio recordings, computer programs and any and all other data and information and any and all copies thereof relating to Combined Group or its Affiliates’ business or any Confidential Information.
Notwithstanding the foregoing, nothing in this Agreement prohibits you from voluntarily communicating, without notice to or approval by the Company, with any federal or state government agency about a potential violation of a federal or state law or regulation or to participate in investigations, testify in proceedings regarding the Company's or an Affiliate’s past or future conduct, or engage in any activities protected under whistle blower statutes. Further, pursuant to the Defend Trade Secrets Act of 2016, you shall not be held criminally,
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or civilly, liable under any federal or state trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a federal, state, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, you may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if such filing is made under seal. Finally, if you file a lawsuit alleging retaliation by the Company or an Affiliate for reporting a suspected violation of the law, you may disclose the trade secret to your attorney and use the trade secret in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret, except pursuant to court order.
11. Clawback / Forfeiture
a) In the case of fraud, negligence, intentional or gross misconduct or other wrongdoing on your part (or any other event or circumstance set forth in any clawback policy implemented by the Company, including, without limitation, any clawback policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) that results in a material restatement of the Company’s issued financial statements, you will (i) forfeit any unvested MTE RSUs and (ii) be required to reimburse the Company for all or a portion, as determined by the Committee in its sole discretion, of any income or gain realized on the settlement of the MTE RSUs or the subsequent sale of Shares acquired upon settlement of the MTE RSUs with respect to any fiscal year in which the Company’s financial results are negatively impacted by such restatement. You agree to and shall be required to repay any such amount to the Company within 30 days after the Company demands repayment. In addition, if the Company is required by law to include an additional “clawback” or “forfeiture” provision to outstanding awards, under the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, then such clawback or forfeiture provision shall also apply to this Agreement as if it had been included on the Grant Date and the Company shall promptly notify you of such additional provision. In addition, if you have engaged or are engaged in Detrimental Activity after your employment or service with the Company or its Affiliates has ceased, then, within 30 days after written demand by the Company, you shall return any income or gain realized on the settlement of the MTE RSUs or the subsequent sale of Shares acquired upon settlement of the MTE RSUs.
b) For purposes of this Agreement, “Detrimental Activity” means any of the following: (i) unauthorized disclosure of any Confidential Information or proprietary information of the Combined Group, (ii) any activity that would be grounds to terminate your employment or service with the Combined Group for Cause, (iii) whether in writing or orally, maligning, denigrating or disparaging the Combined Group or their respective predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the foregoing, with respect to any of their respective past or present activities, or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light, or (iv) the breach of any noncompetition, nonsolicitation or other agreement containing restrictive covenants, with the Combined Group. For purposes of the preceding sentence the phrase “the Combined Group” shall mean “any member of the Combined Group or any Affiliate”.
12. General
The grant is not transferable and may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered, other than in the limited circumstances specified in rule 14(b) of the Plan.
13. Sale or Transfer of Shares upon Death / Separation from Employment
Following your death or termination of employment or service with the Company and its Affiliates for any reason, you (or your legal representative, if applicable) must provide for all Shares underlying the released grant (including those issued under this Agreement as well as Shares underlying released grants issued under any other similar agreement, whether on account of termination or previously released in connection with the vesting terms of such similar agreement) to be liquidated or transferred to a third party broker no later than six months following the later of (i) your death or the date of termination, as applicable, or (ii) the
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latest Settlement Date (whether under this Agreement or a similar agreement) occurring following your death or termination. If you (or your legal representative, as applicable) fail to liquidate or transfer the Shares prior to the end of the applicable six month period, the Company is hereby authorized and directed by you to either, in the Company’s discretion: (i) sell any such remaining Shares on your (or your legal representative’s) behalf on the next trading date following the end of such period on which the Company is not prohibited from selling such Shares; or (ii) transfer such Shares to the Company’s stock transfer agent for registration in your (or your legal representative’s) name. The Company will not be responsible for any gain or loss or taxes incurred with respect to the Shares underlying the released grants in connection with such liquidation or transfer.
14. Compliance with Law
Notwithstanding any other provision of the Plan or this Agreement, unless there is an available exemption from any registration, qualification or other legal requirement applicable to the Shares, the Company shall not be required to deliver any Shares issuable upon settlement of the grant prior to the completion of any registration or qualification of the Shares under any local, state, federal or foreign securities or exchange control law or under rulings or regulations of the U.S. Securities and Exchange Commission (SEC) or of any other governmental regulatory body, or prior to obtaining any approval or other clearance from any local, state, federal or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Shares with the SEC or any state or foreign securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Shares. Further, you agree that the Company shall have unilateral authority to amend the Plan and the Agreement without your consent to the extent necessary to comply with securities or other laws applicable to issuance of Shares.
15. Insider Trading/Market Abuse Laws
You may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, including the United States, the United Kingdom, and your country, which may affect your ability to directly or indirectly, for yourself or a third party, acquire or sell, or attempt to sell, Shares under the Plan during such times you are considered to have “inside information” regarding the Company (as defined by the laws and regulations in the applicable jurisdiction, including the United States, the United Kingdom, and your country of residence), or may affect the trade in Shares or the trade in rights to Shares under the Plan. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party, which may include fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Local insider trading laws and regulations may be the same or different from any Company insider trading policy. You acknowledge that it is your responsibility to be informed of and compliant with such regulations, and you should speak to your personal advisor on this matter.
16. Foreign Asset/Account, Exchange Control and Tax Reporting
You may be subject to foreign asset/account, exchange control and/or tax reporting requirements as a result of the acquisition, holding and/or transfer of Shares or cash (including dividends, Dividend Equivalents and the proceeds arising from the sale of Shares) derived from your participation in the Plan, to and/or from a brokerage/bank account or legal entity located outside your country. The applicable laws of your country may require that you report such accounts, assets, the balances therein, the value thereof and/or the transactions related thereto to the applicable authorities in such country. You also may be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country through a designated bank or broker within a certain time after receipt. You acknowledge that you are responsible for ensuring compliance with any applicable foreign asset/account, exchange control and tax reporting requirements and should consult your personal legal advisor on this matter.
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17. Governing Law
The grant and the provisions of this Agreement are governed by, and subject to, the laws of England. All disputes arising out of or in connection with the rules shall be subject to the exclusive jurisdiction of the courts of England and Wales.
18. Language
You acknowledge that you are proficient in the English language, or have consulted with an advisor who is sufficiently proficient, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
19. Electronic Delivery and Acceptance
The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
20. Severability
If any provision of the Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or grant, or would disqualify the Plan or any grant under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or grant, such provision shall be stricken as to such jurisdiction, person or grant and the remainder of the Plan and any such grant shall remain in full force and effect.
21. Waiver
You acknowledge that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of this Agreement.
22. Country-Specific Provisions
The grant shall be subject to the additional terms and conditions set forth in Appendix A for your country, if any. Moreover, if you relocate to one of the countries included in Appendix A, the special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Appendix A constitutes part of this Agreement.
23. Imposition of Other Requirements
The Company reserves the right to impose other requirements on your participation in the Plan, on the grant and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
This Agreement is notice of your grant under the Plan and should be kept in a safe place.
EXECUTED AND DELIVERED )
AS A DEED BY CARNIVAL PLC )
ACTING BY A DIRECTOR )
AND THE SECRETARY )
______________________________ ________________________________
Josh Weinstein, Director Arnaldo Perez, Secretary
8
APPENDIX A
Country Specific Information
TERMS AND CONDITIONS
This Appendix A includes additional terms and conditions that govern the grant made to you if you reside in one of the countries listed herein. This Appendix A forms part of the Agreement. These terms and conditions are in addition to, or if so indicated, in place of, the terms and conditions in the Agreement.
If you are a citizen or resident of a country other than the one in which you are currently working, are considered a resident of another country for local law purposes or transfer employment and/or residency between countries after the Grant Date, the Company shall, in its sole discretion, determine to what extent the additional terms and conditions included herein will apply to you under these circumstances.
NOTIFICATIONS
This Appendix A also includes information regarding exchange controls, securities laws and certain other issues of which you should be aware with respect to your participation in the Plan. The information is based on the exchange control, securities laws and other laws in effect in the respective countries as of December 2018. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the Plan because the information may be out of date at the time you vest in the grant or when you sell the Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation, and the Company is not in a position to assure you of any particular result. Accordingly, you are advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently working, are considered a resident of another country for local law purposes or transfer employment and/or residency between countries after the Grant Date, the information contained herein may not be applicable in the same manner to you.
Capitalized terms not explicitly defined in this Appendix A but defined in the Agreement or Plan shall have the same definitions as in the Plan and/or the Agreement.
AUSTRALIA
NOTIFICATIONS
Tax Information. The Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act of 1997 (Cth) (the Act) applies (subject to the conditions of the Act).
Australia Offer Document. The offer of the MTE RSUs is intended to comply with the provisions of the Corporations Act 2001, Australian Securities and Investments Commission (ASIC) Regulatory Guide 49 and ASIC Class Order 14/1000. Additional details are set forth in the Offer Document for the Offer of MTE RSUs to Australian Resident Employees.
CHINA
TERMS AND CONDITIONS
9
The following terms and conditions will be applicable to you to the extent that the Company, in its sole discretion, determines that your participation in the Plan will be subject to exchange control restrictions in the People’s Republic of China (PRC), as implemented by the PRC State Administration of Foreign Exchange (SAFE):
Vesting. This provision supplements the “Restricted Period” section of the Agreement:
Notwithstanding anything to the contrary in the Agreement, the grant will not vest and no Shares will be issued to you unless and until all necessary exchange control or other approvals with respect to the grant under the Plan are obtained from SAFE or its local counterpart (SAFE Approval), as determined by the Company in its sole discretion. In the event that SAFE Approval has not been obtained, or the Company is unable to maintain its SAFE approval, prior to any date(s) on which the grant is scheduled to vest in accordance with the Vesting Schedule set forth in Appendix A to the Agreement, the grant will not vest until the seventh day of the month following the month in which SAFE Approval is obtained or reinstated (the Actual Vesting Date). If your Employment terminates prior to the Actual Vesting Date, you shall not be entitled to vest in any portion of the grant and the grant shall be forfeited without any liability to the Company, the Employer or any member of the Combined Group and its Affiliates.
If or to the extent the Company is unable to obtain or maintain SAFE Approval, no Shares subject to the MTE RSUs for which SAFE Approval has not been obtained or maintained shall be issued. In this case, the Company retains the discretion to settle any MTE RSUs in cash paid through local payroll in an amount equal to the market value of the Shares subject to the MTE RSUs less any Tax-Related Items; provided, however, that in case the Company is able to obtain or reinstate its SAFE Approval with respect to any MTE RSUs, the cash payment for MTE RSUs not covered by the SAFE Approval shall not be made until the SAFE Approval has been obtained or reinstated.
Settlement of MTE RSUs and Sale of Shares. This provision supplements the “Release of Grant” section of the Agreement:
Notwithstanding anything to the contrary in the Plan or the Agreement, to facilitate compliance with PRC exchange control restrictions you agree that any Shares acquired at settlement of the grant may be immediately sold at settlement or, at the Company’s discretion, at a later time (including when you terminate your Employment for any reason). If, however, the sale of the Shares is not permissible under the Company’s insider trading policy, the Company retains the discretion to postpone the issuance of the Shares subject to the vested grant until such time that the sale is again permissible and to then immediately sell the Shares subject to the grant. You further agree that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the Shares (on your behalf pursuant to this authorization), and you expressly authorize such broker to complete the sale of the Shares. You acknowledge that the Company’s designated broker is under no obligation to arrange for the sale of Shares at any particular price. Upon the sale of the Shares, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to you in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the settlement date and (if later) the date on which the Shares are sold, the sale proceeds may be more or less than the market value of the Shares on the settlement date (which is the amount relevant to determining your tax liability). You understand and agree that the Company is not responsible for the amount of any loss you may incur and that the Company assumes no liability for any fluctuation in the share price and/or United States Dollar exchange rate.
You further agree that any Shares to be issued to you shall be deposited directly into an account with the Company’s designated broker. The deposited Shares shall not be transferable (either electronically or in certificate form) from the brokerage account. This limitation shall apply both to transfers to different accounts with the same broker and to transfers to other brokerage firms. The limitation shall apply to all Shares issued to you
10
under the Plan, whether or not you continue to be employed by the Company, the Combined Group or one of its Affiliates.
Exchange Control Restrictions. By accepting the grant, you understand and agree that you will be required to immediately repatriate to China the proceeds from the sale of any Shares acquired under the Plan or from any cash dividends paid or such Shares. You further understand that such repatriation of the proceeds may need to be effected through a special exchange control account established by the Company or any Affiliate, and you hereby consent and agree that the proceeds may be transferred to such account by the Company (or its designated broker) on your behalf prior to being delivered to you. You also acknowledge and understand that there may be a delay between the date the Shares are sold and the date the cash proceeds are distributed to you. You further agree to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Company’s designated broker) to effectuate such transfers.
The proceeds may be paid to you in United States Dollars or local currency, at the Company’s discretion. If the proceeds are paid to you in United States Dollars, you understand that you will be required to set up a United States Dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to you in local currency, (i) you acknowledge that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions, and (ii) you agree to bear any currency fluctuation risk between the time the Shares are sold or dividends are paid and the time the proceeds are converted to local currency and distributed to you. You agree to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
GERMANY
NOTIFICATIONS
Exchange Control Information. Cross-border payments in excess of €12,500 (including transactions made in connection with the sale of securities) must be reported monthly to the German Federal Bank (Bundesbank). If you make or receive a payment in excess of this amount, you must report the payment to Bundesbank electronically using the “General Statistics Reporting Portal” (Allgemeines Meldeportal Statistik) available via Bundesbank’s website (www.bundesbank.de).
Foreign Asset/Account Reporting Information. If your acquisition of Shares under the Plan leads to a so-called qualified participation at any point during the calendar year, you will need to report the acquisition when you file your tax return for the relevant year. A qualified participation is attained if (i) the value of the Shares acquired exceeds EUR 150,000 or (ii) in the unlikely event you hold Shares exceeding 10% of the ordinary shares in the capital of the Company.
HONG KONG
TERMS AND CONDITIONS
Sale Restriction. Shares received at vesting are accepted as a personal investment. In the event that the grant vests and Shares are issued to you (or your legal representatives) within six months of the Grant Date, you (or your legal representatives) agree that the Shares will not be offered to the public or otherwise disposed of prior to the six-month anniversary of the Grant Date.
NOTIFICATIONS
11
Securities Law Information. WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of the Agreement, including this Appendix A, or the Plan, you should obtain independent professional advice. Neither the grant of the grant nor the issuance of Shares upon settlement of the grant constitutes a public offering of securities under Hong Kong law and is available only to employees of the Company and members of the Combined Group and its Affiliates. The Agreement, the Plan and other incidental communication materials distributed in connection with the grant have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong and are intended only for the personal use of each eligible employee of the Company or members of the Combined Group and its Affiliates and may not be distributed to any other person.
Nature of Scheme. The Plan is not intended to be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
ITALY
TERMS AND CONDITIONS
Plan Document Acknowledgment. In accepting the grant, you acknowledge that you have received a copy of the Plan and the Agreement, have reviewed the Plan and the Agreement in their entirety and fully understand and accept all provisions of the Plan and the Agreement.
You acknowledge that you have read and specifically and expressly approve the following sections of the Agreement: Restricted Period; Taxation; Nature of Grant; Governing Law; and Language.
NOTIFICATIONS
Foreign Asset/Account Reporting Information. If you are an Italian resident and hold investments or financial assets outside Italy (e.g., cash, MTE RSUs, Shares) during any fiscal year which may generate income taxable in Italy (or if you are the beneficial owner of such an investment or asset even if you do not directly hold the investment or asset), you are required to report such investments or assets on your annual tax return for such fiscal year (on UNICO Form, RW Schedule, or on a special form if you are not required to file a tax return).
NETHERLANDS
There are no country specific provisions.
SINGAPORE
TERMS AND CONDITIONS
Restrictions on Sale. You agree that, in the event that any portion of the grant vests prior to the six-month anniversary of the Grant Date, you will not sell any Shares acquired at vesting prior to the six-month anniversary of the Grant Date, unless such sale or offer is made pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (SFA).
NOTIFICATIONS
Securities Law Information. The grant is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the SFA under which it is exempt from the prospectus and registration requirements under the SFA and is not made to you with a view to the
12
Shares being subsequently offered for sale to any other party. The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore.
Chief Executive Officer and Director Notification Requirement. The Chief Executive Officer (“CEO”) and the directors, associate directors or shadow directors1 of a Singapore Subsidiary or Affiliate are subject to certain notification requirements under the Singapore Companies Act. Specifically, the CEO and directors must notify the Singapore Subsidiary or Affiliate in writing of an interest (e.g., MTE RSUs, Shares, etc.) in the Company or any related company within two business days of (i) its acquisition or disposal, (ii) any change in a previously-disclosed interest (e.g., upon vesting / settlement of the grant or when Shares acquired under the Plan are subsequently sold), or (iii) becoming the CEO or a director.
UNITED KINGDOM
TERMS AND CONDITIONS
Taxation. This provision supplements the “Taxation” section of the Agreement:
Without limitation to the “Taxation” section of this Agreement, if you are a U.K. tax resident, you will be liable for all Tax-Related Items and hereby covenant to pay all such Tax-Related Items as and when requested by the Company or any Affiliate or by Her Majesty's Revenue and Customs (HMRC) (or any other tax authority or any other relevant authority). You also agree to indemnify and keep indemnified the Company and any Affiliate against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on your behalf to HMRC (or any other tax authority or any other relevant authority). Notwithstanding the foregoing, if you are a director or executive officer of the Company (within the meaning of Section 13(k) of the Exchange Act), you may not be able to indemnify the Company for the amount of any income tax not collected from or paid by you, in case the indemnification could be considered a loan. In this case, the income tax not collected or paid may constitute a benefit to you on which additional income tax and National Insurance contributions may be payable. You will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the Company or the Employer, as applicable, for the value of any employee National Insurance contributions due on this additional benefit, which the Company or the Employer may recover from you by any of the means referred to in this Agreement.
In addition, you agree that the Company and/or the Employer may calculate the income tax to be withheld and accounted for by reference to the maximum applicable rates, without prejudice to any right you may have to recover any overpayment from HMRC or any applicable tax authority.
UNITED STATES
TERMS AND CONDITIONS
Taxation. This provision supplements the “Taxation” section of the Agreement:
Notwithstanding anything in the Agreement to the contrary, the Company may cause a portion of the MTE RSUs to vest prior to the applicable date set forth in the “Restricted Period” section of this Agreement in order to satisfy any Tax-Related Items that arise prior to the date of settlement of the MTE RSUs; provided that to the extent necessary to avoid a prohibited distribution under Section 409A of the Code, the number of MTE RSUs so accelerated and settled shall be with respect to a number of Shares with a value that does not exceed the liability for such Tax-Related Items.
1 A shadow director is an individual who is not on the board of directors of the Singapore Subsidiary or Affiliate, but who has sufficient control so that the board of directors of the Singapore Subsidiary or Affiliate acts in accordance with the directions or instructions of the individual.
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CARNIVAL CORPORATION
CARNIVAL PLC
CARNIVAL HOLDINGS (BERMUDA) II LIMITED
Arranged by
JPMORGAN CHASE BANK, N.A., BANK OF AMERICA EUROPE DAC and BNP PARIBAS (as Active Bookrunner & Global Coordinators and Mandated Lead Arrangers)
BARCLAYS BANK PLC, CITIBANK, N.A., GOLDMAN SACHS BANK USA, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, LLOYDS BANK PLC, MIZUHO BANK, LTD., MORGAN STANLEY SENIOR FUNDING, INC. and PNC CAPITAL MARKETS, LLC (as Bookrunners and Mandated Lead Arrangers)
KFW IPEX-BANK GMBH, NATIONAL WESTMINSTER BANK PLC and SUMITOMO MITSUI BANKING CORPORATION (as Syndication Agents)
With
THE FINANCIAL INSTITUTIONS listed in Part A and Part B of Schedule 1
as Original Lenders
as Original Lenders
J.P. MORGAN SE
as Facilities Agent
as Facilities Agent
FACILITIES AGREEMENT for Multicurrency Revolving Facilities dated 28 February 2023 | ||
Freshfields Bruckhaus Deringer LLP
65 Fleet Street
London EC4Y 1HS
CONTENTS
| CLAUSE | PAGE | |||||||
| 1. | DEFINITIONS AND INTERPRETATION | |||||||
| 2. | THE FACILITIES | 31 | ||||||
| 3. | PURPOSE | 34 | ||||||
| 4. | CONDITIONS OF UTILISATION | 35 | ||||||
| 5. | UTILISATION - LOAN | 35 | ||||||
| 6. | UTILISATION - BONDS | 37 | ||||||
| 7. | BONDS | 40 | ||||||
| 8. | UTILISATION - SWINGLINE LOAN | 42 | ||||||
| 9. | SWINGLINE LOANS | 44 | ||||||
| 10. | EXTENSION OPTION | 48 | ||||||
| 11. | OPTIONAL CURRENCIES | 50 | ||||||
| 12. | REPAYMENT | 51 | ||||||
| 13. | PREPAYMENT AND CANCELLATION | 51 | ||||||
| 14. | INTEREST | 56 | ||||||
| 15. | INTEREST PERIODS | 60 | ||||||
| 16. | CHANGES TO THE CALCULATION OF INTEREST | 60 | ||||||
| 17. | FEES | 62 | ||||||
| 18. | TAXES | 64 | ||||||
| 19. | INCREASED COSTS | 82 | ||||||
| 20. | OTHER INDEMNITIES | 83 | ||||||
| 21. | MITIGATION BY THE FINANCE PARTIES | 84 | ||||||
| 22. | COSTS AND EXPENSES | 84 | ||||||
| 23. | GUARANTEE AND INDEMNITY | 85 | ||||||
| 24. | REPRESENTATIONS | 88 | ||||||
| 25. | INFORMATION UNDERTAKINGS | 91 | ||||||
| 26. | FINANCIAL COVENANTS | 94 | ||||||
| 27. | GENERAL UNDERTAKINGS | 101 | ||||||
| 28. | EVENTS OF DEFAULT | 104 | ||||||
| 29. | CHANGES TO THE LENDERS | 107 | ||||||
| 30. | CHANGES TO THE OBLIGORS | 112 | ||||||
| 31. | ROLE OF THE FACILITIES AGENT AND THE ARRANGERS | 113 | ||||||
| 32. | CONDUCT OF BUSINESS BY THE FINANCE PARTIES | 121 | ||||||
| 33. | SHARING AMONG THE FINANCE PARTIES | 122 | ||||||
| 34. | PAYMENT MECHANICS | 123 | ||||||
| 35. | CONTRACTUAL RECOGNITION OF BAIL-IN | 127 | ||||||
| 36. | SET-OFF | 128 | ||||||
| 37. | NOTICES | 129 | ||||||
| 38. | CALCULATIONS AND CERTIFICATES | 131 | ||||||
| 39. | PARTIAL INVALIDITY | 131 | ||||||
| 40. | REMEDIES AND WAIVERS | 131 | ||||||
| 41. | AMENDMENTS AND WAIVERS | 132 | ||||||
| 42. | CONFIDENTIAL INFORMATION | 139 | ||||||
| 43. | CONFIDENTIALITY OF FUNDING RATES | 142 | ||||||
| 44. | LENDING AFFILIATES | 143 | ||||||
| 45. | ACKNOWLEDGMENT REGARDING ANY SUPPORTED QFCS | 148 | ||||||
| 46. | COUNTERPARTS | 149 | ||||||
| 47. | GOVERNING LAW | 149 | ||||||
| 48. | ENFORCEMENT | 149 | ||||||
| 49. | USA PATRIOT ACT | 150 | ||||||
| 50. | TRANSPARENCY RULES | 150 | ||||||
151 | ||||||||
158 | ||||||||
164 | ||||||||
167 | ||||||||
170 | ||||||||
171 | ||||||||
172 | ||||||||
176 | ||||||||
180 | ||||||||
183 | ||||||||
186 | ||||||||
187 | ||||||||
188 | ||||||||
190 | ||||||||
191 | ||||||||
194 | ||||||||
195 | ||||||||
196 | ||||||||
196 | ||||||||
THIS AGREEMENT is dated 28 February 2023 and made
Between:
(1) CARNIVAL CORPORATION (a Panamanian corporation having its principal place of business at Carnival Place, 3655 N.W. 87th Avenue, Miami, Florida, 33178-2428) (Carnival Corp.);
(2) CARNIVAL PLC (a company incorporated under the laws of England and Wales with registered number 04039524) (Carnival plc);
(3) CARNIVAL HOLDINGS (BERMUDA) II LIMITED (an exempted company limited by shares registered in Bermuda with registered number 202202026 as borrower) (the Borrower);
(4) CARNIVAL CORPORATION and CARNIVAL PLC as original guarantors (each an Original Guarantor);
(5) JPMORGAN CHASE BANK, N.A., BANK OF AMERICA EUROPE DAC and BNP PARIBAS as active bookrunners and global coordinators and mandated lead arrangers (in this capacity the Active Bookrunners & Global Coordinators and Mandated Lead Arrangers);
(6) BARCLAYS BANK PLC, CITIBANK, N.A., GOLDMAN SACHS BANK USA, INTESA SANPAOLO S.P.A., NEW YORK BRANCH, LLOYDS BANK PLC, MIZUHO BANK, LTD., MORGAN STANLEY SENIOR FUNDING, INC. and PNC CAPITAL MARKETS, LLC as bookrunners and mandated lead arrangers (in this capacity the Bookrunners and Mandated Lead Arrangers);
(7) KFW IPEX-BANK GMBH, NATIONAL WESTMINSTER BANK PLC and SUMITOMO MITSUI BANKING CORPORATION as syndication agents (in this capacity and, together with the Active Bookrunners & Global Coordinators and Mandated Lead Arrangers, and the Bookrunners and Mandated Lead Arrangers, the Arrangers);
(8) THE FINANCIAL INSTITUTIONS listed in Part A and Part B of Schedule 1 as lenders (the Original Lenders);
(9) THE FINANCIAL INSTITUTIONS listed in Part I of Schedule 14 (Original Lending Affiliates) as original lending affiliates (the Original Lending Affiliates); and
(10) J.P. MORGAN SE as facilities agent of the other Finance Parties (the Facilities Agent).
It is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this Agreement:
Acceptable Bank means a bank or financial institution which meets the Rating Requirements.
Accession Letter means a document substantially in the form set out in Schedule 5 (Form of Accession Letter).
Account Party means the Bond Borrower or any member of the Carnival Corporation & plc Group who has requested the Bond Borrower to request a Bond.
Additional Business Day means any day specified as such in the applicable Reference Rate Terms.
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Additional Increase Date has the meaning given to that term in paragraph (d) of Clause 2.3 (Additional Commitments).
Additional Lender has the meaning given to that term in Clause 29.9 (Additional Lenders).
Additional Subsidiary Guarantor means a company which becomes an Additional Subsidiary Guarantor in accordance with Clause 30 (Changes to the Obligors).
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
Arison Party has the meaning given to that term in Clause 13.2 (Mandatory prepayments – change of ownership).
Assurance Statement means the most recent assurance statement related to greenhouse gas emissions, inventory and sustainability data of the Carnival Corporation & plc Group as verified by Lloyds Register Quality Assurance or another independent third party appointed by the Company (acting reasonably).
Availability Period means the period from and including the Commencement Date to and including the Termination Date.
Available Bond Facility means the aggregate, for the time being, of the Available Tranche D Commitments.
Available Commitment of a Lender means the aggregate of that Lender’s:
(a) Available Tranche A Commitment;
(b) Available Tranche B Commitment;
(c) Available Tranche C Commitment; and
(d) Available Tranche D Commitment.
Available Swingline Commitment of a Swingline Lender means the aggregate of that Swingline Lender’s:
(a) Available Swingline Tranche A Commitment;
(b) Available Swingline Tranche B Commitment; and
(c) Available Swingline Tranche C Commitment.
Available Swingline Tranche A Commitment of a Swingline Lender under Tranche A means (but without limiting Clause 8.6 (Relationship with the Facilities)) that Lender’s Swingline Tranche A Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Swingline Loans under Tranche A; and
(b) in relation to any proposed Swingline Utilisation under Tranche A, the Base Currency Amount of its participation in any Swingline Loans that are due to be made under Tranche A on or before the proposed Utilisation Date,
other than that Lender’s participation in any Swingline Loans under Tranche A that are due to be repaid or prepaid on or before the proposed Utilisation Date.
Available Swingline Tranche A Facility means the aggregate for the time being of each Swingline Lender’s Available Swingline Tranche A Commitment.
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Available Swingline Tranche B Commitment of a Swingline Lender under Tranche B means (but without limiting Clause 8.6 (Relationship with the Facilities)) that Lender’s Swingline Tranche B Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Swingline Loans under Tranche B; and
(b) in relation to any proposed Swingline Utilisation under Tranche B, the Base Currency Amount of its participation in any Swingline Loans that are due to be made under Tranche B on or before the proposed Utilisation Date,
other than that Lender’s participation in any Swingline Loans under Tranche B that are due to be repaid or prepaid on or before the proposed Utilisation Date.
Available Swingline Tranche B Facility means the aggregate for the time being of each Swingline Lender’s Available Swingline Tranche B Commitment.
Available Swingline Tranche C Commitment of a Swingline Lender under Tranche C means (but without limiting Clause 8.6 (Relationship with the Facilities)) that Lender’s Swingline Tranche C Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Swingline Loans under Tranche C; and
(b) in relation to any proposed Swingline Utilisation under Tranche C, the Base Currency Amount of its participation in any Swingline Loans that are due to be made under Tranche C on or before the proposed Utilisation Date,
other than that Lender’s participation in any Swingline Loans under Tranche C that are due to be repaid or prepaid on or before the proposed Utilisation Date.
Available Swingline Tranche C Facility means the aggregate for the time being of each Swingline Lender’s Available Swingline Tranche C Commitment.
Available Tranche A Commitment of a Lender means that Lender’s Tranche A Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Utilisations under Tranche A; and
(b) in relation to any proposed Utilisation under Tranche A, the Base Currency Amount of its participation in any Utilisations under Tranche A that are due to be made on or before the proposed Utilisation Date,
other than that Lender’s participation in any Utilisations under Tranche A that are due to be repaid or prepaid on or before the proposed Utilisation Date or, for the purposes of calculating any Lender’s Tranche A Indemnified Proportion, on or before the date of the proposed indemnification.
Available Tranche B Commitment of a Lender means that Lender’s Tranche B Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Utilisations under Tranche B; and
(b) in relation to any proposed Utilisation under Tranche B, the Base Currency Amount of its participation in any Utilisations under Tranche B that are due to be made on or before the proposed Utilisation Date,
other than that Lender’s participation in any Utilisations under Tranche B that are due to be repaid or prepaid on or before the proposed Utilisation Date or, for the purposes of calculating any Lender’s Tranche B Indemnified Proportion, on or before the date of the proposed indemnification.
Available Tranche C Commitment of a Lender means that Lender’s Tranche C Commitment minus:
Page 3
(a) the Base Currency Amount of its participation in any outstanding Utilisations under Tranche C; and
(b) in relation to any proposed Utilisation under Tranche C, the Base Currency Amount of its participation in any Utilisations under Tranche C that are due to be made on or before the proposed Utilisation Date,
other than that Lender’s participation in any Utilisations under Tranche C that are due to be repaid or prepaid on or before the proposed Utilisation Date or, for the purposes of calculating any Lender’s Tranche C Indemnified Proportion, on or before the date of the proposed indemnification.
Available Tranche D Commitment of a Lender means that Lender’s Tranche D Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Utilisations under Tranche D; and
(b) in relation to any proposed Utilisation under Tranche D, the Base Currency Amount of its participation in any Utilisations under Tranche D that are due to be made on or before the proposed Utilisation Date,
other than that Lender’s participation in any Utilisations under Tranche D that are due to be repaid or prepaid on or before the proposed Utilisation Date.
Available Tranche A Facility means the aggregate for the time being of each Lender’s Available Tranche A Commitment.
Available Tranche B Facility means the aggregate for the time being of each Lender’s Available Tranche B Commitment.
Available Tranche C Facility means the aggregate for the time being of each Lender’s Available Tranche C Commitment.
Available Tranche D Facility means the aggregate for the time being of each Lender’s Available Tranche D Commitment.
Bank Levy means the U.K. Bank Levy or any other bank levy, or a levy or Tax of similar nature imposed by reference to the assets or liabilities of a financial institution in any relevant jurisdiction which has been announced or implemented on or before the Signing Date.
Bareboat Charter means each bareboat charter or similar contract or arrangement between the Borrower, as owner, and one or more of the Company and its Subsidiaries (other than the Borrower), as charterers, pursuant to which the charterers shall operate the Subject Vessels.
Bareboat Charter Transactions means the entry into the Bareboat Charters.
Base Currency means:
(a) in relation to Tranche A, US Dollars;
(b) in relation to Tranche B, Sterling;
(c) in relation to Tranche C, euro; and
(d) in relation to Tranche D, US Dollars.
Base Currency Amount means, in relation to a Utilisation, the amount specified in the relevant Utilisation Request delivered by the Borrower for that Utilisation or (if the amount requested is not denominated in the Base Currency for the relevant Tranche requested in that Utilisation Request) that amount converted into the Base Currency for the relevant Tranche at the Facilities Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Facilities Agent receives the relevant Utilisation Request adjusted to reflect any repayment
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(other than a repayment arising from a change of currency), prepayment, consolidation or division of the Utilisation, and in addition in the case of a Bond, as adjusted under Clause 6.9 (Revaluation of Bonds).
Basel III means:
(a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
(b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
(c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
Bermuda Obligor means each Obligor incorporated under the laws of Bermuda.
Bond means any bond (including but not limited to surety bonds and performance bonds), guarantee (including but not limited to financial guarantees and performance guarantees), letter of credit (including but not limited to financial letters of credit, performance letters of credit and standby letters of credit), indemnity or other deed of obligation issued or to be issued by a Tranche D Lender.
Bond Borrower means the Borrower who has requested a Bond Utilisation.
Bond Utilisation means a utilisation of a Bond under the Bonding Facility (including a renewal of a Bond in accordance with Clause 6.8 (Renewal of a Bond)).
Bond Utilisation Request means a notice substantially in the form set out in Part B of Schedule 3 (Utilisation Request - Bonds).
Bonding Facility means the bonding facility made available under Tranche D of this Agreement as described in Clause 6 (Utilisation - Bonds) in a maximum amount of US$300,000,000.
Break Costs means, in respect of any Term Rate Loan, the amount (if any) by which:
(a) the interest (excluding amounts in respect of Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Term Rate Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Term Rate Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period,
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York and:
(a) (in relation to any date for payment or purchase of euro in respect of a Term Rate Loan) which is a TARGET Day;
(b) (in relation to:
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(i) any date for payment or purchase of an amount relating to an RFR Loan; or
(ii) the determination of the first day or the last day of an Interest Period for an RFR Loan or otherwise in relation to the determination of the length of such an Interest Period),
which is an Additional Business Day relating to that currency or that Loan or Unpaid Sum; or
(c) (in relation to the fixing of an interest rate in relation to a Utilisation in USD) which is a US Government Securities Business Day.
Central Bank Rate has the meaning given to that term in the applicable Reference Rate Terms.
Central Bank Rate Adjustment has the meaning given to that term in the applicable Reference Rate Terms.
CO2 Emissions Rate means the ship fuel greenhouse gas emission rate (in grams CO2e/ALB-KM) as set out in the Assurance Statement.
CO2 Performance means the performance of the CO2 Emissions Rate for each financial year (being ‘Outperform target’, ‘Within target’, or ‘Below target’) relative to the targets set out in the table below (in grams CO2e/ALB-KM) for such financial year.
| Financial year | Outperform target | Within target range | Below target | ||||||||
| 2022 | ≤ 232.9 | ˃ 232.9 but ≤ 241.6 | ˃ 241.6 | ||||||||
| 2023 | ≤ 228.2 | ˃ 228.2 but ≤ 239.2 | ˃ 239.2 | ||||||||
| 2024 | ≤ 223.7 | ˃ 223.7 but ≤ 236.8 | ˃ 236.8 | ||||||||
Carnival Corporation & plc Group means the Carnival Corporation Group and the Carnival plc Group.
Carnival Corporation Group means the Company and all its Subsidiaries from time to time.
Carnival Credit Rating means, in respect of Moody’s, S&P or Fitch (as applicable):
(a) the long term corporate credit rating of the Company published by Moody’s, S&P or Fitch (as the case may be); or
(b) if Moody’s, S&P or Fitch (as the case may be) does not publish a credit rating as provided in paragraph (a) above, the long term corporate credit rating of Carnival plc published by Moody’s, S&P or Fitch (as the case may be).
Carnival Material Group Member means the Company, Carnival plc, each other Obligor or any Material Subsidiary.
Carnival plc Group means Carnival plc and all its Subsidiaries from time to time.
Code means, at any date, the United States Internal Revenue Code of 1986 (or any successor legislation thereto) as amended from time to time, and the regulations promulgated and any rulings issued thereunder, all as the same may be in effect at such date.
Commencement Date means 6 August 2024.
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Commitment means, at any time, in respect of a Lender, the aggregate of that Lender’s:
(a) Tranche A Commitment;
(b) Tranche B Commitment (for the purpose only of calculating the utilisation fee pursuant to Clause 17.5 converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange at that time);
(c) Tranche C Commitment (for the purpose only of calculating the utilisation fee pursuant to Clause 17.5 converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange at that time); and
(d) Tranche D Commitment.
Company means Carnival Corp., provided that if a Parent Entity of Carnival Corp. becomes a Guarantor, Carnival Corp. may, at its election, designate, by giving written notice to the Facilities Agent, the relevant Parent Entity as constituting the “Company” (in replacement of Carnival Corp.) for all purposes of the Finance Documents.
Compliance Certificate means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).
Compounded Reference Rate means, in relation to any RFR Banking Day during the Interest Period of an RFR Loan, the percentage rate per annum which is the aggregate of the applicable:
(a) Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and
(b) Credit Adjustment Spread, if any.
Compounding Methodology Supplement means, in relation to the Daily Non-Cumulative Compounded RFR Rate, a document which:
(a) is agreed in writing by the Company, the Facilities Agent (in its own capacity) and the Facilities Agent (acting on the instructions of the Majority Lenders);
(b) specifies a calculation methodology for that rate; and
(c) has been made available to the Company and each Finance Party.
Confidential Information means all information relating to the Company, any Obligor, the Carnival Corporation & plc Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(a) any member of the Carnival Corporation & plc Group or any of its advisers; or
(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Carnival Corporation & plc Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes,
(i) information that:
(A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 42 (Confidential Information); or
(B) is identified in writing at the time of delivery as non-confidential by any member of the Carnival Corporation & plc Group or any of its advisers; or
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(C) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Carnival Corporation & plc Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
(ii) any Funding Rate.
Confidentiality Undertaking means a confidentiality undertaking substantially in the form set out in Schedule 7 (Confidentiality Undertaking).
CP Programme means:
(a) any US Dollar, euro or Sterling commercial paper programme; or
(b) any other short term borrowings having a term of not more than 364 days,
of a member of the Carnival Corporation & plc Group.
CTA 2009 means the U.K. Corporation Tax Act 2009.
CRD IV means (A) Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU No. 648/2012) and (B) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.
Credit Adjustment Spread means, in respect of any RFR Loan:
(a) any rate specified as such in the applicable Reference Rate Terms; or
(b) in respect of US Dollars, the USD Credit Adjustment Spread.
Daily Non-Cumulative Compounded RFR Rate means, in relation to any RFR Banking Day during an Interest Period for an RFR Loan, the percentage rate per annum determined by the Facilities Agent (or by any other Finance Party which agrees to determine that rate in place of the Facilities Agent) in accordance with the methodology set out in Schedule 19 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement.
Daily Rate means the rate specified as such in the applicable Reference Rate Terms.
Deeds of Guarantee means:
(a) the deed of guarantee issued by the Company in favour of the Facilities Agent on behalf of the Finance Parties in respect of Carnival plc dated on or about the Signing Date; and
(b) the deed of guarantee issued by Carnival plc in favour of the Facilities Agent on behalf of the Finance Parties in respect of the Company dated on or about the Signing Date.
Default means:
(a) an Event of Default; or
(b) any event or circumstance specified in Clause 28 (Events of Default) which would (with the expiry of a grace period, or the giving of notice, or any combination of them) be an Event of Default.
Defaulting Lender means any Lender:
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(a) which has failed to make its participation in a Loan available or has notified the Facilities Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation) or 8.5 (Swingline Lenders’ participation);
(b) which has otherwise rescinded or repudiated a Finance Document; or
(c) with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event; and
payment is made within five Business Days of its due date; or
(ii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
Disruption Event means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
(i) from performing its payment obligations under the Finance Documents; or
(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
DLC Documents means the agreements, deeds, instruments and constituent documents related to the Company and Carnival plc, as amended from time to time, establishing the dual listed company structure between the Company and Carnival plc entered into as contemplated by the Offer and Implementation Agreement between the Company and Carnival plc dated 8 January 2003 namely the SVE Special Voting Deed, Carnival Corporation’s Articles and By-Laws, Carnival plc’s Memorandum and Articles, the Carnival Corporation Deed of Guarantee, the P&O Princess Guarantee (as each such expression is defined in the Equalisation and Governance Agreement), the deed between the Company and P&O Princess Cruises plc dated 17 April 2003, the pairing agreement between the Company, The Law Debenture Trust Corporation (Cayman) Limited and SunTrust Bank dated 17 April 2003, the P&O Princess special voting trust deed made between the Company and the Law Debenture Trust Corporation (Cayman) Limited dated 17 April 2003 and the Equalisation and Governance Agreement.
€STR means in relation to any day:
(a) the euro short-term rate administered by the European Central Bank (or any other person which takes over the administration of that rate) published by the European Central Bank (or any other person which takes over publication of that rate) on page EUROSTR= of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate)
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on that day. If such page or service ceases to be available, the Facilities Agent may specify another page or service displaying the relevant rate after consultation with the Company; or
(b) as otherwise determined in accordance with Clause 9.8 (Unavailability of €STR – Swingline Loans under Tranche C),
and, if in either case, that rate is less than zero, €STR shall be deemed to be zero.
Equalisation and Governance Agreement means the equalisation and governance agreement dated 17 April 2003 between the Company and Carnival plc.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
EURIBOR means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate).
euro, EUR and € means the single currency of the Participating Member States.
Event of Default means any event or circumstance specified as such in Clause 28 (Events of Default).
Excluded Assets means any assets sold or otherwise disposed of by any person, provided such person, directly or indirectly has the right to possession or use of such assets notwithstanding such transfer or other disposition.
Expiry Date means, in respect of a Bond, the last day of the Term of that Bond.
Existing Facilities Agreement means the multicurrency revolving facilities agreement dated 18 May 2011 (as amended and restated) between, among others, the Company, Carnival plc and certain Subsidiaries and Bank of America Merrill Lynch International Designated Activity Company as facilities agent.
Extended Termination Date has the meaning given to that term in Clause 10.2 (Extension of Termination Date).
Extending Lender has the meaning given to that term in paragraph (e) of Clause 10.2 (Extension of Termination Date).
Extension Request means a notice substantially in the form set out in Schedule 11 (Form of Extension Request).
Facilities means the multicurrency revolving facilities made available under this Agreement as described in Clause 2 (The Facilities).
Facilities Agent’s Spot Rate of Exchange means:
(a) the Facilities Agent’s spot rate of exchange; or
(b) (if the Facilities Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Facilities Agent (acting reasonably),
for the purchase of a relevant currency with US Dollars, euro or Sterling, as the case may be, in the London foreign exchange market at or about 11:00 a.m. on a particular day.
Facility Office means the office or offices notified by a Lender to the Facilities Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.
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Fallback Interest Period means, in relation to a Term Rate Loan, one month.
FATCA means:
(a) sections 1471 to 1474 of the Code or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulations referred to paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
FATCA Application Date means:
(a) in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
(b) in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
Federal Funds Rate means, in relation to any day, the rate per annum equal to:
(a) the weighted average of the rates on overnight Federal funds transactions with members of the US Federal Reserve System arranged by Federal funds brokers, as published for that day (or, if that day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not so published for any day which is a Business Day, the average of the quotations for that day on such transactions received by the Facilities Agent from three Federal funds brokers of recognised standing selected by the Facilities Agent.
Fee Letter means any letter or letters dated on or about the Signing Date, between (among others) the Arrangers and the Company, the Facilities Agent and the Company, setting out any of the fees referred to in Clause 17 (Fees).
Finance Document means:
(a) this Agreement;
(b) each Fee Letter;
(c) each of the Deeds of Guarantee;
(d) each Utilisation Request;
(e) a Transfer Certificate (if any);
(f) a Lender Accession Agreement (if any);
(g) any Accession Letter;
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(h) any Extension Request;
(i) each Subsidiary Deed of Guarantee;
(j) any Compounding Methodology Supplement;
(k) any RFR Supplement; and
(l) any other document designated as such by the Facilities Agent and the Company.
Finance Party means the Facilities Agent, an Arranger or a Lender.
Fitch means Fitch Ratings Inc.
Funding Rate means any individual rate notified by a Lender to the Facilities Agent pursuant to paragraph (a)(ii) of Clause 16.5 (Cost of funds) or paragraph (a)(ii) of Clause 9.9 (Cost of funds – Swingline Loans under Tranche C).
General Banking Conditions means the general banking terms and conditions (algemene Bankvoorwaarden) of any member of the Dutch Association for Banks (Nederlandse Vereniging van Banken).
Guarantor means the Original Guarantors and any Parent Entity that guarantees the Facility in accordance with the provisions of this Agreement, and their respective successors and assigns.
Historic Term Reference Rate means, in relation to any Term Rate Loan, the most recent applicable Term Reference Rate for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than 3 Business Days before the Quotation Day.
Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
Impaired Agent means the Facilities Agent at any time when:
(a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
(b) the Facilities Agent otherwise rescinds or repudiates a Finance Document;
(c) (if the Facilities Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or
(d) an Insolvency Event has occurred and is continuing with respect to the Facilities Agent;
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event; and
payment is made within three Business Days of its due date; or
(ii) the Facilities Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
Increase Confirmation means a confirmation substantially in the form set out in Schedule 9 (Form of Increase Confirmation).
Increase Date has the meaning given to that term in the Increase Confirmation.
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Increase Lender has the meaning given to that term in Clause 2.2 (Increase).
Increased Cost means:
(a) a reduction in the rate of return from the Facilities or on a Finance Party’s (or its Affiliate’s) overall capital;
(b) an additional or increased cost; or
(c) a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates but only to the extent that it is attributable to that Finance Party having entered into its Tranche A Commitment, Tranche B Commitment, Tranche C Commitment and/or Tranche D Commitment or funding or performing its obligations under any Finance Document.
Initial Subject Vessels means, collectively, the Vessels named:
(a) Carnival Celebration (with IMO identification number 9837456);
(b) ARVIA (with IMO identification number 9849693); and
(c) Costa Venezia (to be renamed Carnival Venezia) (with IMO identification number 9801689).
Insolvency Event in relation to a Finance Party means that the Finance Party:
(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c) makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
(e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
(ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
(f) has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
(g) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
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(h) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;
(i) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(j) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or
(k) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
Interest Period means:
(a) in relation to a Loan (other than a Swingline Loan), each period determined in accordance with Clause 15 (Interest Periods);
(b) in relation to a Swingline Loan, each period determined in accordance with Clause 9.7 (Interest Period); and
(c) in relation to an Unpaid Sum, each period determined in accordance with Clause 14.4 (Interest on overdue amounts).
Interpolated Historic Term Reference Rate means, in relation to any Term Rate Loan, the rate (rounded to the same number of decimal places as the relevant Term Reference Rate) which results from interpolating on a linear basis between:
(a) either:
(i) the most recent applicable Term Reference Rate (as of a day which is not more than 5 Business Days before the Quotation Day) for the longest period (for which that Term Reference Rate is available) which is less than the Interest Period of that Loan; or
(ii) in case of US Dollars, if no such Term Reference Rate is available for a period which is less than the Interest Period of that Loan, the most recent applicable SOFR (if any) for a day which is:
(A) no more than 5 Business Days before the Quotation Day; and
(B) no later than the Overnight Reference Day; and
(b) the most recent applicable Term Reference Rate (as of a day which is not more than 5 Business Days before the Quotation Day) for the shortest period (for which that Term Reference Rate is available) which exceeds the Interest Period of that Loan.
Interpolated Term Reference Rate means, in relation to any Term Rate Loan in euro, the rate (rounded to the same number of decimal places as the two relevant Term Reference Rates) which results from interpolating on a linear basis between:
(a) the applicable Term Reference Rate for the longest period (for which that Term Reference Rate is available) which is less than the Interest Period of that Term Rate Loan; and
(b) the applicable Term Reference Rate for the shortest period (for which that Term Reference Rate is available) which exceeds the Interest Period of that Term Rate Loan,
each as of the Specified Time on the Quotation Day for the currency of that Term Rate Loan.
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Interpolated Term SOFR means, in relation to any Term Rate Loan in US Dollars, the rate (rounded to the same number of decimal places as Term SOFR) which results from interpolating on a linear basis between:
(a) either:
(i) the applicable Term SOFR (as of the Specified Time) for the longest period (for which Term SOFR is available) which is less than the Interest Period of the Loan; or
(ii) if no such Term SOFR is available for a period which is less than the Interest Period of that Loan, the most recently published SOFR before the Quotation Day; and
(b) the applicable Term SOFR (as of the Specified Time) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan.
Investment Grade Rating means Baa3 by Moody’s or BBB- by S&P or Fitch, or equivalent or better.
ITA 2007 means the U.K. Income Tax Act 2007.
Italian Banking Act means the Legislative Decree no. 385 of 1 September 1993 (as amended and supplemented from time to time).
Italian Civil Code means the Italian codice civile, the initial version of which was approved by Italian Royal Decree No. 262 of 16 March 1942, as amended from time to time.
Italian Insolvency Code means the Legislative Decree No. 14 of 12 January 2019 (Codice della crisi d’impresa e dell’insolvenza), as amended, integrated and supplemented from time to time.
Italian Obligor means any Obligor incorporated in Italy or having its registered office in Italy.
Lender means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in accordance with Clause 2.2 (Increase) or Clause 29 (Changes to the Lenders) in the capacity of Lender,
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
Lender Accession Agreement means an agreement substantially in the form set out in Schedule 10 (Form of Lender Accession Agreement) or any other form agreed between the Facilities Agent and the Company.
LMA means the Loan Market Association.
Loan means a Loan Utilisation or a Swingline Loan or the principal amount outstanding for the time being of that Loan Utilisation or Swingline Loan, as the case may be.
Loan Utilisation means a loan made or to be made under Clause 5, including any loan deemed to have been requested under Clauses 7.1(b) and 9.3(b).
Loan Utilisation Request means a notice substantially in the form set out in Part A of Schedule 3 (Utilisation Request - Loans).
Lookback Period means the number of days specified as such in the applicable Reference Rate Terms.
Majority Lenders means, at any time, a Lender or Lenders whose Commitments aggregate more than 66 ⅔% of the Total Commitments (or, if the Total Commitments have been reduced to zero and there are no Utilisations then outstanding, aggregated more than 66 ⅔% of the Total Commitments immediately prior to the reduction).
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Majority Tranche D Lenders means, at any time, a Lender or Lenders whose Tranche D Commitments aggregate more than 66 ⅔% of the Total Tranche D Commitments (or, if the Total Tranche D Commitments have been reduced to zero and there are no Utilisations then outstanding, aggregated more than 66 ⅔% of the Total Tranche D Commitments immediately prior to the reduction).
Margin means at any time the percentage rate per annum determined at such time to be the margin in accordance with Clause 14.6 (Margin).
Material Adverse Effect means a material and adverse effect on:
(a) the ability of any Obligor to perform and observe its payment obligations under any Finance Document; and
(b) the financial condition of the Carnival Corporation & plc Group as a whole.
Material Subsidiary means, at any time, a Subsidiary of the Company or Carnival plc whose gross assets, pre-tax profits or turnover then equal or exceed 10 per cent. of the gross assets, pre-tax profits or turnover of the Carnival Corporation & plc Group.
For this purpose:
(a) the gross assets, pre-tax profits or turnover of a Subsidiary of the Company or Carnival plc will be determined from its financial statements (consolidated if it has Subsidiaries) upon which the latest audited financial statements of the Carnival Corporation & plc Group have been based;
(b) if a Subsidiary of the Company or Carnival plc becomes a member of the Carnival Corporation & plc Group after the date on which the latest audited financial statements of the Carnival Corporation & plc Group have been prepared, the gross assets, pre-tax profits or turnover of that Subsidiary will be determined from its latest financial statements;
(c) the gross assets, pre-tax profits or turnover of the Carnival Corporation & plc Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets, pre-tax profits or turnover of any company or business subsequently acquired or disposed of; and
(d) if a Material Subsidiary disposes of all or substantially all of its assets to another member of the Carnival Corporation & plc Group, it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary; the subsequent financial statements of those Subsidiaries and the Carnival Corporation & plc Group will be used to determine whether those Subsidiaries are Material Subsidiaries or not.
If there is a dispute as to whether or not a company is a Material Subsidiary, a certificate of the auditors of the Company or Carnival plc will be, in the absence of manifest error, conclusive.
Moody’s means Moody’s Investor Services, Inc.
New Lender has the meaning given to that term in Clause 29.1 (Assignments and transfers by the Lenders).
Non-Eligible Tranche D Lender means a Tranche A Lender which has notified the Company in writing that it is not permitted (by its constitutional documents or any applicable law) to participate in Tranche D.
Non-Extending Lender has the meaning given to that term in paragraph (f) of Clause 10.2 (Extension of Termination Date).
Non-Recourse Financing Arrangement means a non-recourse financing arrangement under which (in the case of Borrowed Money) the lender’s right of recourse is limited to a specific asset of the relevant member of the Carnival Corporation & plc Group or in the case of an asset or property, the
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asset or property is collateral for the financing and there is no further recourse by the relevant creditor against the general assets of any member of the Carnival Corporation & plc Group.
Obligor means the Borrower, a Guarantor or a Subsidiary Guarantor.
Obligors’ Agent means the Company, appointed to act on behalf of each Obligor (other than the Company) in relation to the Finance Documents pursuant to Clause 2.5 (Obligors’ Agent).
OFAC has the meaning given to that term in Clause 24.9 (United States law).
Optional Currency means a currency (other than the Base Currency for the relevant Tranche) which complies with the conditions set out in Clause 11.3 (Conditions relating to Optional Currencies).
Original Financial Statements means the audited consolidated financial statements of the Carnival Corporation & plc Group for the financial year ended 30 November 2022.
Original Obligor means the Borrower, a Guarantor or a Subsidiary Guarantor at the Signing Date.
Original Termination Date has the meaning given to that term in Clause 10.1 (Interpretation).
Overall Tranche A Commitment of a Lender means:
(a) its Tranche A Commitment; or
(b) in the case of a Swingline Lender which does not have a Tranche A Commitment, the Tranche A Commitment of a Lender which is its Affiliate.
Overall Tranche B Commitment of a Lender means:
(a) its Tranche B Commitment; or
(b) in the case of a Swingline Lender which does not have a Tranche B Commitment, the Tranche B Commitment of a Lender which is its Affiliate.
Overall Tranche C Commitment of a Lender means:
(a) its Tranche C Commitment; or
(b) in the case of a Swingline Lender which does not have a Tranche C Commitment, the Tranche C Commitment of a Lender which is its Affiliate.
Overnight Reference Day means the day which is two US Government Securities Business Day before the Quotation Day.
Parent Entity means any person of which the Company or Carnival plc, as applicable, is a Subsidiary (including any person of which the Company or Carnival plc, as applicable, becomes a Subsidiary after the Signing Date in compliance with this Agreement) and any holding company established by one or more Arison Parties for purposes of holding its investment in any Parent Entity.
Partially Non-Extending Lender has the meaning given to that term in paragraph (f) of Clause 10.2 (Extension of Termination Date).
Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Party means a party to this Agreement.
Pre-COVID Unsecured Debt means any unsecured indebtedness under (a) any revolving credit facility, (b) any bilateral term or revolving facility, (c) any financing or facility to which export credit agencies, any one or several governmental instrumentality(ies), or public international financial
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institution, is a party and (d) any bond facilities or bank guarantee facilities, owed by (or committed to) a member of the Carnival Corporation & plc Group in each case before 1 April 2020.
Quotation Day means, in relation to any Interest Period for which an interest rate is to be determined:
(a) (if the currency is Sterling), the first day of that Interest Period;
(b) (if the currency is euro), two TARGET Days before the first day of that Interest Period;
(c) (if the currency is US Dollars), two US Government Securities Business Days before the first day of that Interest Period; or
(d) (for any other currency), two Business Days before the first day of that Interest Period,
unless market practice differs in the Relevant Market for a currency, in which case the Quotation Day for that currency will be determined by the Facilities Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given by leading banks in the Relevant Market on more than one day, the Quotation Day will be the last of those days).
Quoted Tenor means, in relation to a Term Reference Rate, any period for which that rate is customarily displayed on the relevant page or screen of an information service.
Rating Requirements means, at any time, in relation to any Lender or any other bank or financial institution, a long term unsubordinated credit rating of:
(a) at least Baa1 by Moody’s; or
(b) at least BBB+ by S&P.
Reference Rate Terms means, in relation to a currency and:
(a) a Loan or an Unpaid Sum in that currency;
(b) an Interest Period for such a Loan or Unpaid Sum (or other period for the accrual of commission or fees in respect of that currency); or
(c) any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum in that currency,
the terms set out for that currency (if any) in Schedule 18 (Reference Rate Terms) or in any RFR Supplement.
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
Relevant Market means:
(a) in relation to euro, the European interbank market;
(b) in relation to US Dollars, the market for overnight cash borrowing collateralised by US Government securities; and
(c) in relation to an RFR Currency, the market specified as such in the applicable Reference Rate Terms.
Renewal Request means a Bond Utilisation Request identified as being a Renewal Request and otherwise complying with Clause 6.8(b).
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Repeating Representations means the representations which are deemed to be repeated under Clause 24.10 (Times for making representations).
Reporting Day means the day (if any) specified as such in the applicable Reference Rate Terms.
Reporting Time means the relevant time (if any) specified as such in the applicable Reference Rate Terms.
Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
RFR means the rate specified as such in the applicable Reference Rate Terms.
RFR Banking Day means any day specified as such in the applicable Reference Rate Terms.
RFR Currency means GBP and any currency which is not a Term Rate Currency (including, if paragraph (c) of Clause 16.2 (Unavailability of Term SOFR) applies, US Dollars).
RFR Interest Payment means the aggregate amount of interest that:
(a) is, or is scheduled to become, payable under any Finance Document; and
(b) relates to an RFR Loan.
RFR Loan means any Loan or, if applicable, Unpaid Sum denominated in GBP or any other RFR Currency.
RFR Supplement means, in relation to any currency, a document which:
(a) is agreed in writing between the Company and the Facilities Agent (acting in its own capacity and on the instructions of the Majority Lenders);
(b) specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to the applicable Reference Rate Terms;
(c) specifies whether that currency is an RFR Currency or a Term Rate Currency; and
(d) has been made available to the Company and each Finance Party.
Rollover Loan means one or more Loans under a Facility in respect of the same Tranche:
(a) made or to be made on the same day that a maturing Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing Loan;
(c) in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 11.2 (Unavailability of a currency)); and
(d) made or to be made to the same Borrower for the purpose of refinancing a maturing Loan.
Rules means:
(a) the Uniform Customs and Practices for Documentary Credits, International Chamber of Commerce, publication No. 600 (or any subsequent revision thereof);
(b) the International Chamber of Commerce Uniform Rules for Demand Guarantees URDG 758 (or any subsequent revision thereof);
(c) the International Standby Practices (ISP98) (or any subsequent revision thereof); or
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(d) any other rules or practices in respect of a Bond agreed between the relevant Tranche D Lender and the Bond Borrower.
S&P means Standard & Poor’s Rating Services.
SEC means the United States Securities Exchange Commission.
Security Interest means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having a similar effect.
Separate Loan has the meaning given to that term in Clause 12 (Repayment).
Signing Date means the date of this Agreement.
SOFR means the rate per annum equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
Specified Time means, for any purpose, a day or time determined for that purpose in accordance with Schedule 8 (Timetables).
Sterling, GBP and £ means the lawful currency of the United Kingdom from time to time.
Subject Vessels means, collectively, the Initial Subject Vessels together with any additional or replacement Vessels, in each case which are not subject to any Security Interest, contributed or otherwise transferred to the Borrower or any of its Subsidiaries following the Signing Date pursuant to paragraph (b) of Clause 27.10 (Vessel Contributions). For the avoidance of doubt, the term “Subject Vessels”, as used in this Agreement, shall not include any Vessel disposed of or transferred by the Borrower (other than to a Subsidiary of the Borrower that is an Obligor), or for which another Vessel has been substituted as a Subject Vessel in lieu of such Vessel in accordance with this Agreement, following the date of such disposition, transfer or substitution.
Subject Vessel Contributions means, collectively, the contribution or other transfer to the Borrower of good and marketable title to the Subject Vessels.
Subsidiary means a subsidiary within the meaning of section 1159 of the Companies Act 2006 and, for the purposes of Clause 26 (Financial Covenants) and in relation to financial statements of the Carnival Corporation & plc Group, a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.
Subsidiary Deed of Guarantee means:
(a) the deed of guarantee issued by the Subsidiary Guarantors in favour of the Facilities Agent dated on or about the Signing Date; or
(b) any deed of guarantee issued by an Additional Subsidiary Guarantor in favour of the Facilities Agent after the Signing Date.
Subsidiary Guarantor means each of:
(a) GXI, LLC., incorporated in the State of Delaware, United States of America;
(b) HAL Antillen N.V., incorporated in Curaçao;
(c) Holland America Line N.V., incorporated in Curaçao;
(d) Cruiseport Curaçao C.V., incorporated in Curaçao;
(e) Princess Cruise Lines, Ltd., an exempted company limited by shares registered in Bermuda with registered number 26415;
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(f) Seabourn Cruise Line Limited, an exempted company limited by shares registered in Bermuda with registered number 34507;
(g) Costa Crociere S.p.A., incorporated in Italy; and
(h) any Additional Subsidiary Guarantor.
Swingline Commitment of a Swingline Lender means that Swingline Lender’s:
(a) Swingline Tranche A Commitment;
(b) Swingline Tranche B Commitment; and
(c) Swingline Tranche C Commitment.
Swingline Facilities means the swingline loan facilities made available under this Agreement as described in Clause 9 (Swingline loans).
Swingline Lender means:
(a) an Original Lender listed in Part B of Schedule 1 as a swingline lender; or
(b) any other person that becomes a swingline lender after the Signing Date in accordance with Clause 29 (Changes to Lenders),
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
Swingline Loan means a loan made or to be made under any Swingline Facility.
Swingline Loan Utilisation Request means a notice substantially in the form set out in Part C of Schedule 3 (Utilisation Request - Swingline Loans).
Swingline Tranche A Commitment means:
(a) in relation to a Swingline Lender under Tranche A on the Signing Date, the amount in the Base Currency for Tranche A set opposite its name under the heading Swingline Tranche A Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Swingline Tranche A Commitment transferred to it under this Agreement; and
(b) in relation to any other Swingline Lender under Tranche A, the amount in the Base Currency for Tranche A of any Swingline Tranche A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Swingline Tranche B Commitment means:
(a) in relation to a Swingline Lender under Tranche B on the Signing Date, the amount in the Base Currency for Tranche B set opposite its name under the heading Swingline Tranche B Commitment in Part C of Schedule 1 (The Parties) of this Agreement and the amount of any other Swingline Tranche B Commitment transferred to it under this Agreement; and
(b) in relation to any other Swingline Lender under Tranche B, the amount in the Base Currency for Tranche B of any Swingline Tranche B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Swingline Tranche C Commitment means:
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(a) in relation to a Swingline Lender under Tranche C on the Signing Date, the amount in the Base Currency for Tranche C set opposite its name under the heading Swingline Tranche C Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Swingline Tranche C Commitment transferred to it under this Agreement; and
(b) in relation to any other Swingline Lender under Tranche C, the amount in the Base Currency for Tranche C of any Swingline Tranche C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
TARGET2 means Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
TARGET Day means a day on which TARGET2 is open for the settlement of payments in euro.
Taxes means any and all present and future taxes, levies, imposts, duties, fees or charges of whatever nature or withholding of a similar nature together with interest thereon and penalties in respect thereof and Tax means any one of them.
Tax Credit means a credit against any Tax or any relief or remission for Tax (or its repayment).
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
Tax Payment means a payment made by an Obligor to a Finance Party in any way relating to a Tax Deduction or under any indemnity given by that Obligor in respect of Tax under any Finance Document.
Term means, in respect of a Bond, the period for which a Tranche D Lender is under a liability under that Bond.
Term Rate Currency means:
(a) euro;
(b) US Dollars; and
(c) any currency specified as such in an RFR Supplement relating to that currency,
to the extent, in any case, not specified otherwise in a subsequent RFR Supplement.
Term Rate Loan means a Loan or, if applicable, Unpaid Sum (including but not limited to any Loan or Unpaid Sum in a Term Rate Currency) which is not an RFR Loan, to the extent that it is not, or has not become an “RFR Loan” for its then current Interest Period pursuant to paragraph (c) of Clause 16.2 (Unavailability of Term SOFR).
Term Reference Rate means, in relation to a Term Rate Loan:
(a) in euros:
(i) EURIBOR as of the Specified Time and for a period equal in length to the Interest Period of that Term Rate Loan;
(ii) as otherwise determined pursuant to Clause 16.1 (Interest Calculation if no Term Reference Rate for euro),
and if that rate is less than zero, such Term Reference Rate shall be deemed to be zero; and
(b) in US Dollars,
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(i) the applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Term Rate Loan: or
(ii) as otherwise determined pursuant to Clause 16.2(c) (Unavailability of Term SOFR).
Term SOFR means the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant period published by CME Group Benchmark Administration Limited.
Termination Date means, subject to Clause 10 (Extension Option), 6 August 2025.
Test Date - Bonds means each date falling at three month intervals after the Signing Date.
Test Total - Bonds means, at any time, the aggregate in US Dollars of each Bond Utilisation outstanding at that time, where each Bond Utilisation not denominated in US Dollars is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange at that time.
Total Commitments means, at any time, the aggregate of:
(a) the Total Tranche A Commitments;
(b) the Total Tranche B Commitments (converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange at that time);
(c) the Total Tranche C Commitments (converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange at that time); and
(d) the Total Tranche D Commitments.
Total Swingline Tranche A Commitments means, at any time, the aggregate of the Swingline Tranche A Commitments of all the Swingline Lenders under Tranche A at that time.
Total Swingline Tranche B Commitments means, at any time, the aggregate of the Swingline Tranche B Commitments of all the Swingline Lenders under Tranche B at that time.
Total Swingline Tranche C Commitments means, at any time, the aggregate of the Swingline Tranche C Commitments of all the Swingline Lenders under Tranche C at that time.
Total Tranche A Commitments means, at any time, the aggregate of the Tranche A Commitments of all the Lenders at that time.
Total Tranche B Commitments means, at any time, the aggregate of the Tranche B Commitments of all the Lenders at that time.
Total Tranche C Commitments means, at any time, the aggregate of the Tranche C Commitments of all the Lenders at that time.
Total Tranche D Commitments means, at any time, the aggregate of the Tranche D Commitments of all the Lenders at that time.
Tranche means:
(a) Tranche A;
(b) Tranche B;
(c) Tranche C; or
(d) Tranche D.
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Tranche A means the facility made available by the Lenders to the Borrower under Clause 2.1(a).
Tranche B means the facility made available by the Lenders to the Borrower under Clause 2.1(b).
Tranche C means the facility made available by the Lenders to the Borrower under Clause 2.1(c).
Tranche D means the facility made available by the Lenders to the Borrower under Clause 2.1(d).
Tranche A Commitment means:
(a) in relation to a Lender on the Signing Date, the amount in the Base Currency for Tranche A set opposite its name under the heading Tranche A Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Tranche A Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency for Tranche A of any Tranche A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Tranche A Indemnified Proportion means, in relation to a Lender, the proportion (expressed as a percentage) borne by that Lender’s Available Tranche A Commitment to the Available Tranche A Facility, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.
Tranche B Commitment means:
(a) in relation to a Lender on the Signing Date, the amount in the Base Currency for Tranche B set opposite its name under the heading Tranche B Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Tranche B Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency for Tranche B of any Tranche B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Tranche B Indemnified Proportion means, in relation to a Lender, the proportion (expressed as a percentage) borne by that Lender’s Available Tranche B Commitment to the Available Tranche B Facility, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.
Tranche C Commitment means:
(a) in relation to a Lender on the Signing Date, the amount in the Base Currency for Tranche C set opposite its name under the heading Tranche C Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Tranche C Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency for Tranche C of any Tranche C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Tranche C Indemnified Proportion means, in relation to a Lender, the proportion (expressed as a percentage) borne by that Lender’s Available Tranche C Commitment to the Available Tranche C Facility, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.
Tranche D Commitment means:
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(a) in relation to a Lender on the Signing Date, the amount in the Base Currency for Tranche D set opposite its name under the heading Tranche D Commitment in Part B of Schedule 1 (The Parties) of this Agreement and the amount of any other Tranche D Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency for Tranche D of any Tranche D Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement.
Tranche D Lender means a Lender under Tranche D but excluding entities which have ceased to be a Tranche D Lender under Clause 29 (Changes to the Lenders).
Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facilities Agent and the Company.
Transfer Date means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
(b) the date on which the Facilities Agent executes the Transfer Certificate.
U.K. and United Kingdom means the United Kingdom of Great Britain and Northern Ireland.
U.K. Bank Levy means the bank levy imposed pursuant to Part 6 and Schedule 19 of the UK Finance Act 2011.
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
US means the United States of America.
USA Patriot Act has the meaning given to that term in Clause 24.9(a)(i) (United States Law).
USD Credit Adjustment Spread means 0.10 per cent. per annum.
US Dollar, USD and US$ means the lawful currency of the United States of America from time to time.
US Government Securities Business Day means any day other than:
(a) a Saturday or a Sunday; and
(b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities.
US Tax Obligor means:
(a) an Obligor which is resident for tax purposes in the United States of America; or
(b) an Obligor some or all of whose payments under the Finance Documents are from sources within the United States for US federal income tax purposes.
Utilisation means a Loan Utilisation, a Bond Utilisation and a Swingline Loan, as the case may be.
Utilisation Date means the date on which a Utilisation is made.
Utilisation Request means a Loan Utilisation Request, a Bond Utilisation Request or a Swingline Loan Utilisation Request, as the case may be.
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VAT means:
(a) any value added tax imposed by the Value Added Tax Act 1994;
(b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(c) any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.
Vessel means a passenger cruise vessel, in each case together with all related spares, equipment and any additions or improvements.
1.2. Construction
(a) The following definitions have the meanings given to them in Clause 26.1 (Definitions):
(i) Borrowed Money;
(ii) Capital Lease;
(iii) Consolidated Capital;
(iv) Excluded Indebtedness;
(v) GAAP;
(vi) Indebtedness;
(vii) Interest;
(viii) Issued Capital and Consolidated Reserves;
(ix) Measurement Period; and
(x) Testing Date.
(b) In this Agreement, unless the contrary intention appears, a reference to:
(i) an amendment includes a supplement, novation, restatement or re-enactment and amended will be construed accordingly;
(ii) assets includes present and future properties, revenues and rights of every description;
(iii) a Lender’s cost of funds in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan and to the Facilities Agent’s “cost of funds” is a reference to the average cost (determined either on an actual or notional basis) which the Facilities Agent would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount referred to in paragraph (b) of Clause 34.4 (Clawback and pre-funding);
(iv) an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration or notarization;
(v) consolidation in relation to the Carnival Corporation & plc Group means a combination of the relevant financial items of the Carnival Corporation Group and the Carnival plc Group and consolidated will be construed accordingly;
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(vi) disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;
(vii) a group of Lenders includes all the Lenders;
(viii) indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money whether present or future, actual or contingent;
(ix) a person includes any individual, company, corporation, partnership, business trust, joint venture, association, joint stock company, trust or other unincorporated organization whether or not a legal entity, or any governmental or agency or political subdivision thereof;
(x) a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any Party to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organization with authority to regulate the business of any affected Party;
(xi) a currency (other than the euro) is a reference to the lawful currency for the time being of the relevant country;
(xii) a Default being outstanding means that it has not been remedied or waived;
(xiii) a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;
(xiv) a clause, a subclause or a schedule is a reference to a clause or subclause of, or a schedule to, this Agreement;
(xv) a Party or any other person includes its successors in title, permitted assigns and permitted transferees;
(xvi) a Finance Document or another document is a reference to that Finance Document or other document as amended including any amendment providing for an increase in the amount of a facility or any additional facility; and
(xvii) a time of day is a reference to London time.
(c) Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and
(iii) notwithstanding sub-paragraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.
(d) Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act) and, subject to Clause 41.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, no consent of any third party is required for any variation (including any release or compromise of any liability) or termination of that Finance Document.
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(e) Unless the contrary intention appears:
(i) a reference to a party will not include that Party if it has ceased to be a Party under this Agreement;
(ii) a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and
(iii) any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of an Obligor is or may be outstanding under the Finance Documents.
(f) The headings in this Agreement do not affect its interpretation.
(g) Any reference in this Agreement to:
(i) the Interest Period of a Bond will be construed, notwithstanding Clause 15.1(b), as a reference to the Term of that Bond;
(ii) a Utilisation made or to be made to the Bond Borrower includes a Bond issued on its behalf;
(iii) an outstanding amount of a Bond at any time is the maximum amount that is or may be payable by the Bond Borrower in respect of that Bond at that time;
(iv) amounts outstanding under this Agreement includes amounts outstanding under or in respect of a Bond;
(v) the Borrower repaying or prepaying a Bond means:
(A) the Borrower providing cash cover for that Bond;
(B) the maximum amount payable under that Bond being reduced in accordance with its terms; or
(C) the relevant Tranche D Lender being satisfied that it has no further liability under that Bond,
and the amount by which a Bond is repaid or prepaid under paragraphs (g)(v)(A) and (g)(v)(B) above is the amount of the relevant cash cover or reduction; and
(vi) the Bond Borrower providing cash cover for a Bond means the Bond Borrower (or another Obligor on its behalf) paying an amount in the currency of the Bond or, in relation to cash cover provided under Clause 6.9(b)(ii), US Dollars, into an interest-bearing account in the name of the Bond Borrower and the following conditions being met:
(A) the account is with the relevant Tranche D Lender which issued that Bond;
(B) withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Bond until no amount is or may be outstanding under that Bond; and
(C) the Bond Borrower (or relevant Obligor) has executed a security document over that account, in form and substance satisfactory to the Tranche D Lender with which that account is held, creating a first ranking security interest over that account;
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(vii) any Bond issued under and as defined in the Existing Facilities Agreement which is outstanding on the Commencement Date shall be deemed a Bond issued under this Agreement.
(h) Any reference in this Agreement to:
(i) an Affiliate in relation to any member of the NatWest Group, shall not include (i) the UK government or any member or instrumentality thereof, including His Majesty’s Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof); or (ii) any persons or entities controlled by or under common control with the U.K. government or any member or instrumentality thereof (including His Majesty’s Treasury and UK Financial Investments Limited) and which are not part of NatWest Group plc and its subsidiaries or subsidiary undertakings. NatWest Group means NatWest Group plc and its subsidiaries and subsidiary undertakings;
(ii) an Interest Period includes each period determined under this Agreement by reference to which interest on a Swingline Loan is calculated; and
(iii) a Lender includes a Swingline Lender unless the context otherwise requires.
(i) A reference in this Agreement to a page or screen of an information service displaying a rate shall include:
(i) any replacement page of that information service which displays that rate; and
(ii) the appropriate page of such other information service which displays that rate from time to time in place of that information service,
and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Facilities Agent after consultation with the Company.
(j) A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.
(k) Any RFR Supplement relating to a currency overrides anything relating to that currency in:
(i) Schedule 18 (Reference Rate Terms); or
(ii) any earlier RFR Supplement.
(l) A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate overrides anything relating to that rate in:
(i) Schedule 19 (Daily Non-Cumulative Compounded RFR Rate); or
(ii) any earlier Compounding Methodology Supplement.
(m) The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
1.3. Italian terms
In the Finance Documents, where it relates to a person incorporated or having its centre of main interests in Italy a reference to:
(a) a winding-up, bankruptcy, insolvency, administration or dissolution includes without limitation, any (I) scioglimento, liquidazione, procedura concorsuale (liquidazione giudiziale, concordato preventivo, concordato in bianco, concordato semplificato per la liquidazione del patrimonio, liquidazione coatta amministrativa, amministrazione straordinaria or misure
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urgenti per la ristrutturazione industriale delle grandi imprese in stato di insolvenza), cessione dei beni ai creditori pursuant to article 1977 of the Italian Civil Code, or any other similar proceedings or legal concepts (including pursuant to the Italian Royal Decree No. 267 of 16 March 1942, where applicable); and (II) any similar proceedings or act in any other jurisdiction with the same purposes or effects pursued by the procedures or acts mentioned under sub-paragraphs (I) and (II) above;
(b) a composition, compromise, assignment or arrangement with creditors includes a piano di risanamento attestato pursuant to article 56 of the Italian Insolvency Code or an accordo di ristrutturazione dei debiti pursuant to article 57 of the Italian Insolvency Code, an accordo di ristrutturazione ad efficacia estesa pursuant to article 61 of the Italian Insolvency Code, a convenzione di moratoria pursuant to article 62 of the Italian Insolvency Code, an accordo di ristrutturazione agevolato pursuant to article 60 of the Italian Insolvency Code, a piano di ristrutturazione soggetto a omologazione pursuant to article 64-bis of the Italian Insolvency Code, a concordato preventivo, filing a petition pursuant to article 40 of the Italian Insolvency Code or article 44 of the Italian Insolvency Code, filing a petition pursuant to article 54 sub-section 3 of the Italian Insolvency Code, an agreement as provided under article 23, sub-section 1, lett. (a) and lett. (c) of the Italian Insolvency Code, or a similar arrangement with a substantial part of creditors (including pursuant to the Italian Royal Decree No. 267 of 16 March 1942, where applicable);
(c) a receiver, an administrative receiver, an administrator, an independent expert or the like includes a curatore, commissario giudiziale, commissario straordinario, commissario liquidatore, liquidatore, esperto indipendente or any other person performing the same function of each of the foregoing;
(d) a step or procedure taken in connection with insolvency proceedings for any person includes that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), filing a petition for appointment of an expert in the context of a petition for the composizione negoziata per la soluzione della crisi d’impresa, implementing a piano di risanamento attestato pursuant to article 56 of the Italian Insolvency Code, entering into an accordo di ristrutturazione dei debiti pursuant to article 57 of the Italian Insolvency Code, an accordo di ristrutturazione ad efficacia estesa pursuant to article 61 of the Italian Insolvency Code, an accordo di ristrutturazione agevolato pursuant to article 60 of the Italian Insolvency Code, a convenzione di moratoria pursuant to article 62 of the Italian Insolvency Code, or entering into a similar arrangement with a substantial part of its creditors, filing a petition pursuant to article 40 of the Italian Insolvency Code or article 44 of the Italian Insolvency Code for admission to a concordato preventivo, for the sanctioning of an accordo di ristrutturazione dei debiti pursuant to article 57 of the Italian Insolvency Code, an accordo di ristrutturazione ad efficacia estesa pursuant to article 61 of the Italian Insolvency Code, an accordo di ristrutturazione agevolato pursuant to article 60 of the Italian Insolvency Code or a piano di ristrutturazione soggetto a omologazione pursuant to article 64-bis of the Italian Insolvency Code, filing a petition pursuant to article 54 sub-section 3 of the Italian Insolvency Code, filing a petition for self-adjudication in liquidazione giudiziale and filing a petition for admission to amministrazione straordinaria, or any other similar proceedings or legal concepts (including pursuant to the Italian Royal Decree No. 267 of 16 March 1942, where applicable);
(e) a matured obligation or becomes due and payable includes any credito liquido ed esigibile and credito scaduto;
(f) a guarantee means any guarantee (including, without limitation, any fideiussione, garanzia a prima richiesta, avallo, garanzia autonoma and any other garanzia personale), letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; and
(g) constitutional documents means, in respect of any limited liability company and/or joint stock company incorporated under the laws of the Republic of Italy, its current by-laws (statuto) and deed of incorporation (atto costitutivo).
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2. THE FACILITIES
2.1. The Facilities
Subject to the terms of this Agreement, the Lenders make available to the Borrower multicurrency revolving facilities in four (4) tranches being:
(a) a US Dollar facility in an aggregate amount equal to the Total Tranche A Commitments;
(b) a Sterling facility in an aggregate amount equal to the Total Tranche B Commitments;
(c) a euro facility in an aggregate amount equal to the Total Tranche C Commitments; and
(d) a US Dollar facility in an aggregate amount equal to the Total Tranche D Commitments.
2.2. Increase
(a) The Company may by giving prior notice to the Facilities Agent after the effective date of a cancellation of:
(i) the Available Commitment and/or the Available Swingline Commitment of a Defaulting Lender (or its Affiliate) in accordance with Clause 13.6(h) (Involuntary prepayment and cancellation and replacement of Lender);
(ii) the Available Commitment and/or the Available Swingline Commitment of a Lender (or its Affiliate) in accordance with paragraphs (a) to (f) of Clause 13.6 (Involuntary prepayment and cancellation and replacement of Lender); or
(iii) the Commitments of a Lender (or its Affiliate) in accordance with Clause 13.1 (Mandatory prepayment - illegality),
request that the Total Commitments or the relevant Swingline Commitments be increased (and the Total Commitments under that Facility or the relevant Swingline Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Available Swingline Commitment so cancelled as follows:
(iv) the increased Commitments and/or relevant Swingline Commitments will be assumed by one or more Lenders or other banks or financial institutions (each an Increase Lender) selected by the Company (each of which shall not be a member of the Carnival Corporation & plc Group) and each of which confirms its willingness to assume and does assume all the obligations of a Defaulting Lender corresponding to that part of the increased Commitments and/or relevant Swingline Commitments which it is to assume, as if it had been an Original Lender;
(v) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;
(vi) each Increase Lender shall become a Party as a “Lender” and (where appropriate) “Swingline Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;
(vii) the Commitments and Swingline Commitments of the other Lenders shall continue in full force and effect; and
(viii) any increase in the Total Commitments and/or the relevant Swingline Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.
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(b) An increase in the Total Commitments and/or the relevant Swingline Commitments will only be effective on:
(i) the execution by the Facilities Agent of an Increase Confirmation from the relevant Increase Lender; and
(ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the performance by the Facilities Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments and/or the relevant Swingline Commitments by that Increase Lender, the completion of which the Facilities Agent shall promptly notify to the Company and the Increase Lender.
(c) No Swingline Commitment of a Lender may exceed the Commitment of that Lender or its Affiliate pursuant to the operation of this Clause 2.2. Accordingly where the Swingline Commitments are to be increased pursuant to this Clause to replace Swingline Commitments of a Swingline Lender that have been cancelled pursuant to Clause 13.6(h) (Involuntary prepayment and cancellation and replacement of Lender) or Clause 13.1 (Mandatory prepayment - illegality) without a commensurate cancellation of the Commitments of that Swingline Lender’s Affiliate being required at the time of such cancellation, that Affiliate shall (to the extent of its Commitments at the time of the increase in Swingline Commitments) be required to transfer its Commitments to the relevant Increase Lender (or its Affiliate) on the terms provided for in Clause 41.7 (Replacement of a Lender) to the extent necessary to ensure that the Commitments of the Increase Lender (or its Affiliate) are at least equal to each of the Swingline Commitments assumed by that Increase Lender.
(d) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facilities Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.
(e) Unless the Facilities Agent otherwise agrees or the increased Commitment and/or Swingline Commitment is assumed by an existing Lender, the Company shall, on the date upon which the increase takes effect, pay to the Facilities Agent (for its own account) a fee of USD3,500 and promptly on demand pay to the Facilities Agent the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.
(f) The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph.
(g) Clause 29.3 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:
(i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase;
(ii) the New Lender were references to that Increase Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
2.3. Additional Commitments
(a) The Company may, by giving notice to the Facilities Agent (the Increase Request), request an increase in the Total Commitments by the Lenders and/or by new lenders as Additional Lenders. The amount of any additional Commitments under a Tranche requested in the Increase Request are referred to in this Clause 2.3 as the Additional Commitments.
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(b) The total aggregate Additional Commitments may not exceed an amount which would make the Total Commitments exceed the Total Commitments under (and as defined in) the Existing Facilities Agreement as at the Signing Date. Any Additional Commitments may include a corresponding increase to the Swingline Commitments.
(c) The Facilities Agent must promptly notify the Lenders of any Increase Request requesting an increase in the Total Commitments to be provided by existing Lenders that it receives. An Increase Request is irrevocable.
(d) No Lender is obliged to agree to increase its Commitment following the delivery of an Increase Request requesting an increase in the Total Commitments to be provided by existing Lenders. Each Lender that agrees to increase its Commitment under an Increase Request (a Consenting Lender) shall notify the Facilities Agent of its agreement (and the amount by which it agrees to increase its Commitment (the Increase Amount)) by the date falling 10 Business Days after the date that the Increase Request is delivered to the Facilities Agent (the date that the Increase Request is delivered to the Facilities Agent being the Increase Request Date). On the date falling 25 Business Days after the Increase Request Date or, if at that time any Loans are outstanding, the end of the next Interest Period for all outstanding Loans under the relevant Tranche(s) to occur after the Increase Request Date (the Additional Increase Date), each Consenting Lender will increase its Commitment under the relevant Tranche by its Increase Amount and the Total Commitments will be increased accordingly. For the avoidance of doubt, for so long as any Loans are outstanding any increase in the Commitments may only occur at the end of an Interest Period for all Loans under the relevant Tranche(s).
(e) If any Lender fails to reply to an Increase Request requesting an increase in the Total Commitments to be provided by existing Lenders by the date falling 10 Business Days after the Increase Request Date, it will be deemed to have refused that Increase Request and its Commitment will not be increased.
(f) The Company or the Borrower may, at its discretion, invite new lenders to accede to this Agreement as Additional Lenders under Clause 29.9 (Additional Lenders) and to provide Additional Commitments (together with or instead of existing Lenders). Any Additional Lender providing Additional Commitments under this paragraph (f) must accede to this Agreement as an Additional Lender on or before the relevant Additional Increase Date.
(g) The aggregate of the Increase Amounts and Additional Commitments under paragraphs (d) and (f) above respectively may not exceed the Additional Commitments requested in the relevant Increase Request.
(h) The amount of each Lender’s Increase Amount and/or Additional Commitment under paragraph (d) and (f) above (as the case may be) will be agreed between the Company and the Lender concerned, and will be notified to the Facilities Agent in accordance with the provisions of this Clause 2.3.
(i) No increase to the Total Commitments will take effect under this Clause 2.3 if, on the relevant Additional Increase Date, a Default is outstanding which has been notified to the Company by the Facilities Agent, or which has been notified to the Facilities Agent by the Company.
(j) Following any increase to the Total Commitments under this Clause 2.3, the Facilities Agent shall promptly notify each Party of the Additional Increase Date and the Additional Commitments being made available under the relevant Tranche(s) by each Consenting Lender and/or Additional Lender.
2.4. Finance Parties’ rights and obligations
(a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
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(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facilities or its role under a Finance Document (including any such amount payable to the Facilities Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
(c) A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
2.5. Obligors’ Agent
(a) Each Obligor by its execution of this Agreement or a Subsidiary Deed of Guarantee irrevocably appoints the Company to act on its behalf as its agent (and, as to each Italian Obligor, as its mandatario con rappresentanza for the purposes of Italian law) in relation to the Finance Documents and irrevocably authorises:
(i) the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of the Borrower, Utilisation Requests), to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor and, as to each Italian Obligor, with specific power and authorisation to execute any contract with itself (contratto con sè stesso) for the purposes of article 1395 of the Italian Civil Code and notwithstanding any possible conflict of interest in accordance with article 1394 of the Italian Civil Code; and
(ii) each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,
and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
(b) Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.
3. PURPOSE
3.1. Purpose
The Borrower shall apply all amounts utilised by it under the Facilities:
(a) by way of Loan Utilisations or Swingline Loans towards general liquidity and/or working capital purposes of the Carnival Corporation & plc Group including but not limited to (in the case of Swingline Loans) support for any CP Programme; and
(b) by way of Bond Utilisations, for the purposes of securing the commercial obligations specified in the Bond.
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3.2. Monitoring
No Finance Party is bound to monitor or verify the utilisation of the Facilities pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1. Initial conditions precedent
(a) No Borrower may deliver a Utilisation Request unless the Facilities Agent has received all of the documents and other evidence listed in Part A and Part B of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Facilities Agent. The Facilities Agent shall notify the Company and the Lenders promptly upon being so satisfied.
(b) Other than to the extent that the Majority Lenders notify the Facilities Agent in writing to the contrary before the Facilities Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facilities Agent to give that notification. The Facilities Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
5. UTILISATION - LOAN
5.1. Delivery of a Loan Utilisation Request
(a) The Borrower may utilise the Facilities for Loan Utilisations by delivery to the Facilities Agent of a duly completed Loan Utilisation Request.
(b) Unless the Facilities Agent otherwise agrees, the latest time for receipt by the Facilities Agent of a duly completed Loan Utilisation Request is the Specified Time one (1) Business Day before the Quotation Day for the proposed Loan Utilisation.
5.2. Completion of a Loan Utilisation Request
(a) Each Loan Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i) it identifies the Tranche to be utilised;
(ii) the proposed Utilisation Date is a Business Day falling within the Availability Period;
(iii) the currency and amount of the Loan Utilisation comply with Clause 5.3 (Currency and amount); and
(iv) the proposed Interest Period complies with Clause 15 (Interest Periods).
(b) Only one Loan Utilisation may be requested in each Loan Utilisation Request.
(c) Subject to paragraph (d) below, the Borrower may not deliver a Loan Utilisation Request for a Loan Utilisation if as a result of the proposed Loan Utilisation more than twelve (12) Loan Utilisations would be outstanding.
(d) For the purposes of paragraph (c) above, the following shall not be taken into account:
(i) a Loan Utilisation made pursuant to Clause 7.1(b) to repay a Bond Utilisation or any amount outstanding under a Bond;
(ii) a Loan Utilisation made pursuant to Clause 9.3(b) to repay a Swingline Loan that has become due and payable;
(iii) any Utilisation made by a single Lender under Clause 11.2 (Unavailability of a currency); and
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(iv) any Separate Loan.
5.3. Currency and amount
(a) The currency specified in a Loan Utilisation Request given under Clause 5.1 must be the Base Currency for the Tranche requested or an Optional Currency.
(b) The amount of the proposed Loan Utilisation must be:
(i) if the currency selected is the Base Currency:
(A) in respect of Tranche A, a minimum of US$2,000,000 or, if less, the Available Tranche A Facility;
(B) in respect of Tranche B, a minimum of £1,000,000 or, if less, the Available Tranche B Facility;
(C) in respect of Tranche C, a minimum of €1,500,000 or, if less, the Available Tranche C Facility; or
(D) in respect of Tranche D, a minimum of US$2,000,000 or, if less, the Available Tranche D Facility.
(ii) if the currency selected is an Optional Currency and does not require the approval of the Facilities Agent under Clause 11.3(a) (Conditions relating to Optional Currencies):
(A) in respect of Tranche A, a minimum of US$2,000,000 or, if less, the Available Tranche A Facility (where the amount of the proposed Loan Utilisation is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange on the date of the Loan Utilisation Request);
(B) in respect of Tranche B, a minimum of £1,000,000 or, if less, the Available Tranche B Facility (where the amount of the proposed Loan Utilisation is converted into Sterling at the Facilities Agent’s Spot Rate of Exchange on the date of the Loan Utilisation Request);
(C) in respect of Tranche C, a minimum of €1,500,000 or, if less, the Available Tranche C Facility (where the amount of the proposed Loan Utilisation is converted into euro at the Facilities Agent’s Spot Rate of Exchange on the date of the Loan Utilisation Request); or
(D) in respect of Tranche D, a minimum of US$2,000,000 or, if less, the Available Tranche D Facility (where the amount of the proposed Loan Utilisation is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange on the date of the Loan Utilisation Request); and
(iii) if the currency selected is an Optional Currency and it has been approved by the Facilities Agent under Clause 11.3(a) (Conditions relating to Optional Currencies), the minimum amount (and, if required, integral multiple) specified by the Facilities Agent pursuant to Clause 11.3(b) (Conditions relating to Optional Currencies).
5.4. Lenders’ participation
(a) Subject to paragraph (b) below, the Lenders will only be obliged to comply with this Clause 5.4 (Lenders’ participation) if on the proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default is outstanding or would result from the proposed Rollover Loan and, in the case of any other Loan Utilisation, no Default is outstanding or would result from the proposed Loan Utilisation; and
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(ii) the Repeating Representations to be made by each Obligor are correct in all material respects.
(b) The Lenders shall be obliged to comply with this Clause 5.4 in relation to any Loan Utilisation made pursuant to Clause 7.1(b) or Clause 9.3(b) provided that paragraph (a) shall not apply to any such Loan Utilisation, and the conditions referred to in paragraphs (e) and (f) below shall be deemed satisfied in relation to any such Loan Utilisation.
(c) The Facilities Agent must promptly notify each Lender of the details of the requested Loan Utilisation (including the amount, currency and Base Currency Amount) and the amount of each Lender’s share in that Loan Utilisation, in each case by the Specified Time.
(d) The amount of each Lender’s share in:
(i) each Loan Utilisation under Tranche A will be equal to the proportion which its Available Tranche A Commitment bears to the Available Tranche A Facility immediately prior to making the Loan Utilisation;
(ii) each Loan Utilisation under Tranche B will be equal to the proportion which its Available Tranche B Commitment bears to the Available Tranche B Facility immediately prior to making the Loan Utilisation;
(iii) each Loan Utilisation under Tranche C will be equal to the proportion which its Available Tranche C Commitment bears to the Available Tranche C Facility immediately prior to making the Loan Utilisation; and
(iv) each Loan Utilisation under Tranche D will be equal to the proportion which its Available Tranche D Commitment bears to the Available Tranche D Facility immediately prior to making the Loan Utilisation.
(e) If the conditions set out in this Agreement have been satisfied or waived and subject to Clause 12(g) (Repayment), each Lender must make its share in each Loan Utilisation available to the Facilities Agent for the Borrower through its Facility Office on the proposed Utilisation Date.
(f) If, on the proposed Utilisation Date, the Facilities Agent is satisfied that all conditions precedent have been satisfied or waived it shall pay the proceeds of each Loan Utilisation received pursuant to paragraph (e) above in accordance with the payment directions set out in the relevant Loan Utilisation Request (or, if relevant, in accordance with Clause 7.1(b) or Clause 9.3(b)).
6. UTILISATION - BONDS
6.1. General
In determining the amount of the Available Bond Facility for the purposes of this Agreement, the Lender’s Available Tranche D Commitment will be calculated ignoring any cash cover provided for outstanding Bonds.
6.2. Tranche D
(a) A Bond Utilisation may only be made under Tranche D.
(b) The Borrower (or the Company or Carnival plc on behalf of the Borrower) may specify (i) that either one Tranche D Lender shall provide a Bond or more than one Tranche D Lender shall provide Bonds to the same beneficiary, and (ii) the amount of the Bond to be issued by each such Tranche D Lender in accordance with Clause 6.5(b) (subject to Clause 6.5(b)(ii)), and such Tranche D Lender(s) shall issue a Bond in the amount requested by the Borrower. The Borrower shall deliver a Bond Utilisation Request to each such Tranche D Lender in accordance with Clause 6.3 (Delivery of a Bond Utilisation Request).
6.3. Delivery of a Bond Utilisation Request
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The Bond Borrower may request a Bond to be issued by delivery to the relevant Tranche D Lender (with a copy to the Facilities Agent) of a duly completed Bond Utilisation Request not later than the Specified Time (unless a shorter period is agreed by the relevant Tranche D Lender).
6.4. Completion of a Bond Utilisation Request
Each Bond Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(a) it specifies the Account Party and the relevant Tranche D Lender is not prevented by reason of legal or regulatory restrictions imposed upon it from issuing a Bond to the request of such Account Party;
(b) it specifies the Tranche D Lender;
(c) it specifies the amount of the Bond the Tranche D Lender is to issue;
(d) it specifies the identity of the beneficiary of the Bond and the relevant Tranche D Lender is not prevented by reason of legal or regulatory restrictions imposed upon it from issuing a Bond in favour of that beneficiary;
(e) the proposed Utilisation Date is a Business Day within the Availability Period;
(f) the currency and amount of the Bond comply with Clause 6.5 (Currency and amount);
(g) the form of each Bond is attached and it complies with Clause 6.6 (Form and Type of Bond);
(h) the Expiry Date of the Bond falls on or before the Termination Date; and
(i) the delivery instructions for the Bond are specified.
6.5. Currency and amount
(a) The currency specified in a Bond Utilisation Request given under Clause 6.1 must be the Base Currency for Tranche D or an Optional Currency.
(b) The amount of the proposed Bond must be:
(i) an amount whose Base Currency Amount for Tranche D is not more than the lesser of the Available Tranche D Facility and the Available Bond Facility; and
(ii) not more than the relevant Tranche D Lender’s Available Tranche D Commitment.
6.6. Form and Type of Bond
The form and type of instrument of the proposed Bond must be in the form and of such a type of instrument as requested by the Bond Borrower (to the extent required by the relevant beneficiary) and approved by the relevant Tranche D Lender (such approval not to be unreasonably withheld, delayed or conditioned) prior to the date of the Bond Utilisation Request in respect of that Bond.
6.7. Issue of Bonds
(a) If the conditions set out in Clause 6.4 have been met, the relevant Tranche D Lender shall issue the Bond on the proposed Utilisation Date.
(b) The relevant Tranche D Lender will only be obliged to comply with paragraph (a) above if on the date of the Bond Utilisation Request or, as the case may be, Renewal Request and on the proposed Utilisation Date:
(i) in the case of a Bond renewed in accordance with Clause 6.8 (Renewal of a Bond), no Event of Default is outstanding or would result from the proposed Bond Utilisation
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and, in the case of any other Bond Utilisation, no Default is outstanding or would result from the proposed Bond Utilisation; and
(ii) the Repeating Representations to be made by each Obligor are true in all material respects.
(c) The Facilities Agent shall determine the Base Currency Amount of each Bond which is to be issued in an Optional Currency and shall notify the relevant Tranche D Lender of the details of the requested Bond and (where more than one Tranche D Lender is to provide the Bond) its participation in that Bond by the Specified Time.
6.8. Renewal of a Bond
(a) The Bond Borrower may request any Bond issued on its behalf be renewed by delivery to the Tranche D Lender (with a copy to the Facilities Agent) of a Renewal Request by the Specified Time.
(b) The Finance Parties shall treat any Renewal Request in the same way as a Bond Utilisation Request except that the condition set out in Clauses 6.4(a), 6.4(b) and 6.4(g) (Completion of a Bond Utilisation Request) shall not apply.
(c) The terms of each renewed Bond shall be the same as those of the relevant Bond immediately prior to its renewal, except that:
(i) its amount may be less than the amount of the Bond immediately prior to its renewal; and
(ii) its Term shall start on the date which was the Expiry Date of the Bond immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request which shall fall on or before the Termination Date.
(d) If the conditions set out in this Clause 6.8 have been met, the relevant Tranche D Lender shall amend and re-issue any Bond pursuant to a Renewal Request.
6.9. Revaluation of Bonds
(a) If any outstanding Bond is denominated in an Optional Currency, the Facilities Agent shall on each Test Date - Bonds recalculate the Base Currency Amount for Tranche D of that Bond by notionally converting into US Dollars the outstanding amount of that Bond on the basis of the Facilities Agent’s Spot Rate of Exchange on the date of calculation. The Facilities Agent shall notify the relevant Tranche D Lender and the Company of such Base Currency Amount.
(b) If on any Test Date – Bonds (i) the Test Total – Bonds of any Tranche D Lender exceeds (ii) that Tranche D Lender’s Tranche D Commitment, the Bond Borrower will, if requested by that Tranche D Lender within three Business Days of the Test Date – Bonds, ensure that within three Business Days of receipt of such request either (at the discretion of the Bond Borrower):
(i) sufficient Bonds are cancelled so that the Test Total – Bonds of that Tranche D Lender does not exceed its Tranche D Commitment; and/or
(ii) that Tranche D Lender receives cash cover in US Dollars which when aggregated with all other amounts then held by it (or any of its Affiliates) as cash cover under this Agreement, will result in that Tranche D Lender (or any of its Affiliates) holding cash cover in an amount not less than the amount by which the Test Total – Bonds of that Tranche D Lender exceeds its Tranche D Commitment.
(c) If on any Test Date - Bonds (i) any Tranche D Lender’s Tranche D Commitment exceed (ii) the Test Total – Bonds of that Tranche D Lender, that Tranche D Lender shall to the extent that it (or any of its Affiliates) holds cash cover as a result of the operation of paragraph (b)(ii) repay to the Bond Borrower (or other relevant Obligors) an amount equal to the lesser of the amount of such excess and the amount of such cash cover held by it (or any of its Affiliates).
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(d) All cash cover held by any Tranche D Lender under this Clause 6.9 shall be repaid to the Bond Borrower (or other relevant Obligors) on the Expiry Date of any Bond if upon that expiry no amount is outstanding under such Bond or any other Bond.
7. BONDS
7.1. Immediately payable
(a) If a claim is made under a Bond, the Bond Borrower which requested that Bond shall pay to the Facilities Agent for the account of the relevant Tranche D Lender(s) the amount of that claim promptly and in any event within three Business Days of demand.
(b) If the Bond Borrower does not repay such amount in full within three Business Days of demand by the relevant Tranche D Lender(s):
(i) subject to Subclause (iv) below, the Bond Borrower will on the immediately following Business Day be deemed to have delivered a Loan Utilisation Request under Tranche D for a Loan Utilisation in an amount equal to, and in the same currency as, the amount demanded under paragraph (a) above with an Interest Period of two weeks and a Utilisation Date of the Business Day following the deemed date of the Loan Utilisation Request;
(ii) the amount of each Lender’s share in the Loan Utilisation shall be determined in accordance with Clause 5.4;
(iii) on payment to the Facilities Agent by the Lenders pursuant to paragraph (ii) above, the Facilities Agent will pay to the relevant Tranche D Lender(s) which issued the Bond the amount deemed requested by the Bond Borrower under paragraph (i) above in full satisfaction of the Bond Borrower’s obligations under paragraph (a) above and a pro tanto discharge of the Bond Borrower’s obligations under Clause 7.1(a); and
(iv) in any case where the Bond Borrower is not permitted under this Agreement to utilise Tranche D by way of Loan, the Loan Utilisation shall be deemed requested under Tranche C (or another Tranche under which it is permitted to utilise Loans), provided that if the amount of the Utilisation would exceed the Available Tranche C Facility (or other relevant Available Commitment) then the amount of such excess shall constitute a Loan Utilisation by Carnival plc under Tranche D (and then Tranche A, then Tranche B to the extent that Loan Utilisation under Tranche D exceeds the Available Tranche D Facility) in each case with an Interest Period of two weeks.
(c) For the avoidance of doubt, in any case where it is not possible for a Loan Utilisation to be deemed to have been made pursuant to paragraph (b) above, the failure by the Bond Borrower to repay the amount demanded under paragraph (a) above within three Business Days of demand shall constitute a failure to pay for the purposes of Clause 28.1 (Non-payment) of this Agreement.
7.2. Claims under a Bond
(a) The Bond Borrower irrevocably and unconditionally authorises the relevant Tranche D Lender to pay any claim made or purported to be made under a Bond requested by it or on its behalf and which appears on its face to be in order (a claim).
(b) The relevant Tranche D Lender shall examine the claim made under any Bond in accordance with the criteria set out in the Rules by which that Bond is stated to be governed and accordingly the responsibility of the relevant Tranche D Lender shall be limited to ascertaining that the documents constituting the claim appear on their face to be in accordance with the relevant Bond, properly completed and in compliance with the requirements of this Agreement and, subject to the terms of the Bond, the relevant Rules.
(c) The Bond Borrower acknowledges that the relevant Tranche D Lender:
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(i) is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim other than set out in paragraph (b); and
(ii) deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
(d) Without prejudice to the limits on the liability of the Borrower under Clause 7.3(a) or against any Tranche D Lender at law, the obligations of the Bond Borrower under this Clause 7 will not be affected by:
(i) the sufficiency, accuracy or genuineness of any claim or any other document; or
(ii) any incapacity of, or limitation on the powers of, any person signing a claim or other document.
7.3. Indemnities
(a) The Bond Borrower shall immediately on demand indemnify the relevant Tranche D Lender against any cost, loss or liability incurred by that Lender (otherwise than by reason of that Tranche D Lender’s breach of this Agreement, gross negligence or wilful misconduct) as a direct consequence of, or in the performance of its obligations or the exercise of its rights under, any Bond requested by the Bond Borrower or on its behalf.
(b) The obligations of the Borrower under this Clause are continuing obligations and will extend to the ultimate balance of sums payable by the Borrower in respect of any Bond, regardless of any intermediate payment or discharge in whole or in part.
(c) The obligations of the Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Bond or other person;
(ii) the release of any other Obligor or any other person under the terms of any composition or arrangement;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Bond or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Bond or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document, any Bond or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Bond or any other document or security; or
(vii) any insolvency or similar proceedings.
7.4. Rights of contribution
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.
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8. UTILISATION - SWINGLINE LOAN
8.1. General
(a) The following provisions do not apply to Swingline Loans:
(i) Clause 5 (Utilisation);
(ii) Clause 11 (Optional currencies);
(iii) Clause 14 (Interest) as it applies to the calculation of interest on a Loan Utilisation (other than in respect of any Separate Loan) but not default interest on an overdue amount;
(iv) Clause 15 (Interest Periods); and
(v) in respect of Swingline Loans under Tranche A, Clause 16 (Changes to the calculation of interest).
8.2. Delivery of a Swingline Loan Utilisation Request
(a) The Borrower may utilise the Swingline Facilities by delivery to the Facilities Agent of a duly completed Swingline Loan Utilisation Request not later than the Specified Time (unless a shorter period is agreed by the Facilities Agent).
(b) Each Swingline Loan Utilisation Request must be sent to the Facilities Agent to:
(i) the address in New York notified by the Facilities Agent for this purpose (in the case of Tranche A);
(ii) the address in London notified by the Facilities Agent for this purpose (in the case of Tranche B); or
(iii) the address in London notified by the Facilities Agent for this purpose (in the case of Tranche C),
in each case with a copy to its address referred to in Clause 37 (Notices).
8.3. Completion of a Swingline Loan Utilisation Request
(a) Each Swingline Loan Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i) it identifies the Borrower;
(ii) it specifies that it is for a Swingline Loan;
(iii) the proposed Utilisation Date is a Business Day within the Availability Period;
(iv) it identifies the relevant Tranche;
(v) the currency and amount of the Swingline Loan comply with Clause 8.4 (Currency and amount); and
(vi) the proposed Interest Period:
(A) does not overrun the Termination Date;
(B) is a period of not more than five Business Days; and
(C) ends on a Business Day.
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(b) Only one Swingline Loan may be requested in each Swingline Loan Utilisation Request.
8.4. Currency and amount
(a) The currency specified in a Swingline Loan Utilisation Request given under Clause 8.3 must be the Base Currency for the Tranche requested.
(b) The amount of the proposed Swingline Loan must be in respect of:
(i) Tranche A, a minimum of US$10,000,000 or, if less, the Available Swingline Tranche A Facility and not more than the lesser of the Available Swingline Tranche A Facility and the Available Tranche A Facility;
(ii) Tranche B, a minimum of £10,000,000 or, if less, the Available Swingline Tranche B Facility and not more than the lesser of the Available Swingline Tranche B Facility and the Available Tranche B Facility; or
(iii) Tranche C, a minimum of €10,000,000 or, if less, the Available Swingline Tranche C Facility and not more than the lesser of the Available Swingline Tranche C Facility and the Available Tranche C Facility.
8.5. Swingline Lenders’ participation
(a) If the conditions set out in this Agreement have been met, each Swingline Lender shall make its participation in each Swingline Loan available through its Facility Office in the United States, in the case of Tranche A (unless otherwise agreed between the Facilities Agent and the Company), London or Edinburgh, in the case of Tranche B (unless otherwise agreed between the Facilities Agent and the Company), and London, Edinburgh or Milan, in the case of Tranche C (unless otherwise agreed between the Facilities Agent and the Company), or to the extent that lending out of such Facility Office would result in payments made to that Swingline Lender from the Borrower being subject to a Tax Deduction, that or such other Facility Office as that Swingline Lender may nominate which would (at the date of nomination) allow that Swingline Lender to receive payments from the Borrower without Tax Deduction.
(b) The Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Swingline Loan Utilisation Request and on the proposed Utilisation Date:
(i) no Default is outstanding or would result from the proposed Swingline Loan; and
(ii) the Repeating Representations to be made by each Obligor are true in all material respects.
(c) The amount of each Swingline Lender’s participation in:
(i) each Swingline Loan under Tranche A will be equal to the proportion which its Available Swingline Tranche A Commitment bears to the Available Swingline Tranche A Facility immediately prior to making the Swingline Loan;
(ii) each Swingline Loan under Tranche B will be equal to the proportion which its Available Swingline Tranche B Commitment bears to the Available Swingline Tranche B Facility immediately prior to making the Swingline Loan; and
(iii) each Swingline Loan under Tranche C will be equal to the proportion which its Available Swingline Tranche C Commitment bears to the Available Swingline Tranche C Facility immediately prior to making the Swingline Loan,
in each case, adjusted to take account of any limit applying under Clause 8.6 (Relationship with the Facilities).
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(d) The Facilities Agent shall notify each Lender for a particular Tranche of the amount of each Swingline Loan under that Tranche, and in addition shall notify each Swingline Lender under that Tranche of the amount of its participation in that Swingline Loan, in each case by the Specified Time.
8.6. Relationship with the Facilities
(a) This Clause applies when a Swingline Loan is outstanding or is to be borrowed following the issue of a Swingline Loan Utilisation Request.
(b) The Facilities (save for Tranche D) may be used by way of Swingline Loans. The Swingline Facilities are not independent of Tranche A, Tranche B and Tranche C.
(c) Notwithstanding any other term of this Agreement a Lender is only obliged to participate in:
(i) a Loan under Tranche A to the extent that it would not result in the Base Currency Amount of its participation and that of a Lender which is its Affiliate in Loans under Tranche A exceeding its Overall Tranche A Commitment;
(ii) a Loan under Tranche B to the extent that it would not result in the Base Currency Amount of its participation and that of a Lender which is its Affiliate in Loans under Tranche B exceeding its Overall Tranche B Commitment; and
(iii) a Loan under Tranche C to the extent that it would not result in the Base Currency Amount of its participation and that of a Lender which is its Affiliate in Loans under Tranche C exceeding its Overall Tranche C Commitment.
(d) Where, but for the operation of paragraph (c) above, the Base Currency Amount of a Lender’s participation in Loans and that of a Lender which is its Affiliate:
(i) under Tranche A would have exceeded its Overall Tranche A Commitment, the excess will be apportioned among the other Lenders participating in the relevant Loan under Tranche A pro rata according to their Tranche A Commitments;
(ii) under Tranche B would have exceeded its Overall Tranche B Commitment, the excess will be apportioned among the other Lenders participating in the relevant Loan under Tranche B pro rata according to their Tranche B Commitments; and
(iii) under Tranche C would have exceeded its Overall Tranche C Commitment, the excess will be apportioned among the other Lenders participating in the relevant Loan under Tranche C pro rata according to their Tranche C Commitments.
The calculations under this paragraph (d) will be applied as often as necessary until the Loan is apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.
9. SWINGLINE LOANS
9.1. Swingline Facilities
Subject to the terms of this Agreement:
(a) the Swingline Lenders under Tranche A make available to the Borrower a US Dollar swingline loan facility in an aggregate amount equal to the Total Swingline Tranche A Commitments;
(b) the Swingline Lenders under Tranche B make available to the Borrower a Sterling swingline loan facility in an aggregate amount equal to the Total Swingline Tranche B Commitments; and
(c) the Swingline Lenders under Tranche C make available to the Borrower a euro swingline loan facility in an aggregate amount equal to the Total Swingline Tranche C Commitments.
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9.2. Purpose
(a) The Borrower shall apply all amounts borrowed by it under the Swingline Facilities towards general liquidity and/or working capital purposes of the Carnival Corporation & plc Group including refinancing any note, instrument, facility or borrowing maturing under a CP Programme.
(b) A Swingline Loan may not be applied in repayment or prepayment of another Swingline Loan.
9.3. Repayment
(a) Subject to Clause 9.3(b), if the Borrower has drawn a Swingline Loan, it shall repay that Swingline Loan on the last day of its Interest Period.
(b) If the Borrower does not comply with paragraph (a):
(i) the Borrower will be deemed to have delivered a Loan Utilisation Request (without the need to satisfy any conditions precedent as otherwise required under this Agreement) under the relevant Tranche to which the Swingline Loan relates for a Loan Utilisation in an amount equal to, and in the same currency as, the amount payable under paragraph (a) with an Interest Period of two weeks;
(ii) the amount of each Lender’s share in the Loan Utilisation shall be determined in accordance with Clause 5.4; and
(iii) on payment to the Facilities Agent by the Lenders pursuant to paragraph (ii) above, the Facilities Agent will pay to the relevant Swingline Lenders the amount requested by the Borrower under paragraph (i) above in full satisfaction of its obligations under paragraph (a).
9.4. Loss sharing
(a) If a Loan (including a Swingline Loan) or interest on a Loan (including a Swingline Loan) is not paid in full on its due date, the Facilities Agent (if requested to do so in writing by any affected Lender) shall calculate the amount (if any) which needs to be paid or received by each Lender with a Commitment under the relevant Tranche to place that Lender in the position it would have been in had each Lender (or its Affiliate) with a Commitment under the relevant Tranche participated in that Loan in the proportion borne by its Commitment under that Tranche to the Total Commitments under that Tranche and, if the Total Commitments under that Tranche are then zero, the proportion borne by its Commitment under that Tranche to the Total Commitments under that Tranche immediately prior to their reduction to zero.
(b) The calculation of the Facilities Agent is designed solely to allocate the unpaid amount proportionally between the Lenders with a Commitment under the relevant Tranche according to their Commitments under such Tranche and will not take into account any commitment fee or other amount payable under the Finance Documents.
(c) The Facilities Agent will set a date (the Loss Sharing Date) on which payments must be made under this Clause 9.4. The Facilities Agent shall give at least three Business Days’ notice to each affected Lender of this date and the amount of the payment (if any) to be paid or received by it on this date.
(d) On the Loss Sharing Date:
(i) each affected Lender who has to make a payment shall pay to the Facilities Agent the relevant amount set out in the notice referred to in paragraph (c) above; and
(ii) out of the amounts the Facilities Agent receives, the Facilities Agent shall pay to each affected Lender who is entitled to receive a payment the amount set out in that notice.
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(e) If the amount actually received by the Facilities Agent from the Lenders under paragraph (d) above is insufficient to pay the full amount required to be paid under that paragraph, the Facilities Agent shall distribute the amount it actually receives among the affected Lenders pro rata to the amounts they are entitled to receive under that paragraph.
(f) If a Lender makes a payment to the Facilities Agent under this Clause 9.4 then, to the extent that that payment is distributed by the Facilities Agent under paragraphs (d) or (e) above, as between the relevant Obligor and that Lender an amount equal to the amount of that distributed payment will be treated as not having been paid by the relevant Obligor.
(g) Any payment under this Clause 9.4 will not reduce the obligations in aggregate of any Obligor.
9.5. Voluntary Prepayment of Swingline Loans
(a) The Borrower to which a Swingline Loan has been made may prepay at any time the whole of that Swingline Loan.
(b) Any prepayment shall be made with accrued interest and without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of the Swingline Facilities which is prepaid may be reborrowed in accordance with the terms of this Agreement.
9.6. Interest
(a) The rate of interest on each Swingline Loan for any day during its Interest Period is:
(i) for Swingline Loans under Tranche A, the higher of:
(A) the prime commercial lending rate in US Dollars announced by the Facilities Agent at the Specified Time and in force on that day; and
(B) 0.50 per cent. per annum over the rate per annum determined by the Facilities Agent to be the Federal Funds Rate (as published by the Federal Reserve Bank of New York) for that day;
(ii) for Swingline Loans under Tranche B the percentage rate per annum equal to the aggregate of:
(A) the applicable Margin; and
(B) the applicable Daily Rate for Sterling for the immediately prior RFR Banking Day;
(iii) for Swingline Loans under Tranche C, the percentage rate per annum equal to the aggregate of:
(A) the applicable Margin; and
(B) €STR,
and if, in any case, the aggregate rate is less than zero, the rate of interest on each such Swingline Loan shall be deemed to be zero.
(b) The Facilities Agent shall promptly notify the Swingline Lenders and the Borrower of the determination of the rate of interest under paragraph (a) above.
(c) The Borrower shall pay accrued interest on each Swingline Loan made to it on the last day of its Interest Period.
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9.7. Interest Period
(a) Each Swingline Loan has one Interest Period only.
(b) The Interest Period for a Swingline Loan must be selected in the relevant Swingline Loan Utilisation Request.
9.8. Unavailability of €STR – Swingline Loans under Tranche C
(a) If €STR (pursuant to paragraph (a) of that definition) (the Euro Rate) is not available for any day the applicable €STR for that date shall be the most recent applicable Euro Rate which is as of a day which is no more than 5 days before that day.
(b) If paragraph (a) above applies and there is no applicable Euro Rate which is as of a day which is no more than 5 days before that day, there shall be no €STR for that day and Clause 9.9 (Cost of funds – Swingline Loans under Tranche C) shall apply.
9.9. Cost of funds – Swingline Loans under Tranche C
(a) If this Clause 9.9 applies, the rate of interest on the relevant Swingline Loan for the relevant day shall be the percentage rate per annum which is the sum of:
(i) the Swingline Margin; and
(ii) the weighted average of the rates notified to the Facilities Agent by each Swingline Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Swingline Loan, to be that which expresses as a percentage rate per annum the cost to the relevant Swingline Lender of funding its participation in that Swingline Loan for that day from whatever source it may reasonably select.
(b) If this Clause 9.9 applies but any Swingline Lender does not supply a quotation by the time specified in paragraph (a)(ii) above the rate of interest shall be calculated on the basis of the quotations of the remaining Swingline Lenders.
9.10. Facilities Agent
(a) The Facilities Agent may perform its duties in respect of the Swingline Facilities through an Affiliate acting as its agent.
(b) Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) pay to or indemnify the Facilities Agent, within three Business Days of demand, for or against any cost, loss or liability incurred by the Facilities Agent or any Affiliate of the Facilities Agent (other than by reason of the Facility Agent’s or such Affiliate’s gross negligence or wilful misconduct) in acting as Facilities Agent for the Swingline Facilities under the Finance Documents (unless the Facilities Agent or such Affiliate has been reimbursed by an Obligor pursuant to a Finance Document).
9.11. Partial payments – Swingline Facilities
(a) If the Facilities Agent receives a payment in respect of a Swingline Facility that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents in respect of that Swingline Facility, the Facilities Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in respect of that Swingline Facility in the following order:
(i) first, in or towards payment pro rata of any unpaid amount owing to the Facilities Agent or its Affiliate under the Finance Documents incurred in respect of that Swingline Facility;
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(ii) secondly, in or towards payment pro rata of any accrued interest on a Swingline Loan due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of the principal of any Swingline Loan due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents in respect of that Swingline Facility.
(b) The Facilities Agent shall, if so directed by all the Swingline Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor and Clause 34.6 (Partial payments) does not apply to the Swingline Facilities.
9.12. Conditions of assignment or transfer
(a) Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Overall Tranche A Commitment is not less than:
(i) its Swingline Tranche A Commitment; or
(ii) if it does not have a Swingline Tranche A Commitment, the Swingline Tranche A Commitment of a Lender which is its Affiliate.
(b) Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Overall Tranche B Commitment is not less than:
(i) its Swingline Tranche B Commitment; or
(ii) if it does not have a Swingline Tranche B Commitment, the Swingline Tranche B Commitment of a Lender which is its Affiliate.
(c) Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Overall Tranche C Commitment is not less than:
(i) its Swingline Tranche C Commitment; or
(ii) if it does not have a Swingline Tranche C Commitment, the Swingline Tranche C Commitment of a Lender which is its Affiliate.
10. EXTENSION OPTION
10.1. Interpretation
(a) In this Clause 10:
Initial Request Date means 1 June 2025.
Original Termination Date means 6 August 2025.
Relevant Portion means the part of a Facility in respect of which a Lender agrees to an Extension Request.
Second Request Date means 1 June 2026.
10.2. Extension of Termination Date
(a) The Company may by delivering an Extension Request to the Facilities Agent (an Initial Extension Request) no later than the Initial Request Date, request that the Termination Date for all or part of any of the Facilities be extended to the date 12 months after the Original
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Termination Date (the Extended Termination Date), provided that there is no Default outstanding on the date of the Initial Extension Request.
(b) Without prejudice to paragraph (a) above, the Company may by delivering an Extension Request to the Facilities Agent (a Second Extension Request) no later than the Second Request Date, request that the Termination Date for all or part of any Facility be extended to the date 12 months after the Extended Termination Date provided that there is no Default outstanding on the date of the Second Extension Request.
(c) The Facilities Agent must promptly notify the Lenders of any Extension Request.
(d) Subject to paragraph (e) below, each Lender shall, in its sole discretion, notify the Facilities Agent on or prior to the date falling 20 days after receipt of the relevant Extension Request (the Notification Date) in writing of:
(i) its acceptance of the Extension Request; or
(ii) its rejection of the Extension Request.
(e) Each Lender may elect to accept the Extension Request in respect of:
(i) all of its Commitment(s) and (if applicable) Swingline Commitments; or
(ii) only part of its Commitment(s) and (if applicable) Swingline Commitments,
to which the Extension Request relates (each such Lender being an Extending Lender).
(f) The Facilities Agent must (as soon as practicable and in any event within 2 days of the Notification Date) notify the Borrower and the Extending Lenders, identifying in that notification:
(i) which Lenders (if any) have not agreed (by declining or not responding) to the Extension Request (the Non-Extending Lenders); and
(ii) which Lenders (if any) have agreed to the Extension Request only in respect of a part of their Commitment(s) and (if applicable) Swingline Commitments that were the subject of the Extension Request (the Partially Non-Extending Lenders).
(g) Each Extending Lender will extend the Relevant Portion of its Commitment(s) and (if applicable) Swingline Commitments to the date 12 months after the Original Termination Date or Extended Termination Date, as applicable, and the Termination Date with respect to the Relevant Portion of the Commitment(s) of that Lender will be extended accordingly.
(h) If any Lender fails to reply to an Extension Request on or before the relevant Notification Date, it will be deemed to have refused that Extension Request and its Commitments and the Termination Date applicable to that Lender will not be extended.
(i) For the avoidance of doubt, no Finance Party is under any obligation to agree to an extension requested in paragraph (a) or (b) above. Nothing in this Clause 10 shall restrict the Company’s rights under Clause 13.6 (Involuntary prepayment and cancellation and replacement of Lender).
(j) Any Lender which is a Non-Extending Lender or Partially Non-Extending Lender or which is deemed to be a Non-Extending Lender pursuant to paragraph (h) above (or that acquires or assumes Commitments which were not extended) may, at any time prior to the Termination Date applicable to that Lender’s Commitments and with the consent of the Company, notify the Facilities Agent that it wishes to accept the terms of the relevant Extension Request in respect of all of its Commitment or, if applicable, that part of its Commitment that was not extended.
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(k) If a Lender notifies the Facilities Agent in accordance with paragraph (j) above, the Termination Date in respect of that Lender’s Commitments (or, as applicable, part of its Commitment that was not previously extended) shall be extended upon the terms set out in the relevant Extension Request.
(l) If an Extension Request relates to part of the Facilities, it must be in respect of a rateable portion of each Lender’s Commitment(s) and (if applicable) each Lender’s Swingline Commitment(s).
11. OPTIONAL CURRENCIES
11.1. Selection of currency
The Borrower (or the Company on behalf of the Borrower) shall select the currency of a Loan Utilisation in a Loan Utilisation Request and a Bond Utilisation in a Bond Utilisation Request.
11.2. Unavailability of a currency
(a) If before the Specified Time:
(i) a Lender notifies the Facilities Agent that the Optional Currency requested is not readily available to it in the amount required; or
(ii) a Lender notifies the Facilities Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
the Facilities Agent will give notice to the Company and the Borrower promptly and in any event no later than the Specified Time.
(b) Any Lender that gives notice pursuant to paragraph (a) above will be required to participate in the Loan in the Base Currency for the Tranche requested (in an amount equal to that Lender’s proportion of the Base Currency Amount for that Tranche or, in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount for that Tranche of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency for that Tranche during that Interest Period.
(c) Any part of a Loan treated as a separate Loan under this Clause 11.2 will not be taken into account for the purposes of any limit on the number of Loans outstanding at any one time.
(d) A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Loan by reason of the operation of this Clause 11.2.
11.3. Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to any Utilisation if it is not the relevant Base Currency and if either:
(i) it is readily available in the amount requested and freely convertible into the Base Currency for the relevant Tranche in the amount requested in the Relevant Market at the Specified Time and the Utilisation Date for that Utilisation;
(ii) it is US Dollars, euro or Sterling or has been approved by the Facilities Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Facilities Agent of the relevant Utilisation Request for that Utilisation; and
(iii) in respect of a currency other than US Dollars, euro or Sterling, there are Reference Rate Terms for that currency.
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(b) If the Facilities Agent has received a written request from the Borrower for a currency to be approved under paragraph (a) above, the Facilities Agent will confirm to the Borrower by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency.
12. REPAYMENT
(a) Subject to paragraph (b) below, if the Borrower has drawn a Loan, it shall repay that Loan on the last day of its Interest Period.
(b) At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender (and any Affiliate of a Defaulting Lender that is a Lender) in the Loans then outstanding will be automatically extended to the Termination Date in relation to the relevant Tranche and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.
(c) If a Separate Loan is outstanding, the Borrower may prepay that Loan by giving three Business Days’ prior notice to the Facilities Agent. The Facilities Agent will forward a copy of a prepayment notice received in accordance with this paragraph (c) to the Defaulting Lender concerned as soon as practicable on receipt.
(d) Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Facilities Agent (acting reasonably) and will be payable by the Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan. Notwithstanding Clause 8.1 (General) and Clause 9.6 (Interest), the rate of interest in respect of any Swingline Loan that becomes a Separate Loan in accordance with this Clause 12 shall be calculated in accordance with Clause 14.1 (Calculation of interest) with effect from the end of the Interest Period during which such Swingline Loan becomes a Separate Loan.
(e) The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (b) to (d) above, in which case those paragraphs shall prevail in respect of any Separate Loan.
(f) Subject to the other terms of this Agreement, any amounts repaid under paragraph (a) above may be re-borrowed.
(g) If, pursuant to the terms of this Agreement, the Lenders are obliged to make a Rollover Loan, the maturing loan referred to in the definition of Rollover Loan shall be repaid and the Rollover Loan shall be made without any requirement for an actual exchange of payments (other than to the extent that the amount of the maturing loan is more than the Rollover Loan), but without prejudice to the Borrower’s obligation to pay interest on the maturing loan.
(h) Notwithstanding the provisions of Clause 7, the Bond Borrower shall ensure that each Bond is repaid in full on or before the Termination Date.
13. PREPAYMENT AND CANCELLATION
13.1. Mandatory prepayment - illegality
(a) A Lender must notify the Company and the Facilities Agent promptly if it becomes aware that:
(i) it will become; or
(ii) it is,
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unlawful in any applicable jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Utilisation or it becomes unlawful for any Affiliate of a Lender for that Lender to do so.
(b) If a Tranche D Lender becomes aware of any unlawfulness that may affect its ability to issue a particular Bond, that Lender shall promptly notify the Company and the Facilities Agent of that event.
(c) After notification under paragraph (a)(ii) above:
(i) the Borrower must repay or prepay the share of that Lender in each Utilisation on the date specified in paragraph (d) below; and
(ii) the Tranche A Commitment, the Tranche B Commitment, the Tranche C Commitment and the Tranche D Commitment of that Lender will be immediately cancelled.
(d) The date for repayment or prepayment of a Lender’s share in an outstanding Utilisation will be:
(i) the last day of the current Interest Period for that Utilisation; or
(ii) if earlier, the date specified by the Lender in the notification under paragraph (a)(ii) above and which must not be earlier than the last day of any applicable grace period allowed by law.
13.2. Mandatory prepayment - change of ownership
(a) For the purposes of this Clause:
Arison Party means each and all of Marilyn B. Arison, Micky Meir Arison, Shari Arison, Michael Arison or their spouses, children or lineal descendants of Marilyn B. Arison, Micky Meir Arison, Shari Arison, Michael Arison or their spouses, any trust established for the benefit of any Arison family member mentioned herein, or any person directly or indirectly, controlling, controlled by or under common control with any Arison family member mentioned herein or any trust established for the benefit of any such Arison family member or any charitable trust or non-profit entity established by any of the aforesaid persons or trusts;
a change of ownership occurs if any person or group of persons (other than any Arison Party or any two or more Arison Parties) (a Relevant Person) gains ownership of the Company or Carnival plc provided that a change of ownership shall be deemed not to have occurred if:
(a) one of the following occurs:
(i) the Company directly or indirectly gains ownership of Carnival plc; or
(ii) Carnival plc directly or indirectly gains ownership of the Company; or
(iii) all or substantially all of the holders of the capital stock of the Relevant Person immediately after the event which would otherwise have constituted a change of ownership were the holders of the capital stock of the Company and/or Carnival plc with the same (or substantially the same) pro rata economic interests in the share capital of the Relevant Person as such shareholders had in the share capital of the Company and/or Carnival plc, respectively, immediately prior to such event. Any direct or indirect intermediate holding company whose only material asset is the Company or Carnival plc share capital shall be deemed not to be a “Relevant Person”; and
(b) such consequential amendments are made to this Agreement (with the consent of the Company and the Facilities Agent which consent shall not be unreasonably withheld, delayed or conditioned) as are required to reflect the relevant change and to put the Parties in an
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equivalent position as regards the companies in the Carnival Corporation & plc Group as would have applied had the relevant change not occurred; and
(c) the Facilities Agent receives a legal opinion from lawyers approved by it (acting reasonably) and in form and substance satisfactory to it (acting reasonably) confirming that (i) the monetary obligations under the Finance Documents of the Company will continue to be guaranteed by Carnival plc under the relevant Deed of Guarantee and/or (ii) the monetary obligations under the Finance Documents of Carnival plc will continue to be guaranteed by the Company under the relevant Deed of Guarantee, in each case, after the relevant change referred to in paragraph (a) above.
ownership means the ownership of more than fifty per cent. (50%) of the voting share capital (or equivalent rights of ownership) of the Company or of Carnival plc.
(b) The Company must promptly notify the Facilities Agent if it becomes aware of any change of ownership.
(c) If a change of ownership occurs, the Facilities Agent and the Company shall enter into discussions to determine if there is a basis acceptable to all the Lenders and the Company for continuing the Facilities. If such agreement is reached within 90 days of the change of ownership, the Parties will promptly implement the agreement. If such agreement is not reached within 90 days of the change of ownership the Facilities Agent must, by notice to the Company:
(i) cancel the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments and the Total Tranche D Commitments, as the case may be; and/or
(ii) declare each outstanding Utilisation, together with accrued interest and all other amounts accrued under the Finance Documents, to be immediately due and payable.
Any such notice will take effect in accordance with its terms.
13.3. Voluntary Prepayment
(a) The Company may, if it gives the Facilities Agent not less than:
(i) in the case of a Term Rate Loan, three Business Days’ prior notice; or
(ii) in the case of an RFR Loan, three RFR Banking Days’ prior notice,
prepay (or ensure that the Borrower prepays) any Loan at any time in whole or in part.
(b) A prepayment of part of a Loan must be:
(i) in respect of Tranche A, in a minimum amount of US$5,000,000 (or its equivalent in any Optional Currency);
(ii) in respect of Tranche B, in a minimum amount of £2,500,000 (or its equivalent in any Optional Currency);
(iii) in respect of Tranche C, in a minimum amount of €5,000,000 (or its equivalent in any Optional Currency); and
(iv) in respect of Tranche D, in a minimum amount of US$2,000,000 (or its equivalent in any Optional Currency).
(c) The Company (or the Borrower) may make no more than four prepayments in total for all RFR Loans (other than any Swingline Loans or Bonds) under paragraph (a) above in each financial year.
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13.4. Automatic cancellation
The Tranche A Commitment, the Tranche B Commitment, the Tranche C Commitment and the Tranche D Commitment of each Lender will be automatically cancelled at the close of business on the last day of the Availability Period.
13.5. Voluntary cancellation
(a) The Borrower (or the Company on behalf of the Borrower) may, by not less three Business Days’ notice to the Facilities Agent, cancel without penalty the whole or any part of the Available Tranche A Facility, the Available Tranche B Facility, the Available Tranche C Facility and/or the Available Tranche D Facility.
(b) Partial cancellation of:
(i) the Available Tranche A Facility must be in a minimum amount of US$10,000,000;
(ii) the Available Tranche B Facility must be in a minimum amount of £10,000,000;
(iii) the Available Tranche C Facility must be in a minimum amount of €10,000,000; and
(iv) the Available Tranche D Facility must be in a minimum amount of US$10,000,000.
(c) Any cancellation in part will be applied against the relevant Available Tranche A Facility, the Available Tranche B Facility, the Available Tranche C Facility and the Available Tranche D Facility, as the case may be, of each Lender pro rata.
13.6. Involuntary prepayment and cancellation and replacement of Lender
(a) If:
(i) a Lender becomes a Partially Non-Extending Lender;
(ii) a Lender becomes a Non-Extending Lender; or
(iii) an Obligor is, or will be, required to pay to a Lender a Tax Payment or an Increased Cost, while the requirement continues,
the Company may give notice to the Facilities Agent of:
(A) in respect of a Lender to which paragraph (a)(ii) or paragraph (a)(iii) above applies, prepayment and/or cancellation in respect of that Lender or give notice to the Facilities Agent of its intention to replace that Lender in accordance with paragraph (d) below; and
(B) in respect of a Lender to which paragraph (a)(i) above applies:
(I) prepayment and/or cancellation in respect that part of the Lender’s Commitment(s) and (if applicable) Swingline Commitment that was the subject of the rejected Extension Request (the Non-Extending Portion); or
(II) its intention to replace that Lender in respect of its Non-Extending Portion in accordance with paragraph (d) below,
(b) After notification of prepayment and/or cancellation under paragraph (a) above:
(i) the Borrower must repay or prepay that Lender’s share of each Utilisation under each Tranche made to it (or, in the case of a Partially Non-Extending Lender, the share of
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each Utilisation under each Tranche to which the Non-Extending Portion relates) on the date specified in paragraph (c) below; and/or, as the case may be
(ii) the Commitment and Swingline Commitment of that Lender (or its Affiliate) (or, in the case of a Partially Non-Extending Lender, the Non-Extending Portion) will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender’s share in an outstanding Utilisation will be the last day of the Interest Period for that Utilisation during which the Company has given notice of prepayment and/or cancellation under paragraph (a) above or, if earlier, the date specified by the Company in its notification.
(d) The Company may, in the circumstances set out in paragraph (a) above, on three Business Days’ prior notice to the Facilities Agent and that Lender, replace that Lender (or in the case of a Partially Non-Extending Lender, that Lender’s Non-Extending Portion) by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement (or in the case of a Partially Non-Extending Lender, that Lender’s rights and obligations under this Agreement in respect of the Non-Extending Portion) to a Lender or other bank or financial institution selected by the Company (an Eligible Institution) which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 29 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans (or in the case of a Partially Non-Extending Lender, such Lender’s participation in the outstanding Loans applicable to the Non-Extending Portion) and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.
(e) Upon the transfer of the rights and obligations of a Non-Extending Lender or Partially Non-Extending Lender pursuant to this Clause 13.6, the Termination Date in respect of the Commitment acquired by the relevant Eligible Institution shall automatically be extended to be the Termination Date that would have been applicable in respect of that Commitment if the relevant Non-Extending Lender or Partially Non-Extending Lender had agreed to the relevant Extension Request.
(f) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
(i) the Company shall have no right to replace the Facilities Agent;
(ii) neither the Facilities Agent nor any Lender shall have any obligation to find a replacement Lender; and
(iii) in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.
(g) If any Lender (or any Affiliates which are Lenders) becomes a Defaulting Lender, the Company may, at any time whilst the Lender (or its Affiliate) continues to be a Defaulting Lender, give the Facilities Agent three Business Days’ notice of cancellation of the Available Commitment or Available Swingline Commitment of that Lender (or in each case, its Affiliate).
(h) On the notice referred to in paragraph (g) above becoming effective, the Available Commitment or Available Swingline Commitment of the Defaulting Lender (or its Affiliate) shall immediately be reduced to zero.
(i) The Facilities Agent shall as soon as practicable after receipt of a notice referred to in paragraph (g) above, notify all the Lenders.
13.7. Miscellaneous provisions
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(a) Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) upon which the relevant cancellation is to take effect or prepayment is to be made and the amount of that cancellation or prepayment. The Facilities Agent must notify the Lenders promptly of receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest on the amount prepaid. No premium or penalty is payable in respect of any prepayment except for Break Costs.
(c) Any part of the Facilities which are prepaid may be reborrowed in accordance with the terms of this Agreement.
(d) The Majority Lenders and the Facilities Agent may agree a shorter notice period for a voluntary prepayment.
(e) No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.
(f) Subject to Clause 2.2 (Increase), no amount of the Total Tranche A Commitments, Total Tranche B Commitments, Total Tranche C Commitments or Total Tranche D Commitments cancelled under this Agreement may subsequently be reinstated.
(g) Any cancellation of a Swingline Commitment of a Swingline Lender shall reduce the relevant Swingline Commitment accordingly but shall not otherwise cancel or reduce the Commitment of the relevant Lender in respect of the Facility (or of any Affiliate of the relevant Swingline Lender) unless and to the extent otherwise provided for in this Agreement.
(h) Any cancellation of the Commitment of a Lender that is a Swingline Lender or an Affiliate of a Swingline Lender shall not cancel or reduce any Swingline Commitment of that Lender or its Affiliate unless a Swingline Commitment of that Lender or its Affiliate would exceed the Commitment of that Lender immediately following such reduction, in which case the relevant Swingline Commitment of that Lender or its Affiliate shall be reduced by such amount as is necessary to ensure that, after the relevant cancellation, each such Swingline Commitment does not exceed the Commitment of that Lender or its Affiliate.
14. INTEREST
14.1. Calculation of interest – Term Rate Loans
The rate of interest on each Term Rate Loan (other than a Swingline Loan) for each Interest Period is the percentage rate per annum equal to the aggregate of the applicable:
(a) Margin;
(b) Term Reference Rate; and
(c) (in the case of a Term Rate Loan denominated in US Dollars only) USD Credit Adjustment Spread,
provided that (in the case of a Term Rate Loan denominated in US Dollars only) if the aggregate of paragraphs (b) and (c) above is less than zero, then such aggregate amount shall be deemed to be zero.
14.2. Calculation of interest – RFR Loans
(a) The rate of interest on each RFR Loan (other than a Swingline Loan) for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(i) Margin; and
(ii) Compounded Reference Rate for that day.
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(b) If any day during an Interest Period for an RFR Loan is not an RFR Banking Day, the rate of interest on that RFR Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.
14.3. Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period and, if the Interest Period is longer than six months, on the dates falling at six monthly intervals after the first day of that Interest Period.
14.4. Interest on overdue amounts
(a) If an Obligor fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facilities Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the Facilities Agent to be one per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Facilities Agent (acting reasonably) of up to three months.
(c) Notwithstanding paragraph (b) above, if the overdue amount consists of all or part of a Term Rate Loan and which became due and payable on a day which was not the last day of an Interest Period for that Loan, then:
(i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period for that Loan; and
(ii) the rate of interest on the overdue amount for that first Interest Period will be one per cent. per annum above the rate which would have applied if the overdue amount had not become due.
After the expiry of the first Interest Period for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.
(d) Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
(e) The amount of interest on overdue amounts payable by an Italian Obligor under this Agreement will only be compounded in accordance with and to the extent permitted by article 1283 of the Italian Civil Code and article 120 of the Italian Banking Act (and any relevant implementing regulations), each as amended, supplemented or implemented from time to time.
14.5. Notification of rates of interest
(a) The Facilities Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest in respect of a Term Rate Loan.
(b) The Facilities Agent shall promptly upon an RFR Interest Payment being determinable notify:
(i) the Borrower of that RFR Interest Payment;
(ii) each relevant Lender of the proportion of that RFR Interest Payment which relates to that Lender’s participation in the relevant RFR Loan; and
(iii) the relevant Lenders and the Borrower of each applicable rate of interest relating to the determination of that RFR Interest Payment.
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This paragraph (b) shall not apply to any RFR Interest Payment determined pursuant to Clause 16.5 (Cost of funds).
(c) The Facilities Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
(d) The Facilities Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest relating to a Loan to which Clause 16.3 (Market disruption) applies.
(e) This Clause 14.5 shall not require the Facilities Agent to make any notification to any Party on a day which is not a Business Day.
14.6. Margin
(a) At the Signing Date the Margin will be 2.25 per cent. per annum. Thereafter the Margin will, subject to paragraph (b), and further subject to paragraph (e), be set in accordance with the pricing grid below and paragraphs (c) to (j) below to be the percentage rate per annum specified as the Margin as set out opposite the relevant Carnival Credit Rating at the relevant time by Moody’s, S&P and (if applicable) Fitch specified below.
| Carnival Credit Rating | Margin (% p.a.) | ||||
| Ba2/BB or higher | 1.50 | ||||
| Ba3/BB- | 1.75 | ||||
| B1/B+ | 2.00 | ||||
| B2/B or lower | 2.25 | ||||
(b) During any period in which none of Moody’s, S&P or (if applicable) Fitch assigns a Carnival Credit Rating, the Margin shall be 2.25 per cent. per annum as adjusted pursuant to paragraph (e) below.
(c) If the Carnival Credit Rating assigned by S&P, Moody’s and (if applicable) Fitch would produce differing Margins, the applicable Margin shall be determined by averaging the Margins for such Carnival Credit Ratings as determined in accordance with the pricing grid in paragraph (a) above.
(d) During any period in which the Carnival Credit Rating comprises rating(s) from only one of Moody’s, S&P or (if applicable) Fitch, the Margin shall be determined in accordance with the pricing grid in paragraph (a) above for that rating only.
(e) Subject to paragraphs (i) and (j) below, the applicable Margin will be adjusted depending on the CO2 Performance, as follows:
(i) if the CO2 Emissions Rate in respect of a financial year ending 30 November falls within the ‘Outperform target’ column of the definition of ‘CO2 Performance’, the Margin will be reduced by 0.025 per cent. per annum;
(ii) if the CO2 Emissions Rate in respect of a financial year ending 30 November falls within the ‘Within target range’ column of the definition of ‘CO2 Performance’, the Margin will not be subject to adjustment; and
(iii) if the CO2 Emissions Rate in respect of a financial year ending 30 November falls within the ‘Below target’ column of the definition of ‘CO2 Performance’, the Margin will be increased by 0.025% per annum.
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(f) For the purposes of this Agreement, any reduction or increase in the Margin shall be determined on, and shall take effect from, the Business Day immediately following:
(i) in the case of a reduction or increase based on the Carnival Credit Rating, the date of publication of the relevant change to the Carnival Credit Rating; and
(ii) in the case of a reduction or increase based on CO2 Performance, subject to paragraph (i) below, the date that the relevant Assurance Statement is delivered to the Facilities Agent pursuant to Clause 25.4 (Assurance Statement) of this Agreement.
(g) Promptly after becoming aware of the same, the Company shall inform the Facilities Agent in writing if either (i) there is any change in the Carnival Credit Rating with Moody’s, S&P or (if applicable) Fitch which will cause a change to the Margin or (ii) if any of the circumstances contemplated by paragraphs (b) or (c) above arise.
(h) For the purposes of paragraph (e) above, the CO2 Performance for each financial year ending 30 November will be determined by reference to the Assurance Statement in respect of that financial year which is to be delivered pursuant to Clause 25.4 (Assurance Statement) by no later than 30 June in the following financial year.
(i) If the Company fails to comply with its obligation pursuant to Clause 25.4 (Assurance Statement) to supply an Assurance Statement by 30 June in any year (unless such failure is as a result of the circumstances described in paragraph (j) below) then the CO2 Performance shall be deemed for the purposes of paragraph (e) above to fall within the ‘Below target’ column of the definition of ‘CO2 Performance’ until such time that the Company delivers an Assurance Statement which shows there should be a decrease in Margin following which the Margin will be adjusted in accordance with paragraph (e) above, such adjustment to take effect from the Business Day immediately following the date that the relevant Assurance Statement is delivered to the Facilities Agent.
(j) In the event that the Termination Date is extended pursuant to paragraph (a) of Clause 10 (Extension option), the Company and the Facilities Agent (on behalf of the Lenders) agree to negotiate in good faith for a period of not more than 30 days, to agree the CO2 Performance target levels for the period from Original Termination Date to the Extended Termination Date (the Extension Period).
If the Company and the Facilities Agent (acting on behalf of the Lenders) fail to agree the CO2 Performance target levels for the Extension Period then the Margin will be set by reference to paragraph (a) above and shall not be subject to adjustment pursuant to paragraph (e) above.
14.7. Top-Up Margin
(a) From the Signing Date to the Commencement Date, the Company shall pay (or procure payment) to the Facilities Agent (for the account of each Lender) a top-up margin in relation to that Lender’s or its Affiliate’s participation in any Existing Loans. The top-up margin shall be computed as the difference between the Existing Margin on any Existing Loan and the Margin under this Agreement had the Existing Loan been a Loan under this Agreement.
(b) The top-up margin in respect of an Existing Loan is payable in the currency of the Existing Loan to which it relates and shall accrue and be payable on the same basis and dates as the Existing Margin. The top-up margin is payable in addition to any amounts payable to a Lender (including the Existing Margin) in respect of an Existing Loan.
(c) In this Clause:
Existing Loan means a Loan under (and as defined in) the Existing Facilities Agreement;
Existing Margin mean the Margin under (and as defined in) the Existing Facilities Agreement.
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15. INTEREST PERIODS
15.1. Selection of Interest Periods
(a) The Borrower (or the Company or Carnival plc on behalf of the Borrower) may select an Interest Period for a Loan in the Loan Utilisation Request for that Loan.
(b) Subject to this Clause 15, the Borrower (or the Company or Carnival plc on behalf of the Borrower) may select an Interest Period of one, three or six months or any other period agreed between the Company and the Facilities Agent (acting on the instructions of all the Lenders).
(c) An Interest Period for a Loan shall not extend beyond the Termination Date.
(d) Each Interest Period for a Loan shall start on the Utilisation Date in respect of that Loan.
(e) A Loan has one Interest Period only.
(f) No Interest Period for an RFR Loan shall be longer than six Months.
15.2. Non-Business Days
(a) In respect of a Term Rate Loan, if an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
(b) In respect of an RFR Loan, any rules specified as “Business Day Conventions” in the applicable Reference Rate Terms for a Loan or Unpaid Sum shall apply to each Interest Period for that Loan or Unpaid Sum.
16. CHANGES TO THE CALCULATION OF INTEREST
16.1. Interest Calculation if no Term Reference Rate for euro
(a) Interpolated Term Reference Rate: If no Term Reference Rate is available for EURIBOR for the Interest Period of a Term Rate Loan, the applicable EURIBOR shall be the Interpolated Term Reference Rate for a period equal in length to the Interest Period of that Loan.
(b) Shortened Interest Period: If paragraph (a) above applies but it is not possible to calculate the Interpolated Term Reference Rate, the Interest Period of the Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable Term Reference Rate shall be determined pursuant to the definition of Term Reference Rate.
(c) Shortened Interest Period and Historic Term Reference Rate: If paragraph (b) above applies but no Term Reference Rate is available for the Interest Period of that Loan and it is not possible to calculate the Interpolated Term Reference Rate, the applicable Term Reference Rate shall be the Historic Term Reference Rate for that Loan.
(d) Shortened Interest Period and Interpolated Historic Term Reference Rate: If paragraph (c) above applies but no Historic Term Reference Rate is available for the Interest Period of the Loan, the applicable Term Reference Rate shall be the Interpolated Historic Term Reference Rate for a period equal in length to the Interest Period of that Loan.
(e) Cost of funds: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Term Reference Rate, there shall be no EURIBOR for that Loan and Clause 16.5 (Cost of funds) shall apply to that Loan for that Interest Period.
16.2. Unavailability of Term SOFR
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(a) Interpolated Term SOFR: If no Term Reference Rate is available for Term SOFR for the Interest Period of a Loan, the applicable Term SOFR shall be the Interpolated Term SOFR for a period equal in length to the Interest Period of that Loan.
(b) Historic Term SOFR: If paragraph (a) above applies but it is not possible to calculate the Interpolated Term SOFR, the applicable Term SOFR shall be the Historic Term Reference Rate for that Loan.
(c) Term Fallback Option: If paragraph (b) above applies but no Historic Term Reference Rate is available for the Interest Period of that Loan, then the applicable Reference Rate Terms shall apply to that Loan and:
(i) there shall be no Term Reference Rate for that Loan for that Interest Period and Clause 14.1 (Calculation of interest – Term Rate Loans) will not apply to that Loan for that Interest Period; and
(ii) that Loan shall be an “RFR Loan” for that Interest Period and Clause 14.2 (Calculation of interest – RFR Loans) shall apply to that Loan for that Interest Period.
16.3. Market Disruption
In the case of a Term Rate Loan, if before close of business in London on the Quotation Day for the relevant Interest Period, the Facilities Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 66 ⅔ per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for the relevant currency would be in excess of EURIBOR, then Clause 16.5 (Cost of funds) shall apply to that Loan for the relevant Interest Period.
16.4. Interest calculation if no RFR or Central Bank Rate
If:
(a) there is no applicable RFR or Central Bank Rate for the purpose of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for an RFR Loan; and
(b) Cost of funds will apply as a fallback is specified in respect of that Loan in the Reference Rate Terms for that Loan,
Clause 16.5 (Cost of funds) shall apply to that Loan for that Interest Period.
16.5. Cost of funds
(a) If this Clause 16.5 applies to a Loan for an Interest Period neither Clause 14.1 (Calculation of interest – Term Rate Loans) nor Clause 14.2 (Calculation of interest – RFR Loans) shall apply to that Loan for that Interest Period and the rate of interest on the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
(i) the Margin; and
(ii) the weighted average of the rates notified to the Facilities Agent by each Lender as soon as practicable and in any event:
(A) in relation to a Term Rate Loan, within 10 Business Days of the first day of that Interest Period (or, if earlier, on the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period);
(B) in relation to an RFR Loan, by the Reporting Time for that Loan,
to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan.
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(b) If this Clause 16.5 applies and the Facilities Agent or the Company so requires, the Facilities Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest
(c) If this Clause 16.5 applies but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above, the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.
(d) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
16.6. Notification to the Company
If Clause 16.5 (Cost of funds) applies the Facilities Agent shall, as soon as is practicable, notify the Company.
16.7. Break Costs
(a) The Borrower shall, within three Business Days of demand, pay to the Facilities Agent for the account of each Lender such Lender’s Break Costs attributable to all or any part of a Term Rate Loan (other than a Swingline Loan) or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Term Rate Loan or Unpaid Sum.
(b) Each Lender must supply to the Facilities Agent (who shall promptly deliver them to the Company and the Borrower) details of the amount of any Break Costs claimed by it under this Clause 16.7.
17. FEES
17.1. Commitment fee
(a) The Company shall pay to the Facilities Agent (for the account of each Lender) a commitment fee in the Base Currency of the relevant Tranche computed at the rate of 35 per cent. of the applicable Margin per annum on the daily undrawn, uncancelled amount of each Lender’s Commitment.
(b) The accrued commitment fee is payable quarterly in arrears during the Availability Period and on the last day of the Availability Period and, if the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments or the Total Tranche D Commitments are cancelled in full, at the time such cancellation is effective.
(c) No commitment fee is payable to the Facilities Agent (for the account of a Lender) on any Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
17.2. Ticking fee
(a) The Company shall pay to:
(i) the Facilities Agent (for the account of each Existing Facilities Lender) a ticking fee in the Base Currency of the relevant Tranche under the Existing Facilities Agreement computed as the difference between:
(A) the rate of 35 per cent. of the applicable Margin per annum; and
(B) the amount the relevant Existing Facilities Lender (or its Affiliate) receives as commitment fee pursuant to clause 17.1 (Commitment fee) of the Existing Facilities Agreement,
calculated on the daily undrawn, uncancelled amount of the lower of (A) each Existing Facilities Lender’s Commitment and (B) each Existing Facilities Lender’s
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(or its Affiliate’s) Commitment under (and as defined in) the Existing Facilities Agreement; and
(ii) the Facilities Agent (for the account of each Lender which is not an Existing Facilities Lender) a ticking fee in the Base Currency of the relevant Tranche computed at the rate of 35 per cent. of the applicable Margin per annum on the daily undrawn, uncancelled amount of each such Lender’s Commitment.
(b) The accrued ticking fee is payable quarterly in arrears during the Availability Period (as defined in the Existing Facilities Agreement) and on the last day of the Availability Period (as defined in the Existing Facilities Agreement) and, if the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments or the Total Tranche D Commitments (each as defined under the Existing Facilities Agreement) are cancelled in full, at the time such cancellation is effective (or, to the extent different, on the same basis and dates as the commitment fee pursuant to clause 17.1 (Commitment fee) of the Existing Facilities Agreement).
(c) No ticking fee is payable to the Facilities Agent (for the account of a Lender) on any Commitment of that Lender for any day on which that Lender is a Defaulting Lender (or a Defaulting Lender under and as defined in the Existing Facilities Agreement).
(d) For the purposes of this Clause, Existing Facilities Lender means a Lender which is a Lender under (and as defined in) the Existing Facilities Agreement or which has an Affiliate which is a Lender under (and as defined in) the Existing Facilities Agreement on the payment date of such ticking fee.
17.3. Upfront fee
The Company shall pay to the Arrangers (for the account of each Arranger) an upfront fee in the amount and at the times agreed in a Fee Letter between the Arrangers and the Company.
17.4. Agency fee
The Company shall pay to the Facilities Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter between the Facilities Agent and the Company.
17.5. Utilisation fee
(a) The Company shall pay to the Facilities Agent (for the account of each Lender) a utilisation fee computed at the rate of:
(i) for each day on which the aggregate amount of the Utilisations (where each Utilisation is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange on that day) equals or is less than 33⅓ per cent. of the Total Commitments, 0.075 per cent. per annum;
(ii) for each day on which the aggregate amount of the Utilisations (where each Utilisation is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange on that day) exceeds 33⅓ per cent. but equals or is less than 66⅔ per cent. of the Total Commitments, 0.15 per cent. per annum; and
(iii) for each day on which the aggregate amount of the Utilisations (where each Utilisation is converted into US Dollars at the Facilities Agent’s Spot Rate of Exchange on that day) exceeds 66⅔ per cent. of the Total Commitments, 0.30 per cent. per annum.
(b) Utilisation fee is payable in the Base Currency of the relevant Tranche(s) utilised on the amount of each Lender’s share in the Utilisations.
(c) Accrued utilisation fee is payable quarterly in arrear during the Availability Period and on the last day of the Availability Period and, for a Lender, on the date on which it ceases to be a Lender under this Agreement.
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17.6. Bonding fee
(a) The Bond Borrower shall pay to the Facilities Agent (for the account of each relevant Tranche D Lender) for each Bond requested by it a bonding fee in the currency of the Bond computed at the applicable Margin on the daily outstanding amount of that Bond for the period from the issue of that Bond until and including its Expiry Date or, following a claim under such Bond, until and including the date of reimbursement of the full amount of such claim to the relevant Tranche D Lender whether pursuant to Clause 7.1(b), 7.3(a) or otherwise.
(b) The accrued bonding fee on a Bond (if any) shall be payable quarterly in arrear starting on the date falling three months after the date of the Agreement and the dates falling quarterly thereafter.
(c) If the Bond Borrower cash covers any part of a Bond then:
(i) the bonding fee payable for the account of each relevant Tranche D Lender shall continue to be payable in accordance with paragraph (a); and
(ii) the Bond Borrower will be entitled to withdraw the interest accrued on the cash cover to pay those fees.
17.7. Timing of payments
Notwithstanding any provision to the contrary in any Finance Document, all payments to be made by an Obligor in respect of any fees referred to in Clauses 17.1, 17.5 and 17.6 are due within three Business Days of written demand to the Company by the Facilities Agent in each case served no earlier than the times agreed for payment, and attaching a statement of detailed calculations.
18. TAXES
18.1. Application of Clauses
(a) Clauses 18.2 to 18.7 shall only apply in respect of payments by the following Obligors:
(i) Carnival plc; and
(ii) any Additional Subsidiary Guarantor resident in the United Kingdom.
(b) Clauses 18.8 to 18.9 shall only apply in respect of payments by the following Obligors:
(i) the Company;
(ii) any Additional Subsidiary Guarantor incorporated in a state within, or operating in, the U.S.; and
(iii) other members of the Carnival Corporation & plc Group who become an Additional Subsidiary Guarantor as may be requested by the Company to be covered under this paragraph (b), subject to the consent of the Facilities Agent (such consent not to be unreasonably withheld, delayed or conditioned).
(c) Clauses 18.10 to 18.15 shall only apply in respect of payments by the following Obligors:
(i) Costa Crociere S.p.A.; and
(ii) any Additional Subsidiary Guarantor resident in Italy.
(d) Clauses 18.16 to 18.19 shall only apply in respect of payments by any Additional Subsidiary Guarantor resident in the Netherlands.
(e) Clauses 18.20 to 18.23 shall apply in respect of payments by any Obligor that does not fall within any of paragraphs (a), (b), (c) or (d).
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(f) Clauses 18.24 and 18.25 shall apply in respect of payments made by all Obligors.
18.2. General
In Clauses 18.3 to 18.7:
Borrower DTTP Filing means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the Borrower, which:
(i) where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Part A or Part B (as applicable) of Schedule 1 (The Parties), and
(A) where the Borrower is Borrower as at the Signing Date, is filed with HM Revenue & Customs within 30 working days of the Signing Date; or
(B) where the Obligor is an Additional Subsidiary Guarantor, is filed with HM Revenue & Customs within 30 working days of the date on which that Obligor becomes an Additional Subsidiary Guarantor; or
(ii) where it relates to a Treaty Lender that is a New Lender, Increase Lender or Additional Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which the New Lender, Increase Lender or Additional Lender executes on becoming party as a Lender, and
(A) where the Borrower is Borrower as at the relevant Transfer Date, Increase Date or Additional Increase Date as applicable, is filed with HM Revenue & Customs within 30 working days of that Transfer Date, Increase Date or Additional Increase Date as applicable; or
(B) where the Obligor is not an Obligor as at the relevant Transfer Date, Increase Date or Additional Increase Date as applicable, is filed with HM Revenue & Customs within 30 working days of the date on which that Obligor becomes an Additional Subsidiary Guarantor.
MLI means the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting of 24 November 2016.
Qualifying Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under this Agreement and is:
(a) a U.K. Lender; or
(b) a Treaty Lender.
Tax Confirmation means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender under this Agreement is either:
(a) a company resident in the UK for UK tax purposes;
(b) a partnership, each member of which is:
(i) a company resident in the UK for UK tax purposes; or
(ii) a company not resident in the UK for UK tax purposes but which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA 2009) the whole of any share of interest payable to it under this Agreement which is attributable to it by reason of Part 17 of the CTA 2009; or
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(c) a company not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent establishment and which brings into account interest payable to it under this Agreement in computing its chargeable profits (within the meaning of section 19 of the CTA 2009).
Treaty Lender means a Lender which:
(a) is resident (as defined in the appropriate double taxation agreement) in a country with which the U.K. has a double taxation agreement giving residents of that country full exemption from U.K. taxation on interest;
(b) does not carry on a business in the U.K. through a permanent establishment with which the payment is effectively connected; and
(c) is entitled to receive interest without withholding or, if withheld, is entitled to reclaim that withholding in full, under the terms of the appropriate double taxation agreement except that for this purpose it shall be assumed that the Obligor has not entered into any transaction or arrangement (other than the relevant Loan itself) that causes the Lender to lose entitlement to receive interest without withholding, or if withheld, entitlement to reclaim that withholding, pursuant to a ‘principal purpose’ test of the kind described in Article 7(1) of the MLI that is incorporated in the relevant double taxation agreement pursuant to the MLI.
U.K. Bank Lender means a Lender:
(a) which is a bank (as defined for the purpose of section 879 of the ITA 2007) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA 2009; or
(b) in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA 2007) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance.
U.K. Lender means a Lender which is:
(a) a U.K. Bank Lender; or
(b) a U.K. Non-Bank Lender.
U.K. Non-Bank Lender means:
(a) a company resident in the U.K. for U.K. tax purposes;
(b) a partnership, each member of which:
(i) is a company resident in the U.K. for U.K. tax purposes; or
(ii) a company not resident in the U.K. for U.K. tax purposes but which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (for the purpose of section 19 of CTA 2009) the whole of any share of interest payable to it under this Agreement which falls to it by reason of Part 17 of CTA 2009; or
(c) a company not resident in the U.K. for U.K. tax purposes which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable to it under this Agreement in computing its chargeable profits for the purpose of section 19 of CTA 2009,
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which, in each case, is beneficially entitled to interest payable to it under this Agreement and which has provided to the Company and not retracted confirmation that it is one of the above by way of a Tax Confirmation.
18.3. Tax gross-up
(a) Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
(b) If:
(i) a Lender is not, or ceases to be, a Qualifying Lender; or
(ii) an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction),
it must promptly notify the Facilities Agent. The Facilities Agent must then promptly notify the affected Parties.
(c) Except as provided below, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) Except as provided below, an Obligor is not required to make an increased payment under paragraph (c) above for a Tax Deduction in respect of tax imposed by the U.K. to a Lender that is not, or has ceased to be on the date on which the payment is due, a Qualifying Lender in excess of the amount that the Obligor would have had to pay under paragraph (c) above had the Lender been, or not ceased to be on the date on which the payment is due, a Qualifying Lender, except that where an amount (the Claim) is demanded under the guarantee given by Carnival plc in respect of a default by one of its Subsidiaries (the Paying Party), Carnival plc shall not be entitled to the benefit of this paragraph (d) if, but only to the extent that, the amount paid by Carnival plc in respect of the Claim would be thereby reduced to an amount less than the amount which the Lender was entitled to receive from the Paying Party in respect of the Claim.
(e) Paragraph (d) above will not apply if the Lender has ceased to be a Qualifying Lender by reason of any change in (or in the interpretation, administration or application of) any law or double taxation agreement or any published practice or concession of any relevant taxing authority which becomes effective after the date it became a Lender under this Agreement.
(f) An Obligor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of the tax imposed by the U.K. if that Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the Tax Deduction would not have been required if the Lender had complied with its obligations under paragraph (i) or (k) below.
(g) An Obligor is not required to make an increased payment under paragraph (c) above if the Lender is a Qualifying Lender solely by virtue of being a UK Non-Bank Lender and an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a Direction) under section 931 ITA 2007 which relates to the payment and that Lender has received from the Obligor making the payment a certified copy of that Direction and the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made.
(h) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction in the minimum amount required by law and must make any payment required in connection with that Tax Deduction within the time allowed by law.
(i) As soon as practical following the making of either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor making that Tax Deduction or payment must deliver to the Facilities Agent for the relevant Finance Party evidence reasonably satisfactory
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to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
(j)
(i) Subject to paragraph (j)(ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
(ii)
(A) A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part A or Part B (as applicable) of Schedule 1 (The Parties); or
(B) a New Lender, Increase Lender or Additional Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which the New Lender, Increase Lender or Additional Lender executes on becoming party as a Lender,
and, having done so, that Lender shall be under no obligation pursuant to sub-paragraph (i) above.
(k) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (j)(ii) above and:
(i) the Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or
(ii) the Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
(A) that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
(B) HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for the Borrower to obtain authorisation to make that payment without a Tax Deduction.
(l) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (j)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.
(m) The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Facilities Agent for delivery to the relevant Lender.
(n) A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.
(o) A UK Non-Bank Lender shall promptly notify the Company and the Facilities Agent if there is any change in the position from that set out in the Tax Confirmation.
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18.4. Tax indemnity
(a) Except as provided below, the Company must indemnify a Finance Party against any loss or liability which that Finance Party acting reasonably determines will be or has been suffered (directly or indirectly) by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident or as having a permanent establishment for tax purposes; or
(ii) that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party.
(c) Paragraph (a) above does not apply to the extent a loss, liability or cost:
(i) is compensated for by any increased payment under Clause 18.3 (Tax gross-up);
(ii) would have been compensated for by an increased payment under Clause 18.3 (Tax gross-up) but was not so compensated solely because one of the exclusions in Clause 18.3(d) and 18.3(f) applied; or
(iii) relates to a FATCA Deduction required to be made by a Party.
(d) A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Company of the event which will give, or has given, rise to the claim.
18.5. Tax Credit
(a) Where any payment has been made subject to a Tax Deduction, a Finance Party agrees to use its commercially reasonable endeavours to complete any procedural formalities necessary for the relevant Finance Party to obtain any Tax Credit available as a result of the payment being made subject to a Tax Deduction.
(b) If an Obligor makes a Tax Payment and the relevant Finance Party in its absolute discretion exercised in good faith determines that:
(i) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
(ii) it has used and retained that Tax Credit (on a consolidated basis if relevant to the determination of its allowable credit for foreign taxes paid or accrued),
the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been if the Tax Payment had not been required to be made by the Obligor.
18.6. Lender Status Confirmation
(a) Each Lender which becomes a Party to this Agreement after the Signing Date shall indicate, in the documentation which the New Lender, Increase Lender or Additional Lender executes on becoming party as a Lender, and for the benefit of the Facilities Agent and without liability to the Obligors, which of the following categories it falls in:
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(i) not a Qualifying Lender;
(ii) a Qualifying Lender (other than a Treaty Lender); or
(iii) a Treaty Lender.
(b) If a New Lender, Increase Lender or Additional Lender fails to indicate its status in accordance with this Clause 18.6 then such New Lender, Increase Lender or Additional Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facilities Agent which category applies (and the Facilities Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate, Increase Confirmation or Lender Accession Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 18.6.
18.7. Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp duty, registration or other similar Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for any such Tax payable in connection with the entry into a Transfer Certificate.
18.8. General
In Clause 18.8 to 18.9:
Excluded Taxes means, with respect to the Facilities Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of an Obligor under the Finance Documents:
(a) income, franchise or other similar taxes imposed on, based on or measured by or with respect to its net income by the United States of America, or income, franchise or other similar taxes imposed on, based on or measured by or with respect to its net income, net worth or capital employed, or gross basis business and/or occupational taxes by the jurisdiction under the laws of which such recipient is organized or in which it is resident or, in the case of any Lender, in which its applicable lending office is located;
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in paragraph (a) above;
(c) in the case of a Lender (other than an assignee pursuant to a request by an Obligor under Clause 18.9(g)), any withholding tax that:
(i) is attributable to such Lender’s failure to comply with Clause 18.9(e); or
(ii) in the case of a Foreign Lender, is imposed by the United States of America and is in effect and would apply to amounts payable to such Foreign Lender, at the time such Foreign Lender becomes a party to this Agreement (including by assignment) or designates a Facility Office or a new lending office, except to the extent that (x) where the Foreign Lender is an assignee, the assignor was entitled to receive additional amounts with respect to any withholding tax pursuant to Clause 18.9, (y) where the Foreign Lender has designated a new Facility Office or other lending office, the Foreign Lender was entitled to receive additional amounts with respect to any withholding tax pursuant to Clause 18.9 before the designation of a new Facility Office or other lending office or (z) such withholding tax shall have resulted from the making of any payment to a location other than the Facility Office or other lending office designated by the Facilities Agent or such Foreign Lender for the receipt of payments of the applicable type;
(d) any income, franchisee or other similar tax, or any branch profits or similar tax, imposed by a jurisdiction to the extent such tax is attributable to a connection between such jurisdiction and the Facilities Agent, such Lender or such other recipient, as the case may be, other than a connection arising from the transactions contemplated by this Agreement; and
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(e) any FATCA Deduction.
Foreign Lender means, with respect to an Obligor, any Lender that is organized under the laws of a jurisdiction other than that in which that Obligor is located and, with respect to the Company, outside the United States of America. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Indemnified Taxes means Taxes other than Excluded Taxes.
Other Taxes means any and all present or future recording, stamp, documentary, excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made under the Finance Documents or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement other than (1) Excluded Taxes and (2) any Taxes required to be paid solely as a result of the execution or delivery of an instrument effecting an assignment, designation or participation contemplated in Clause 29 (Changes to the Lenders) (excluding any designation or assignment initiated pursuant to Clause 18.9(g) (Taxes)).
18.9. Taxes
(a) Any and all payments by or on account of any obligation of an Obligor under the Finance Documents shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if an Obligor shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Clause 18.9) the Facilities Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) that Obligor shall make such deductions and (iii) that Obligor shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, an Obligor shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Each Obligor shall indemnify the Facilities Agent and each Lender, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Facilities Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of that Obligor under the Finance Documents (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Clause 18.9) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto (except to the extent such penalties, interest or expenses result from the gross negligence or wilful misconduct of the Facilities Agent or the applicable Lender), whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender, or by the Facilities Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error, provided that such certificate shall include a description in reasonable detail of the Indemnified Tax or Other Tax for which the indemnity is being demanded and the calculation in reasonable detail of the amount of such indemnity. The Facilities Agent and each Lender agrees to use its reasonable endeavours to complete any procedural formalities necessary for the Facilities Agent and the Lender to obtain a credit against any Indemnified Tax or Other Tax or any relief or remission for an Indemnified Tax or Other Tax (or its repayment). Notwithstanding any contrary provision under the Finance Documents, the Facilities Agent or the Lender, as the case may be, shall have no obligation to contest the imposition or assertion of any Indemnified Tax or Other Tax.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by an Obligor to a Governmental Authority, the Obligor shall deliver to the Facilities Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment
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(if such a receipt is reasonably obtainable from such Governmental Authority), a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Facilities Agent.
(e) The Facilities Agent will deliver to the Company, and each Lender will deliver to the Facilities Agent and the Company, on or before the first Utilisation Date (or, in the case of a Lender that becomes a Lender after the first Utilisation Date, on or before such later date on which such Lender becomes a Lender) such properly completed and executed Internal Revenue Service form (Form W-8BEN, W-8ECI, W-8EXP, W-8IMY, or W-9, as applicable) as will demonstrate, in accordance with applicable regulations, that payments of interest by an Obligor to the Facilities Agent for the account of such Lender pursuant to this Agreement will be exempt from (or entitled to a reduction in the rate of) United States federal withholding taxes. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Obligor is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Company (with a copy to the Facilities Agent), at the time or times prescribed by applicable law, such other properly completed and executed documentation prescribed by applicable law or reasonably requested by the Company (including any replacement or successor form) as will permit such payments to be made without withholding or at a reduced rate, provided that such Foreign Lender has received prior written notice from the Company advising it of the availability of such exemption or reduction and containing all applicable documentation.
(f) If the Facilities Agent or a Lender determines that it has received a refund of or Tax Credit for any Taxes or Other Taxes as to which it has been indemnified by an Obligor or with respect to which an Obligor has paid additional amounts pursuant to this Clause 18.9, it shall pay over such refund or Tax Credit to that Obligor (but only to the extent of indemnity payments made, or additional amounts paid, by the Obligor under this Clause 18.9 with respect to the Taxes or Other Taxes giving rise to such refund or Tax Credit), net of all reasonable out-of-pocket expenses of the Facilities Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund or Tax Credit); provided, that the Obligor, upon the request of the Facilities Agent or such Lender, agrees to repay the amount paid over to the Obligor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Facilities Agent or such Lender to the extent that the Facilities Agent or such Lender is required to repay such refund to such Governmental Authority. This Clause 18.9 shall not be construed to require the Facilities Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Obligor or any other person.
(g) If an Obligor is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to this Clause 18.9, then the Obligor may, at its sole expense and effort, upon notice to such Lender and the Facilities Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Clause 29), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Obligor shall have received the prior written consent of the Facilities Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its share in the Utilisations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Obligor (in the case of all other amounts) and (iii) in the case of any such assignment resulting from payments required to be made pursuant to this Clause 18.9, such assignment will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Obligor to require such assignment and delegation cease to apply.
18.10. General
In Clauses 18.10 to 18.15:
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Affidavit means the affidavit as approved by the Italian revenues agency on 10 July 2013 (and as amended from time to time) and made available on the website www.agenziaentrate.gov.it. or any other form with similar contents and producing substantially the same tax effects.
Change of Tax Law means any change which occurs after the Signing Date, in (or in the published interpretation, administration or the application of) any tax law or regulation or double taxation treaty or any published practice or published concession of any relevant taxing authority.
Exempted Lender means any entity included in the list of entities entitled to receive payments of interest without application of withholding tax imposed by Italian law pursuant to article 26, paragraph 5 bis of Italian Presidential Decree No. 600 of 29 September 1973 and acting in compliance with the provisions of the Italian Banking Act setting out the restrictions applicable to lending activities vis-à-vis the public in Italy.
Italian Borrower means the Borrower, if at any date it is incorporated in the Republic of Italy.
Italian Lender means a Lender which is:
(a) a bank, a financial institution or insurance undertaking duly authorized or licensed to carry out banking or lending activity in Italy pursuant to the applicable law and regulation and that is resident for tax purposes in Italy pursuant to article 73 of Italian Presidential Decree No. 917 of 22 December 1986, and for the purpose of the Finance Documents does not act through a Facility Office which qualifies as a permanent establishment located outside Italy; or
(b) a Facility Office which qualifies as a permanent establishment in Italy, or, in any case, a permanent establishment in Italy of a bank, financial institution, insurance undertaking or alternative investment fund established under Directive 2011/61/EU duly authorised or licensed to carry out banking activity in Italy, for which any payment received under the Finance Documents is business income (“reddito d’impresa”) that is actually attributed to the permanent establishment in Italy pursuant articles 81, 151 and 152 of Italian Presidential Decree no. 917 of 22nd December 1986; or
(c) a special purpose vehicle established for the purpose of a securitisation according with Italian Law No. 130 of 30 April 1999, and that is resident for tax purposes in Italy pursuant to article 73 of Italian Presidential Decree No. 917 of 22 December 1986, and for the purpose of the Finance Documents does not act through a permanent establishment or a Facility Office which qualifies as a permanent establishment located outside of Italy; or
(d) an alternative investment fund established under Directive 2011/61/EU and duly authorised or licensed to carry out lending activity in Italy that is resident in Italy for tax purposes pursuant to Article 73 of Italian Presidential Decree No. 917 of 22 December 1986.
Qualifying Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under this Agreement and is:
(a) an Italian Lender;
(a) a Treaty Lender; or
(b) an Exempted Lender.
Self-Declaration means the self-declaration substantially in the form set out in Schedule 13 (Form of Self-Declaration) to this Agreement.
Treaty Lender means a Lender which:
(a) is treated as a resident for tax purposes in a jurisdiction which has a double taxation treaty with Italy which makes provision for full exemption from withholding tax on interest (the Italian Treaty) and it is entitled to benefit from such treaty;
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(b) does not carry on a business in Italy through a permanent establishment, branch or agency with which the payment is effectively connected; and
(c) has duly and timely fulfilled all the documentary conditions as requested for the application of the Italian Treaty, including the filing of the relevant Affidavit.
18.11. Tax gross-up
(a) Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
(b) If, in respect of an advance under the Finance Documents to an Italian Borrower:
(i) a Lender is not, or ceases to be, a Qualifying Lender; or
(ii) an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction),
it must promptly notify the Facilities Agent. Similarly, an Obligor shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of any Tax Deduction) notify the Facilities Agent accordingly. The Facilities Agent must then promptly notify the affected Parties.
(c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) If an Obligor is required by law to make a Tax Deduction, that Obligor shall make that Tax Deduction and must make any payment required in connection with that Tax Deduction in the minimum amount and within the time period allowed by law.
(e) Within 46 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor must deliver to the Facilities Agent for the relevant Finance Party evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
(f) A Treaty Lender or an Exempted Lender shall file any Affidavit or any Self-Declaration form under Clause 18.14 (Lender status confirmation) or any other form and/or information requested in writing by the Borrower and necessary for the Borrower to be entitled to make that payment without a Tax Deduction or with a reduced Tax Deduction.
(g) An Obligor is not required to make any increased payment to a Lender under paragraph (c) above by reason of a Tax Deduction on account of a Tax imposed by Italy if on the date on which the payment falls due:
(i) that Lender is not, or has ceased to be, a Qualifying Lender in respect of the Borrower’s jurisdiction, unless that Lender has ceased to be a Qualifying Lender as a result of a Change of Tax Law; or
(ii) the Obligor making the payment is able to demonstrate that the payment could have been made to that Lender without a Tax Deduction had that Lender complied with its obligations under Clause 18.14.
18.12. Tax indemnity
(a) Except as provided below, the Company must indemnify a Finance Party against any loss or liability which that Finance Party acting reasonably determines will be or has been suffered (directly or indirectly) by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.
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(b) Paragraph (a) above does not apply to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or as having a permanent establishment for tax purposes; or
(ii) that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable by that Finance Party. However, any payment deemed to be received or receivable, including any amount treated as income but not actually received by the Finance Party, such as a Tax Deduction, will not be treated as net income received or receivable for this purpose.
(c) Paragraph (a) above does not apply to the extent a loss, liability or cost:
(i) is compensated for by any increased payment under Clause 18.11 (Tax gross-up);
(ii) is compensated for by Clause 18.15 (Stamp taxes) or Clause 18.24 (Value added taxes), or would have been but for the exclusions in those Clauses; or
(iii) relates to a FATCA Deduction required to be made by a Party.
(d) A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Company of the event which will give, or has given, rise to the claim.
18.13. Tax Credit
(a) Where any payment has been made subject to a Tax Deduction, a Finance Party agrees to use its reasonable endeavours to complete any procedural formalities necessary for the relevant Finance Party to obtain any Tax Credit available as a result of the payment being made subject to a Tax Deduction. Nothing in this Clause 18.13 (Tax Credit) shall interfere with each Finance Party’s right to arrange its affairs in whatever manner it thinks fit. Without limiting the foregoing, no Finance Party shall be under an obligation to claim any Tax Credit in priority to any other claims, relieves, credits or deductions available to it.
(b) If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute discretion exercised in good faith that:
(i) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment, or to a Tax Deduction in consequence of which that Tax Payment was required; and
(ii) it has used and retained that Tax Credit (on a consolidated basis if relevant to the determination of its allowable credit for foreign taxes paid or accrued),
the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been if the Tax Payment had not been required to be made by the Obligor.
(c) If a Finance Party makes any payment to an Obligor pursuant to this Clause 18.13 and such Finance Party subsequently determines that the Tax Credit in respect of which such payment was made was not available or has been withdrawn or that it was unable to use such Tax Credit in full, such Obligor shall reimburse the Finance Party such amount as such Finance Party determines (acting reasonably and in good faith) is necessary to place it in the same after-Tax position as it would have been in if such Tax Credit had been obtained and fully used and retained by such Lender provided that the Obligor shall not be required to pay any amount in excess of the amount of the payment received by it from the Finance Party.
18.14. Lender Status Confirmation
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(a) Each Lender that made an advance under the Finance Documents to an Italian Borrower and which becomes a Party to this Agreement after the Signing Date shall indicate, in the Transfer Certificate, Increase Confirmation or Lender Accession Agreement shall which it executes on becoming a Party, and for the benefit of the Facilities Agent and without liability to the Obligors, which of the following categories it falls in:
(i) not a Qualifying Lender;
(ii) a Qualifying Lender (other than a Treaty Lender or an Exempted Lender);
(iii) a Treaty Lender; or
(iv) an Exempted Lender.
(b) An Exempted Lender shall provide an Italian Obligor with a Self-Declaration at least five Business Days prior to the date upon which interest is first due to be paid to it.
18.15. Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp duty, registration or other similar Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for (a) any such Tax payable in connection with the entry into a Transfer Certificate (including, for avoidance of any doubts, any Tax that arises because of a sub-participation or similar arrangement is entered into); and (b) any such Tax imposed by the Republic of Italy due to a registration or filing in Italy of a Finance Document when such registration or filing is not required to prove, maintain, preserve, establish or enforce the rights of the Finance Party or required by any competent tax administration, supervisory body or other authority.
18.16. General
(a) In Clauses 18.16 to 18.19:
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of tax in relation to a sum received or receivable (or any sum deemed for the purposes of tax to be received or receivable) under a Finance Document.
Treaty Lender means a Lender which:
(a) is treated as a resident of a Treaty State for the purposes of the relevant Treaty; and
(b) does not carry on a business in the Netherlands through a permanent establishment, a fixed base or a permanent representative with which that Lender's participation in the Loan is effectively connected;
Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with the Netherlands which makes provision for full exemption or full refund from tax imposed on interest.
(b) Unless a contrary indication appears, in Clauses 18.16 to 18.19 (inclusive) a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.
18.17. Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facilities Agent accordingly. Similarly, a Lender shall notify the Facilities Agent on becoming so aware in respect of a payment payable to that Lender. If the Facilities Agent receives such notification from a Lender it shall notify the Company and that Obligor.
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(c) If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) An Obligor is not required to make an increased payment to a Lender under paragraph (c) for a Tax Deduction from a payment of interest on a Utilisation, if on the date on which the payment falls due the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) below.
(e) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount.
(f) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facilities Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
18.18. Tax indemnity
(a) The Company shall (within three Business Days of demand by the Facilities Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been suffered (directly or indirectly) for or on account of tax by that Protected Party in respect of a Finance Document.
(b) Paragraph (a) shall not apply:
(i) with respect to any tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident or as having a permanent establishment for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause 18.17 (Tax gross-up);
(B) would have been compensated for by an increased payment under Clause 18.17 (Tax gross-up) but was not so compensated solely because the exclusion in paragraph (d) of Clause 18.17 (Tax gross-up) applied; or
(C) relates to a FATCA Deduction required to be made by a Party.
(c) A Protected Party making, or intending to make a claim under paragraph (a) shall promptly notify the Facilities Agent of the event which will give, or has given, rise to the claim, following which the Facilities Agent shall notify the Parent.
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(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 18.18, notify the Facilities Agent.
18.19. Tax credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute discretion exercised in good faith that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
18.20. Tax gross-up
(a) Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
(b) If an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Facilities Agent. The Facilities Agent must then promptly notify the affected Parties.
(c) Except as provided below, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.
(e) Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor must deliver to the Facilities Agent for the relevant Finance Party evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
(f) Where possible, each Finance Party shall, in consultation with the Company, take all reasonable steps to reduce the risk of a Tax Deduction being required by law or reduce the amount of such Tax Deduction, including, without limitation, transferring its rights and obligations under the Finance Documents to an Affiliate, changing its Facility Office or co-operating with each Obligor by using its commercially reasonable endeavours to complete any procedural formalities necessary for that Obligor to obtain authorisation to make payments without a Tax Deduction.
18.21. Tax indemnity
(a) Except as provided below, the Company must indemnify a Finance Party against any loss or liability which that Finance Party acting reasonably determines will be or has been suffered (directly or indirectly) by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or as having a permanent establishment for tax purposes; or
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(ii) that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable by that Finance Party. However, any payment deemed to be received or receivable, including any amount treated as income but not actually received by the Finance Party, such as a Tax Deduction, will not be treated as net income received or receivable for this purpose.
(c) Paragraph (a) above does not apply to the extent a loss, liability or cost:
(i) is compensated for by any increased payment under Clause 18.20 (Tax gross-up); or
(ii) relates to a FATCA Deduction required to be made by a Party.
(d) A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Company of the event which will give, or has given, rise to the claim.
18.22. Tax Credit
(a) Where any payment has been made subject to a Tax Deduction, a Finance Party agrees to use its reasonable endeavours to complete any procedural formalities necessary for the relevant Finance Party to obtain any Tax Credit available as a result of the payment being made subject to a Tax Deduction.
(b) If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute discretion exercised in good faith that:
(i) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
(ii) it has used and retained that Tax Credit (on a consolidated basis if relevant to the determination of its allowable credit for foreign taxes paid or accrued),
the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been if the Tax Payment had not been required to be made by the Obligor.
18.23. Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp duty, registration or other similar Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for any such Tax payable in connection with the entry into a Transfer Certificate.
18.24. Value added taxes
(a) Any amount (including costs and expenses) expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party shall as soon as reasonably practicable provide an appropriate value added tax invoice to that Party).
(b) If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
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(i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
(ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(d) Any reference in this Clause 18.24 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
(e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply
18.25. US FATCA Withholding Tax Requirements
(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise indemnify or compensate the recipient of the payment for that FATCA Deduction.
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Facilities Agent and the other Finance Parties.
(c) Subject to paragraph (e) below, each Party shall, within ten Business Days of a reasonable request by another Party:
(i) confirm to that other Party whether it is:
(A) a FATCA Exempt Party; or
(B) not a FATCA Exempt Party;
(ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
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(iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.
(d) If a Party confirms to another Party pursuant to paragraph (c)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(e) Paragraph (c) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:
(i) any law or regulation;
(ii) any fiduciary duty; or
(iii) any duty of confidentiality.
(f) If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (c)(i) or (c)(ii) above (including, for the avoidance of doubt, where paragraph (e) above applies), then if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party until (in each case) such time as the Party in question provides the requested confirmation, forms, documentation or other information.
(g) If the Borrower is a US Tax Obligor, or where the Facilities Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
(i) where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the Signing Date;
(ii) where the Borrower is a US Tax Obligor on a Transfer Date or on the effective date of an Increase Confirmation or Lender Accession Agreement and the relevant Lender is:
(A) a New Lender, the relevant Transfer Date; or
(B) an Increase Lender which was not previously a Party, the effective date of the Increase Confirmation; or
(C) an Additional Lender which was not previously a Party, the effective date of the Lender Accession Agreement; or
(iii) the date a new US Tax Obligor accedes as the Borrower; or
(iv) where the Borrower is not a US Tax Obligor, the date of a request from the Facilities Agent,
supply to the Facilities Agent:
(i) a withholding certificate on Form W-8 or Form W-9 (or any successor form) (as applicable); or
(ii) any withholding statement and other documentation, authorisations, waivers and other withholding certificates as the Facilities Agent may require to certify or establish the status of such Lender under FATCA.
The Facilities Agent shall provide any withholding certificate, withholding statement, documentation, authorisations and waivers it receives from a Lender pursuant to this
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paragraph (g) to the Company and shall be entitled to rely on any such withholding certificate, withholding statement, documentation, authorisations and waivers provided without further verification. The Facilities Agent shall not be liable for any action taken by it under or in connection with this paragraph (g).
(h) Each Lender agrees that if any withholding certificate, withholding statement, documentation, authorisations and waivers provided to the Facilities Agent pursuant to paragraph (f) above is or becomes materially inaccurate or incomplete, it shall promptly update such withholding certificate, withholding statement, documentation, authorisations and waivers or promptly notify the Facilities Agent in writing of its legal inability to do so. The Facilities Agent shall provide any such updated withholding certificate, withholding statement, documentation, authorisations and waivers to the Company. The Facilities Agent shall not be liable for any action taken by it under or in connection with this paragraph (h).
19. INCREASED COSTS
19.1. Increased Costs
Subject to the exceptions set out below, the Company shall, within three Business Days of demand by the Facilities Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates as a result of:
(a) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signing Date;
(b) compliance with any law or regulation introduced after the Signing Date;
(c) the implementation or application of, or compliance with, Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or
(d) the implementation or application of, or compliance with, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended, and all requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted or issued.
19.2. Claims
(a) A Finance Party intending to make a claim for Increased Costs shall notify the Facilities Agent of the event giving rise to the claim, following which the Facilities Agent shall promptly notify the Company. Any such claim must be made on the Company within 6 months from the date on which the Finance Party becomes aware of such claim.
(b) Each Finance Party shall, as soon as practicable after a demand by the Facilities Agent, provide a certificate confirming the amount of its Increased Costs.
19.3. Exceptions
These provisions do not apply to the extent any Increased Cost is:
(a) attributable to a Tax governed by Clause 18 (Taxes);
(b) compensated for under another Clause in this Agreement or would have been but for an exception in such Clause;
(c) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
(d) a tax on the overall net income or gains of a Finance Party or any of its Affiliates;
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(e) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision (BCBS) in June 2004 in the form existing at the Signing Date (but excluding any amendment arising out of Basel III) (Basel II) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or
(f) attributable to the implementation, or application of, or compliance with, any Bank Levy, or any law or regulation which implements any Bank Levy (whether such implementation, application or compliance is by a government, a regulator, or by a Finance Party or any of its Affiliates).
19.4. Further Basel III and Dodd-Frank Requirements
A Finance Party may only make a claim for Increased Costs attributable to the implementation or application of, or compliance with, Basel III or the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 if:
(a) that Finance Party did not know about or could not reasonably be expected to have known about the relevant Increased Cost on or prior to the Signing Date or (if later) the date on which it became a Finance Party (provided that, if the Increased Cost was not fully quantifiable on or prior to such date, that Finance Party may claim that amount of the Increased Cost which was not, or could not reasonably be expected to have been, quantifiable); and
(b) the Finance Party has claimed such costs from multinational borrowers with a comparable credit rating and size to the Company (where the documents so permit) in relation to committed facilities for such similar borrowers which were entered into on or before the Signing Date and has confirmed this to the Company.
20. OTHER INDEMNITIES
20.1. Currency indemnity
(a) The Company shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:
(i) that Finance Party receiving an amount in respect of an Obligor’s liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment or order,
in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.
(b) Unless otherwise required by law, each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
20.2. Other indemnities
The Company shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability (excluding loss of profit and amounts in respect of Margin) which that Finance Party incurs as a consequence of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;
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(c) a Utilisation not being made after a Utilisation Request has been delivered for that Utilisation by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of negligence or default by that Finance Party alone); or
(d) a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment.
The Company’s liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Utilisation.
20.3. Indemnity to the Facilities Agent
The Company shall, within three Business Days of demand, indemnify the Facilities Agent against any loss or liability incurred by the Facilities Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes to be a Default;
(b) acting or relying on any notice which the Facilities Agent reasonably believes to be genuine, correct and appropriately authorised; or
(c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.
21. MITIGATION BY THE FINANCE PARTIES
(a) Each Finance Party must, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which result or would result in:
(i) any Tax Payment or Increased Costs being payable to that Finance Party;
(ii) that Finance Party being able to exercise any right of prepayment and/or cancellation under this Agreement by reason of any illegality; or
(iii) that Finance Party incurring any cost of complying with the minimum reserve requirements of the European Central Bank,
including transferring its rights and obligations under the Finance Documents to an Affiliate or changing its Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
(c) The Company must indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party which are directly referable to the Facility as a result of any step taken by it under this Clause 21.
(d) A Finance Party is not obliged to take any step under this Clause 21 if, in the opinion of that Finance Party (acting reasonably), to do so could reasonably be expected to be prejudicial to it.
22. COSTS AND EXPENSES
22.1. Initial costs
Subject to Clause 22.4 (Legal fees), the Company shall, within three Business Days of demand, pay to the Facilities Agent and the Arrangers the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by them in connection with the negotiation, preparation, printing, execution and syndication of the Finance Documents.
22.2. Subsequent costs
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(a) Subject to Clause 22.4 (Legal fees), the Company must promptly on demand pay to the Facilities Agent the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by it in connection with:
(i) the negotiation, preparation, printing and execution of any Finance Document (other than a Transfer Certificate) executed after the Signing Date; and
(ii) any amendment, waiver or consent requested by or on behalf of an Obligor or an amendment required or specifically allowed by this Agreement to any Finance Document.
22.3. Enforcement costs
Subject to Clause 22.4 (Legal fees), the Company must promptly on demand pay to each Finance Party the amount of all costs and expenses (including legal fees) properly incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
22.4. Legal fees
The Company will only be liable to pay an amount in respect of legal fees under Clauses 22.1 (Initial costs) to 22.3 (Enforcement costs) for one law firm, and, in the case of Clauses 22.1 (Initial costs) and 22.2 (Subsequent costs), applicable foreign counsel instructed by such law firm for the purposes of obtaining legal opinions, and, in the case of Clause 22.3 (Enforcement costs), applicable foreign counsel instructed by such law firm for the purposes of enforcing or preserving any rights under any Finance Document, representing all of the Finance Parties together.
22.5. Acknowledgment of benefit, discount or credit
The Company acknowledges that each or any of the Facilities Agent and the Arrangers may receive a benefit, including without limitation, a discount, credit or other accommodation, from any relevant legal counsel based on the legal fees such legal counsel may receive on account of their relationship with the Facilities Agent and the Arrangers including, without limitation, fees paid pursuant to the Finance Documents.
23. GUARANTEE AND INDEMNITY
23.1. Guarantee and indemnity by the Company
(a) The Company irrevocably and unconditionally:
(i) guarantees to each Finance Party punctual performance by each Obligor that is its Subsidiary of all that Obligor’s payment obligations under the Finance Documents;
(ii) undertakes with each Finance Party that whenever each Obligor that is its Subsidiary does not pay any amount when due under any Finance Document, it shall immediately on demand by the Facilities Agent pay that amount as if it was the principal obligor; and
(iii) indemnifies each Finance Party immediately on demand against any loss or liability suffered by that Finance Party if any payment obligation guaranteed by it hereunder is or becomes unenforceable, invalid or illegal; the amount of the cost, loss or liability under this indemnity shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.
(b) The guarantee in Clause 23.1(a) is a continuing guarantee and will extend to the ultimate balance of sums payable by any of the Company’s Subsidiaries under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
23.2. Guarantee and indemnity by Carnival plc
(a) Carnival plc irrevocably and unconditionally:
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(i) guarantees to each Finance Party punctual performance by each Obligor that is its Subsidiary of all that Obligor’s payment obligations under the Finance Documents;
(ii) undertakes with each Finance Party that whenever each Obligor that is its Subsidiary does not pay any amount when due under any Finance Document, it shall immediately on demand by the Facilities Agent pay that amount as if it was the principal obligor; and
(iii) indemnifies each Finance Party immediately on demand against any loss or liability suffered by that Finance Party if any payment obligation guaranteed by it hereunder is or becomes unenforceable, invalid or illegal; the amount of the cost, loss or liability under this indemnity shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.
(b) The guarantee in Clause 23.2(a) is a continuing guarantee and will extend to the ultimate balance of sums payable by any of Carnival plc’s Subsidiaries under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
23.3. Reinstatement
(a) If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of each Guarantor under this Clause will continue as if the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.
23.4. Waiver of defences
The obligations of each Guarantor under this Clause 23 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 23 (without limitation and whether or not known to it or any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Carnival Corporation & plc Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person;
(d) any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(e) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(f) any amendment, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in, any facility or the addition of any new facility under any Finance Document or other document or security;
(g) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
(h) any insolvency or similar proceedings.
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23.5. Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 23. This waiver applies irrespective of any law or any provision of the Finance Documents to the contrary.
23.6. Appropriations
(a) Until all amounts which may be or become payable by any of the Company’s Subsidiaries that is an Obligor under the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Company shall not be entitled to the benefit of the same; and
(ii) hold in an interest-bearing suspense account (bearing interest at market rates) any moneys received from the Company or on account of the Company’s liability under this Clause 23.
(b) Until all amounts which may be or become payable by any of Carnival plc’s Subsidiaries that is an Obligor under the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(i) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and Carnival plc shall not be entitled to the benefit of the same; and
(ii) hold in an interest-bearing suspense account (bearing interest at market rates) any moneys received from Carnival plc or on account of Carnival plc’s liability under this Clause 23.
23.7. Non-competition
(a) The Company shall, until all sums whatsoever payable (or which may become payable) by any of its Subsidiaries that is an Obligor under or in connection with the Finance Documents have been irrevocably paid in full, exercise only in accordance with the Facilities Agent’s instructions:
(i) its rights of subrogation, contribution and indemnity against that Subsidiary;
(ii) its right to take the benefit of, share in or enforce any security or other guarantee or indemnity for that Subsidiary’s obligations under the Finance Documents held by any of the Finance Parties;
(iii) its rights to prove or claim in the bankruptcy, liquidation, administration or other insolvency proceedings of that Subsidiary;
(iv) its rights to bring legal or other proceedings for an order requiring that Subsidiary to make any payment, or perform any obligation, in respect of which the Company has given a guarantee, undertaking or indemnity under this Clause 23; and
(v) its rights to exercise any right of set-off against that Subsidiary.
(b) Any amount recovered as a result of the exercise of the rights described in paragraph (a) above shall be held on trust for the Facilities Agent on behalf of the Finance Parties and paid to the Facilities Agent for the Finance Parties on demand. The Company warrants to the
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Finance Parties that it has not taken any security from its Subsidiaries in relation to the Finance Documents and agrees not to do so until the Finance Parties receive all sums payable by those Subsidiaries under the Finance Documents. Any security taken by the Company in breach of this provision and all moneys at any time received in respect thereof shall be held in trust for the Finance Parties.
(c) Carnival plc shall, until all sums whatsoever payable (or which may become payable) by any of its Subsidiaries that is an Obligor under or in connection with the Finance Documents have been irrevocably paid in full, exercise only in accordance with the Facilities Agent’s instructions:
(i) its rights of subrogation, contribution and indemnity against that Subsidiary;
(ii) its right to take the benefit of, share in or enforce any security or other guarantee or indemnity for that Subsidiary’s obligations under the Finance Documents held by any of the Finance Parties;
(iii) its rights to prove or claim in the bankruptcy, liquidation, administration or other insolvency proceedings of that Subsidiary;
(iv) its rights to bring legal or other proceedings for an order requiring that Subsidiary to make any payment, or perform any obligation, in respect of which Carnival plc has given a guarantee, undertaking or indemnity under this Clause 23; and
(v) its rights to exercise any right of set-off against that Subsidiary.
(d) Any amount recovered as a result of the exercise of the rights described in paragraph (a) above shall be held on trust for the Facilities Agent on behalf of the Finance Parties and paid to the Facilities Agent for the Finance Parties on demand. Carnival plc warrants to the Finance Parties that it has not taken any security from its Subsidiaries in relation to the Finance Documents and agrees not to do so until the Finance Parties receive all sums payable by those Subsidiaries under the Finance Documents. Any security taken by Carnival plc in breach of this provision and all moneys at any time received in respect thereof shall be held in trust for the Finance Parties.
23.8. Additional security
Each guarantee in Clause 23.1 (Guarantee and indemnity by the Company) and 23.2 (Guarantee and indemnity by Carnival plc) is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
24. REPRESENTATIONS
24.1. Representations
The representations set out in this Clause are made in accordance with Clause 24.10 (Times for making representations).
24.2. Status
Each Obligor is duly incorporated and validly existing under the laws of its jurisdiction of incorporation as a limited liability company, a corporation, or other legal entity and has the power to execute, deliver and perform its obligations under the Finance Documents; all necessary corporate action has been taken by each Obligor to authorise the execution, delivery and performance of, the Finance Documents to which it is or will be a party and each Finance Document to which it is a party constitutes valid and legally binding and enforceable obligations in accordance with its terms (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)); each Obligor has the power to own its assets and carry on its business as it is being conducted where a lack of such power would have a Material Adverse Effect.
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24.3. Non-conflict
The execution, delivery and performance by each Obligor of the Finance Documents will not contravene any existing law, regulation or authorisation to which that Obligor is subject, result in the breach of or default under any agreement or other instrument to which that Obligor is a party or which is binding upon that Obligor or its assets or contravene any provision of that Obligor’s constitutional documents.
24.4. No default
(a) No Default has occurred and is outstanding or will result from the execution of, or the performance of any transaction contemplated by, any Finance Document.
(b) No Obligor nor any of its respective Subsidiaries is in default under any agreement relating to Borrowed Money to which it or any of its respective Subsidiaries is a party or by which it or any of its respective Subsidiaries may be bound which default would have a Material Adverse Effect.
24.5. Financial statements
The Carnival Corporation & plc Group’s audited financial statements most recently delivered to the Facilities Agent (which, in the case of the Carnival Corporation & plc Group at the Signing Date, are the Original Financial Statements):
(a) have been prepared in accordance with GAAP, consistently applied; and
(b) fairly represent its financial condition (consolidated, if applicable) as at the date to which they were drawn up,
except, in each case, as disclosed to the contrary in those financial statements.
24.6. No material adverse change
There has been no adverse change in the business or consolidated financial condition of the Carnival Corporation & plc Group since the date to which the Original Financial Statements were drawn up which would have a Material Adverse Effect.
24.7. Litigation
No litigation, arbitration or administrative proceedings is taking place, pending or to its knowledge, threatened against an Obligor or any Material Subsidiary, which is likely to be determined adversely to the relevant member of the Carnival Corporation & plc Group and, if so determined, would be likely to have a Material Adverse Effect.
24.8. Pari passu ranking
The obligations of each Obligor under the Finance Documents to which it is a party rank at least pari passu with all its other present unsecured and unsubordinated indebtedness with the exception of any obligations which are mandatorily preferred by law.
24.9. United States Law
(a) In this Subclause:
(i) Anti-Terrorism Law means each of:
(A) Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued September 23, 2001, as amended by Order 13268 (as so amended, the Executive Order);
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(B) the regulations of the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury, 31 C.F.R., Subtitle B, Chapter V;
(C) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act) (the USA Patriot Act); and
(D) the Money Laundering Control Act of 1986, 18 U.S.C. sect. 1956;
(ii) controlled has the meaning given to it in the United States Investment Company Act of 1940;
(iii) investment company has the meaning given to it in the United States Investment Company Act of 1940;
(iv) public utility has the meaning given to it in the United States Federal Power Act of 1920; and
(v) Restricted Party means any person listed:
(A) in the Annex to the Executive Order;
(B) on the “Specially Designated Nationals and Blocked Persons” list maintained by the OFAC; or
(C) in any successor list to either of the foregoing.
(b) No Obligor which is incorporated in the United States of America or a state thereof is:
(i) an investment company or controlled by an investment company, or required to register as an investment company;
(ii) a public utility, or subject to regulation, under the United States Federal Power Act of 1920; or
(iii) subject to regulation under any United States Federal or State law or regulation that limits its ability to incur indebtedness.
(c) No Obligor nor any of its respective Affiliates is, or is controlled by, a Restricted Party.
(d) No Obligor nor any of its respective Subsidiaries, to that Obligor’s knowledge, is in breach of or is the subject of any material action or investigation under any applicable Anti-Terrorism Law.
(e) Each Obligor and each of its respective Subsidiaries have taken reasonable measures to promote compliance with applicable Anti-Terrorism Laws.
(f) In relation to each Finance Party which notifies the Facilities Agent to this effect (each, a Restricted Finance Party), until such time as the relevant Restricted Finance Party has notified the Facilities Agent that it is no longer a Restricted Finance Party, this Clause 24.9 shall only apply for the benefit of that Restricted Finance Party to the extent that the receipt and acceptance by that Restricted Finance Party of the representations and warranties in this Clause 24.9 would not result in any violation of section 7 of the German Foreign Trade Regulation (AWV) (Außenwirtschaftsverordnung) (in connection with section 4, paragraph 1(a) no. 3 German Foreign Trade Law (AWG) (Außenwirtschaftsgesetz), EU Regulation 2271/96 in conjunction with EU Regulation 2018/1100 or any similar applicable anti-boycott law, regulation or statute, including any similar and applicable UK law, instrument or regulation created following the United Kingdom’s exit from the European Union. In connection with any amendment, waiver, determination or direction relating to any part of this Clause 24.9 of which a Restricted Finance Party does not have the benefit, the
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Commitments of that Restricted Finance Party shall be excluded for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.
24.10. Times for making representations
(a) The representations set out in this Clause 24 are made by each Original Obligor on the Signing Date and repeated on the Commencement Date in respect of itself (and its respective Subsidiaries if so stated in the representation so concerned) to each Finance Party.
(b) Unless a representation is expressed to be given at a specific date, each representation (other than Clause 24.4 (No default) to Clause 24.7 (Litigation) inclusive) is deemed to be repeated by the Company, Carnival plc and the Borrower to each Finance Party on the date of each Utilisation Request, each Utilisation Date, the first day of each Interest Period, each Increase Date and each Additional Increase Date and, in the case of an Additional Subsidiary Guarantor, by the Additional Subsidiary Guarantor on the day on which the Subsidiary becomes an Additional Subsidiary Guarantor.
(c) When a representation is repeated, it shall be made with reference to the facts and circumstances existing at the time of repetition.
25. INFORMATION UNDERTAKINGS
25.1. Financial statements
(a) The Company must supply to the Facilities Agent (in sufficient copies for all the Lenders if the Facilities Agent so requests):
(i) the audited consolidated financial statements of the Carnival Corporation & plc Group for each of its financial years (which will be the Carnival Corporation 10-K as filed with the SEC);
(ii) the unaudited consolidated financial statements of the Carnival Corporation & plc Group for each of the first three fiscal quarters in each of its financial years (which will be the Carnival Corporation 10-Q as filed with the SEC); and
(iii) the registration statements and reports filed with the SEC (including the Carnival Corporation 10-K) by the Company and Carnival plc.
(b) All financial statements must be supplied as soon as they are available and:
(i) in the case of the audited consolidated financial statements of the Carnival Corporation & plc Group, within 120 days;
(ii) in the case of unaudited quarterly financial statements of the Carnival Corporation & plc Group, within 75 days; and
(iii) in the case of registration statements and reports filed with the SEC, within 15 days,
of the end of the relevant financial period which ends after the Commencement Date (or in the case of paragraph (a)(iii) above, of the date of filing with the SEC in accordance with the time periods specified in the rules and regulations of the SEC).
25.2. Form of financial statements
The Company must ensure that each set of financial statements supplied under this Agreement fairly presents the financial condition (consolidated or otherwise) of the relevant person as at the date to which those financial statements were drawn up. The Company shall not be required to produce footnotes to the unaudited financial statements.
25.3. Compliance Certificate
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(a) The Company must supply to the Facilities Agent a Compliance Certificate with each set of financial statements sent to the Facilities Agent under this Agreement after the Commencement Date.
(b) A Compliance Certificate must be signed by a senior financial officer of the Company.
25.4. Assurance Statement
(a) The Company must supply to the Facilities Agent an Assurance Statement relating to each of its financial years ending 30 November as soon as it is available and by no later than 30 June in the following financial year. For the avoidance of doubt, the Assurance Statement delivered on or prior to 30 June in each year should relate to the Company’s most recently completed financial year.
(b) Any failure by the Company to deliver an Assurance Statement pursuant to paragraph (a) above shall only result in an increase in the applicable Margin pursuant to Clause 14.6 (Margin) and shall not result in any Default.
25.5. Information - miscellaneous
(a) The Company (and the Borrower, only in relation to paragraph (iii) below in respect of information regarding the Borrower) must supply to the Facilities Agent (in sufficient copies for all the Lenders if the Facilities Agent so requests):
(i) copies of all documents despatched by the Company or Carnival plc to its creditors generally at the same time as the documents are despatched;
(ii) promptly on request, a list of the then current Material Subsidiaries; and
(iii) promptly on request, such further information regarding the financial condition and operations of the Carnival Corporation & plc Group as any Finance Party through the Facilities Agent may reasonably require except information which is confidential in relation to third parties or which the Company or the Borrower is prohibited from disclosing by law or by regulatory requirement.
(b) The Company must provide written notice to the Facilities Agent of the date on which the Existing Facilities Agreement is irrevocably prepaid and cancelled in full.
(c) The Company must provide written notice to the Facilities Agent of any information posted to the website identified in Clause 25.7(a)(ii) for the benefit of its shareholders, and for this purpose only the Facilities Agent agrees that it will accept such notification by email. The Company shall provide such notification as soon as practicable after the relevant information is posted to the website.
25.6. Notification of Default
The Company must notify the Facilities Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
25.7. Use of websites
(a) Except as provided below, the Company may deliver any information under this Agreement to a Lender by posting it on to an electronic website if:
(i) the Facilities Agent and the Lender agree, it being understood that, subject to paragraph (b) below, the Facilities Agent and all Original Lenders provide their consent for all of the information under Clause 25.1(a) (Financial statements) to be so delivered;
(ii) the Company and the Facilities Agent designate an electronic website for this purpose which, for the purpose of Clause 25.1(a) (Financial statements) hereof shall be
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www.carnivalcorp.com, until and unless the Company sends written notice to the Facilities Agent advising of a change to the details of the website;
(iii) the Company notifies the Facilities Agent of the address of and password (if any) for the website (other than with respect to the information contemplated by Clause 25.1(a) (Financial statements) which shall be posted to the website identified in paragraph (ii) above); and
(iv) the information posted is in a format agreed between the Company and the Facilities Agent.
The Facilities Agent must supply each relevant Lender with the address of and password for the website.
(b) Notwithstanding the above, the Company must supply to the Facilities Agent in paper form a copy of any information posted on the website together with sufficient copies for:
(i) any Lender not agreeing to receive information via the website; and
(ii) within ten Business Days of request, any other Lender, if that Lender so requests.
(c) The Company must promptly upon becoming aware of its occurrence, notify the Facilities Agent if:
(i) the website cannot be accessed;
(ii) the website or any information on the website is infected by any electronic virus or similar software;
(iii) the password (if any) for the website is changed; or
(iv) any information to be supplied under this Agreement is posted on the website or amended after being posted.
If the circumstances in paragraph (i) or (ii) above occur, the Company must supply any information required under this Agreement in paper form during the time that the website is not available.
25.8. “Know your customer” checks
(a) The Company shall promptly upon the written request of the Facilities Agent supply, or procure the supply of, such documentation and other evidence about each Obligor, each Additional Subsidiary Guarantor and any Parent Entity as is reasonably requested by the Facilities Agent, for itself, on behalf of any Lender or on behalf of any prospective New Lender, in order for the Facilities Agent, that Lender or prospective New Lender to carry out and be satisfied with the results of all necessary “know your customer” checks that it is required to carry out by reason of being a party to the transactions contemplated in the Finance Documents, provided that (subject to any change of law, change of regulation or a change in a Lender’s internal compliance procedures, or any change in the interpretation, administration or application thereof, that is made, in each case, in accordance with a Lender’s normal practice in respect of companies which are listed (at all times when the Company is listed) investment grade (at all times when the Company’s debt is of investment grade) and (at all times) of a comparable credit standing to the Company (other than, in each case, on those companies first becoming a customer of that Lender), or any change in status of any Obligor or Parent Entity after the Signing Date, that might reasonably result in further documentation or other evidence being required) the Facilities Agent may only make one such request in respect of itself, each Lender and each prospective New Lender.
(b) Each Lender shall promptly upon the request of the Facilities Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facilities Agent (for itself) in order for the Facilities Agent to carry out and be satisfied with the results
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of all necessary “know your customer” checks that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.
26. FINANCIAL COVENANTS
26.1. Definitions
Available Liquidity means the aggregate of available Cash and Cash Equivalents of the Carnival Corporation & plc Group and any amount which is available but undrawn under a committed facility provided to a member of the Carnival Corporation & plc Group which is available for drawing.
Borrowed Money or moneys borrowed means, at any time, all borrowings of the respective members of the Carnival Corporation & plc Group whether secured or unsecured and shall be deemed to include (to the extent that the same would not otherwise fall to be taken into account):
(a) the principal amount for the time being owing (other than to any member of the Carnival Corporation & plc Group) of all debentures (as defined in section 738 of the Companies Act 2006) notwithstanding that the same may be or have been issued in whole or in part for a consideration other than cash; except that, in the case of a debenture issued at a discount which contains provisions for prepayment or acceleration, the principal amount thereof at any relevant time shall be deemed to be the highest amount which would, if such debenture were then to be repaid in accordance with any such provision for prepayment or acceleration, be repayable in respect of the principal amount thereof;
(b) the outstanding amount raised by the acceptance of bills (not being acceptances of trade bills in respect of the purchase or sale of goods in the ordinary course of trading) by any member of the Carnival Corporation & plc Group or by any bank or accepting house under any acceptance credit opened on behalf of any member of the Carnival Corporation & plc Group;
(c) the fixed premium payable on final redemption or repayment of any debentures, share capital or other Borrowed Moneys falling to be taken into account (other than in connection with the liquidation of any company);
(d) the nominal amount of any issued share capital and the principal amount of any Borrowed Moneys, the redemption or repayment whereof is guaranteed or the subject of any indemnity or otherwise secured (and where part only is so secured to the extent so secured) by any other member of the Carnival Corporation & plc Group except insofar as either the benefit of such guarantee or indemnity or security or the beneficial interest in the right to such redemption or repayment is held by another member of the Carnival Corporation & plc Group or such nominal or principal amount is otherwise taken into account hereunder;
Provided that:
(A) moneys borrowed by any member of the Carnival Corporation & plc Group for the purpose of repaying or redeeming (with or without premium) in whole or in part any other Borrowed Moneys falling to be taken into account and intended to be applied for such purposes within six months after the borrowing thereof and so applied shall not during such period except to the extent not so applied themselves be taken into account;
(B) moneys borrowed by any member of the Carnival Corporation & plc Group and owing to any other member of the Carnival Corporation & plc Group shall not (save to the extent mentioned in (iii) below) be taken into account;
(C) moneys borrowed by a member of the Carnival Corporation & plc Group which is a partly owned Subsidiary of the Company and not owing to the Company or another member of the Carnival Corporation & plc Group shall be taken into account subject to the exclusion of that proportion thereof as equals the minority proportion but the minority proportion of any moneys borrowed by a member of the Carnival Corporation & plc Group from a partly-owned Subsidiary (which would otherwise be excluded by virtue of (ii) above) shall be included; for these purposes minority proportion shall mean
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that proportion of the issued equity share capital (within the meaning of section 548 of the Companies Act 2006) of the partly-owned Subsidiary which is not attributable directly or indirectly to the Company;
(D) moneys borrowed by a member of the Carnival Corporation & plc Group expressed in or calculated by reference to a currency other than US Dollars shall be converted into US Dollars in the manner used in the financial statements filed by the Carnival Corporation & plc Group with the SEC;
(E) moneys borrowed against the security of an asset in respect of which there is no recourse against any member of the Carnival Corporation & plc Group other than to that asset shall not be taken into account; and
(F) Excluded Indebtedness shall not be taken into account.
Capital Lease means with respect to any person, any lease of any property (whether real, personal or mixed) by such person as lessee that, in accordance with GAAP, either would be required to be classified and accounted for as a capital lease on a balance sheet of such person or otherwise be disclosed as such in a note to such balance sheet, other than, in the case of the Company and Carnival plc or a Subsidiary, any such lease under which the Company, Carnival plc or such Subsidiary is the lessor.
Cash means, for the purposes of Available Liquidity:
(a) at any time, cash in hand or at bank and (in the latter case) credited to an account in the name of a member of the Carnival Corporation & plc Group and to which a member of the Carnival Corporation & plc Group is alone (or together with other members of the Carnival Corporation & plc Group) beneficially entitled and for so long as:
(i) that cash is repayable on demand;
(ii) repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Carnival Corporation & plc Group or of any other person whatsoever or on the satisfaction of any other condition;
(iii) that cash is not subject to any Security Interests except for any Security Interests constituted by a netting or set-off arrangement entered into by members of the Carnival Corporation & plc Group in the ordinary course of their banking arrangements; and
(iv) the cash is freely and immediately available to be applied in repayment or prepayment of the Facilities; and
(b) cash in transit including, without limitation, payments made by balance transfer, direct debit, cheques, credit, debit or store cash which are yet to be received in cleared funds.
Cash Equivalents means for the purposes of Available Liquidity, at any time:
(a) certificates of deposit maturing within one year after the relevant date of calculation;
(b) any investment in marketable debt obligations that:
(i) is issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State or any instrumentality or agency of any of them; and
(ii) has a credit rating of either A-1 or higher by S&P or P-1 or higher by Moody’s or, if no rating is available in respect of such marketable debt obligation, the issuer of which has, in respect of its long term unsecured and non-credit enhanced debt obligations, an equivalent rating; and
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(iii) matures within one year after the relevant date of calculation; and
(iv) is not convertible or exchangeable to any other security;
(c) commercial paper not convertible or exchangeable to any other security:
(i) for which a recognised trading market exists;
(ii) issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State;
(iii) which matures within one year after the relevant date of calculation; and
(iv) which has a credit rating of either A-1 or higher by S&P or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long term unsecured and non-credit enhanced debt obligations, an equivalent rating;
(d) Sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);
(e) any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (iii) can be turned into cash on not more than 30 days’ notice;
(f) cash held on deposit at bank which is not repayable on demand but which matures within three months after the relevant date of calculation; or
(g) any other debt security approved by the Majority Lenders,
in each case, to which any member of the Carnival Corporation & plc Group is alone (or together with other members of the Carnival Corporation & plc Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Carnival Corporation & plc Group or subject to any Security Interest.
Consolidated Capital means, at any time, the aggregate of the Issued Capital and Consolidated Reserves of the Carnival Corporation & plc Group and all Borrowed Moneys for the time being undischarged.
Consolidated Net Interest Charges means Interest Payable less Interest Receivable during the relevant Measurement Period.
EBITDA means the consolidated net income of the Carnival Corporation & plc Group for the relevant Measurement Period:
(a) before any deduction for Taxes;
(b) before any deduction for Consolidated Net Interest Charges and before any amortisation of upfront fees and expenses in relation to Borrowed Money;
(c) before any deduction for depreciation or impairment;
(d) before any deduction for amortisation; and
(e) excluding exceptional items and separately disclosable items (for the avoidance of doubt, including restructuring items),
but adjusted by deducting any amounts attributable to minority interests.
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Excluded Indebtedness means any Indebtedness (including Indebtedness pursuant to a U.S. leveraged lease financing including a U.S. lease to service contract under Section 7701(e) of the Internal Revenue Code of 1986 (as amended from time to time)), the payment of which is provided for by the deposit of cash, cash equivalents or letters of credit with one or more investment-grade banks or other financial institutions acting as payment undertaker, irrespective whether any such arrangements constitutes a defeasance under GAAP.
Existing Relevant Term Loan Commitments means commitments maturing on 30 June 2025 under the Existing Term Loan Facility.
Existing Term Loan Facility means the Term Loan Agreement, dated 30 June 2020, between the Company, as lead borrower, Carnival Finance, LLC, as co-borrower, Carnival plc and the other guarantors party thereto, JPMorgan Chase Bank N.A., as administrative agent, and certain financial institutions, as lenders, as amended on 3 December 2020, 30 June 2021, 5 October 2021 and 18 October 2021.
GAAP means generally accepted accounting principles in the United States.
Indebtedness means (a) any liability of any person (i) for borrowed money, or under any reimbursement obligation related to a letter of credit or bid or performance bond facility, or (ii) evidenced by a bond, note, debenture or other evidence of indebtedness (including a purchase money obligation) representing extensions of credit or given in connection with the acquisition of any business, property, service or asset of any kind, including without limitation, any liability under any commodity, interest rate or currency exchange hedge or swap agreement (other than a trade payable, other current liability arising in the ordinary course of business or commodity, interest rate or currency exchange hedge or swap agreement arising in the ordinary course of business) or (iii) for obligations with respect to (A) an operating lease, or (B) a lease of real or personal property that is or would be classified and accounted for as a Capital Lease; (b) any liability of others either for any lease, dividend or letter of credit, or for any obligation described in the preceding Clause (a) that (i) the person has guaranteed or that is otherwise its legal liability (whether contingent or otherwise or direct or indirect, but excluding endorsements or negotiable instruments for deposit or collection in the ordinary course of business) or (ii) is secured by any Security Interest on any property or asset owned or held by that person, regardless whether the obligation secured thereby shall have been assumed by or is a personal liability of that person; and (c) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in Clauses (a) and (b) above; provided however, that Indebtedness shall not include Excluded Indebtedness.
Interest means the aggregate interest, guarantee commission and amounts in the nature of interest paid or payable in respect of any Borrowed Moneys (other than agency, arrangement, management or participation fees or fees of any other nature).
Interest Payable means the aggregate of:
(a) all Interest attributable to the Carnival Corporation & plc Group and charged to the Carnival Corporation & plc Group’s consolidated profit and loss account during the relevant Measurement Period; and
(b) interest (or equivalent) element of payments under finance leases attributable to the Carnival Corporation & plc Group and charged to the Carnival Corporation & plc Group’s consolidated profit and loss account during that Measurement Period;
in each case and calculated on the basis that:
(i) the amount of Interest accrued will be increased by an amount equal to any amount payable by any member of the Carnival Corporation & plc Group under interest rate hedging arrangements in relation to that Measurement Period; and
(ii) the amount of Interest accrued will be reduced by an amount equal to any amount payable to any member of the Carnival Corporation & plc Group under interest rate hedging arrangements in relation to that Measurement Period.
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Interest Receivable means all interest and amounts in the nature of interest attributable to the Carnival Corporation & plc Group and credited to the Carnival Corporation & plc Group’s consolidated profit and loss account during the relevant Measurement Period (whether or not paid).
Issued Capital and Consolidated Reserves means at any relevant time the aggregate of:
(a) the amount paid up or credited as paid up on the issued share capital of the Company and Carnival plc on a combined basis (for which purpose an issue or proposed issue of share capital for cash which has been unconditionally underwritten shall be deemed paid up to the extent that the underwriters are liable therefor and that such capital will be paid up within four months from the date when such underwriting liability became unconditional); and
(b) the amounts standing to the credit of the consolidated capital and revenue reserves of the Carnival Corporation & plc Group (including any share premium account or capital redemption reserve fund) after adding thereto or deducting therefrom any balance to the credit or debit of the profit and loss account, all determined by reference to the then latest available audited consolidated balance sheet of Carnival Corporation (reflecting the Carnival Corporation & plc Group) but after:
(i) deducting an amount equal to any distribution declared, recommended or made by any member of the Carnival Corporation & plc Group (otherwise than attributable directly or indirectly to the Company) out of profits earned up to and including the date of such balance sheet to the extent that such distribution is not provided for in such balance sheet;
(ii) excluding amounts attributable to minority interests in the Company’s or Carnival plc’s Subsidiaries;
(iii) excluding any sums set aside for deferred taxation but only to the extent that the reduction in the tax charge represented thereby cannot be seen with reasonable probability to continue for the foreseeable future; and
(iv) deducting any amount representing any intangible assets other than goodwill arising on consolidation,
excluding Accumulated Other Comprehensive Income (Loss), determined in accordance with GAAP and which shall:
(1) for the financial quarter ended 28 February 2023, also include the Convertible Notes Due 2023 in the amount of US$2,012,500,000 as reduced by (i) the value of the Convertible Notes Due 2023 that the Company has elected to settle in cash (rather than equity) in accordance with section 14.02 of the Convertible Notes Due 2023 indenture and (ii) the value of any new equity the Company issues in order to settle in equity that Convertible Notes Due 2023 obligation; and
(2) for the avoidance of doubt:
(A) for all periods starting after 30 November 2022, any outstanding Convertible Notes Due 2023 will be accounted for as equity at any time until the Maturity Date (and, in the case of the financial quarter ended 28 February 2023, in accordance with calculations set out in paragraph (1) above); and
(B) from the Maturity Date, only such part of the Convertible Notes Due 2023 as has actually been converted into equity securities by the Maturity Date shall be included in determining the level of Issued Capital and Consolidated Reserves,
provided that:
(a) any non-cash charge to Issued Capital and Consolidated Reserves resulting (directly or indirectly) from a change after the Signing Date in GAAP or in the interpretation thereof shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such change shall be added back to Issued Capital and Consolidated Reserves;
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(b) any non-cash write-off to Issued Capital and Consolidated Reserves with respect to the financial year ended 30 November 2020 shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-offs shall be added back to Issued Capital and Consolidated Reserves;
(c) any non-cash write-off to Issued Capital and Consolidated Reserves with respect to the financial year ended 30 November 2021 and 30 November 2022 (excluding any such write-offs to goodwill with respect to either such financial year) shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-off shall be added back to Issued Capital and Consolidated Reserves; provided that the aggregate amount of such write-offs added back to Issued Capital and Consolidated Reserves pursuant to this paragraph (c) shall not exceed the greater of (i) 10% of the total assets of the Carnival Corporation & plc Group taken as a whole as determined in accordance with GAAP as at the last day of the most recently ended financial quarter and (ii) US$5,500,000,000;
(d) any non-cash write-off to such part of the Company and Carnival plc’s goodwill as existed on the balance sheet of the Company and Carnival plc as of 30 November 2020 (namely US$806,791,000) in respect of the financial years ended 30 November 2021 (such non-cash write off being US$225,547,000 with balance sheet goodwill as of 30 November 2021 being US$578,966,000), 30 November 2022, 30 November 2023 and 30 November 2024, shall be disregarded in the computation of Issued Capital and Consolidated Reserves such that the amount of any reduction thereof resulting from such write-offs shall be added back to Issued Capital and Consolidated Reserves;
(e) Net Income (Loss) (but excluding any net loss associated with an impairment or write-off added back pursuant to paragraph (b), paragraph (c) or paragraph (d) above), determined in accordance with GAAP as shown in the Carnival Corporation & plc Group’s consolidated statement of comprehensive (loss) income, attributable to the financial years ending 30 November 2021 (namely US$9,501,333,000) and 30 November 2022 shall be added back to Issued Capital and Consolidated Reserves; provided that the aggregate amount added back to Issued Capital and Consolidated Reserves pursuant to paragraph (c) above and this paragraph (e) shall not exceed US$9,500,000,000; and
(f) the aggregate amount of the add backs made pursuant to paragraphs (b) to (e) above shall automatically be reduced successively by 25 per cent of such aggregate amount in the last fiscal quarter of each of the four (4) fiscal years commencing 1 December 2024 so as to reduce to zero any such add backs by, and in the assessment of, the fiscal year ended 30 November 2028.
For the avoidance of doubt, no item added back to Issued Capital and Consolidated Reserves pursuant to paragraphs (b) to (f) above shall be added back pursuant to any other clause, section or paragraph of this Agreement.
For the purposes of this definition:
Convertible Notes Due 2023 means the convertible notes issued under that certain indenture, dated as of 6 April 2020;
Maturity Date has the meaning given to that term under the Convertible Notes Due 2023 and being for this purpose 1 April 2023; and
non-cash write-off shall include losses on extinguishment of debt.
Measurement Period means any twelve month period ending on a Testing Date.
Testing Date means the last day of each financial quarter of the Carnival Corporation & plc Group.
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26.2. Interpretation
(a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Facilities Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Signing Date in GAAP or in the application thereof on the operation of such provision (or if the Facilities Agent notifies the Company that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
(b) Any amount in a currency other than US Dollars is to be taken into account at its US Dollars equivalent calculated on the basis of the relevant rates of exchange used by the Carnival Corporation & plc Group in, or in connection with, its financial statements for that period.
(c) No item must be credited or deducted more than once in any calculation under this Clause.
26.3. Gearing
The Company must ensure that on each Testing Date set out below the aggregate of all Borrowed Moneys (for the time being undischarged) does not exceed the percentage of Consolidated Capital at the relevant time:
| Testing Date | Percentage | ||||
| From the Testing Date immediately following the Commencement Date and thereafter | 65 | ||||
26.4. Interest cover
The Company must ensure that on each Testing Date on and from 31 August 2024, the ratio of EBITDA to Consolidated Net Interest Charges, for the Measurement Period ending on each such Testing Date set out below is not less than the ratio than the relevant ratio below:
| Testing Dates | Ratio | ||||
| 31 August 2024 | 2.0 to 1 | ||||
| 30 November 2024 | 2.0 to 1 | ||||
| 28 February 2025 | 2.0 to 1 | ||||
| 31 May 2025 | 2.0 to 1 | ||||
| 31 August 2025 | 2.5 to 1 | ||||
| 30 November 2025 | 2.5 to 1 | ||||
| 28 February 2026 and thereafter | 3.0 to 1 | ||||
26.5. Minimum Available Liquidity
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The Company must ensure that on each Testing Date on (and including) the Testing Date immediately following the Commencement Date to (and including) the earlier of (i) 30 November 2026 and (ii) the Termination Date (inclusive), the Available Liquidity is not less than USD 1,500,000,000.
26.6. Term Loan Liquidity
If any Existing Relevant Term Loan Commitments are outstanding, the Company must ensure that on 31 March 2025 (and on each Utilisation Date thereafter), the Available Liquidity is not less than the greater of (i) the aggregate outstanding amount of the Existing Relevant Term Loan Commitments and (ii) USD 1,500,000,000.
27. GENERAL UNDERTAKINGS
27.1. General
Each Obligor agrees to be bound by the covenants set out in this Clause relating to it and, where the covenant is expressed to apply to any member of the Carnival Corporation & plc Group and/or Material Subsidiaries, the Company and Carnival plc shall ensure that, in respect of each of their Subsidiaries, the relevant Carnival Corporation & plc Group member performs that covenant.
27.2. Authorisations and compliance with laws
(a) Each Obligor will obtain and comply with and do all that is necessary to maintain in full force and effect, and shall procure that each of its Subsidiaries obtain and comply with and do all that is necessary to maintain in full force and effect, in all material respects the terms and conditions of all authorisations, approvals, resolutions, exemptions, filings, notarisations, consents, licences and concessions material to the carrying on of its business as a member of the Carnival Corporation & plc Group, where the failure to so comply would be likely to have a Material Adverse Effect.
(b) The Company will, and will cause each of its Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders, except to the extent that the failure to so comply would not have a Material Adverse Effect.
27.3. Negative pledge
No Obligor will create or incur, or suffer to be created or incurred or come to exist any Security Interest in respect of Indebtedness on any vessel or other of its properties or assets of any kind, real or personal, tangible or intangible, included in the consolidated balance sheet of the Carnival Corporation & plc Group in accordance with GAAP, nor shall the Company permit any member of the Carnival Corporation & plc Group to do any of the foregoing provided that solely for the purposes of this Clause 27.3 the term Security Interest shall not include:
(a) any Security Interest in respect of Excluded Assets or Excluded Indebtedness;
(b) (subject to the proviso below) any other Security Interest in respect of Indebtedness up to an amount not greater than 40% of the amount of the total assets of the Carnival Corporation & plc Group as shown in the Carnival Corporation & plc Group’s most recent consolidated balance sheet (excluding for these purposes the value of any intangible assets); and
(c) any Security Interest arising pursuant to clause 24 or clause 25 under the General Banking Conditions or any successor provision on any lien and on any right of set-off under the General Banking Conditions,
provided that paragraph (b) above shall not apply to any Security Interest granted by the Borrower or in respect of any Security Interest created in respect of the share capital of the Borrower.
27.4. Insurance
The Company (for itself and its Subsidiaries) and Carnival plc (for itself and its Subsidiaries) will ensure that it, each other Obligor and each Material Subsidiary will insure all of their respective properties and assets with insurance companies to such an extent and against such risks as prudent
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companies engaged in businesses similar to those of the relevant company normally insure where the failure to so insure would have a Material Adverse Effect if the risk concerned were to occur.
27.5. ERISA
The Company (for itself and its Subsidiaries) and Carnival plc (for itself and its Subsidiaries) will ensure that it, each other Obligor and each Material Subsidiary will comply with all applicable provisions of ERISA and the regulations and rulings issued thereunder where failure to so comply would be likely to have a Material Adverse Effect.
27.6. Margin Stock
The Company (for itself and its Subsidiaries) and Carnival plc (for itself and its Subsidiaries) will ensure that no Borrower will use the proceeds of any Utilisation, directly or indirectly, to buy or carry Margin Stock (as defined in Regulations U and X issued by the Board of Governors of the United States Federal Reserve System) or to extend credit to others for the purposes of buying or carrying Margin Stock in any manner that might cause the borrowing or application to violate Regulations U or X. No Obligor may use any part of any Utilisation to acquire any security in violation of Section 13 or 14 of the United States Securities Exchange Act of 1934.
27.7. Use of proceeds
(a) No Obligor will use the proceeds of the Facilities, or lend, contribute or otherwise make available such proceeds, to any Affiliate or other person for the purpose of funding any activities of or business with any Restricted Party, or in any country or territory that is subject to a general import, export, financial or investment embargo under sanctions administered by OFAC, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, Sanctions), or in any other manner that will result in a violation by any person (including any person participating in the Facilities, whether as Facilities Agent, Lender or otherwise) of Sanctions.
(b) In relation to each Restricted Finance Party, until such time as the relevant Restricted Finance Party has notified the Facilities Agent that it is no longer a Restricted Finance Party, this Clause 27.7 shall only apply for the benefit of that Restricted Finance Party to the extent that the receipt and acceptance by that Restricted Finance Party of the undertaking in this Clause 27.7 would not result in any violation of section 7 of the German Foreign Trade Regulation (AWV) (Außenwirtschaftsverordnung) (in connection with section 4, paragraph 1(a) no. 3 German Foreign Trade Law (AWG) (Außenwirtschaftsgesetz), EU Regulation 2271/96 in conjunction with EU Regulation 2018/1100 or any similar applicable anti-boycott law, regulation or statute, including any similar and applicable UK law, instrument or regulation created following the United Kingdom’s exit from the European Union. In connection with any amendment, waiver, determination or direction relating to any part of this Clause 27.7 of which a Restricted Finance Party does not have the benefit, the Commitments of that Restricted Finance Party shall be excluded for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.
27.8. Guarantees
The Company (for itself and its Subsidiaries) and Carnival plc (for itself and its Subsidiaries) will ensure that no member of the Carnival Corporation & plc Group other than a Subsidiary Guarantor will grant any guarantee in respect of any Pre-COVID Unsecured Debt until 30 November 2024, unless such entity was already an obligor or guarantor of such Pre-COVID Unsecured Debt as at such date.
27.9. Vessel security
The Company (for itself and its Subsidiaries) and Carnival plc (for itself and its Subsidiaries) will ensure that neither it nor any other member of the Carnival Corporation & plc Group will until 30 November 2024 create or incur, or suffer to be created or incurred or come to exist any Security Interest on any vessel which is not subject to an existing Security Interest at the Signing Date to secure any Pre-COVID Unsecured Debt, other than where contractually obliged to provide a Security
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Interest on a vessel under the terms of any present or future export credit facility agreement (the granting of such contractual requirement reflecting the terms of existing export credit facilities not to be restricted by this Clause 27.9) nor otherwise use any such vessel as a credit enhancement in respect of such Pre-COVID Unsecured Debt.
27.10. Vessel Contributions
(a) The Company and the Borrower shall ensure, on or prior to the earlier of the date falling 12 months after the Signing Date and the date falling 90 days before the Commencement Date (or such later date(s) as may be agreed between the Company and the Facilities Agent (acting on the instructions of the Majority Lenders) provided that such later date shall not be after the Commencement Date), the Subject Vessel Contributions and the Bareboat Charter Transactions have been completed.
(b) The Company may contribute or otherwise transfer (or procure the transfer of) to the Borrower substitution Subject Vessels in lieu of one or more Initial Subject Vessels (or Subject Vessels held by it at such date), provided that:
(i) the Company notifies the Facilities Agent of a proposed substitution not less than 10 Business Days before such substitution and the Majority Lenders do not object to such substitution by the end of such 10 Business Day period; and
(ii) such substitution Subject Vessel or Subject Vessels have a net book value, as at the latest balance sheet date of the Company, that is no less than the net book value, as at such date, of the Vessel or Vessels they are substituted for.
(c) The Borrower shall not enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, transfer or otherwise dispose of any Subject Vessel (other than by way of Bareboat Charter on arm’s length terms) except where it has substituted a Subject Vessel in accordance with paragraph (b) above.
27.11. Further Borrower restrictions
The Borrower shall not directly or indirectly:
(a) incur any Borrowed Money except for Borrowed Money pursuant to the Finance Documents;
(b) guarantee any Indebtedness of any person (other than guarantees issued in the ordinary course of business of the Borrower and/or its Subsidiaries);
(c) form or acquire any Subsidiary unless such Subsidiary is, or becomes in connection therewith, a Subsidiary Guarantor;
(d) undertake any business other than in relation to:
(i) acquiring, owning and maintaining the Subject Vessels;
(ii) the Bareboat Charters; and
(iii) as contemplated under the Finance Documents.
27.12. Additional restrictive covenants
(a) Subject to paragraph (c), the Company and Carnival plc will comply with the covenants set out in Schedule 20 (Additional restrictive covenants).
(b) Subject to paragraph (c), the Company and Carnival plc will procure that each other Obligor under this Agreement will be a “Restricted Subsidiary” for the purposes of Schedule 20.
(c) If the Carnival Credit Rating from two rating agencies is an Investment Grade Rating, the obligations of the Company and Carnival plc under paragraph (a) above and the requirement
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that each Obligor be a “Restricted Subsidiary” under paragraph (b) above shall, as of such date and thereafter, have no further force and effect.
(d) The Company will notify the Facilities Agent of any Default (as defined in Schedule 20) promptly upon becoming aware of its occurrence.
28. EVENTS OF DEFAULT
Each of the events set out in this Clause is an Event of Default.
28.1. Non-payment
An Obligor does not pay on the due date any amount payable by it under the Finance Documents in the manner required under the Finance Documents and such amount is not paid within five Business Days of receipt of written notice from the Facilities Agent that it has not received such sum provided that if such failure is solely the result of any bank or financial institution not promptly remitting a payment as instructed by the Obligor and if that Obligor has taken all reasonable steps to cause such payment to be made, the period for the remedy of such payment failure shall be extended by a further three Business Days.
28.2. Breach of other obligations
An Obligor defaults in the due performance or observance of any of its covenants under Clause 26 (Financial covenants) or any material obligations under the Finance Documents (other than non-payment of any amount payable by it under the Finance Documents on its due date), unless the non-compliance is remedied within fifteen Business Days of the Facilities Agent giving notice of the non-compliance and requesting that such default be remedied.
28.3. Misrepresentation
Any material representation or warranty made or deemed to be made or repeated by an Obligor in any Finance Document is or proves to have been incorrect in any material respect, unless the same is capable of remedy and is remedied within fifteen Business Days of the Facilities Agent giving notice of the misrepresentation.
28.4. Cross-default
Any Borrowed Money in any amount or aggregate amount at any one time, in excess of USD100,000,000 (or its equivalent in any currency) of a Carnival Material Group Member:
(a) is not paid as and when the same is and becomes due and payable (or within any applicable grace period); or
(b) becomes (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) due and payable prior to the date when it would otherwise have become due by reason of any default (however described),
provided that no Event of Default shall arise under this Clause 28.4 where the Borrowed Money in question is a Non-Recourse Financing Arrangement.
28.5. Insolvency Proceedings
(a) An order is made or resolution passed for the winding-up or dissolution of a Carnival Material Group Member other than:
(i) for the purpose of an amalgamation, reorganisation, merger or reconstruction agreed to in writing by the Facilities Agent (acting on the instructions of the Majority Lenders, such agreement not to be unreasonably withheld or delayed); or
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(ii) where such winding-up or dissolution is commenced as a result of the termination of the dual-listed combination structure between the Company and Carnival plc and where:
(A) the surviving entity is (I) the Company and the Company assumes all the obligations of Carnival plc under this Agreement, (II) Carnival plc and Carnival plc assumes all the obligations of the Company under this Agreement or (III) a Subsidiary of either the Company or Carnival plc (as the case may be) and such Subsidiary assumes all the obligations of the Company or Carnival plc (as the case may be) under this Agreement; and
(B) such winding-up or dissolution is permitted under the terms of the DLC Documents; or
(b) A Carnival Material Group Member makes or seeks to make any composition or other restructuring with its creditors generally in respect of indebtedness which it would otherwise be unable to pay or an administration or similar order is made in relation to, or an administrator or similar officer is appointed in respect of, the relevant Carnival Material Group Member.
28.6. Insolvency
A Carnival Material Group Member is deemed unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986) or, in relation to any Carnival Material Group Member incorporated in Italy, is insolvent (within the meaning of the Italian Insolvency Code) or an encumbrancer takes possession of or a receiver or person with similar powers is appointed over the whole or a substantial part of the relevant Carnival Material Group Member’s assets and shall not be paid off or removed within fifteen Business Days, and no Event of Default shall arise under this Clause 28.6 where the asset or property in question is the subject a Non-Recourse Financing Arrangement.
28.7. Creditors’ process
Any distress, execution or analogous event affects any substantial part of a Carnival Material Group Member and is not removed or discharged within fifteen Business Days, and no Event of Default shall arise under this Clause 28.7 where the asset or property in question is the subject a Non-Recourse Financing Arrangement.
28.8. Cessation of business
An Obligor ceases to carry on all or a substantial part of its business and such cessation of business has a Material Adverse Effect.
28.9. Change of ownership
The Borrower ceases to be a wholly-owned Subsidiary of a Guarantor.
28.10. Effectiveness of Finance Documents
(a) It is or becomes unlawful for an Obligor to perform any of its material obligations under the Finance Documents.
(b) Any Finance Document is not effective or is alleged by an Obligor to be ineffective for any reason.
(c) An Obligor repudiates a Finance Document.
28.11. United States Bankruptcy Laws
(a) In this Subclause:
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U.S. Bankruptcy Law means the United States Bankruptcy Code or any other United States Federal or State bankruptcy, insolvency or similar law.
U.S. Debtor means an Obligor that is incorporated or organised under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.
(b) Subject to paragraph (c) below, any of the following occurs in respect of any U.S. Debtor which is subject to U.S. Bankruptcy Law:
(i) it makes a general assignment for the benefit of creditors;
(ii) it commences a voluntary case or proceeding under any U.S. Bankruptcy Law;
(iii) an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not controverted within 30 days or is not dismissed or stayed within 90 days after commencement of the case; or
(iv) an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy Law.
(c) Paragraph (b) above shall not apply where an involuntary case is commenced pursuant to paragraph (b)(iii) above (an Involuntary Bankruptcy Event) in respect of the Borrower which:
(i) does not have any actual or contingent liabilities as the Borrower under the Finance Documents at the time the relevant Involuntary Bankruptcy Event occurs; and
(ii) is not a Material Subsidiary,
and in such circumstances:
(i) the Borrower shall, with effect from such Involuntary Bankruptcy Event, be prevented from incurring any actual or contingent obligations as the Borrower under any of the Finance Documents; and
(ii) the Company undertakes to use its reasonable endeavours to procure the resignation of the Borrower as soon as reasonably practicable.
28.12. Article 2447 or 2482-ter of the Italian Civil Code
The occurrence of the circumstances set forth in Article 2447, or 2482-ter, as applicable, of the Italian Civil Code in relation to a Carnival Material Group Member incorporated in Italy unless, no later than 30 days from the date on which such Carnival Material Group Member’s directors have knowledge of such occurrence, a shareholders’ meeting is convened to vote on a resolution approving either: (a) a capital increase to comply with the minimum capital requirements under Italian law (and such capital increase has been fully paid up in the next following 30 days) or (b) in respect of a Carnival Material Group Member which is incorporated as a società per azioni, the transformation of such company into a società a responsabilità limitata.
28.13. Tax Status
A notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by an Obligor.
28.14. Acceleration
(a) If an Event of Default described in Clause 28.11 (United States Bankruptcy Laws) occurs the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments and the Total Tranche D Commitments will, if not already cancelled under this Agreement, be immediately and automatically cancelled and all amounts outstanding under
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the Finance Documents shall become immediately due and payable without notice from the Facilities Agent, without the requirement of notice or any other formality.
(b) If an Event of Default, other than as described in paragraph (a) above, is outstanding, the Facilities Agent may, and must if so instructed by the Majority Lenders, by notice to the Company:
(i) cancel all or any part of the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments and/or the Total Tranche D Commitments;
(ii) declare that all or part of any amounts outstanding under the Finance Documents are:
(A) immediately due and payable; and/or
(B) payable on demand by the Facilities Agent acting on the instructions of the Majority Lenders; and/or
(iii) declare that full cash cover in respect of each Bond is immediately due and payable whereupon it shall become immediately due and payable.
Any notice given under this Subclause will take effect in accordance with its terms.
28.15. Assurance Statement Compliance
Notwithstanding the provisions of Clause 28.2 (Breach of other obligations) and Clause 28.3 (Misrepresentation) no Default shall occur as a result of a breach of the provisions of Clause 25.4 (Assurance Statement).
29. CHANGES TO THE LENDERS
29.1. Assignments and transfers by the Lenders
(a) A Lender (the Existing Lender) may, subject to the provisions of this Clause 29, at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to any other bank or financial institution (the New Lender) provided that where the Existing Lender is a Lender under Tranche C and/or a Swingline Lender, such New Lender is able to perform that function or those functions in the same manner as the Existing Lender to the extent of the commitment transferred, and provided that such assignment or transfer shall be of an amount not less than EUR 1,000,000 or equivalent amount.
(b) The consent of the Company is required for any assignment or transfer unless:
(i)
(A) the New Lender is another Lender or an Affiliate of a Lender; and
(B) following such assignment or transfer no Borrower would be obliged to pay any greater amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document, in the circumstances existing at the time of such assignment or transfer or which, at the time of such assignment or transfer, the Existing Lender or the New Lender knows will apply in the 12 month period following such assignment or transfer, than would have been payable but for the assignment or transfer; or
(ii) an Event of Default has occurred and has been outstanding for fifteen Business Days or more.
(c) A Tranche D Lender may not assign or transfer any obligations under an outstanding Bond without the consent of the Company.
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(d) The Company may, at any time, remove or replace any Tranche D Lender (in its capacity as Tranche D Lender) without the consent of the Facilities Agent or any of the other Lenders, by notice to that Tranche D Lender and the Facilities Agent, and (in the case of a replacement) a Lender (or Lenders) with a Tranche A Commitment (other than a Non-Eligible Tranche D Lender) selected by the Company (Replacement A Lender). Where the Company is replacing a Tranche D Lender, the notice shall require:
(i) that Tranche D Lender to (and, to the extent permitted by law, that Tranche D Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) all (and not part only) of its rights and obligations under Tranche D to the Replacement A Lender which will assume all the obligations of that Tranche D Lender in relation to its Tranche D Commitment in accordance with Clause 29 (Changes to the Lenders); and
(ii) the Replacement A Lender to (and, to the extent permitted by law, that Replacement A Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) its rights and obligations under the Tranche A Commitment held by such Replacement A Lender in an amount equal to the Tranche D Lender’s Tranche D Commitment (the Transferring A Commitment) to the Tranche D Lender which will assume all the obligations of the transferring Replacement A Lender in relation to its Transferring A Commitment in accordance with Clause 29 (Changes to the Lenders),
provided that the amount of the Transferring A Commitment shall not be greater than the Replacement A Lender’s total Tranche A Commitment less its Swingline Tranche A Commitment.
(e) The consent of the Company must not be unreasonably withheld or delayed to any request for consent under this Clause 29. It will not be unreasonable for the Company to withhold consent where following an assignment or transfer, the Borrower would be obliged to pay any greater amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document if, in the circumstances existing at the time of such assignment or transfer, such greater amount would not have been payable but for the assignment or transfer or which, at the time of such assignment or transfer, the Existing Lender or the New Lender knows will apply in the 12 month period following such assignment or transfer. The Company will be deemed to have given its consent 10 Business Days after the Company is given notice of the request unless it is expressly refused by the Company within that time.
(f) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following provisions of this Clause; or
(ii) the New Lender confirms to the Facilities Agent and the Company in form and substance satisfactory to the Facilities Agent that it is bound by the terms of this Agreement as a Lender. On the transfer becoming effective in this manner the Existing Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender.
(g) Unless the Facilities Agent otherwise agrees, the New Lender must pay to the Facilities Agent, for its own account, on or before the date upon which an assignment or transfer takes effect, a fee of USD3,500.
(h) Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under this Agreement.
29.2. Procedure for transfer
(a) In this Subclause:
Transfer Date means, for a Transfer Certificate, the latest of:
(a) the proposed Transfer Date specified in that Transfer Certificate;
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(b) the date on which the Facilities Agent executes that Transfer Certificate; and
(c) the date on which the consent of the Company, if required under Clause 29.1(b), is obtained or is deemed to have been given.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facilities Agent a duly completed Transfer Certificate; and
(ii) the Facilities Agent executes it.
The Facilities Agent must execute as soon as reasonably practicable a Transfer Certificate delivered to it and which appears on its face to be in order.
(d) The Facilities Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender upon its satisfactory completion of all “know your customer” checks that it is required to carry out in relation to the transfer to such New Lender.
(e) Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facilities Agent to execute any duly completed Transfer Certificate on its behalf. A Transfer Certificate shall not be duly completed unless any and all consents required under this Agreement have been obtained or deemed obtained.
(f) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Existing Lender;
(ii) the Existing Lender will be released from those obligations and cease to have those rights; and
(iii) the Lenders and the New Lender shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Lenders and the Existing Lender shall each be released from further obligations to each other under this Agreement.
29.3. Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender is not responsible to a New Lender for the legality, validity, adequacy, accuracy, completeness or performance of:
(i) any Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or supplied in connection with any Finance Document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
(i) has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of each Obligor and its related entities and the nature and extent of any recourse against any Party or its assets) in connection with its participation in this Agreement; and
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(ii) has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.
(c) Nothing in any Finance Document requires an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or
(ii) support any losses incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under any Finance Document or otherwise.
29.4. Costs resulting from change of Lender or Facility Office
If:
(a) a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment, transfer or change occurs, (or which such Lender knows will apply in the following 12 month period) an Obligor would be obliged to pay an amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document,
then, unless the assignment, transfer or change is made by a Lender pursuant to Clause 13.6(d) (Involuntary prepayment and cancellation and replacement of Lender) or in order to mitigate any circumstances giving rise to the payment of an amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document or a right to be prepaid and/or cancelled by reason of illegality, the Obligor need only pay that amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document to the same extent that it would have been obliged to if no assignment, transfer or change had occurred, except that this Clause 29.4 shall not apply in relation to Clause 18 (Taxes) in the case of an Obligor to which Clauses 18.2 to 18.17 apply, to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (j)(ii)(B) of Clause 18.3 (Tax gross-up) if the Obligor making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.
29.5. Affiliates of Lenders
(a) Without prejudice to Clause 44, each Lender may fulfil its obligations in respect of a Loan through an Affiliate if the relevant Affiliate is specified in this Agreement as a Lender or becomes a Lender by means of a Transfer Certificate in accordance with this Agreement.
(b) If paragraph (a) above applies, the Lender and its Affiliate will be treated as having a single Tranche A Commitment, Tranche B Commitment, Tranche C Commitment and/or Tranche D Commitment, as the case may be, and a single vote, but, for all other purposes, will be treated as separate Lenders.
(c) A Swingline Lender may only assign or transfer all or any (the Swingline Commitment Transfer Amount) of its Swingline Tranche A Commitment, its Swingline Tranche B Commitment or its Swingline Tranche C Commitment to a Lender which is not its Affiliate if it or, where it does not have a Tranche A Commitment, Tranche B Commitment or Tranche C Commitment, its Affiliate, transfers simultaneously to that proposed Lender or that proposed Lender’s Affiliate an amount equal to or greater than the Swingline Commitment Transfer Amount of its (or its Affiliate’s) Tranche A Commitment, its (or its Affiliate’s) Tranche B Commitment or its (or its Affiliate’s) Tranche C Commitment, as the case may be, and in any event in accordance with the other terms of this Clause 29.
29.6. Sub-participation
A Lender may sub-participate all or any part of its rights and/or obligations under the Finance Documents or enter into any contractual arrangement with any person so that the effect thereof is to give that person an economic or other interest in that Lender’s rights and/or obligations under the
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Finance Documents which is less than a legal or equitable transfer or assignment of those rights and obligations, provided that:
(a) a Lender may not directly or indirectly transfer its voting rights under the Finance Documents without the consent of the Company (such consent not to be unreasonably withheld or delayed); and
(b) following such sub-participation, no Borrower would be obliged to pay any greater amount under Clause 18 (Taxes), Clause 19 (Increased Costs) or any other provision of a Finance Document in the circumstances existing at the time of such sub-participation or which, at the time of such sub-participation, the Lender knows will apply in the twelve (12) month period following such sub-participation, by reason of such sub-participation.
29.7. Security over Lenders’ rights
In addition to the other rights provided to Lenders under this Clause 29, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender to a federal reserve, central bank or any governmental department or agency, including Her Majesty’s Treasury, and except that no such charge, assignment or Security Interest shall:
(a) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
(b) require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
29.8. Pro rata interest settlement
(a) If the Facilities Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 29.2 (Procedure for transfer) the Transfer Date of which is after the date of such notification and is not on the last day of an Interest Period):
(i) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six months, on the next of the dates which falls at six monthly intervals after the first day of that Interest Period); and
(ii) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt:
(A) when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and
(B) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 29.8, have been payable to it on that date, but after deduction of the Accrued Amounts.
(b) In this Clause 29.8 references to “Interest Period” shall be construed to include a reference to any other period for accrual of fees.
(c) An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 29.8 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has
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been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.
29.9. Additional Lenders
(a) Any person who is not a Lender and who is to become a Lender under Clause 2.3 (Additional Commitments) (an Additional Lender) may become a Lender by delivering to the Facilities Agent a duly executed Lender Accession Agreement. The Facilities Agent shall execute a Lender Accession Agreement delivered to it and which appears on its face to be in order as soon as reasonably practicable once the Facilities Agent has completed all necessary “know your customer” or similar checks under all applicable laws and regulations in relation to such Additional Lender. An Additional Lender will become a Lender on the later of the date that the Facilities Agent executes that Lender Accession Agreement and the relevant Additional Increase Date.
(b) For the purposes of Clause 29.3 (Limitation of responsibility of Existing Lender) (i) an Additional Lender will be treated as a New Lender and (ii) the Existing Lenders will be deemed to include all Lenders.
29.10. The Register
The Facilities Agent, acting solely for this purpose as an agent of the Obligors, shall maintain at one of its offices a copy of each assignment agreement, Transfer Certificate, Increase Confirmation or Lender Accession Agreement delivered to it and a register (the Register) for the recordation of the names and addresses of each Lender and the commitments of and obligations owing to each Lender. The entries in the Register shall be conclusive and each Obligor, the Facilities Agent and each Lender may treat each Person whose name is recorded in the Register as a Lender notwithstanding any notice to the contrary. The Register shall be available for inspection by each Obligor at any reasonable time and from time to time upon reasonable prior notice.
30. CHANGES TO THE OBLIGORS
30.1. Assignments and transfer by the Obligors
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents without the prior consent of the Facilities Agent (acting on the instructions of all the Lenders).
30.2. Parent Entity
(a) Subject to compliance with the provisions of Clause 25.8 (“Know your customer” checks), the Company may notify the Facilities Agent that the Parent Entity shall be designated the Company if:
(i) the Company and/or Carnival plc delivers to the Facilities Agent a duly completed and executed Accession Letter;
(ii) the Company and/or Carnival plc confirms that no Default is outstanding or would occur as a result of that Parent Entity becoming the Company and a Guarantor; and
(iii) the Facilities Agent has received all of the documents and other evidence listed in Part C of Schedule 2 (Conditions precedent) in relation to that Parent Entity, each in form and substance satisfactory to the Facilities Agent.
(b) The Facilities Agent shall notify the Company or Carnival plc as appropriate and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part C of Schedule 2 (Conditions precedent).
30.3. Additional Subsidiary Guarantor
(a) Subject to compliance with the provisions of Clause 25.8 (“Know your customer” checks), the Company and/or Carnival plc may request that any of its direct or indirect majority owned
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Subsidiaries becomes an Additional Subsidiary Guarantor under a Subsidiary Deed of Guarantee. That Subsidiary shall become an Additional Subsidiary Guarantor if:
(i) the Company and/or Carnival plc delivers to the Facilities Agent a duly completed and executed Subsidiary Deed of Guarantee;
(ii) the Facilities Agent is satisfied (acting reasonably) that the guarantee of the Company or Carnival plc under Clause 23 (Guarantee and indemnity) will cover the obligations of its Subsidiary;
(iii) the Company and/or Carnival plc confirms that no Default is outstanding or would occur as a result of that Subsidiary becoming an Additional Subsidiary Guarantor; and
(iv) the Facilities Agent has received all of the documents and other evidence listed in Part C of Schedule 2 (Conditions precedent) in relation to that Additional Subsidiary Guarantor, each in form and substance satisfactory to the Facilities Agent.
(b) The Facilities Agent shall notify the Company or Carnival plc as appropriate and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part C of Schedule 2 (Conditions precedent).
(c) Delivery of a Subsidiary Deed of Guarantee, duly executed by the relevant Additional Subsidiary Guarantor, to the Facilities Agent constitutes confirmation by that Additional Subsidiary Guarantor that the representations under such Subsidiary Deed of Guarantee are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstance then existing.
30.4. Resignation of a Subsidiary Guarantor
(a) The Company may designate that a Subsidiary Guarantor automatically ceases to be a Subsidiary Guarantor by notifying the Facilities Agent if:
(i) that Subsidiary Guarantor is being disposed of by way of a Third Party Disposal and the Company has confirmed this is the case; or
(ii) the Majority Lenders have consented to the resignation of that Subsidiary Guarantor.
(b) A resignation of a Subsidiary Guarantor pursuant to paragraph (a)(ii) above shall only be effective if:
(i) the Company has confirmed that no Default is continuing or would result from the acceptance of the notice of resignation; and
(ii) no payment is due from the Subsidiary Guarantor under a Finance Document.
(c) The resignation of a Subsidiary Guarantor pursuant to paragraph (a)(i) above shall not be effective until the date of the relevant Third Party Disposal at which time that company shall cease to be a Subsidiary Guarantor and shall have no further rights or obligations under the Finance Documents as a Subsidiary Guarantor.
(d) For the purposes of this Clause 30.4, Third Party Disposal means the disposal of a Subsidiary Guarantor to a person which is not a member of the Group where that disposal is permitted under this Agreement or made with the approval of the Majority Lenders.
31. ROLE OF THE FACILITIES AGENT AND THE ARRANGERS
31.1. Appointment of the Facilities Agent
(a) Each of the Arranger and the Lenders appoints the Facilities Agent to act as its agent under and in connection with the Finance Documents.
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(b) Each of the Arranger and the Lenders authorises the Facilities Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facilities Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
(c) Each of the Arranger and the Lenders hereby exempts the Facilities Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Finance Party. A Finance Party which cannot grant such exemption shall notify the Facilities Agent accordingly and, upon request of the Facilities Agent, either act in accordance with the terms of this Agreement and/or any other Finance Document as required pursuant to this Agreement and/or such other Finance Document or grant a special power of attorney to a party acting on its behalf, in a manner that is not prohibited pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and/or any other applicable laws.
31.2. Instructions
(a) The Facilities Agent shall:
(i) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facilities Agent in accordance with any instructions given to it by:
(A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
(B) in all other cases, the Majority Lenders; and
(ii) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
(b) The Facilities Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Facilities Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
(c) Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facilities Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
(d) The Facilities Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
(e) In the absence of instructions, the Facilities Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
(f) The Facilities Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
31.3. Duties of the Facilities Agent
(a) The Facilities Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
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(b) The Facilities Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facilities Agent for that Party by any other Party.
(c) Except where a Finance Document specifically provides otherwise, the Facilities Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
(d) If the Facilities Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties and (except where such notice is received from the Company or Carnival plc) the Company or Carnival plc.
(e) If the Facilities Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facilities Agent or the Arrangers) under this Agreement it shall promptly notify the other Finance Parties and the Company.
(f) The Facilities Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
(g) The Facilities Agent shall provide to the Company, within two Business Days of a request by the Company (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, their lending office by each Tranche, the address (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Facilities Agent to that Lender under the Finance Documents.
31.4. Role of the Arrangers
Except as specifically provided in the Finance Documents, no Arranger has any obligations of any kind to any other Party under or in connection with any Finance Document.
31.5. No fiduciary duties
(a) Nothing in any Finance Document makes the Facilities Agent or the Arrangers a trustee or fiduciary for any other Party or any other person.
(b) None of Facilities Agent nor any Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
31.6. Business with the Carnival Corporation & plc Group
The Facilities Agent and the Arrangers may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Carnival Corporation & plc Group.
31.7. Rights and discretions of the Facilities Agent and each Tranche D Lender
(a) The Facilities Agent and, without prejudice to Clause 7.2(b) (Claims under a Bond), each Tranche D Lender may:
(i) rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii) assume that:
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(A) any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
(B) unless it has received notice of revocation, that those instructions have not been revoked; and
(iii) rely on a certificate from any person:
(A) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
(B) to the effect that such person approves of any particular dealing, transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
(b) The Facilities Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 28.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
(c) The Facilities Agent and each Tranche D Lender providing a Bond may engage, pay for and rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facilities Agent or the relevant Tranche D Lender, as applicable, or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
(d) Without prejudice to the generality of paragraph (c) above, the Facilities Agent may at any time engage and pay for the services of any lawyer to act as independent counsel to the Facilities Agent (and so separate from any lawyers instructed by the Lenders) if the Facilities Agent in its reasonable opinion deems this to be necessary.
(e) The Facilities Agent and each Tranche D Lender providing a Bond may act in relation to the Finance Documents through its officers, employees and agents.
(f) Unless a Finance Document expressly provides otherwise the Facilities Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
(g) Without prejudice to the generality of paragraph (f) above, the Facilities Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Company and shall disclose the same upon the written request of the Company or the Majority Lenders.
(h) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facilities Agent nor any Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
(i) Notwithstanding any provision of any Finance Document to the contrary, the Facilities Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power,
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authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
31.8. Responsibility for documentation
None of the Facilities Agent nor any Arranger is responsible or liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facilities Agent, an Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or
(c) any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
31.9. No duty to monitor
The Facilities Agent shall not be bound to enquire:
(a) whether or not any Default has occurred;
(b) as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
(c) whether any other event specified in any Finance Document has occurred.
31.10. Exclusion of liability
(a) Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Facilities Agent, the Facilities Agent will not be liable for:
(i) any damages, costs or losses to any person, any diminution in value, or any liability whatsoever) arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;
(ii) exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or
(iii) without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facilities Agent) arising as a result of:
(A) any act, event or circumstance not reasonably within its control; or
(B) the general risks of investment in, or the holding of assets in, any jurisdiction,
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or
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other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
(b) No Party (other than the Facilities Agent) may take any proceedings against any officer, employee or agent of the Facilities Agent in respect of any claim it might have against the Facilities Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facilities Agent may rely on this Clause and enforce its terms under the Third Parties Act.
(c) The Facilities Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facilities Agent if the Facilities Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facilities Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Facilities Agent or the Arrangers to carry out:
(i) any “know your customer” or other checks in relation to any person; or
(ii) any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
on behalf of any Lender and each Lender confirms to the Facilities Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facilities Agent or the Arrangers.
(e) Without prejudice to any provision of any Finance Document excluding or limiting the Facilities Agent’s liability, any liability of the Facilities Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Facilities Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facilities Agent at any time which increase the amount of that loss. In no event shall the Facilities Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facilities Agent has been advised of the possibility of such loss or damages.
31.11. Lenders’ indemnity to the Facilities Agent
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facilities Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facilities Agent (otherwise than by reason of the Facilities Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 34.11 (Disruption to Payment Systems etc.) notwithstanding the Facilities Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facilities Agent) in acting as Facilities Agent under the Finance Documents (unless the Facilities Agent has been reimbursed by an Obligor pursuant to a Finance Document).
31.12. Resignation of the Facilities Agent
(a) The Facilities Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Lenders and the Company.
(b) Alternatively the Facilities Agent may resign by giving notice to the Lenders and the Company, in which case the Majority Lenders may after consultation with the Company appoint a successor Facilities Agent.
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(c) If the Majority Lenders have not appointed a successor Facilities Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the retiring Facilities Agent may after consultation with the Company appoint a successor Facilities Agent.
(d) If the Facilities Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facilities Agent is entitled to appoint a successor Facilities Agent under paragraph (c) above, the Facilities Agent may (if is concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facilities Agent to become a party to this Agreement as Facilities Agent) agree with the proposed successor Facilities Agent amendments to this Clause 31 and any other term of this Agreement dealing with the rights or obligations of the Facilities Agent consistent with then current market practice for the appointment and protection of corporates trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Facilities Agent’s normal fee rates and those amendments will bind the Parties.
(e) After consultation with the Company, the Majority Lenders may, by notice to the Facilities Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facilities Agent shall resign in accordance with paragraph (b) above.
(f) The Facilities Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facilities Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facilities Agent under the Finance Documents, either:
(i) the Facilities Agent fails to respond to a request under Clause 18.9(e) (Taxes) or 18.25 (US FATCA Withholding Tax Requirements) and the Company or a Lender reasonably believes that the Facilities Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
(ii) the information supplied by the Facilities Agent pursuant to Clause 18.9(e) (Taxes) or 18.25 (US FATCA Withholding Tax Requirements) indicates that the Facilities Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
(iii) the Facilities Agent notifies the Company and the Lenders that the Facilities Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facilities Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Facilities Agent, requires it to resign.
(g) The retiring Facilities Agent shall, make available to the successor Facilities Agent such documents and records and provide such assistance as the successor Facilities Agent may reasonably request for the purposes of performing its functions as Facilities Agent under the Finance Documents. The Company shall, within three Business Days of demand, reimburse the retiring Facilities Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
(h) The Facilities Agent’s resignation notice shall only take effect upon the appointment of a successor.
(i) Upon the appointment of a successor, the retiring Facilities Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (g) above) but shall remain entitled to the benefit of Clause 20.3 (Indemnity to the Facilities Agent) and this Clause 31 (and any agency fees for the account of the retiring Facilities Agent shall cease to accrue from (and shall be payable on) that date. Its successor
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and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
31.13. Replacement of the Facilities Agent
(a) The Majority Lenders may with the Company’s consent (not to be unreasonably withheld or delayed), by giving 30 days’ notice to the Facilities Agent (or, at any time the Facilities Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Facilities Agent by appointing a successor Facilities Agent.
(b) The Company may, by giving 30 days’ notice to the Facilities Agent (or, at any time the Facilities Agent is an Impaired Agent, by giving any shorter notice determined by the Company) replace the Facilities Agent by appointing a successor Facilities Agent which is a Lender (or an Affiliate of a Lender) and subject to such Lender (or such Affiliate of a Lender) accepting its appointment as successor Facilities Agent. The Facilities Agent shall promptly notify the Lenders on receiving such notice.
(c) The retiring Facilities Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Company) make available to the successor Facilities Agent such documents and records and provide such assistance as the successor Facilities Agent may reasonably request for the purposes of performing its functions as Facilities Agent under the Finance Documents. The Company shall, within five Business Days of demand, reimburse the retiring Facilities Agent for the amount of all reasonable costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.
(d) The appointment of the successor Facilities Agent shall take effect on the date specified in the notice from the Majority Lenders (or the Company, as applicable) to the retiring Facilities Agent. As from this date, the retiring Facilities Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of Clause 20.3 (Indemnity to the Facilities Agent) and this Clause 31 (and any agency fees for the account of the retiring Facilities Agent shall cease to accrue from (and shall be payable on) that date).
(e) Any successor Facilities Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
31.14. Confidentiality
(a) In acting as agent for the Finance Parties, the Facilities Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the Facilities Agent, it may be treated as confidential to that division or department and the Facilities Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facilities Agent nor any Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty.
31.15. Relationship with the Lenders
(a) The Facilities Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facilities Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
(i) entitled to or liable for any payment due under any Finance Document on that day; and
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(ii) entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
unless it has received not less than five Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
(b) Any Lender may by notice to the Facilities Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 37.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 37.2 (Addresses) and paragraph (a)(ii) of Clause 37.6 (Electronic communication) and the Facilities Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
31.16. Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Facilities Agent and each Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(i) the financial condition, status and nature of each member of the Carnival Corporation & plc Group;
(ii) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(iii) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
(iv) the adequacy, accuracy and/or completeness of any information provided by the Facilities Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
31.17. Deduction from amounts payable by the Facilities Agent
If a Lender owes an amount to the Facilities Agent under the Finance Documents the Facilities Agent may, after giving notice to that Lender, deduct an amount not exceeding that amount from any payment to that Lender which the Facilities Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Lender shall be regarded as having received any amount so deducted.
32. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
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(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
33. SHARING AMONG THE FINANCE PARTIES
33.1. Payments to Finance Parties
(a) Subject to paragraph (b) below, if a Finance Party (a Recovering Finance Party) receives or recovers any amount from an Obligor other than in accordance with Clause 34 (Payment mechanics) (a Recovered Amount) and applies that amount to a payment due under the Finance Documents then:
(i) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facilities Agent;
(ii) the Facilities Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facilities Agent and distributed in accordance with Clause 34 (Payment mechanics), without taking account of any Tax which would be imposed on the Facilities Agent in relation to the receipt, recovery or distribution; and
(iii) the Recovering Finance Party shall, within three Business Days of demand by the Facilities Agent, pay to the Facilities Agent an amount (the Sharing Payment) equal to such receipt or recovery less any amount which the Facilities Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 34.5 (Partial payments).
(b) Paragraph (a) above shall not apply to any amount received or recovered by a Tranche D Lender in respect of any cash cover placed in an account with that Tranche D Lender.
33.2. Redistribution of payments
The Facilities Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the Sharing Finance Parties) in accordance with Clause 34.6 (Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
33.3. Recovering Finance Party’s rights
On a distribution by the Facilities Agent under Clause 33.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.
33.4. Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
(a) each Sharing Finance Party shall, upon request of the Facilities Agent, pay to the Facilities Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the Redistributed Amount); and
(b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
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33.5. Exceptions
(a) This Clause 33 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
33.6. Tranche D Lenders
(a) This Clause 33 shall not apply to any receipt or recovery by a Lender in its capacity as a Tranche D Lender in relation to a Bond at any time prior to service of notice under Clause 28.14 (Acceleration).
(b) Following service of notice under Clause 28.14 (Acceleration), this Clause 33 shall apply to all receipts or recoveries by Tranche D Lenders.
34. PAYMENT MECHANICS
34.1. Payments to the Facilities Agent
(a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Facilities Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Facilities Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Facilities Agent specifies by not less than five Business Days prior written notice.
34.2. Distributions by the Facilities Agent
Each payment received by the Facilities Agent under the Finance Documents for another Party shall, subject to Clause 34.3 (Distributions to an Obligor) and Clause 34.4 (Clawback and pre-funding) be made available by the Facilities Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facilities Agent by not less than five Business Days’ notice with a bank specified by that Party in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).
34.3. Distributions to an Obligor
The Facilities Agent may (with the consent of the Obligor or in accordance with Clause 35 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
34.4. Clawback and pre-funding
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(a) Where a sum is to be paid to the Facilities Agent under the Finance Documents for another Party, the Facilities Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
(b) Unless paragraph (c) below applies, if the Facilities Agent pays an amount to another Party and it proves to be the case that the Facilities Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facilities Agent shall on demand refund the same to the Facilities Agent together with interest on that amount from the date of payment to the date of receipt by the Facilities Agent, calculated by the Facilities Agent to reflect its cost of funds.
(c) If the Facilities Agent has notified the Lenders that it is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facilities Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:
(i) the Facilities Agent shall notify the Company of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Facilities Agent; and
(ii) the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facilities Agent the amount (as certified by the Facilities Agent) which will indemnify the Facilities Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender
34.5. Impaired Agent
(a) If, at any time, the Facilities Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facilities Agent in accordance with Clause 34.1 (Payments to the Facilities Agent) may instead either pay that amount direct to the required recipient(s) or if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s) pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is outstanding, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party or Recipient Parties). In each case such payments must be made on the due date for payment under the Finance Documents.
(b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.
(c) A Party which has made a payment in accordance with this Clause 34.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
(d) Promptly upon the appointment of a successor Facilities Agent in accordance with Clause 31.13 (Replacement of the Facilities Agent), each Party which has made a payment to a trust account in accordance with this Clause 34.5 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Facilities Agent for distribution in accordance with Clause 34.2 (Distributions by the Facilities Agent).
(e) A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
(i) that it has not given an instruction pursuant to paragraph (d) above; and
(ii) that it has been provided with the necessary information by that Recipient Party,
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(iii) give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.
34.6. Partial payments
(a) Subject to Clause 9.11 (Partial payments – Swingline Facilities), if the Facilities Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facilities Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid amounts owing to the Facilities Agent and any Tranche D Lender which has issued a Bond under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement and any amount due but unpaid under Clause 7.3 (Indemnities); and
(iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
(b) The Facilities Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
34.7. No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
34.8. Business Days
(a) Any payment under any Finance Document which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
34.9. Currency of account
(a) Subject to paragraphs (b) to (e) below, in respect of each Tranche, the Base Currency for that Tranche is the currency of account and payment for any sum due from an Obligor under any Finance Document.
(b) A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid Sum is denominated, pursuant to this Agreement, on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
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(e) Any amount expressed to be payable in a currency shall be paid in that other currency.
34.10. Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facilities Agent (after consultation with the Company); and
(ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facilities Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to the extent the Facilities Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.
34.11. Disruption to Payment Systems etc.
If either the Facilities Agent determines (in its discretion) that a Disruption Event has occurred or the Facilities Agent is notified by the Company that a Disruption Event has occurred:
(a) the Facilities Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facilities as the Facilities Agent may deem necessary in the circumstances;
(b) the Facilities Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
(c) the Facilities Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
(d) any such changes agreed upon by the Facilities Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 41 (Amendments and Waivers);
(e) the Facilities Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facilities Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 34.11; and
(f) the Facilities Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
34.12. Amounts paid in error
(a) If the Facilities Agent pays an amount to another Finance Party and within five Business Days of the date of payment the Facilities Agent notifies that Finance Party that that payment was an Erroneous Payment then the Finance Party to whom that amount was paid by the Facilities Agent shall within five Business Days of demand refund the same to the Facilities Agent
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together with interest on that amount from the date of the payment to the date of receipt by the Facilities Agent, calculated by the Facilities Agent to reflect its cost of funds.
(b) Neither:
(i) the obligations of any Finance Party to the Facilities Agent; nor
(ii) the remedies of the Facilities Agent,
(whether arising under this Clause 34.12 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Facilities Agent or any other Finance Party).
(c) All payments to be made by a Finance Party to the Facilities Agent (whether made pursuant to this Clause 34.12 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
(d) In this Agreement, Erroneous Payment means a payment of an amount by the Facilities Agent to another Finance Party which the Facilities Agent determines (in its sole discretion) was made in error.
35. CONTRACTUAL RECOGNITION OF BAIL-IN
(a) In this Clause 35:
Article 55 BRRD means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
Bail-In Action means the exercise of any Write-down and Conversion Powers.
Bail-In Legislation means:
(i) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
(ii) in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.
EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
Resolution Authority means any body which has authority to exercise any Write-down and Conversion Powers.
UK Bail-In Legislation means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
Write-down and Conversion Powers means:
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(i) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
(ii) in relation to any other applicable Bail-In Legislation:
(A) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
(B) any similar or analogous powers under that Bail-In Legislation; and
(iii) in relation to any UK Bail-In Legislation:
(A) any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
(B) any similar or analogous powers under that UK Bail-In Legislation.
(b) Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
(i) any Bail-In Action in relation to any such liability, including (without limitation):
(A) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
(B) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
(C) a cancellation of any such liability; and
(ii) a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
36. SET-OFF
(a) If an Event of Default has occurred and is outstanding, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the
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Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
(b) The Finance Party shall notify the Company and the relevant Obligor as soon as practicable after any set-off is effected under this Clause giving reasonable details of the amounts and accounts involved.
37. NOTICES
37.1. Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by email or letter.
37.2. Addresses
(a) The address and email (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
(i) in the case of the Company and each other Obligor, that identified with its name in paragraph (b) below;
(ii) in the case of each Lender, any other Original Obligor or any Additional Subsidiary Guarantor, that notified in writing to the Facilities Agent on or prior to the date on which it becomes a Party; and
(iii) in the case of the Facilities Agent, that identified with its name in paragraph (c) below,
or any substitute address, email or department or officer as the Party may notify to the Facilities Agent (or the Facilities Agent may notify to the other Parties, if a change is made by the Facilities Agent) by not less than five Business Days’ notice.
(b) The contact details of the Company and each other Obligor for this purpose are:
Address: Carnival Corporation, 3655 NW 87th Avenue, Miami, Florida 33178
E-Mail: LSuarez@carnival.com
Attention: Treasurer; and
E-Mail: LSuarez@carnival.com
Attention: Treasurer; and
Address: Carnival Corporation, 3655 NW 87th Avenue, Miami, Florida 33178
E-Mail: EMiguez@carnival.com
Attention: General Counsel
E-Mail: EMiguez@carnival.com
Attention: General Counsel
(c) The contact details of the Facilities Agent for this purpose are:
Taunustor 1, 60310
Frankfurt am Main, Germany
Frankfurt am Main, Germany
Attention: Loan Agency Group
E-Mail: emea.london.agency@jpmorgan.com
E-Mail: emea.london.agency@jpmorgan.com
In addition, in respect of Swingline Loans under Tranche A:
E-Mail: eureka.young@jpmchase.com; and
sherril.lowe@chase.com.
sherril.lowe@chase.com.
37.3. Delivery
(a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
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(i) if delivered in person or email, at the time of delivery; or
(ii) if by post, five days after being deposited in the post postage prepaid in an envelope correctly addressed.
(b) Any communication or document to be made or delivered to the Facilities Agent will be effective only when actually received by the Facilities Agent.
(c) A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.
(d) All notices from or to an Obligor shall be sent through the Facilities Agent.
(e) Any communication or document made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
37.4. Notification of address and email
Promptly upon receipt of notification of an address and email or change of address or email pursuant to Clause 37.2 (Addresses) or changing its own address or email, the Facilities Agent shall notify the other Parties.
37.5. Communication when Facilities Agent is Impaired Agent
If the Facilities Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Facilities Agent, communicate with each other directly and (while the Facilities Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Facilities Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Facilities Agent has been appointed.
37.6. Electronic communication
(a) Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:
(i) notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
(ii) notify each other of any change to their address or any other such information supplied by them.
(b) Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
(c) Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Facilities Agent only if it is addressed in such a manner as the Facilities Agent shall specify for this purpose.
(d) Any electronic communication which becomes effective, in accordance with paragraph (c) above, on a non-working day or after 5.00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following working day.
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(e) Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 37.6.
37.7. English language
(a) Any notice given under or in connection with any Finance Document must be in English.
(b) All other documents provided under or in connection with any Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facilities Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
38. CALCULATIONS AND CERTIFICATES
38.1. Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
38.2. Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates. The Facilities Agent shall provide reasonable details to support such calculation upon the Company’s request.
38.3. Day count convention and interest calculation
(a) Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated on the basis of the actual number of days elapsed and a year of 365 days in relation to Sterling or 360 days in relation to any other currency or, in any case where the practice in the Relevant Market differs, in accordance with that market practice.
(b) The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to 2 decimal places.
39. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
40. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance Documents on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
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41. AMENDMENTS AND WAIVERS
41.1. Required consents
(a) Subject to Clause 41.2 (All Lender matters) and Clause 41.3 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Company and any such amendment or waiver will be binding on all Parties.
(b) The Facilities Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
(c) Each Obligor agrees to any such amendment or waiver permitted by this Clause 41 which is agreed to by the Company in its capacity as Obligors’ Agent. This includes any amendment or waiver which would, but for this Clause 41.1(c), require the consent of both of the Guarantors.
41.2. All Lender matters
(a) Subject to Clause 41.4 (Replacement of Published Rate) and Clause 41.5 (Structural Adjustment), an amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:
(i) the definition of Majority Lenders in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under the Finance Documents (other than, for the avoidance of doubt, as a result of the operation of Clause 10 (Extension Option));
(iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Tranche A Commitment, Tranche B Commitment, Tranche C Commitment and/or Tranche D Commitment other than pursuant to Clause 2.2 (Increase);
(v) a change to the Borrower or Guarantors other than in accordance with Clause 30 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the Lenders; or
(vii) Clause 2.4 (Finance Parties’ rights and obligations), Clause 29 (Changes to the Lenders) or this Clause 41,
shall not be made without the prior consent of all the Lenders.
41.3. Other exceptions
(a) An amendment or waiver which relates to the rights or obligations of the Facilities Agent or an Arranger when acting in that capacity may not be effected without the consent of the Facilities Agent or the Arrangers (as applicable).
(b) An amendment or waiver which relates to the right or obligations of a Tranche D Lender in its capacity as the provider of any Bond shall not be made without the prior consent of the Majority Tranche D Lenders or all of the Tranche D Lenders (as applicable).
41.4. Replacement of Published Rate
(a) Subject to Clause 41.3 (Other exceptions), if a Published Rate Replacement Event has occurred in relation to any Published Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:
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(i) providing for the use of a Replacement Reference Rate in relation to that currency in place of that Published Rate; and
(ii)
(A) aligning any provision of any Finance Document to the use of that Replacement Reference Rate;
(B) enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement);
(C) implementing market conventions applicable to that Replacement Reference Rate;
(D) providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or
(E) adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
may be made with the consent of the Facilities Agent (acting in its own capacity and on the instructions of the Majority Lenders) and the Company.
(b) An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on an RFR Loan in any currency under this Agreement to any recommendation of a Relevant Nominating Body which:
(i) relates to the use of the RFR for that currency on a compounded basis in the international or any relevant domestic syndicated loan markets; and
(ii) is issued on or after the Signing Date,
may be made with the consent of the Facilities Agent (acting in its own capacity and on the instructions of the Majority Lenders) and the Company.
(c) If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) or paragraph (b) above within 10 Business Days (or such longer time period in relation to any request which the Company and the Facilities Agent may agree) of that request being made:
(i) its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
(ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
(d) In this Clause 41.4:
Published Rate means:
(a) the Term Reference Rate for any Quoted Tenor; or
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(b) an RFR.
Published Rate Replacement Event means, in relation to a Published Rate:
(a) the methodology, formula or other means of determining that Published Rate has, in the opinion of the Majority Lenders, and the Obligors materially changed;
(b)
(i)
(A) the administrator of that Published Rate or its supervisor publicly announces that such administrator is insolvent; or
(B) information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Published Rate is insolvent,
provided that, in each case, at that time, there is no successor administrator to continue to provide that Published Rate;
(ii) the administrator of that Published Rate publicly announces that it has ceased or will cease to provide that Published Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate;
(iii) the supervisor of the administrator of that Published Rate publicly announces that such Published Rate has been or will be permanently or indefinitely discontinued; or
(iv) the administrator of that Published Rate or its supervisor announces that that Published Rate may no longer be used; or
(v) in the case of the Term Reference Rate for any Quoted Tenor for dollars or euro, the supervisor of the administrator of that Term Reference Rate makes a public announcement or publishes information stating that that Term Reference Rate for that Quoted Tenor is no longer, or as of a specified future date will no longer be, representative of the underlying market or economic reality that it is intended to measure and that representativeness will not be restored (as determined by such supervisor); or
(c) the administrator of that Published Rate (or the administrator of an interest rate which is a constituent element of that Published Rate) determines that that Published Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:
(i) the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors) temporary; or
(ii) that Published Rate is calculated in accordance with any such policy or arrangement for a period no less than the period opposite that Published Rate in Schedule 12 (Published Rate Contingency Periods); or
(d) in the opinion of the Majority Lenders and the Obligors, that Published Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
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Replacement Reference Rate means a reference rate which is:
(a) formally designated, nominated or recommended as the replacement for a Published Rate by:
(i) the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or
(ii) any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the replacement under paragraph (ii) above;
(b) in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Published Rate; or
(c) in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Published Rate.
41.5. Structural Adjustment
(a) In this Agreement:
(i) Adjustment means:
(A) the introduction of a New Tranche into the Finance Documents;
(B) an increase in any Existing Tranche; or
(C) an extension of the Availability Period.
(ii) Consequential Amendment means, in relation to a Major Structural Adjustment, a Minor Structural Adjustment or a Payables Reduction, any amendment, waiver or consent (including any Guarantee Adjustment) of, or in relation to, any Finance Document consequential on, or required to implement or reflect, that Major Structural Adjustment, Minor Structural Adjustment or Payables Reduction.
(iii) Existing Tranche means any Commitment in respect of, and any Loan made under, an existing Tranche.
(iv) Facilities Amount means at any time, the then aggregate (without double counting) of the amount in the relevant Base Currency (as determined by the Facilities Agent by reference to the Facilities Agent’s Spot Rate of Exchange) of:
(A) the amounts borrowed and not repaid or prepaid; and
(B) the committed financial accommodation available (or potentially available),
under the Finance Documents and, in the case of paragraph (B) above, by reference to the application, at that time, of any relevant limitation on the potential amount of that financial accommodation.
(v) Facilities Increase means, in relation to an Adjustment, the extent to which the Facilities Amount immediately after that Adjustment would (as a result of that Adjustment and after taking account of any repayment of any Utilisation, or any cancellation of any Commitment, to be effected at the same time as, or immediately following that Adjustment) exceed the Facilities Amount immediately before that Adjustment.
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(vi) Guarantee Adjustment means any amendment, waiver or consent which:
(A) results in changes to, the taking of, or the release coupled with the immediate retaking of, any guarantee and indemnity granted under any Finance Document; and
(B) would not have a material adverse effect on the Finance Parties provided that the release coupled with the immediate retaking of any such guarantee and indemnity (and the restarting of any related period during which any guarantee and indemnity is capable of being avoided by virtue of any bankruptcy, insolvency, liquidation or similar laws), shall not, in itself, constitute such a material adverse effect.
(vii) Major Structural Adjustment means an amendment, waiver or consent that is not a Minor Structural Adjustment and that results in, or is intended to result in:
(A) an Adjustment where:
(I) the amount of any Facilities Increase does not exceed the Permitted Maximum; and
(II) the indebtedness in respect of any New Tranche introduced into the Finance Documents ranks pari passu with the indebtedness in respect of the Tranches;
(B) the introduction of a New Tranche into the Finance Documents where the indebtedness in respect of that New Tranche ranks junior to the indebtedness in respect of the Tranches;
(C) the transfer of an Existing Tranche (or any participation in an Existing Tranche) into any New Tranche described in paragraph (A) or paragraph (B) above; or
(D) a change in currency of any Existing Tranche or of any amount payable under any Finance Document.
(viii) Minor Structural Adjustment means an amendment, waiver or consent that results in, or is intended to result in:
(A) an Adjustment which would not result in a Facilities Increase or a change in currency of an Existing Tranche or of any amount payable under any Finance Document and where the indebtedness in respect of any New Tranche introduced pursuant to that Adjustment ranks pari passu with, or junior to, the indebtedness in respect of the Tranche; or
(B) the transfer of an Existing Tranche (or any participation in an Existing Tranche) into any New Tranche introduced pursuant to paragraph (A) above where each Lender which has an Existing Tranche (or a participation in that Existing Tranche) has the opportunity (but not the obligation) to transfer that Existing Tranche (or that participation) into that New Tranche.
(ix) New Tranche means any additional tranche, loan, facility or commitment.
(x) Payables Reduction means an amendment, waiver or consent that results in, or is intended to result in:
(A) an extension to the date of payment of any amount under the Finance Documents; or
(B) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable.
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(xi) Permitted Maximum means, in relation to any Major Structural Adjustment, the lesser of:
(A) 50% of the Facilities Amount immediately prior to that Major Structural Adjustment; and
(B) USD3,000,000,000 less the Facilities Increase relating to any other Major Structural Adjustment.
(xii) Super Majority Lenders means, at any time, a Lender or Lenders whose Commitments aggregate more than 75% of the Total Commitments (or, if the Total Commitments have been reduced to zero and there are no Utilisations then outstanding, aggregated more than 75% of the Total Commitments immediately prior to the reduction).
(b) If any amendment, waiver or consent is a Major Structural Adjustment, Minor Structural Adjustment or Payables Reduction (or, in each case, a Consequential Amendment relating to it) and would otherwise require the prior consent of all the Lenders pursuant to Clause 41.2 (All Lender matters), that amendment, waiver or consent may be made with the consent of the Company and:
(i) in the case of a Major Structural Adjustment (or a Consequential Amendment relating to it):
(A) each Lender that assumes a New Tranche or an increased Existing Tranche, whose Existing Tranche (or participation) is being transferred, whose Commitment is subject to an extended Availability Period or that has an Existing Tranche (or participation), or is owed any amount, which is subject, in each case, to a change in currency; and
(B) the Super Majority Lenders;
(ii) in the case of a Minor Structural Adjustment (or a Consequential Amendment relating to it):
(A) each Lender that assumes a New Tranche or an increased Existing Tranche, whose Existing Tranche (or participation) is being transferred or whose Commitment is subject to an extended Availability Period; and
(B) the Majority Lenders; or
(iii) in the case of a Payables Reduction (or a Consequential Amendment relating to it):
(A) each Lender to whom any amount is owing in respect of which the date of payment is being extended or which is being reduced or whose Margin, fee or commission is being reduced; and
(B) the Majority Lenders.
41.6. Excluded Commitments
(a) For so long as a Defaulting Lender has any Commitment which is undrawn and uncancelled, in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender’s Commitments will be reduced by the amount of its Commitments which are undrawn and uncancelled.
(b) If any Lender which is not a Defaulting Lender fails to respond to such a request or such a vote within 10 Business Days of that request being made (unless the Company and the Facilities Agent agree to a longer time period in relation to any request), its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant
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Tranche(s) when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
(c) For the purposes of this Clause 41.3, the Facilities Agent may assume that the following Lenders are Defaulting Lenders:
(i) any Lender which has notified the Facilities Agent that it has become a Defaulting Lender;
(ii) any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred,
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Facilities Agent) or the Facilities Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
41.7. Replacement of a Lender
(a) The Company may, at any time a Lender (or any Affiliates which are Lenders) has become and continues to be a Defaulting Lender or a Non-Consenting Lender, by giving three Business Days’ prior written notice to the Facilities Agent and such Lender:
(i) replace such Lender (and any Affiliates which are Lenders) by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;
(ii) require such Lender (and any Affiliates which are Lenders) to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) all (and not part only) of the undrawn Commitments and/or undrawn Swingline Commitments of the Lender (and its Affiliate); or
(iii) require such Lender (and any Affiliates which are Lenders) to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 29 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facilities,
to a Lender or other bank or financial institution (a Replacement Lender) selected by the Company, which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender's participations or unfunded participations (as the case may be) on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Utilisations and all accrued interest and Bond fees, Break Costs and other amounts payable in relation thereto under the Finance Documents. Such transfer shall be subject to the Non-Consenting Lender completing all of the “know your customer” checks that it is required to carry out in relation to the transfer to such Replacement Lender and it shall perform such checks as soon as reasonably practicable.
(b) Any transfer of rights and obligations of a Defaulting Lender or a Non-Consenting Lender pursuant to this Clause shall be subject to the following conditions:
(i) the Company shall have no right to replace the Facilities Agent;
(ii) neither the Facilities Agent nor the Defaulting Lender (or Non-Consenting Lender) shall have any obligation to the Company to find a Replacement Lender;
(iii) the transfer must take place no later than 90 days after the notice referred to in paragraph (a) above; and
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(iv) in no event shall the Defaulting Lender or Non-Consenting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender or Non-Consenting Lender pursuant to the Finance Documents.
(c) In the event that:
(i) the Company or the Facilities Agent (at the request of the Company) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
(ii) the consent, waiver or amendment in question requires the approval of all the Lenders or the Super Majority Lenders; and
(iii) the Majority Lenders have consented or agreed to such waiver or amendment,
then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a Non-Consenting Lender.
42. CONFIDENTIAL INFORMATION
42.1. Confidentiality
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 42.2 (Disclosure of Confidential Information) and Clause 42.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
42.2. Disclosure of Confidential Information
Any Finance Party may disclose:
(a) to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
(b) to any person:
(i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facilities Agent, and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(ii) with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
(iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 31.15 (Relationship with the Lenders));
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(iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (ii) above;
(v) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
(vi) to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
(vii) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 29.7 (Security over Lenders' rights);
(viii) who is a Party; or
(ix) with the consent of the Company;
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
(B) in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
(C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; and
(c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and
(d) to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
42.3. Disclosure to numbering service providers
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(a) Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:
(i) names of Obligors;
(ii) country and domicile of Obligors;
(iii) place of incorporation of Obligors;
(iv) date of this Agreement;
(v) Clause 47 (Governing Law);
(vi) the names of the Facilities Agent and the Arranger;
(vii) date of each amendment and restatement of this Agreement;
(viii) amounts of, and names of, the Facilities (and any tranches);
(ix) amount of Total Commitments;
(x) currencies of the Facilities;
(xi) type of Facilities;
(xii) ranking of Facilities;
(xiii) Termination Date for Facilities;
(xiv) Changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and
(xv) Such other information agreed between such Finance Party and the Company,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
(b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
(c) The Company represents that none of the information set out in paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
(d) The Facilities Agent shall notify the Company and the other Finance Parties of:
(i) the name of any numbering service provider appointed by the Facilities Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and
(ii) the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider.
42.4. Entire agreement
This Clause 42 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
42.5. Inside Information
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Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
42.6. Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:
(a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 42.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 42.
42.7. Continuing obligations
The obligations in this Clause 42 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of eighteen months from the earlier of:
(a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
(b) the date on which such Finance Party otherwise ceases to be a Finance Party.
43. CONFIDENTIALITY OF FUNDING RATES
43.1. Confidentiality and disclosure
(a) The Facilities Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
(b) The Facilities Agent may disclose:
(i) any Funding Rate to the Borrower pursuant to Clause 14.5 (Notification of rates of interest) or Clause 9.6 (Interest); and
(ii) any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facilities Agent and the relevant Lender.
(c) The Facilities Agent and each Obligor may disclose any Funding Rate to:
(i) any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
(ii) any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory
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authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facilities Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
(iii) any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facilities Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
(iv) any person with the consent of the relevant Lender.
43.2. Related Obligations
(a) The Facilities Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facilities Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.
(b) The Facilities Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender:
(i) of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 43.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(ii) upon becoming aware that any information has been disclosed in breach of this Clause 43.
43.3. No Event of Default
No Event of Default will occur under Clause 28.2 (Breach of other obligations) by reason only of an Obligor’s failure to comply with this Clause 43.
44. LENDING AFFILIATES
44.1. Lending Affiliate definitions
In this Agreement:
Appointing Lender means:
(a) in relation to an Original Lending Affiliate, the Lender specified as an Original Lender opposite that Original Lending Affiliate’s name in Part I of Schedule 14 (Original Lending Affiliates); and
(b) in relation to a New Lending Affiliate, the Lender which is party to the New Lending Affiliate Appointment Notice relating to that New Lending Affiliate.
Appointment Date means, in relation to the appointment of a New Lending Affiliate, the later of:
(a) the proposed Appointment Date specified in the relevant New Lending Affiliate Appointment Notice; and
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(b) the date on which the Facilities Agent executes the relevant New Lending Affiliate Appointment Notice.
Lending Affiliate means, in relation to a Lender:
(a) an Original Lending Affiliate of that Lender; and
(b) a New Lending Affiliate of that Lender,
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.
Lending Affiliate Utilisation means, in relation to a Lending Affiliate, a Utilisation in which that Lending Affiliate has been nominated to participate pursuant to Clause 44.5 (Nomination of Lending Affiliate Utilisations).
Lending Affiliate Utilisation Notice means a notice substantially in the form set out in Schedule 16, (Form of Lending Affiliate Utilisation Notice).
Lending Affiliate Resignation Notice means a notice substantially in the form set out in Schedule 17 (Form of Lending Affiliate Resignation Notice).
New Lending Affiliate means, in relation to a Lender, an entity which has become a Party as a "New Lending Affiliate" of that Lender in accordance with Clause 44.3 (Appointment of New Lending Affiliates).
New Lending Affiliate Appointment Notice means a notice substantially in the form set out in Schedule 15 (Form of New Lending Affiliate Appointment Notice).
Original Lending Affiliate means, in relation to an Original Lender, any entity specified as an Original Lending Affiliate opposite that Original Lender's name in Part I of Schedule 14 (Original Lending Affiliates).
44.2. Original Lending Affiliate tax status confirmation
(a) With respect to an Obligor to which Clauses 18.2 (General) to 18.7 (Stamp taxes) apply, each Original Lending Affiliate which is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part I of Schedule 14 (Original Lending Affiliates).
(b) Confirmation of a scheme reference number and jurisdiction of tax residence pursuant to paragraph (a) above shall be deemed to be confirmation of those details pursuant to paragraph (j)(ii)(A) of Clause 18.3 (Tax gross-up) and the reference in the definition of "Borrower DTTP Filing" in Clause 18.2 (General) to Part IIA and Part IIB of Schedule 1 (The Original Parties) shall be construed to include Part I of Schedule 14 (Original Lending Affiliates).
44.3. Appointment of New Lending Affiliates
(a) Subject to this Clause 44.3, an entity shall become a Party as a "New Lending Affiliate" of a Lender on the relevant Appointment Date if:
(i) that entity is an Affiliate of that Lender;
(ii) that Affiliate is a bank or financial institution;
(iii) that Lender and that Affiliate deliver to the Facilities Agent a duly completed New Lending Affiliate Appointment Notice in relation to that Affiliate; and
(iv) the Facilities Agent executes that New Lending Affiliate Appointment Notice.
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(b) The Facilities Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed New Lending Affiliate Appointment Notice appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that New Lending Affiliate Appointment Notice.
(c) The Facilities Agent shall only be obliged to execute a New Lending Affiliate Appointment Notice delivered to it by a Lender and an Affiliate of that Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that Affiliate becoming a Party as a New Lending Affiliate.
(d) The Facilities Agent shall, as soon as reasonably practicable after it has executed a New Lending Affiliate Appointment Notice, send to the Company a copy of that New Lending Affiliate Appointment Notice.
(e) If a proposed appointment of an Affiliate of a Lender as a New Lending Affiliate obliges that Affiliate to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of that Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by that Lender (on behalf of that Affiliate) in order for that Affiliate to carry out and be satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
44.4. Lending Affiliates as Lenders
(a) Subject to this Clause 44, any reference in a Finance Document to a Lender shall be construed to include a Lending Affiliate, any reference to an Original Lender shall be construed to include an Original Lending Affiliate and, to the extent a Lending Affiliate is nominated to participate in a Swingline Loan, any reference to a Swingline Lender shall be construed to include that Lending Affiliate.
(b) An Appointing Lender and each of its Lending Affiliates shall be treated as a single Lender for the purposes of:
(i) determining an Appointing Lender's Available Commitment or Available Swingline Commitment or whether participations exceed an Appointing Lender's Overall Commitment; and
(ii) Clause 13.1 (Mandatory prepayment - illegality), Clause 13.6 (Involuntary prepayment and cancellation and replacement of Lender) and Clause 41.7 (Replacement of a Lender).
44.5. Nomination of Lending Affiliate Utilisations
(a) Each Original Lending Affiliate is nominated by its Appointing Lender to participate in any Utilisation, or class of Utilisation, specified opposite the name of that Original Lending Affiliate in Part I or Part II of Schedule 14 (Original Lending Affiliates).
(b) An Appointing Lender may, by delivery of a duly completed Lending Affiliate Utilisation Notice to the Facilities Agent and the Company no later than the time specified in paragraph (c) below, nominate any of its Lending Affiliates to participate in any Utilisation, or class of Utilisation, specified in that Lending Affiliate Utilisation Notice.
(c) If an Appointing Lender is a Lender under Tranche C and/or a Swingline Lender, its nominated Lending Affiliate must be able to perform that function or those functions in the same manner as the Appointing Lender to the extent of the specified Utilisation.
(d) A Tranche D Lender may not nominate a Lending Affiliate to assume any of its rights and/or obligations in respect of an outstanding Bond without the consent of the Company.
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(e) Any Lending Affiliate Utilisation Notice delivered pursuant to paragraph (b) above shall be delivered no later than five Business Days before the proposed Utilisation Date of any Utilisation specified in that Lending Affiliate Utilisation Notice or at such later time agreed by the Facilities Agent and the Company.
(f) A Utilisation, or class of Utilisation, may only be specified pursuant to paragraphs (a) or (b) above by reference to any of:
(i) the Borrower(s) of that Utilisation or those Utilisations; and/or
(ii) the jurisdiction of incorporation of the Borrower(s) of that Utilisation or those Utilisations; and/or
(iii) the currency of that Utilisation or those Utilisations; and/or
(iv) in the case of the specification of an individual Utilisation, the proposed Utilisation Date of that Utilisation.
(g) Clause 29 (Changes to the Lenders) shall not apply to any nomination of a Lending Affiliate Utilisation or to the effects of that nomination pursuant to this Clause 44.
44.6. Participation by Lending Affiliate
(a) An Appointing Lender which nominates its Lending Affiliate to participate in any Utilisation, or class of Utilisation, pursuant to Clause 44.5 (Nomination of Lending Affiliate Utilisations) will be released from its obligations under the Finance Documents which relate to that Utilisation, or class of Utilisation, and that Lending Affiliate will be bound by obligations equivalent to those obligations.
(b) Without prejudice to Clause 31.11 (Lenders' indemnity to the Facilities Agent) an Appointing Lender shall not be responsible for, or liable for any damages, costs or losses to any person arising as a result of, the non-performance by any Lending Affiliate of that Appointing Lender of that Lending Affiliate's obligations under the Finance Documents.
44.7. Payments
Notwithstanding Clause 31.15 (Relationship with the Lenders), any obligation under any Finance Document to pay an amount to a Lender, or to the Facilities Agent on a Lender's behalf, in relation to a Lending Affiliate Utilisation shall be construed as an obligation to pay that amount to the Lending Affiliate nominated by that Lender to participate in that Lending Affiliate Utilisation or to the Facilities Agent on behalf of that Lending Affiliate.
44.8. Commitments and voting
(a) Without prejudice to Clause 44.6 (Participation by Lending Affiliate), a Lending Affiliate has no Commitment and any portion of a Commitment which relates to any Lending Affiliate Utilisation of that Lending Affiliate remains part of the Commitment of the Appointing Lender of that Lending Affiliate.
(b) Any term of this Agreement which acts to cancel or reduce a Commitment on the repayment or prepayment of a Utilisation shall, in the case of the repayment or prepayment of a Lending Affiliate Utilisation of a Lending Affiliate, operate to cancel or reduce the corresponding portion of the Commitment of the Appointing Lender of that Lending Affiliate.
(c) No reference in a Finance Document to a Lender shall be construed to include any Lending Affiliate for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or any other vote of Lenders under the Finance Documents. The agreement of any Lending Affiliate is not required to approve a request for any such consent, waiver, amendment or vote.
44.9. Effect on assignments and transfers
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(a) Any assignment or transfer by an Appointing Lender pursuant to Clause 29 (Changes to the Lenders) of its rights and/or obligations under the Finance Documents which relate to that portion of its Commitment which relates to a Lending Affiliate Utilisation shall be construed to include an assignment or transfer, as the case may be, by it, on behalf of its Lending Affiliate nominated to participate in that Lending Affiliate Utilisation, of that Lending Affiliate's rights and/or obligations under the Finance Documents which relate to that Lending Affiliate Utilisation.
(b) Subject to paragraph (c) below the rights and/or obligations of a Lending Affiliate under the Finance Documents may not be assigned or transferred other than pursuant to an assignment or transfer by its Appointing Lender described in paragraph (a) above.
(c) A Lending Affiliate (the Existing Lending Affiliate) may, subject to Clause 29 (Changes to the Lenders) (including Clause 29.4), assign any of its rights under any Finance Document which relate to an outstanding Lending Affiliate Utilisation to another Lending Affiliate of its Appointing Lender (the Alternative Lending Affiliate) or to its Appointing Lender.
(d) An assignment described in paragraph (c) above will only be effective on receipt by the Facilities Agent of written confirmation from the Alternative Lending Affiliate or, as the case may be, the Appointing Lender (in form and substance satisfactory to the Facilities Agent) that the Alternative Lending Affiliate or, as the case may be, the Appointing Lender will assume the same obligations to the other Finance Parties as it would have been under if, in the case of an Alternative Lending Affiliate, it had been nominated to participate in that Lending Affiliate Utilisation or, in the case of an Appointing Lender, the Existing Lending Affiliate had not been nominated to participate in that Lending Affiliate Utilisation.
44.10. Communications
(a) Each Lending Affiliate shall be represented by its Appointing Lender for all administrative purposes under the Finance Documents and each Lending Affiliate shall deal with each other Party exclusively through its Appointing Lender.
(b) The Facilities Agent shall be entitled to carry out all dealings with a Lending Affiliate through the Appointing Lender of that Lending Affiliate and may give to that Appointing Lender any notice, document or other communication required to be given by the Facilities Agent to that Lending Affiliate.
44.11. Defaulting Lenders
An Appointing Lender shall be treated as a Defaulting Lender if any Lending Affiliate of that Appointing Lender is a Defaulting Lender and a Lending Affiliate shall be treated as a Defaulting Lender if its Appointing Lender is a Defaulting Lender.
44.12. Other adjustments
(a) Any obligation under this Agreement for a Lending Affiliate to transfer its rights and obligations under this Agreement shall be construed as an obligation for the Appointing Lender of that Lending Affiliate to transfer its rights and obligations under this Agreement which relate to that portion of its Commitment which relates to any Lending Affiliate Utilisation of that Lending Affiliate.
(b) If:
(i) a Lending Affiliate is nominated to participate in any Utilisation, or class of Utilisation, pursuant to the delivery of a Lending Affiliate Utilisation Notice; and
(ii) as a result of circumstances existing at the date of delivery of that Lending Affiliate Utilisation Notice an Obligor would be obliged to make a payment to that Lending Affiliate under Clause 18 (Taxes) or Clause 19 (Increased Costs) or any other provision of a Finance Document,
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then that Lending Affiliate is only entitled to receive payment under those Clauses or provisions in respect of a Lending Affiliate Utilisation which is the subject of that Lending Affiliate Utilisation Notice to the same extent as its Appointing Lender would have been if that Utilisation had not been a Lending Affiliate Utilisation. This paragraph (b) shall not apply:
(iii) in relation to Clause 18.3 (Tax gross-up),in the case of an Obligor to which Clauses 18.2 (General) to 18.7 (Stamp taxes) apply, to a Lending Affiliate that is a Treaty Lender and that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (a) of Clause 44.2 (Original Lending Affiliate tax status confirmations) or paragraph (j)(ii)(B) of Clause 18.3 (Tax gross-up) if the Obligor making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.
44.13. Resignation of Lending Affiliate
(a) If no Lending Affiliate Utilisation in respect of which a Lending Affiliate has rights or obligations under this Agreement is outstanding, that Lending Affiliate and its Appointing Lender may request that such Lending Affiliate (the Resigning Lending Affiliate) ceases to be a Lending Affiliate by delivering to the Facilities Agent a Lending Affiliate Resignation Notice.
(b) The Facilities Agent shall as soon as reasonably practicable after receipt by it of a duly completed Lending Affiliate Resignation Notice appearing on its face to comply with the terms of this Agreement, and delivered in accordance with the terms of this Agreement, accept that Lending Affiliate Resignation Notice and notify the Appointing Lender of that Resigning Lending Affiliate and the Company of its acceptance.
(c) Upon notification by the Facilities Agent to that Appointing Lender and the Company of its acceptance of the resignation of that Resigning Lending Affiliate:
(i) that Resigning Lending Affiliate shall cease to be a Lending Affiliate and shall have no further rights or obligations under the Finance Documents as a Lending Affiliate; and
(ii) any nomination of that Lending Affiliate to participate in any Utilisation, or class of Utilisation, shall be cancelled.
(d) A Lending Affiliate shall, and its Appointing Lender shall procure that such Lending Affiliate will, resign pursuant to this Clause 44.13 if:
(i) that Lending Affiliate ceases to be an Affiliate of its Appointing Lender; or
(ii) its Appointing Lender ceases to be a Party.
45. ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for any other agreement or instrument that is a QFC (such support, QFC Credit Support and each such QFC a Supported QFC), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the US Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a US Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be
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effective to the same extent as the transfer would be effective under the US Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a US Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the US Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Clause 45, the following terms have the following meanings:
(i) BHC Act Affiliate of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
(ii) Covered Entity means any of the following:
(A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(B) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) QFC has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
46. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
47. GOVERNING LAW
(a) Subject to paragraph (b) below, this Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
(b) Schedule 20 (Additional restrictive covenants) of this Agreement and any non-contractual obligations arising out of or in connection with those schedules shall be interpreted in accordance with the laws of the State of New York without giving effect to any conflict of laws provisions thereof that would indicate the applicability of the laws of any other jurisdiction.
48. ENFORCEMENT
48.1. Jurisdiction
(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute).
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(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
(c) This Clause 48.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
48.2. Service of process
(a) Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
(i) irrevocably appoints Carnival plc (and Carnival plc hereby accepts each such appointment) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
(ii) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
48.3. Waiver of Jury Trial
EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OF THE FINANCE DOCUMENTS. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
49. USA PATRIOT ACT
(a) Each Finance Party that is subject to the USA Patriot Act hereby notifies each Obligor that pursuant to the requirements of the USA Patriot Act, such Finance Party is required to obtain, verify and record information that identifies such Obligor, which information includes the name and address of such Obligor and other information that will allow such Finance Party to identify such Obligor in accordance with the USA Patriot Act.
(b) Promptly following any request, the Obligors shall provide information and documentation reasonably requested by the Facilities Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the USA Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws.
(c) Beneficial Ownership Regulation means 31 C.F.R. §1010.230.
50. TRANSPARENCY RULES
Pursuant to, and in accordance with, the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) enacted under Article 9.1 of the CICR (Comitato Interministeriale per il Credito e il Risparmio) Resolution of 4 March 2003 effective as of October 2003 and the following transparency rules applicable to transactions and banking and financial services issued by the Bank of Italy on 29 July 2009 published in the Italian Official Gazette (Gazzetta Ufficiale) no. 217 of 18 September 2009 (as amended and supplemented from time to time) (the Transparency Rules), the Parties mutually acknowledge and declare that this Agreement and any of its terms and conditions have been negotiated on an individual basis and, as a result, this Agreement falls into the category of the agreements which have been negotiated individually “che costituiscono oggetto di trattativa individuale” which are exempted from the application of Section II of the Transparency Rules.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE 1
THE PARTIES
THE PARTIES
Part A
The Lenders – Loan Commitments
The Lenders – Loan Commitments
(a) TRANCHE A COMMITMENT
| Name of Lender | Amount (USD) | Non-Eligible Tranche D Lender | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||||
| Barclays Bank PLC | 42,069,800 | N/A, UK | |||||||||
| BNP Paribas | 90,000,000 | N/A | |||||||||
| Citibank, N.A., London | 45,369,800 | N/A | |||||||||
| Goldman Sachs Bank USA | 170,400,000 | 13/G/351779/DTTP, USA | |||||||||
| Intesa SanPaolo S.p.A., New York Branch | 83,000,000 | 41/I/370506/DTTP, Italy | |||||||||
| JPMorgan Chase Bank N.A., London Branch | 45,369,800 | 013/M/0268710/DTTP, USA | |||||||||
| KfW IPEX-Bank GmbH | 90,000,000 | 7/K/333018/DTTP, Germany | |||||||||
| Lloyds Bank plc | 115,400,000 | N/A, UK | |||||||||
| Mizuho Bank, Ltd. | 45,369,800 | N/A | |||||||||
| Morgan Stanley Senior Funding, Inc. | 180,000,000 | 13/M/227953/DTTP, Delaware, USA | |||||||||
| PNC Bank, National Association | 83,000,000 | 13/P/63904/DTTP, USA | |||||||||
| Sumitomo Mitsui Banking Corporation | 78,000,000 | 43/S/274647/DTTP, Japan | |||||||||
Total USD 1,067,979,200 | |||||||||||
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(b) TRANCHE B COMMITMENT
| Name of Lender | Amount (Sterling) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Bank of America NA (Charlotte) | 8,000,000 | N/A, USA | ||||||
| Barclays Bank PLC | 11,000,000 | N/A, UK | ||||||
| BNP Paribas | 8,000,000 | 5/B/255139/DTTP, France | ||||||
| Citibank, N.A., London | 8,000,000 | N/A | ||||||
| Goldman Sachs Bank USA | 8,000,000 | 13/G/351779/DTTP, USA | ||||||
| Intesa SanPaolo S.p.A., New York Branch | 8,000,000 | 41/I/370506/DTTP, Italy | ||||||
| JPMorgan Chase Bank, N.A., London Branch | 8,000,000 | 013/M/0268710/DTTP, USA | ||||||
| Lloyds Bank plc | 22,000,000 | N/A, UK | ||||||
| Mizuho Bank, Ltd. | 8,000,000 | N/A | ||||||
| National Westminster Bank plc | 5,000,000 | N/A | ||||||
| PNC Bank, National Association | 8,000,000 | 13/P/63904/DTTP, USA | ||||||
| Sumitomo Mitsui Banking Corporation | 2,000,000 | 43/S/274647/DTTP, Japan | ||||||
| Total £104,000,000 | ||||||||
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(c) TRANCHE C COMMITMENT
| Name of Lender | Amount (euro) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Bank of America NA (Charlotte) | 78,000,000 | N/A, USA | ||||||
| Barclays Bank PLC | 78,000,000 | N/A, UK | ||||||
| BNP Paribas | 37,000,000 | N/A | ||||||
| Citibank, N.A., London | 78,000,000 | N/A | ||||||
| Intesa SanPaolo S.p.A., New York Branch | 78,000,000 | 41/I/370506/DTTP, Italy | ||||||
| JPMorgan Chase Bank, N.A., London Branch | 78,000,000 | 013/M/0268710/DTTP, USA | ||||||
| Mizuho Bank, Ltd. | 78,000,000 | N/A | ||||||
| National Westminster Bank plc | 31,500,000 | N/A | ||||||
| PNC Bank, National Association | 78,000,000 | 13/P/63904/DTTP, USA | ||||||
Total EUR614,500,000 | ||||||||
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(d) TRANCHE D COMMITMENT
| Name of Lender | Amount (USD) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Barclays Bank PLC | 37,500,000 | N/A, UK | ||||||
| BNP Paribas | 37,500,000 | N/A | ||||||
| Citibank, N.A., New York | 37,500,000 | 13/C/62301/DTTP, USA | ||||||
| JPMorgan Chase Bank, N.A., London Branch | 37,500,000 | 013/M/0268710/DTTP, USA | ||||||
| Lloyds Bank plc | 37,500,000 | N/A, UK | ||||||
| Mizuho Bank, Ltd. | 37,500,000 | N/A | ||||||
Total USD225,000,000 | ||||||||
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Part B
The Swingline Lenders - Swingline Loan Commitments
(a) Swingline Tranche A Commitment
| Name of Swingline Lender | Amount (USD) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Barclays Bank PLC | 38,000,000 | N/A, UK | ||||||
| BNP Paribas | 90,000,000 | N/A | ||||||
| Citibank, N.A., New York | 38,000,000 | 13/C/62301/DTTP, USA | ||||||
| Goldman Sachs Bank USA | 100,000,000 | 13/G/351779/DTTP, USA | ||||||
| Intesa SanPaolo S.p.A., New York Branch | 54,000,000 | 41/I/370506/DTTP. Italy | ||||||
| JPMorgan Chase Bank, N.A | 38,000,000 | 013/M/0268710/DTTP, USA | ||||||
| Lloyds Bank plc | 84,000,000 | N/A, UK | ||||||
| Mizuho Bank, Ltd. | 38,000,000 | N/A | ||||||
| Morgan Stanley Senior Funding, Inc. | 100,000,000 | 13/M/227953/DTTP, Delaware, USA | ||||||
| PNC Bank, National Association | 50,000,000 | 13/P/63904/DTTP, USA | ||||||
| Total USD630,000,000 | ||||||||
(b)
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Swingline Tranche B Commitment
| Name of Swingline Lender | Amount (Sterling) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Bank of America, N.A. (Charlotte) | 7,000,000 | N/A, USA | ||||||
| Barclays Bank PLC | 10,000,000 | N/A, UK | ||||||
| BNP Paribas | 7,000,000 | 5/B/255139/DTTP, France | ||||||
| Citibank, N.A., London | 7,000,000 | N/A | ||||||
| Goldman Sachs Bank USA | 7,000,000 | 13/G/351779/DTTP, USA | ||||||
| Intesa SanPaolo S.p.A., New York Branch | 7,000,000 | 41/I/370506/DTTP, Italy | ||||||
| JPMorgan Chase Bank, N.A., London Branch | 7,000,000 | 013/M/0268710/DTTP, USA | ||||||
| Lloyds Bank plc | 21,000,000 | N/A, UK | ||||||
| Mizuho Bank, Ltd. | 7,000,000 | N/A | ||||||
| National Westminster Bank plc | 5,000,000 | N/A | ||||||
| PNC Bank, National Association | 7,000,000 | 13/P/63904/DTTP, USA | ||||||
| Total £92,000,000 | ||||||||
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(c) Swingline Tranche C Commitment
| Name of Swingline Lender | Amount (euro) | Treaty Passport Number and jurisdiction of tax residence (if applicable) | ||||||
| Barclays Bank PLC | 50,000,000 | N/A, UK | ||||||
| Citibank, N.A., London | 50,000,000 | N/A | ||||||
| Intesa SanPaolo S.p.A., New York Branch | 50,000,000 | 41/I/370506/DTTP, Italy | ||||||
| JPMorgan Chase Bank, N.A., London Branch | 50,000,000 | 013/M/0268710/DTTP, USA | ||||||
| Mizuho Bank, Ltd. | 50,000,000 | N/A | ||||||
| National Westminster Bank plc | 31,500,000 | N/A | ||||||
| PNC Bank, National Association | 50,000,000 | 13/P/63904/DTTP, USA | ||||||
| Total EUR331,500,000 | ||||||||
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SCHEDULE 2
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT
Part A
Conditions Precedent to signing of the Agreement
Conditions Precedent to signing of the Agreement
Original Obligors
1. A copy of the constitutional documents of each Original Obligor.
2. A copy of a resolution of the board of directors of each Original Obligor (except Cruiseport Curaçao C.V.), approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party.
3. A copy of a resolution of the general meeting of Holland America Line N.V. and HAL Antillen N.V. approving, inter alia, the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and waiving any right to claim that the entering into, the execution, delivery and the performance by the relevant Original Obligor of the Finance Documents and the entering into and the performance of the transactions contemplated thereby to be ultra vires.
4. A copy of a resolution of the general partner and limited partners of Cruiseport Curaҫao C.V. approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party.
5. A specimen of the signature of each person who executes the Finance Documents and who is authorised on behalf of an Original Obligor to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.
6. A certificate of an authorised signatory of the Company:
(a) confirming that utilising or (with respect to the Company and Carnival plc) guaranteeing the Total Commitments in full would not breach any limit binding on any Original Obligor;
(b) certifying that each copy document specified in Part A of this Schedule is correct, complete and in full force and effect as at a date no earlier than the Signing Date; and
(c) confirming which companies are Material Subsidiaries and providing reasonable details of the calculations used to make such determinations.
7. A copy of a good standing certificate with respect to each US Obligor, issued as of a recent date by the Secretary of State or other appropriate official of each US Obligor’s jurisdiction of incorporation or organisation.
8. A certificate of registration (certificato di vigenza) of Costa Crociere S.p.A. with the relevant Companies’ Register dated not earlier than five Business Days prior to the execution of this Agreement, confirming that no insolvency procedures have been started in relation to Costa Crociere S.p.A.
9. In respect of each Bermuda Obligor:
(a) a copy of a certificate of compliance, issued as of a recent date by the Registrar of Companies in Bermuda;
(b) a certified copy of the register of members of the relevant Obligor;
(c) a certified copy of the register of directors and officers of the relevant Obligor;
(d) a certified copy of the Bermuda Monetary Authority’s “No Objection” to the incorporation of the company or “Foreign Exchange Letter”, as applicable; and
(e) a certified copy of the Tax Assurance issued by the Registrar of Companies for the Minister of Finance.
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Legal opinions
10. A legal opinion of Allen & Overy LLP, London office, English law legal advisers to the Arrangers and the Facilities Agent, addressed to the Finance Parties.
11. A legal opinion of G. Porras & Asociados, Panama law legal advisers to the Arrangers and the Facilities Agent, addressed to the Finance Parties.
12. A legal opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, select U.S. federal law legal advisers to the Company, addressed to the Finance Parties.
13. A legal opinion of Morris James, Delaware state law legal advisers to the Arrangers and the Facilities Agent, addressed to the Finance Parties.
14. A legal opinion of Allen & Overy LLP, Milan office, Italian law legal advisers, addressed to the Finance Parties.
15. A legal opinion of STvB Advocaten, Curaçao law legal advisers to the Company, addressed to the Finance Parties.
16. A legal opinion of Conyers Dill & Pearman Limited, Bermuda law legal advisers to the Company, addressed to the Finance Parties.
Other documents and evidence
17. This Agreement duly executed by the Obligors.
18. The following Finance Documents duly executed:
(a) each Fee Letter;
(b) each Deed of Guarantee; and
(c) the Subsidiary Deed of Guarantee.
19. Certified copy of the Original Financial Statements.
20. Certified copy of the DLC Documents.
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Part B
Conditions precedent to initial Utilisation
Conditions precedent to initial Utilisation
1. Evidence of the prepayment and cancellation (to take effect on or before the first Utilisation Date) of the Existing Facilities Agreement.
2. Evidence that the Subject Vessel Contributions have been completed.
3. Evidence that the fees, costs and expenses then due from the Company pursuant to Clause 17 (Fees) and Clause 22 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
Part C
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Conditions precedent required to be delivered by an Additional Subsidiary Guarantor or Parent Entity
Additional Subsidiary Guarantor or Parent Entity
1. A deed of guarantee substantially in the form of the Subsidiary Deed of Guarantee under paragraph (a) of such definition (if applicable) duly executed by the Additional Subsidiary Guarantor.
2. An Accession Letter (if applicable), duly executed by the Parent Entity and the Company or Carnival plc.
3. A copy of the constitutional documents of the Additional Subsidiary Guarantor or Parent Entity which, in respect of an Additional Subsidiary Guarantor or Parent Entity incorporated in The Netherlands, shall consist of a copy of the articles of association (statuten), the deed of incorporation (oprichtingsakte) and extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of such Additional Subsidiary Guarantor or Parent Entity and which, in respect of an Additional Subsidiary Guarantor or Parent Entity incorporated in Curaçao, shall consist of a copy of the articles of association (statuten), the deed of incorporation (oprichtingsakte) and extract (uittreksel) from the Curaçao Commercial Register (Handelsregister) of such Additional Subsidiary Guarantor or Parent Entity.
4. A copy of a resolution of the board of directors of the Additional Subsidiary Guarantor or Parent Entity (and, if such Additional Subsidiary Guarantor is incorporated in Italy and it is required by its existing by-laws, a copy of the resolution of the shareholders’ meeting of such Additional Subsidiary Guarantor) approving the terms of, and the transactions contemplated by, the Subsidiary Deed of Guarantee or Accession Letter (as applicable) and the Finance Documents to which it is a party and, in respect of an Additional Subsidiary Guarantor or Parent Entity incorporated in The Netherlands, including (i) a declaration by each managing director on conflict of interest (tegenstrijdig belang) within the meaning of Article 2:129(6)/ 2:239(6) of the Dutch Civil Code and (ii) a confirmation whether a works council (ondernemingsraad) is in place and, in respect of an Additional Subsidiary Guarantor or Parent Entity incorporated in Curaçao, where applicable including a statement that the relevant Obligor will not invoke any limitation on the capacity of the board of directors or a director to represent the Obligor in respect of the entering into of the Finance Documents and the transactions contemplated thereby, as referred to in article 2:10 paragraph 1 and 2 of the Curaçao Civil Code.
5. To the extent required, a copy of a resolution of the general meeting of shareholders of each Additional Subsidiary Guarantor incorporated in The Netherlands or Curaçao approving the terms of, and the transactions contemplated by, the Finance Documents to which it is (or will become) a party and which to the extent required in respect of an Additional Subsidiary Guarantor or Parent Entity incorporated in Curaçao, shall include a waiver of any right to claim that the entering into, the execution, delivery and the performance by the relevant Obligor of the Subsidiary Deed of Guarantee or Accession Letter and the Finance Documents and the entering into and the performance of the transactions contemplated thereby to be ultra vires.
6. To the extent applicable, in respect of each Additional Subsidiary Guarantor or Parent Entity incorporated in The Netherlands, a copy of a resolution of the supervisory board of the Dutch Obligor approving the terms of, and the transactions contemplated by, the Subsidiary Deed of Guarantee or Accession Letter and the Finance Documents and including a statement by each member of the supervisory board on conflict of interest (tegenstrijdig belang) within the meaning of Article 2:140(5)/2:250(5) of the Dutch Civil Code and in respect of each Additional Subsidiary Guarantor or Parent Entity incorporated in Curaçao, a copy of a resolution of the supervisory board of the Curaçao Obligor approving the terms of, and the transactions contemplated by, the Subsidiary Deed of Guarantee or Accession Letter and the Finance Documents.
7. A specimen of the signature of each person who executes the Subsidiary Deed of Guarantee or Accession Letter (as applicable) and is authorised on behalf of the Additional Subsidiary Guarantor or Parent Entity to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.
8. A certificate of an authorised signatory of the Additional Subsidiary Guarantor or Parent Entity:
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(a) confirming that utilising the Total Tranche A Commitments, the Total Tranche B Commitments, the Total Tranche C Commitments and the Total Tranche D Commitments (or, in the case of an Additional Subsidiary Guarantor resident in Italy, utilising the Total Tranche C Commitments) in full would not breach any limit binding on it; and
(b) certifying that each copy document specified in Part C of this Schedule is correct, complete and in full force and effect as at a date no earlier than the date of the Subsidiary Deed of Guarantee or Accession Letter (as applicable).
9. If the proposed Additional Subsidiary Guarantor or Parent Entity is incorporated in Italy, a certificate of registration (certificato di iscrizione) of such Additional Subsidiary Guarantor or Parent Entity with the relevant Companies’ Register dated not earlier than five Business Days prior to the execution of the relevant Subsidiary Deed of Guarantee or Accession Letter (as applicable), confirming that no insolvency procedures have been started in relation to such Additional Subsidiary Guarantor or Parent Entity.
10. If the proposed Additional Subsidiary Guarantor or Parent Entity is incorporated in The Netherlands:
(a) to the extent a works council (ondernemingsraad) is established and to the extent any rights to consult (in de gelegenheid stellen tot advies uitbrengen) the works council or for the works council to approve (instemming met) are triggered under the Dutch Works Council Act, a copy of:
(i) the request for advice from such works council; and
(ii) (A) an unconditional positive advice from such works council; or (B) advice from such works council which is not negative and does not contain any condition which, if complied with, would result in a breach of any of the Finance Documents or which conditions are not reasonably feasible to be met; or (C) a waiver to advise (afzien van advies) issued by such a works council; and
(b) such evidence as may be requested by the Facilities Agent in reasonable time before the Utilisation Date to enable the Finance Parties to comply with Wet ter voorkoming van witwassen en het financieren van terrorisme.
11. If the proposed Additional Subsidiary Guarantor or Parent Entity is incorporated in the US, a copy of a good standing certificate, issued as of a recent date by the Secretary of State or other appropriate official of such US Obligor’s jurisdiction of incorporation or organisation.
12. In respect of each Additional Subsidiary Guarantor or Parent Entity which would be a Bermuda Obligor:
(a) a copy of a certificate of compliance, issued as of a recent date by the Registrar of Companies in Bermuda;
(b) a certified copy of the register of members of the relevant Additional Subsidiary Guarantor or Parent Entity;
(c) a certified copy of the register of directors and officers of the relevant Additional Subsidiary Guarantor or Parent Entity;
(d) a certified copy of the Bermuda Monetary Authority’s “No Objection” to the incorporation of the company or “Foreign Exchange Letter”, as applicable; and
(e) a certified copy of the Tax Assurance issued by the Registrar of Companies for the Minister of Finance.
1.2 If the proposed Additional Subsidiary Guarantor or Parent Entity is incorporated in Curaҫao, a copy of the relevant business and director’s licenses and a copy of the applicable foreign exchange license or foreign exchange exemption.
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Legal opinions
13. A legal opinion of Allen & Overy LLP, London office, English law legal advisers to the Facilities Agent, addressed to the Finance Parties.
14. If the Additional Subsidiary Guarantor or Parent Entity is incorporated in a jurisdiction other than England and Wales, a legal opinion from legal advisers in that jurisdiction, addressed to the Finance Parties.
Other documents and evidence
15. A copy of such document and/or other evidence in relation to the Lenders’ “know your customer” requirements for the Additional Subsidiary Guarantor or Parent Entity in accordance with the provisions of Clause 25.8 (“Know your customer” checks).
16. A copy of any other authorisation or other document, opinion or assurance which the Facilities Agent has notified the Company is necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Subsidiary Deed of Guarantee or Accession Letter (as applicable) or for the validity and enforceability of any Finance Document.
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SCHEDULE 3
UTILISATION REQUEST
UTILISATION REQUEST
Part A
Loans
Loans
From: [Borrower]
To: [●] (Facilities Agent)
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC –Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Loan Utilisation Request. Terms defined in the Agreement have the same meaning in this Loan Utilisation Request unless given a different meaning in this Loan Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Tranche: [A/B/C/D]
Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day)
Currency of Loan: [●]
Amount: [●] or, if less, the Available Facility for the Tranche indicated above
Interest Period: [●]
3. We confirm that each condition specified in Clause 5.4(a) (Lenders’ participation) is satisfied on the date of this Loan Utilisation Request.
4. The proceeds of this Loan should be credited to ● [account].
5. This Loan Utilisation Request is irrevocable.
Yours faithfully
…………………………………
authorised signatory for
[name of Borrower]
authorised signatory for
[name of Borrower]
Part B
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Bonds
From: [Borrower]
To: [Tranche D Lender]
Copied to: [●] (Facilities Agent)
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC –Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Bond Utilisation Request. Terms defined in the Agreement have the same meaning in this Bond Utilisation Request unless given a different meaning in this Bond Utilisation Request.
2. We wish to arrange for a Bond to be issued by the relevant Tranche D Lender on the following terms:
Lender: [●]
Tranche: D
Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day)
Currency of Bond: [●]
Amount: [●] or, if less, the lesser of the Available Tranche D Facility and the Available Bond Facility
Beneficiary: [●]
Account Party: [●]
Term or Expiry Date: [●]
3. [We confirm that each condition specified in Clause 6.7 (Issue of Bonds) is satisfied on the date of this Bond Utilisation Request.]/[This is a Renewal Request and we confirm each condition specified in Clause 6.7 (Issue of Bonds) (other than the conditions set out in Clauses 6.4(a), 6.4(b) and 6.4(g)) is satisfied on the date of this Bond Utilisation Request.]
4. We attach a copy of the proposed Bond.
5. This Bond Utilisation Request is irrevocable.
Delivery Instructions:
[specify delivery instructions]
Yours faithfully
………………………………..
authorised signatory for
[name of Borrower]
authorised signatory for
[name of Borrower]
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Part C
Swingline Loan
Swingline Loan
From: [Borrower]
To: [●] (Facilities Agent)
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC –Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Swingline Loan Utilisation Request. Terms defined in the Agreement have the same meaning in this Swingline Loan Utilisation Request unless given a different meaning in this Swingline Loan Utilisation Request.
2. We wish to borrow a Swingline Loan on the following terms:
Tranche [A/B/C]
Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day)
Currency of Swingline Loan: [USD/£/€]
Amount: [●] or, if less, the Available Swingline [Tranche A/Tranche B/Tranche C] Facility
Interest Period: [●]
3. We confirm that each condition specified in Clause 8.5 (Swingline Lenders’ participation) is satisfied on the date of this Swingline Loan Utilisation Request.
4. The proceeds of this Swingline Loan should be credited to [account].
5. This Swingline Loan Utilisation Request is irrevocable.
Yours faithfully
.........................................................
authorised signatory for
[name of Borrower]
authorised signatory for
[name of Borrower]
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
FORM OF TRANSFER CERTIFICATE
To: [●] as Facilities Agent
[Copied to: The Company]1
From: [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)
Dated: [●]
CARNIVAL CORPORATION AND CARNIVAL PLC –Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 29.2 (Procedure for transfer) of the Agreement:
(a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause 29.2 (Procedure for transfer) of the Agreement.
(b) The proposed Transfer Date is [●].
(c) The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 37.2 (Addresses) of the Agreement are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in of Clause 29.3 (Limitation of responsibility of Existing Lenders) of the Agreement.
4. [The New Lender confirms, for the benefit of the Facilities Agent and without liability to any Obligor, that:
(a) for the purposes of Clause 18.6 (Lender Status Confirmation) of the Agreement it is:
(i) [a Qualifying Lender (other than a Treaty Lender);]
(ii) [a Treaty Lender;]
(iii) [not a Qualifying Lender]; and
(b) for the purposes of Clause 18.14 (Lender Status Confirmation) of the Agreement, it is:
(i) [a Qualifying Lender (other than a Treaty Lender or an Exempted Lender);]
(ii) [a Treaty Lender;]
(iii) [an Exempted Lender;]
(iv) [not a Qualifying Lender].]
5. [The Existing Lender and the New Lender each confirm, for the benefit of the Facilities Agent and without liability to any Obligor, that following the transfer, no Obligor will be obliged to pay any greater amount under Clause 18 (Taxes) or Clause 19.1 (Increased Costs) of the Agreement or under any other provision of a Finance Document (in the circumstances (i) existing on the Transfer Date, or
1 Include if the New Lender includes a Treaty Passport Scheme notification in paragraph 7. To be provided to the Company within 7 days.
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(ii) which the Existing Lender or the New Lender knows will apply in the twelve (12) month period following the Transfer Date) than the amounts which would have been payable but for the transfer;]
6. [The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(a) a company resident in the United Kingdom for United Kingdom tax purposes;
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of CTA 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of CTA 2009; or
(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of CTA 2009) of that company.] 2
[7 The New Lender confirms that it holds a passport under HMRC DT Treaty Passport scheme (reference number is [ ] and it is tax resident in [ ]), and, accordingly, interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and requests that the Company notify:
(d) the Borrower which is a Party as the Borrower as at the Transfer Date; and
(e) each Additional Subsidiary Guarantor which becomes an Additional Subsidiary Guarantor after the Transfer Date,
that it wishes that scheme to apply to the Agreement where the Borrower is a Borrower to which Clauses 18.2 to 18.7 apply.]3
[6/7] The New Lender confirms that [it is]/[it is not] a Non-Eligible Tranche D Lender.4
[7/8] The New Lender expressly confirms that it [can/cannot] exempt the Facilities Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 31.1 (Appointment of the Facilities Agent) of the Agreement.
[8/9] This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
[9/10] This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
2 Include only if the New Lender is a U.K. Non-Bank Lender.
3 Include only if the New Lender is a Treaty Passport holder required to notify under Clause 18.
4 Include only in relation to Tranche A Commitments.
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The Schedule
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and account details for payments,]
[Existing Lender] [New Lender]
By: By:
Pursuant to Clause 29.1(b), the Company consents to the transfer set out in this Transfer Certificate on [●].
Carnival Corporation
By:
This Transfer Certificate is accepted by the Facilities Agent and the Transfer Date is confirmed as [●].
[Facilities Agent]
By:
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SCHEDULE 5
FORM OF ACCESSION LETTER
FORM OF ACCESSION LETTER
To: [●] as Facilities Agent
From: [Parent Entity] and CARNIVAL CORPORATION/CARNIVAL PLC
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become the Company and to be bound by the terms of the Agreement as the Company pursuant to Clause 30.2 (Parent Entity) of the Agreement. [Parent Entity] is a company duly incorporated under the laws of [name of relevant jurisdiction].
3. [Parent Entity’s] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
CARNIVAL CORPORATION [Parent Entity]
CARNIVAL PLC
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SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
FORM OF COMPLIANCE CERTIFICATE
To: [●] as Facilities Agent
From: CARNIVAL CORPORATION
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
2. We confirm that as at as at [relevant testing date]:
(a) the aggregate of Borrowed Moneys was [ ]; and Consolidated Capital was [ ]; therefore the aggregate of Borrowed Moneys as a percentage of Consolidated Capital was [ ].
(b) EBITDA was [ ]; and Consolidated Net Interest Charges were [ ]; therefore the ratio of EBITDA to Consolidated Net Interest Charges was [ ].
(c) Minimum Available Liquidity was USD[ ].
3. We set out below calculations establishing the figures in paragraph 2 above:
[ ].
4. [We confirm that no Default is outstanding as at [relevant testing date]*]
Signed: …..........………………….
Senior Financial Officer
of
of
CARNIVAL CORPORATION
| _______________________________ | |||||
* If this statement cannot be made, the certificate should identify any Default that is outstanding and the steps, if any, being taken to remedy it. | |||||
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SCHEDULE 7
FORM OF CONFIDENTIALITY UNDERTAKING
FORM OF CONFIDENTIALITY UNDERTAKING
To: [Transferring Lender]
Re: CARNIVAL CORPORATION – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
Carnival Plc. and Carnival Corporation (the Company) Amount: Facilities Agent: | ||
Dear Sirs
We are considering acquiring an interest in the Agreement which, subject to the Agreement, may be by way of novation, assignment, the entering into, whether directly or indirectly, of a sub-participation or any other transaction under which payments are to be made or may be made by reference to one or more Finance Documents and/or one or more Obligors or by way of investing in or otherwise financing, directly or indirectly, any such novation, assignment, sub-participation or other transaction (the Acquisition). In consideration of you agreeing to make available to us certain information, by our signature of this letter we agree as follows (acknowledged and agreed by you by your signature of a copy of this letter):
1. Confidentiality Undertaking
We undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to our own confidential information and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose.
2. Permitted Disclosure
You agree that we may disclose:
(a) to any of our Affiliates and any of our or their officers, directors, employees, professional advisers and auditors such Confidential Information as we shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph 2(a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
(b) subject to the requirements of the Agreement, to any person:
(i) to (or through) whom we assign or transfer (or may potentially assign or transfer) all or any of our rights and/or obligations which we may acquire under the Agreement such Confidential Information as we shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this sub-paragraph (i) of paragraph 2(b) has delivered a letter to us in equivalent form to this letter;
(ii) with (or through) whom we enter into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to the Agreement or any Obligor such Confidential Information as we shall consider appropriate if the person to whom the
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Confidential Information is to be given pursuant to this sub-paragraph (ii) of paragraph 2(b) has delivered a letter to us in equivalent form to this letter;
(iii) to whom information is required or requested to be disclosed by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation such Confidential Information as we shall consider appropriate; and
(c) notwithstanding paragraphs 2(a) and 2(b). above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to us.
3. Notification of Disclosure
We agree (to the extent permitted by law and regulation) to inform you:
(a) of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (iii) of paragraph 2(b) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(b) upon becoming aware that Confidential Information has been disclosed in breach of this letter.
4. Return of Copies
If we do not enter into the Acquisition and you so request in writing, we shall return all Confidential Information supplied by you to us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by us and use our reasonable endeavours to ensure that anyone to whom we have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that we or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2(b)(iii) above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall survive and remain binding on us until (a) if we acquire an interest in the Agreement by way of novation, the date on which we acquire such an interest; (b) if we enter into the Acquisition other than by way of novation, the date falling 24 months after termination of that Acquisition; or (c) in any other case 24 months after the date of this letter.
6. No Representation; Consequences of Breach, etc
We acknowledge and agree that:
(a) neither you nor any member of the Group nor any of your or their respective officers, employees or advisers (each a Relevant Person) (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by you or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by you or be otherwise liable to us or any other person in respect of the Confidential Information or any such information; and
(b) you or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by us.
7. Entire Agreement: No Waiver; Amendments, etc
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(a) This letter constitutes the entire agreement between us in relation to our obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
(b) No failure or delay in exercising any right or remedy under this letter will operate as a waiver thereof nor will any single or partial exercise of any right or remedy preclude any further exercise thereof or the exercise of any other right or remedy under this letter.
(c) The terms of this letter and our obligations under this letter may only be amended or modified by written agreement between us and the Company.
8. Inside Information
We acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and we undertake not to use any Confidential Information for any unlawful purpose.
9. Nature of Undertakings
The undertakings given by us under this letter are given to you and are also given for the benefit of the Company and each other member of the Group.
10. Third Party Rights
(a) Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the Third Parties Act) to enforce or to enjoy the benefit of any term of this letter.
(b) The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9 subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act.
(c) Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person (other than the Company) to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction
(a) This letter (including the agreement constituted by your acknowledgement of its terms) (the Letter) and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English Law.
(b) The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter).
12. Definitions
In this letter (including the acknowledgement set out below) terms defined in the Agreement shall, unless the context otherwise requires, have the same meaning and:
Confidential Information means all information relating to the Company, any Obligor, the Group, the Finance Documents, a Facility and/or the Acquisition which is provided to us in relation to the Finance Documents or a Facility by you or any of your affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
(a) is or becomes public information other than as a direct or indirect result of any breach by us of this letter; or
(b) is identified in writing at the time of delivery as non-confidential by you or your advisers; or
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(c) is known by us before the date the information is disclosed to us by you or any of your affiliates or advisers or is lawfully obtained by us after that date, from a source which is, as far as we are aware, unconnected with the Group and which, in either case, as far as we are aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality;
Group means the Company and its subsidiaries for the time being (as such term is defined in the Companies Act 2006); and
Permitted Purpose means considering and evaluating whether to enter into the Acquisition.
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully
.................................
For and on behalf of
[Potential Purchaser]
For and on behalf of
[Potential Purchaser]
To: [Potential Purchaser]
We acknowledge and agree to the above:
...................................
For and on behalf of
[Seller]
For and on behalf of
[Seller]
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SCHEDULE 8
TIMETABLES
TIMETABLES
Each time shown below represents the Specified Time by which the relevant action listed in the far left column must be completed on a particular day:
Part A
Loans
Loans
| Loans in US Dollars | Loans in euro | Loans in sterling | Loans in other currencies | |||||||||||
Facilities Agent notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 11.3 (Conditions relating to Optional Currencies) | 3:00 pm (London time) 4 Business Days before the proposed Utilisation Date | |||||||||||||
Delivery of a duly completed Loan Utilisation Request (Clause 5.1 (Delivery of a Loan Utilisation Request)) | 4:00 pm (London time) 3 US Government Securities Business Days before the proposed Utilisation Date | 4:00 pm (London time) 3 Business Days before the proposed Utilisation Date | 3:00 pm (London time) 1 Business Day before the proposed Utilisation Date | 4:00 pm (London time) 3 Business Days before the proposed Utilisation Date | ||||||||||
Facilities Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lender’s participation) | 10:00 am (London time) 2 US Government Securities Business Days before the proposed Utilisation Date | 10:00 am (London time) 2 Business Days before the proposed Utilisation Date | 5:00 pm (London time) 1 Business Days before the proposed Utilisation Date | 10:00 am (London time) 2 Business Days before the proposed Utilisation Date | ||||||||||
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Facilities Agent receives a notification from a Lender under Clause 11.2 (Unavailability of a currency) | 11:00 am (London time) 2 Business Days before the proposed Utilisation Date | |||||||||||||
Facilities Agent gives notice in accordance with Clause 11.2 (Unavailability of a currency) | 12:00 pm (London time) 2 Business Days before the proposed Utilisation Date | |||||||||||||
| EURIBOR is fixed | 11:00 am (Brussels time) on the Quotation Day | |||||||||||||
Lenders to make available their participation in a Loan under Clause 5.4 (Lenders’ participation) | 2:00 pm (London time) on the Utilisation Date | 2:00 pm (London time) on the Utilisation Date | 2:00 pm (London time) on the Utilisation Date | 2:00 pm (London time) on the Utilisation Date | ||||||||||
Part B
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Bonds
Facilities Agent notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 11.3 (Conditions relating to Optional Currencies) | 8 Business Days before the proposed Bond Utilisation | ||||
Delivery of a duly completed Bond Utilisation Request (Clause 6.3 (Delivery of a Bond Utilisation Request)) | 3:00 pm (London time) 3 Business Days before the proposed Bond Utilisation | ||||
Facilities Agent notifies the relevant Tranche D Lenders of the Bond in accordance with Clause 6.7 (Issue of Bonds) | 5:00 pm (London time) 3 Business Days before the proposed Bond Utilisation | ||||
Delivery of a duly completed Renewal Request (Clause 6.8(a) (Renewal of a Bond)) | 2 Business Days before the proposed Bond Utilisation on renewal. | ||||
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Part C
Swingline Loans
Swingline Loans
| Tranche A | Tranche B | Tranche C | |||||||||
Delivery of a duly completed Swingline Loan Utilisation Request (Clause 8.2 (Delivery of a Swingline Loan Utilisation Request)) | 11:00 am (New York time) on the Utilisation Date | 10:00 am (London time) on the Utilisation Date | 9:00 am (London time) on the Utilisation Date | ||||||||
Facilities Agent notifies each Swingline Lender of the amount of its participation in the Swingline Loan under Clause 8.5 (Swingline Lenders’ participation) | 12:00 pm (New York time) on the Utilisation Date | 11:00 am (London time) on the Utilisation Date | 10:00 am (London time) on the Utilisation Date | ||||||||
Facilities Agent determines the prime commercial lending rate under Clause 9.6 (Interest) | 9:30 am (New York time) on the Utilisation Date | Not applicable | Not applicable | ||||||||
Lenders to make available their participation in a Loan under Clause 8.5 (Swingline Lenders’ participation) | 2:00 pm (New York time) on the Utilisation Date | 2:00 pm (London time) on the Utilisation Date | 2:00 pm (London time) on the Utilisation Date | ||||||||
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SCHEDULE 9
FORM OF INCREASE CONFIRMATION
FORM OF INCREASE CONFIRMATION
To: [●] as Facilities Agent and Carnival Corporation as the Company, for and on behalf of each Obligor
[Copied to: The Company]5
From: [the Increase Lender] (the Increase Lender)
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.
2. We refer to Clause 2.2 (Increase) of the Agreement.
3. The Increase Lender agrees to assume and will assume all of the obligations corresponding to the [Commitment/Swingline Commitment] specified in the Schedule (the Relevant Commitment) as if it was an Original Lender under the Agreement.
4. The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the Increase Date) is [●].
5. On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.
6. The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 37.2 (Addresses) of the Agreement are set out in the Schedule.
7. The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in Clause 2.2(g) (Increase) of the Agreement.
8. The Increase Lender confirms, for the benefit of the Facilities Agent and without liability to any Obligor, that:
(a) for the purposes of Clause 18.6 (Lender Status Confirmation) of the Agreement, it is:
(i) [a Qualifying Lender (other than a Treaty Lender)];
(ii) [a Treaty Lender];
(iii) [not a Qualifying Lender]; and
(b) for the purposes of Clause 18.14 (Lender Status Confirmation) of the Agreement, it is:
(i) [a Qualifying Lender (other than a Treaty Lender or an Exempted Lender];
(ii) [a Treaty Lender];
(iii) [an Exempted Lender];
(iv) [not a Qualifying Lender].
5 Include if the Increase Lender includes a Treaty Passport Scheme notification (see clause 18). To be provided to the Company within 7 days.
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9. [The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(a) a company resident in the United Kingdom for United Kingdom tax purposes; or
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of CTA 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of CTA 2009; or
(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of CTA 2009) of that company.]6
[9 The Increase Lender confirms that it holds a passport under the HMRC DT Treaty Passport reference number is [ ] and it is tax resident in [ ]7), and, accordingly, interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and requests that the Company notify;
(a) the Borrower which is a Party as Borrower as at the Increase Date; and
(d) each Additional Subsidiary Guarantor which becomes an Additional Subsidiary Guarantor after the Increase Date,
that it wishes that scheme to apply to the Agreement where the Borrower is a Borrower to which Clauses 18.2 to 18.7 apply.]8
[10/11.] The Increase Lender confirms that [it is]/[it is not] a Non-Eligible Tranche D Lender.9
[11/12.] The Increase Lender expressly confirms that it [can/cannot] exempt the Facilities Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 31.1 (Appointment of the Facilities Agent) of the Agreement.
[12/13.] This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.
[13/14.] This Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by English law.
[14/15.] This Agreement has been entered into on the date stated at the beginning of this Agreement.
6 Include only if New Lender is a U.K. Non-Bank Lender i.e. falls within such definition in Clause 18.2 (General).
7 Insert jurisdiction of tax residence.
8 Include only if the Increase Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
9 Include only in relation to Tranche A Commitments.
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THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[insert relevant details]
[Facility office address, fax number and attention details for notices and account details for payments]
[Increase Lender]
By:
This Increase Confirmation is accepted as an Increase Confirmation for the purposes of the Agreement by the Facilities Agent and the Increase Date is confirmed as [●].
| Facilities Agent | |||||
| By: | |||||
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SCHEDULE 10
FORM OF LENDER ACCESSION AGREEMENT
FORM OF LENDER ACCESSION AGREEMENT
To: [●] as Facilities Agent
[Copied to: The Company]10
From: [The Additional Lender] (the Additional Lender)
Dated: [●]
CARNIVAL CORPORATION AND CARNIVAL PLC –Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Lender Accession Agreement for the purposes of Clause 29.9 (Additional Lenders) of the Agreement. Terms defined in the Agreement have the same meaning in this Lender Accession Agreement unless given a different meaning in this Lender Accession Agreement.
(a) The Additional Lender agrees to provide the Commitment and Swingline Commitment in the amounts in the Schedule.
(b) The Facility Office and address, fax number and attention details for notices of the Additional Lender for the purposes of Clause 37.2 (Addresses) of the Agreement are set out in the Schedule.
2. The Additional Lender expressly acknowledges the limitations in respect of this Lender Accession Agreement set out in of Clause 29.3 (Limitation of responsibility of Existing Lenders) of the Agreement.
3. [The Additional Lender confirms, for the benefit of the Facilities Agent and without liability to any Obligor, that:
(a) for the purposes of Clause 18.6 (Lender Status Confirmation) of the Agreement it is:
(i) [a Qualifying Lender (other than a Treaty Lender);]
(ii) [a Treaty Lender;]
(iii) [not a Qualifying Lender]; and
(b) for the purposes of Clause 18.14 (Lender Status Confirmation) of the Agreement, it is:
(i) [a Qualifying Lender (other than a Treaty Lender or an Exempted Lender);]
(ii) [a Treaty Lender;]
(iii) [an Exempted Lender;]
(iv) [not a Qualifying Lender].]
4. [The Additional Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(a) a company resident in the United Kingdom for United Kingdom tax purposes;
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
10 Include if the Additional Lender includes a Treaty Passport Scheme notification in paragraph 7. To be provided to the Company within 7 days.
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(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of CTA 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of CTA 2009; or
(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of CTA 2009) of that company.] 11
[7 The Additional Lender confirms that it holds a passport under HMRC DT Treaty Passport scheme (reference number is [ ] and it is tax resident in [ ]), and, accordingly, interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and requests that the Company notify:
(d) the Borrower which is a Party as Borrower as at the Additional Increase Date; and
(e) each Additional Subsidiary Guarantor which becomes an Additional Subsidiary Guarantor after the Additional Increase Date,
that it wishes that scheme to apply to the Agreement where the Borrower is a Borrower to which Clauses 18.2 to 18.7 apply.]12
[6/7] The Additional Lender confirms that [it is]/[it is not] a Non-Eligible Tranche D Lender.13
[7/8] The Additional Lender expressly confirms that it [can/cannot] exempt the Facilities Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 31.1 (Appointment of the Facilities Agent) of the Agreement.
[8/9] This Lender Accession Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Lender Accession Agreement.
[9/10] This Lender Accession Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
11 Include only if the Additional Lender is a U.K. Non-Bank Lender.
12 Include only if the Additional Lender is a Treaty Passport holder required to notify under Clause 18.
13 Include only in relation to Tranche A Commitments.
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The Schedule
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and account details for payments,]
[Additional Lender]
By:
This Lender Accession Agreement is accepted by the Facilities Agent and the Additional Increase Date is confirmed as [●].
[Facilities Agent]
By:
Page 186
SCHEDULE 11
FORM OF EXTENSION REQUEST
FORM OF EXTENSION REQUEST
From: CARNIVAL CORPORATION
To: [●] (Facilities Agent)
Dated: [●]
Dear Sirs
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is an Extension Request. Terms defined in the Agreement have the same meaning in this Extension Request unless given a different meaning in this Extension Request.
2. We wish to extend the Termination Date as follows:
Termination Date: 12 months after the Original Termination Date
Facility(ies): [A/B/C/D]
[Part of Facility(ies): [●]]
Yours faithfully
…………………………………
authorised signatory for
CARNIVAL CORPORATION
authorised signatory for
CARNIVAL CORPORATION
[…………………………………
authorised signatory for
[Italian Obligor]]
authorised signatory for
[Italian Obligor]]
Page 187
SCHEDULE 12
PUBLISHED RATE CONTINGENCY PERIODS
PUBLISHED RATE CONTINGENCY PERIODS
| Term Reference Rate | Period | ||||
| Term SOFR (all Quoted Tenors) | 1 Month | ||||
| EURIBOR | 1 Month | ||||
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SCHEDULE 13
FORM OF SELF-DECLARATION14
FORM OF SELF-DECLARATION14
[on Lender's letterhead – to be delivered in original]
To: []
Cc: []
Name of the [Lender]:15
[Lender's] full address:
Name of the [Lender's] legal representative:16 17
Legal representative's lieu and date of birth:
Legal representative's full address:
This certificate relates to the Tranche C Commitment.
The undersigned, in [his/her/their] capacity as legal representative[s] of [name of Lender], in referring to the Facilities Agreement for Multicurrency Revolving Facilities dated [] 2023 between, among others, [], [], (as Original Lender) and [] (as Facilities Agent) (the Facilities Agreement), declare[s] for the purposes of article 26, paragraph 5-bis, of the Italian Presidential Decree no. 600/1973 that18:
1. [Lender 19] is a bank established in [EU country of establishment] [and is resident for tax purposes therein] not acting for the purposes of the Finance Documents through a permanent establishment (stabile organizzazione) located outside of the European Union20;
or
2. [Lender] is an insurance company incorporated in, and authorised according to the law of, [EU country], and is resident for tax purposes therein;
or
3. [Lender] is: (i) a foreign institutional investor in the meaning of article 6, paragraph 1, let. b), of the Italian Legislative Decree no. 239/1996, set up in a country allowing an adequate
14 To the extent that the Lender has entered into a sub-participation of any of the Loans it has advanced under this Agreement, this certificate should be completed by such sub-participant.
15 Please indicate details of Facility Office holding the Commitments (including name, address and tax local tax registration number), where applicable.
16 If there is more than one individual having powers to represent the Lender jointly, please indicate details of each such individual (including name and address).
17 If legal representative is a legal entity, please indicate details of the individual legal representative of such legal entity (including name and address).
18 Please flag the relevant box.
19 Please indicate the branch office granting the loan if this is the case.
20 Not applicable in case of branch/permanent establishment.
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exchange of information with Italy which is included in the Italian Ministerial decree 4 September 1996 as amended from time to time or in any subsequent legislation, and (ii) subject to regulatory supervision in in the state where it is set up.
and
4. [Lender] is the beneficial owner for tax purposes of any payments payable to [Lender] under the Facilities Agreement.
and
5. The [Lender]'s activity in connection with the Facilities Agreement is not in breach of the provisions of the Italian Banking Law (Legislative Decree No. 358 dated 1 September 1993) relating to reserved matters which set forth the restrictions applicable to lending activities vis-à-vis the public.
and
6. The information contained herein is true and the [Lender] commits itself to communicate any new circumstances that modify any of the information provided or the statements made above while it remains [a Party to the Facilities Agreement/ a sub-participant].
Date Signature
[name and surname]
Annex: with respect to the entity under n. 3 above, adequate documentation supporting that it is subject to regulatory supervision.
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SCHEDULE 14
ORIGINAL LENDING AFFILIATES
ORIGINAL LENDING AFFILIATES
PART I
The Original Lending Affiliates - other than UK Non-Bank Lenders
The Original Lending Affiliates - other than UK Non-Bank Lenders
| Name of Original Lender | Name of Original Lending Affiliate(s) | Treaty Passport scheme reference number and jurisdiction of tax residence (if applicable) of Original Lending Affiliate | Lending Affiliate Utilisation(s) | ||||||||
| None | |||||||||||
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SCHEDULE 15
FORM OF NEW LENDING AFFILIATE APPOINTMENT NOTICE
FORM OF NEW LENDING AFFILIATE APPOINTMENT NOTICE
To: [ ] as Facilities Agent
From: [The Appointing Lender] (the Appointing Lender) and [The New Lending Affiliate] (the New Lending Affiliate)
Dated:
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a New Lending Affiliate Appointment Notice. Terms defined in the Agreement have the same meaning in this New Lending Affiliate Appointment Notice unless given a different meaning in this New Lending Affiliate Appointment Notice.
2. We refer to Clause 44.3 (Appointment of New Lending Affiliates) of the Agreement:
(a) The Appointing Lender appoints the New Lending Affiliate as a party to the Agreement as a New Lending Affiliate of the Appointing Lender and the New Lending Affiliate agrees to that appointment.
(b) The proposed Appointment Date is [ ].
(c) The Facility Office of the New Lending Affiliate is set out in the Schedule.
3. The New Lending Affiliate confirms, for the benefit of the Facilities Agent and without liability to any Obligor, that
(a) for the purposes of Clause 18.6 (Lender Status Confirmation) of the Agreement it is:
(i) [a Qualifying Lender (other than a Treaty Lender);]
(ii) [a Treaty Lender;]
(iii) [not a Qualifying Lender]; and
(b) for the purposes of Clause 18.14 (Lender Status Confirmation) of the Agreement, it is:
(i) [a Qualifying Lender (other than a Treaty Lender or an Exempted Lender);]
(ii) [a Treaty Lender;]
(iii) [an Exempted Lender;]
(iv) [not a Qualifying Lender].]
4. [The New Lending Affiliate confirms that the person beneficially entitled to interest payable to that New Lending Affiliate in respect of an advance under a Finance Document is either:
(a) a company resident in the United Kingdom for United Kingdom tax purposes;
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings
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into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]21
5. [The New Lending Affiliate confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ]22, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and requests that the Company notify:
(a) the Borrower which is a Party as Borrower as at the Appointment Date; and
(b) each Additional Subsidiary Guarantor which becomes an Additional Subsidiary Guarantor after the Appointment Date,
that it wishes that scheme to apply to the Agreement.]23
[5/6]. The New Lending Affiliate expressly confirms that it [can/cannot] exempt the Facilities Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 31.1 (Appointment of the Facilities Agent) of the Agreement.
[6/7]. This New Lending Affiliate Appointment Notice may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this New Lending Affiliate Appointment Notice.
[7/8]. This New Lending Affiliate Appointment Notice and any non-contractual obligations arising out of or in connection with it are governed by English law.
[8/9]. This New Lending Affiliate Appointment Notice has been entered into on the date stated at the beginning of this New Lending Affiliate Appointment Notice.
21 Include if the New Lending Affiliate comes within paragraph (i)(B) of the definition of Qualifying Lender in Clause 15.1 (Definitions).
* Insert jurisdiction of tax residence.
** Include if the New Lending Affiliate holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
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THE SCHEDULE
[New Lending Affiliate's Facility Office and account details for payments]
| [Appointing Lender] | [New Lending Affiliate] | ||||
| By: | By: | ||||
This New Lending Affiliate Appointment Notice is accepted by the Facilities Agent and the Appointment Date is confirmed as [ ].
[Facilities Agent]
By:
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SCHEDULE 16
FORM OF LENDING AFFILIATE UTILISATION NOTICE
FORM OF LENDING AFFILIATE UTILISATION NOTICE
To: [ ] as Facilities Agent and Carnival Corporation as Company
From: [The Appointing Lender] (the Appointing Lender) and [the Lending Affiliate] (the Lending Affiliate)
Dated:
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Lending Affiliate Utilisation Notice. Terms defined in the Agreement have the same meaning in this Lending Affiliate Utilisation Notice unless given a different meaning in this Lending Affiliate Utilisation Notice.
2. We refer to Clause 44.5 (Nomination of Lending Affiliate Utilisations) of the Agreement. The Appointing Lender nominates the Lending Affiliate to participate in:
[specify, by reference to one or more of the criteria listed in paragraph (f) of Clause 44.5 (Nomination of Lending Affiliate Utilisations) of the Agreement, each individual Utilisation or class of Utilisation, in which the Lending Affiliate is to participate in place of the Appointing Lender]
(the Lending Affiliate Utilisation[s]).
3. The Lending Affiliate confirms that it is a Party as a Lending Affiliate, acknowledges the nomination described in paragraph 2 above and confirms that it shall participate in the Lending Affiliate Utilisation[s].
| [Appointing Lender] | ||
| By: | ||
| [Lending Affiliate] | ||
| By: | ||
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SCHEDULE 17
FORM OF LENDING AFFILIATE RESIGNATION NOTICE
FORM OF LENDING AFFILIATE RESIGNATION NOTICE
To: [ ] as Facilities Agent
From: [Resigning Lending Affiliate] (the Resigning Lending Affiliate) and [Appointing Lender] (the Appointing Lender)
Dated:
CARNIVAL CORPORATION AND CARNIVAL PLC – Multicurrency Revolving Facilities Agreement dated [●] 2023 (the Agreement)
1. We refer to the Agreement. This is a Lending Affiliate Resignation Notice. Terms defined in the Agreement have the same meaning in this Lending Affiliate Resignation Notice unless given a different meaning in this Lending Affiliate Resignation Notice.
2. We refer to Clause 44.13 (Resignation of Lending Affiliate) of the Agreement and request that the Resigning Lending Affiliate cease to be a Lending Affiliate under the Agreement.
3. We confirm that:
(a) no Lending Affiliate Utilisation in respect of which the Resigning Lending Affiliate has rights or obligations under the Agreement is outstanding; and
(b) any nomination of the Lending Affiliate to participate in any Utilisation, or class of Utilisation, shall be cancelled on the Facilities Agent's acceptance of this Lending Affiliate Resignation Notice.
4. This Lending Affiliate Resignation Notice and any non-contractual obligations arising out of or in connection with it are governed by English law.
[Resigning Lending Affiliate]
By:
[Appointing Lender]
By:
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SCHEDULE 18
REFERENCE RATE TERMS
REFERENCE RATE TERMS
Part A
Sterling
Sterling
| CURRENCY: | Sterling. | |||||||
| Cost of funds as a fallback | Cost of funds will not apply as a fallback. | |||||||
| Definitions | ||||||||
| Additional Business Days: | means an RFR Banking Day. | |||||||
| Applicable Rate Floor: | means zero. | |||||||
Business Day Conventions (definition of Month and Clause 15.2 (Non-Business Days)): | (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: | |||||||
(i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. | ||||||||
(b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). | ||||||||
| Central Bank Rate: | means the Bank of England’s Bank Rate as published by the Bank of England from time to time. | |||||||
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| Central Bank Rate Adjustment: | means, in relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent trimmed arithmetic mean (calculated by the Facilities Agent (or any other Finance Party which agrees to do so in place of the Facilities Agent)) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which SONIA (sterling overnight index average) is available. | |||||||
| Central Bank Rate Spread: | means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facilities Agent (or any other Finance Party which agrees to do so in place of the Facilities Agent) between: (a) SONIA for the RFR Banking Day; and (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day. | |||||||
Credit Adjustment Spread: | 1 month or less | 0.0326 | ||||||
| 3 months | 0.1193 | |||||||
| 6 months | 0.2766 | |||||||
| Daily Rate: | means in relation to any RFR Banking Day: | |||||||
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(a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than 5 RFR Banking Days before that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment, rounded, in each case, to four decimal places and if, in either case, the aggregate of that rate and the applicable Credit Adjustment Spread is less than the Applicable Rate Floor, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is the Applicable Rate Floor. | ||||||||
| Lookback Period: | means 5 (five) RFR Banking Days. | |||||||
| Relevant Market: | The sterling wholesale market. | |||||||
| Reporting Day: | means the day which is the Lookback Period prior to the last day of the Interest Period or if that day is not a Business Day, the immediately following Business Day. | |||||||
| RFR: | The SONIA (sterling overnight index average) reference rate displayed on the relevant screen of any authorised distributor of that reference rate. | |||||||
| RFR Banking Day: | means a day (other than a Saturday or Sunday) on which banks are open for general business in London. | |||||||
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Part B
US dollars
US dollars
| CURRENCY: | US Dollars. | ||||
| Cost of funds as a fallback | Cost of funds will not apply as a fallback. | ||||
| Definitions | |||||
| Additional Business Days: | means an RFR Banking Day. | ||||
| Applicable Rate Floor: | means zero. | ||||
Business Day Conventions (definition of Month and Clause 15.2 (Non-Business Days)): | (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: | ||||
(i) subject to paragraph (iii) above, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and (iii) if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. | |||||
(b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). | |||||
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| Central Bank Rate: | (a) The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or (b) if that target is not a single figure, the arithmetic mean of: (i) the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and (ii) the lower bound of that target range. | ||||
| Central Bank Rate Adjustment: | means, in relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent trimmed arithmetic mean (calculated by the Facilities Agent (or any other Finance Party which agrees to do so in place of the Facilities Agent)) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. | ||||
| Central Bank Rate Spread: | means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facilities Agent (or any other Finance Party which agrees to do so in place of the Facilities Agent) between: (a) the RFR for the RFR Banking Day; and (b) the Central Bank Rate prevailing at the close of business on that RFR Banking Day. | ||||
| Daily Rate: | means in relation to any RFR Banking Day: | ||||
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(a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than 5 RFR Banking Days before that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment, rounded, in each case, to five decimal places and if, in either case, the aggregate of that rate and the applicable USD Credit Adjustment Spread is less than the Applicable Rate Floor, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable USD Credit Adjustment Spread is the Applicable Rate Floor. | |||||
| Lookback Period: | means 5 (five) RFR Banking Days. | ||||
| Relevant Market: | The market for overnight cash borrowing collateralised by US Government securities. | ||||
| Reporting Day: | means the day which is the Lookback Period prior to the last day of the Interest Period or if that day is not a Business Day, the immediately following Business Day. | ||||
| RFR: | The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). | ||||
| RFR Banking Day: | Any day other than: (a) a Saturday or Sunday; and (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. | ||||
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SCHEDULE 19
DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Compounded Rate Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below:
where:
"UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";
"UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period;
"dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;
"ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and
the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose):
where:
"ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;
"tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;
"Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day;
"dcc" has the meaning given to that term above; and
the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to 4 decimal places) calculated as set out below:
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where:
"d0" means the number of RFR Banking Days in the Cumulation Period;
"Cumulation Period" has the meaning given to that term above;
"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
"DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i";
"ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;
"dcc" has the meaning given to that term above; and
"tni" has the meaning given to that term above.
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SCHEDULE 20
ADDITIONAL RESTRICTIVE COVENANTS
ADDITIONAL RESTRICTIVE COVENANTS
Reference in this Schedule 20 (this “Schedule”) is made to Carnival Corporation, a Panamanian corporation (“Carnival Corporation”), and Carnival plc, a company incorporated and registered under the laws of England and Wales (“Carnival plc”).
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions
“2023 Convertible Senior Notes” means the 5.75% Convertible Senior Notes due 2023 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2023 Convertible Senior Notes”), issued pursuant to the 2023 Convertible Senior Notes Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2023 Convertible Senior Note” for purposes of the foregoing definition (other than the Signing Date 2003 Convertible Senior Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2023 Convertible Senior Note.”
“2023 Convertible Senior Notes Indenture” means the Indenture, dated as of April 6, 2020, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2024 Convertible Senior Notes” means the 5.75% Convertible Senior Notes due 2024 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2024 Convertible Senior Notes”), issued pursuant to the 2024 Convertible Senior Notes Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2024 Convertible Senior Note” for purposes of the foregoing definition (other than the Signing Date 2004 Convertible Senior Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2024 Convertible Senior Note.”
“2024 Convertible Senior Notes Indenture” means the Indenture, dated as of August 22, 2022, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee thereunder.
“2026 Second-Priority Note Indenture” means the Indenture, dated as of July 20, 2020 and supplemented on November 18, 2020, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2026 Second-Priority Secured Notes” means the 10.500% Second-Priority Senior Secured Notes due 2026 and the 10.125% Second-Priority Senior Secured Notes due 2026 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2026 Second-Priority Secured Notes”), issued pursuant to the 2026 Second-Priority Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original
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lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2026 Second-Priority Secured Note” for purposes of the foregoing definition (other than the Signing Date 2026 Second-Priority Secured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2026 Second-Priority Secured Note.”
“2026 Unsecured Notes” means the U.S. dollar-denominated 7.625% Senior Unsecured Notes due 2026 and the euro-denominated 7.625% Senior Unsecured Notes due 2026 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2026 Unsecured Notes”), issued pursuant to the 2026 Unsecured Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2026 Unsecured Note” for purposes of the foregoing definition (other than the Signing Date 2026 Unsecured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2026 Unsecured Note.”
“2026 Unsecured Note Indenture” means the Indenture, dated as of November 25, 2020, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2027 Convertible Senior Notes” means the 5.75% Convertible Senior Notes due 2027 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2027 Convertible Senior Notes”), issued pursuant to the 2027 Convertible Senior Notes Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2027 Convertible Senior Note” for purposes of the foregoing definition (other than the Signing Date 2027 Convertible Senior Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2027 Convertible Senior Note.”
“2027 Convertible Senior Notes Indenture” means the Indenture, dated as of November 18, 2022, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee thereunder.
“2027 First-Priority Secured Notes” means the 7.875% Debentures due 2027 of Carnival Corporation (as in effect on the Signing Date, the “Signing Date 2027 First-Priority Secured Notes”), issued pursuant to the Indenture, dated as of October 23, 2000 (as supplemented on July 15, 2003 with respect to the 2027 First-Priority Secured Notes, and as further supplemented on December 1, 2003), among Carnival Corporation, as issuer, Carnival plc, as guarantor, and The Bank of New York Mellon, as trustee, as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2027 First-Priority Secured Note” for purposes of the foregoing definition (other than the Signing Date 2027 First-Priority Secured Notes) unless such instrument is designated to the Facilities
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Agreement Agent in writing by Carnival Corporation as constituting a “2027 First-Priority Secured Note.”
“2027 Second-Priority Note Indenture” means the Indenture, dated as of August 18, 2020 and as supplemented on November 18, 2020, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2027 Second-Priority Secured Notes” means the 9.875% Second-Priority Senior Secured Notes due 2027 of Carnival Corporation (together, as in effect on the Signing Date, the “Signing Date 2027 Second-Priority Secured Notes”), issued pursuant to the 2027 Second-Priority Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2027 Second-Priority Secured Note” for purposes of the foregoing definition (other than the Signing Date 2027 Second-Priority Secured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2027 Second-Priority Secured Note.”
“2027 Unsecured Note Indenture” means the Indenture, dated as of February 16, 2021, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2027 Unsecured Notes” means the 5.750% Senior Unsecured Notes due 2027 of Carnival Corporation (as in effect on the Signing Date, the “Signing Date 2027 Unsecured Notes”), issued pursuant to the 2027 Unsecured Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2027 Unsecured Note” for purposes of the foregoing definition (other than the Signing Date 2027 Unsecured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2027 Unsecured Note.”
“2028 First-Priority Note Indenture” means the Indenture, dated as of July 26, 2021, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2028 First-Priority Secured Notes” means the 4.000% First-Priority Senior Secured Notes due 2028 of Carnival Corporation (as in effect on the Signing Date, the “Signing Date 2028 First-Priority Secured Notes”), issued pursuant to the 2028 First-Priority Note Indenture, as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2028 First-Priority Secured Note” for purposes of the foregoing definition (other than the Signing Date 2028 First-Priority Secured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2028 First-Priority Secured Note.”
“2028 Senior Priority Note Indenture” means the Indenture, dated as of October 25, 2022, among Carnival Holdings (Bermuda) Limited, Carnival Corporation, Carnival plc and the various
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other guarantors party thereto, and U.S. Bank Trust Company, National Association, as trustee thereunder.
“2028 Senior Priority Notes” means the 10.375% Senior Priority Notes due 2028 of Carnival Holdings (Bermuda) Limited (as in effect on the Signing Date, the “Signing Date 2028 Senior Priority Notes”), issued pursuant to the 2028 Senior Priority Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2028 Senior Priority Note” for purposes of the foregoing definition (other than the Signing Date 2028 Senior Priority Notes) unless such instrument is designated to the Facilities Agent Agreement in writing by Carnival Corporation as constituting a “2028 Senior Priority Note” to the Facilities Agreement Agent.
“2029 Unsecured Note Indenture” means the Indenture, dated as of November 2, 2021, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee thereunder.
“2029 Unsecured Notes” means the 6.000% Senior Unsecured Notes due 2029 of Carnival Corporation (as in effect on the Signing Date, the “Signing Date 2029 Unsecured Notes”), issued pursuant to the 2029 Unsecured Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2029 Unsecured Note” for purposes of the foregoing definition (other than the Signing Date 2029 Unsecured Notes) unless such instrument is designated to the Facilities Agent Agreement in writing by Carnival Corporation as constituting a “2029 Unsecured Note.”
“2030 Unsecured Note Indenture” means the Indenture, dated as of May 25, 2022, among Carnival Corporation, Carnival plc, the various guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee thereunder.
“2030 Unsecured Notes” means the 10.500% Senior Unsecured Notes due 2030 of Carnival Corporation (as in effect on the Signing Date, the “Signing Date 2030 Unsecured Notes”), issued pursuant to the 2030 Unsecured Note Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument shall constitute a “2030 Unsecured Note” for purposes of the foregoing definition (other than the Signing Date 2030 Unsecured Notes) unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “2030 Unsecured Note.”
“Acquired Debt” means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary; and
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(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Attributable Debt” means, with respect to any sale and leaseback transaction, at the time of determination, the present value (discounted at the interest rate reasonably determined in good faith by a responsible financial or accounting officer of Carnival Corporation to be the interest rate implicit in the lease determined in accordance with GAAP, or, if not known, at the Company’s incremental borrowing rate) of the total obligations of the lessee of the property subject to such lease for rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended, or until the earliest date on which the lessee may terminate such lease without penalty or upon payment of penalty (in which case the rental payments shall include such penalty), after excluding from such rental payments all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water, utilities and similar charges; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.” For the avoidance of doubt, none of the Bareboat Charters (as defined in the Facilities Agreement) or any other time charters, bareboat charters or other intercompany arrangements among the Company and its Restricted Subsidiaries will be deemed to be or result in “Attributable Debt.”
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Capital Lease Obligation” means, with respect to any Person, any obligation of such Person under a lease of (or other agreement conveying the right to use) any property (whether real, personal or mixed), which obligation is required to be classified and accounted for as a finance lease obligation under GAAP, and, for purposes of this Schedule, the amount of such obligation at any date will be the capitalized amount thereof at such date, determined in accordance with GAAP and the Stated Maturity thereof will be the date of last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but
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excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Cash Equivalents” means:
(1) direct obligations (or certificates representing an interest in such obligations) issued by, or unconditionally guaranteed by, the European Union, the government of a member state of the European Union, the United States of America, the United Kingdom, Switzerland or Canada (including, in each case, any agency or instrumentality thereof), as the case may be, the payment of which is backed by the full faith and credit of the European Union, the relevant member state of the European Union or the United States of America, the United Kingdom, Switzerland or Canada, as the case may be;
(2) overnight bank deposits, time deposit accounts, certificates of deposit, banker’s acceptances and money market deposits (and similar instruments) with maturities of 12 months or less from the date of acquisition issued by a bank or trust company which is organized under, or authorized to operate as a bank or trust company under, the laws of a member state of the European Union or of the United States of America or any state thereof, Switzerland, the United Kingdom, Australia or Canada; provided that such bank or trust company has capital, surplus and undivided profits aggregating in excess of $250.0 million (or the foreign currency equivalent thereof as of the date of such investment) and whose long-term debt is rated “A-1” or higher by Moody’s or “A+” or higher by S&P or the equivalent rating category of another internationally recognized rating agency; provided, further, that any cash held pursuant to clause (6) below not covered by the foregoing may be held through overnight bank deposits, time deposit accounts, certificates of deposit, banker’s acceptances and money market deposits (and similar instruments) with maturities of 12 months or less from the date of acquisition issued by a bank or trust company organized and operating in the applicable jurisdiction;
(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (1) and (2) above entered into with any financial institution meeting the qualifications specified in clause (2) above;
(4) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after the date of acquisition;
(5) money market funds or other mutual funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (4) of this definition; and
(6) cash in any currency in which the Company and its subsidiaries now or in the future operate, in such amounts as the Company determines to be necessary in the ordinary course of their business.
“Commission” means the U.S. Securities and Exchange Commission.
“Company” has the meaning assigned to such term in the Facilities Agreement.
“Consolidated EBITDA” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus the following to the extent deducted in calculating such Consolidated Net Income, without duplication:
(1) provision for taxes based on income or profits of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(2) the Consolidated Interest Expense of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(3) depreciation, amortization (including amortization of intangibles and deferred financing fees but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in
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any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) of such Person and its Subsidiaries which are Restricted Subsidiaries for such period; plus
(4) any expenses, charges or other costs related to any Equity Offering or issuance of Subordinated Shareholder Funding permitted by this Schedule or relating to the offering of the Existing Unsecured Notes, in each case, as determined in good faith by Carnival Corporation; plus
(5) any expenses or charges (other than depreciation and amortization expenses) related to any issuance of Equity Interests or the making of any Investment, acquisition, disposition, recapitalization or the incurrence, modification or repayment of Indebtedness permitted to be incurred by this Schedule (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the Transactions or any Credit Facilities, and (ii) any amendment or other modification of Indebtedness; plus
(6) business optimization expenses and other restructuring charges, reserves or expenses (which, for the avoidance of doubt, shall include, without limitation, the effect of inventory optimization programs, facility, branch, office or business unit closures, facility, branch, office or business unit consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); plus
(7) the amount of any management, monitoring, consulting and advisory fees and related expenses paid in such period to consultants and advisors; plus
(8) any costs or expense incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expense are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in Section 2.03(a)(iii)(B); plus
(9) the amount of any minority interest expense consisting of subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Restricted Subsidiary in such period or any prior period, except to the extent of dividends declared or paid on, or other cash payments in respect of, Equity Interests held by such parties; plus
(10) all adjustments of the nature used in connection with the calculation of “adjusted net income” as set forth in footnote (3) to the “Summary Historical Financial and Other Data” under “Summary” in the final offering memorandum in respect of the 2028 Senior Priority Notes to the extent such adjustments, without duplication, continue to be applicable to such period; minus
(11) non-cash items increasing such Consolidated Net Income for such period (other than any non-cash items increasing such Consolidated Net Income pursuant to clauses (1) through (16) of the definition of “Consolidated Net Income”), other than the reversal of a reserve for cash charges in a future period in the ordinary course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense (net of interest income) of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt discount (but not debt issuance costs);
(2) non-cash interest payments;
(3) the interest component of deferred payment obligations;
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(4) the interest component of all payments associated with Capital Lease Obligations;
(5) commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates;
(6) the consolidated interest expense of such Person and its Subsidiaries which are Restricted Subsidiaries that was capitalized during such period;
(7) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries which are Restricted Subsidiaries or is secured by a Lien on assets of such Person or one of its Subsidiaries which are Restricted Subsidiaries; and
(8) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of any Restricted Subsidiary, other than dividends on Equity Interests payable to the Company or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined national, state and local statutory tax rate of such Person, expressed as a decimal, as estimated in good faith by a responsible accounting or financial officer of Carnival Corporation.
Notwithstanding any of the foregoing, Consolidated Interest Expense shall not include any payments on any operating leases.
“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) attributable to such Person and its Subsidiaries which are Restricted Subsidiaries for such period determined on a consolidated basis (excluding the net income (loss) of any Unrestricted Subsidiary), determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
(1) any goodwill or other intangible asset impairment, charge, amortization or write-off, including debt issuance costs, will be excluded;
(2) the net income (loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary which is a Subsidiary of the Person;
(3) [reserved];
(4) any net gain (or loss) realized upon the sale or other disposition of any asset or disposed operations of the Company or any Restricted Subsidiaries (including pursuant to any sale leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by Carnival Corporation) or in connection with the sale or disposition of securities will be excluded;
(5) any net after-tax extraordinary, exceptional, nonrecurring or unusual gains or losses or income or expense or charge (less all fees and expenses relating thereto), any severance, relocation or other restructuring expenses, curtailments or modifications to pension and post-retirement employee benefit plans, excess pension charges (including, in each case, any cost or expense related to employment of terminated employees), any expenses related to any or any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses and fees, expenses or charges relating to closing costs, rebranding costs, acquisition integration costs, opening costs, project start-up costs, business optimization costs, recruiting costs, signing, retention or completion bonuses, litigation and arbitration costs, charges, fees and expenses (including settlements), and expenses or charges related to any offering of Equity Interests or debt securities, Investment, acquisition, disposition, recapitalization or incurrence, issuance, repayment, repurchase, refinancing, amendment or modification of Indebtedness (in each case, whether or not successful), and any fees, expenses, charges or change in control payments related to the Transactions (including any
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costs relating to auditing prior periods, any transition-related expenses, and transaction expenses incurred before, on or after the Signing Date), in each case, shall be excluded;
(6) any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity-based awards will be excluded;
(7) all deferred financing costs written off and premium paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness will be excluded;
(8) any one time non-cash charges or any increases in amortization or depreciation resulting from purchase accounting, in each case, in relation to any acquisition of another Person or business or resulting from any reorganization or restructuring involving the Company or its Subsidiaries will be excluded;
(9) any unrealized gains or losses in respect of Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value or changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Obligations will be excluded; provided that any such gains or losses shall be included during the period in which they are realized;
(10) (x) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and (y) any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies will be excluded;
(11) any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary will be excluded;
(12) to the extent covered by insurance and actually reimbursed, or so long as Carnival Corporation has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable insurer in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses with respect to liability or casualty events or business interruption;
(13) the cumulative effect of a change in accounting principles will be excluded;
(14) any non-cash interest expense resulting from the application of Accounting Standards Codification Topic 470-20 “Debt — Debt with Conversion Options — Recognition” will be excluded;
(15) any charges resulting from the application of Accounting Standards Codification Topic 805, “Business Combinations,” Accounting Standards Codification Topic 350, “Intangibles — Goodwill and Other, ” Accounting Standards Codification Topic 360-10-35-15, “Impairment or Disposal of Long-Lived Assets, ” Accounting Standards Codification Topic 480-10-25-4, “Distinguishing Liabilities from Equity — Overall — Recognition” or Accounting Standards Codification Topic 820, “Fair Value Measurements and Disclosures” will be excluded; and
(16) the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on Subordinated Shareholder Funding will be excluded.
“Consolidated Total Indebtedness” means, as of any date of determination, an amount equal to the sum (without duplication) of (1) the aggregate amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries (excluding any undrawn letters of credit) consisting of Capital Lease Obligations, bankers’ acceptances, Indebtedness for borrowed money and Indebtedness in respect of the deferred purchase price of property or services, plus (2) the aggregate amount of all outstanding Disqualified Stock of the Company and its Restricted Subsidiaries and all preferred stock
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of Restricted Subsidiaries of the Company, with the amount of such Disqualified Stock and preferred stock equal to the greater of their respective voluntary or involuntary liquidation preferences.
“Consolidated Total Leverage Ratio” means as of any date of determination, the ratio of Consolidated Total Indebtedness on such day to Consolidated EBITDA of the Company and its Restricted Subsidiaries as of and for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation; in each case, with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“continuing” means, with respect to any Default, that such Default has not been cured or waived.
“Convertible Notes” means the 2023 Convertible Senior Notes, the 2024 Convertible Senior Notes and the 2027 Convertible Senior Notes.
“Credit Facilities” means one or more debt facilities, instruments or arrangements incurred by the Company or any Restricted Subsidiary (including but not limited to the Existing Revolving Facility and the Existing Term Loan Facility) with banks, other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit, notes or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another administrative agent or agents or trustees or other banks or institutions and whether provided under the Existing Revolving Facility, the Existing Term Loan Facility or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facilities” shall include any agreement or instrument (1) changing the maturity of any Indebtedness incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Company as additional borrowers, issuers or guarantors thereunder, (3) increasing the amount of Indebtedness incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof. Notwithstanding the foregoing, no other instrument shall constitute a “Credit Facility” for purposes of this definition unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting a “Credit Facility.”
“Customary Intercreditor Agreement” means an intercreditor agreement providing for payment subordination or lien priority, payment blockage and enforcement limitation terms with respect which are customary in the good faith judgment of the Company as evidenced in an Officer’s Certificate.
“Default” means an event that is, or with the passage of time or the giving of notice or both would be an “Event of Default” under the 2026 Unsecured Note Indenture.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the six-month anniversary of the date that the Facilities Agreement matures. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the issuer thereof to repurchase such Capital Stock upon the occurrence of a “change of control” or an “asset sale” will not constitute Disqualified Stock if the terms of such Capital Stock provide that the issuer thereof may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 2.03. For purposes hereof, the amount of Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Schedule, and if
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such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock, such Fair Market Value to be determined as set forth herein.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means a public or private sale either (a) of the Equity Interests (other than Disqualified Stock and other than offerings registered on Form S-8 (or any successor form) under the U.S. Securities Act or any similar offering in other jurisdictions) of the Company or (b) of the Equity Interests of a direct or indirect parent entity of the Company to the extent that the net proceeds therefrom are contributed as Subordinated Shareholder Funding or to the equity capital of the Company or any of its Restricted Subsidiaries.
“euros” means the single currency introduced at the third stage of the European Monetary Union pursuant to the Treaty establishing the European Community, as amended.
“Event of Loss” means the actual or constructive total loss, arranged or compromised total loss, destruction, condemnation, confiscation, requisition, seizure or forfeiture of, or other taking of title or use of, a Vessel.
“Existing First-Priority Secured Notes” means the 2027 First-Priority Secured Notes and the 2028 First-Priority Secured Notes.
“Existing Indebtedness” means all Indebtedness of the Company and its Restricted Subsidiaries in existence on the Signing Date.
“Existing Revolving Facility” means the Multicurrency Revolving Facilities Agreement, dated as of May 18, 2011, among Carnival Corporation and Carnival plc, as guarantors, certain of the Company’s Subsidiaries, as borrowers, and certain financial institutions, as lenders, as amended and restated on June 16, 2014, August 6, 2019, as further amended, restated, supplemented, waived or otherwise modified through the Signing Date (the “Signing Date Existing Revolving Facility”), and as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof, including, following the Commencement Date, this Agreement. Notwithstanding the foregoing, no instrument (other than the Signing Date Existing Revolving Facility) shall constitute an “Existing Revolving Facility” for purposes of the foregoing definition unless such instrument is designated to the Facilities Agreement Agent in writing by Carnival Corporation as constituting an “Existing Revolving Facility” save in relation to this Agreement (on and from the Commencement Date).
“Existing Second-Priority Secured Notes” means the 2026 Second-Priority Secured Notes and the 2027 Second-Priority Secured Notes.
“Existing Term Loan Facility” means the Term Loan Agreement, dated as of June 30, 2020, among Carnival Corporation, as lead borrower, Carnival Finance, LLC, as co-borrower, Carnival plc and the other guarantors party thereto, JPMorgan Chase Bank N.A., as administrative agent, and certain financial institutions, as lenders, as amended on December 3, 2020, June 30, 2021, October 5, 2021 and October 18, 2021 (such facility outstanding on the Signing Date, the “Signing Date Existing Term Loan Facility”), and as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements or increasing the amount loaned thereunder (in each case subject to compliance with Section 2.01) or altering the maturity thereof. Notwithstanding the foregoing, no instrument (other than the Signing Date Existing Term Loan Facility) shall constitute an “Existing Term Loan Facility” for purposes of the foregoing definition unless such instrument is designated to the Facilities
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Agreement Agent in writing by Carnival Corporation as constituting an “Existing Term Loan Facility.”
“Existing Unsecured Notes” means the 2026 Unsecured Notes, the 2027 Unsecured Notes, the 2028 Senior Priority Notes, the 2029 Unsecured Notes and the 2030 Unsecured Notes.
“Facilities Agreement” means the Multicurrency Revolving Facilities Agreement, dated as of [●], 2023, among Carnival Corporation and Carnival plc, as guarantors, certain of the Company’s Subsidiaries, as borrower, and certain financial institutions, as lenders, and as amended, restated, supplemented, waived or otherwise modified from time to time.
“Facilities Agreement Agent” means the “Facilities Agent” from time to time under the Facilities Agreement.
“Facilities Agreement Obligations” means the Obligations of the Loan Parties under the Facilities Agreement and related documents.
“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress of either party, determined in good faith by Carnival Corporation’s Chief Executive Officer or responsible accounting or financial officer of Carnival Corporation.
“Fixed Charge Calculation Date” has the meaning assigned to such term in the definition of “Fixed Charge Coverage Ratio.”
“Fixed Charge Coverage Ratio” means, with respect to any Person for any period, the ratio of Consolidated EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any of its Restricted Subsidiaries incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems Disqualified Stock or preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock, as if the same had occurred at the beginning of the applicable four-quarter period; provided, however, that the pro forma calculation of Fixed Charges shall not give effect to (i) any Permitted Debt incurred on the Fixed Charge Calculation Date or (ii) the discharge on the Fixed Charge Calculation Date of any Indebtedness to the extent that such discharge results from the proceeds of Permitted Debt.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP) and any operational changes, business realignment projects or initiatives, restructurings or reorganizations that the Company or any Restricted Subsidiary has determined to make and/or made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and other operational changes, business realignment projects or initiatives, restructurings or reorganizations (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation, amalgamation, discontinued operation, operational change, business realignment project or initiative, restructuring or reorganization that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger, amalgamation, consolidation, operational change, business realignment project or initiative, restructuring or reorganization had occurred at the beginning of the applicable four-quarter period. If since the beginning of such period any Restricted Subsidiary is designated an Unrestricted Subsidiary or any Unrestricted Subsidiary is designated a Restricted Subsidiary, then the Fixed Charge Coverage
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Ratio shall be calculated giving pro forma effect thereto for such period as if such designation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of Carnival Corporation as set forth in an Officer’s Certificate, to reflect operating expense reductions and other operating improvements, synergies or cost savings reasonably expected to result from the applicable event. Any calculation of the Fixed Charge Coverage Ratio may be made, at the option of Carnival Corporation, either (i) at the time the Board of Directors of Carnival Corporation approves the action necessitating the calculation of the Fixed Charge Coverage Ratio or (ii) at the completion of such action necessitating the calculation of the Fixed Charge Coverage Ratio.
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Carnival Corporation to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as Carnival Corporation may designate.
For purposes of this definition, any amount in a currency other than U.S. dollars will be converted to U.S. dollars based on the average exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense (net of interest income) of such Person and its Restricted Subsidiaries for such period related to Indebtedness, whether paid or accrued, including, without limitation, amortization of debt discount (but not debt issuance costs), non-cash interest payments, the interest component of deferred payment obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus
(2) the consolidated interest expense (but excluding such interest on Subordinated Shareholder Funding) of such Person and its Subsidiaries which are Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries which are Restricted Subsidiaries or is secured by a Lien on assets of such Person or one of its Subsidiaries which are Restricted Subsidiaries; plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of any Restricted Subsidiary, other than dividends on Equity Interests payable to the Company or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined national, state and local statutory tax rate of such Person, expressed as a decimal, as estimated in good faith by a responsible accounting or financial officer of Carnival Corporation.
Notwithstanding any of the foregoing, Fixed Charges shall not include (i) any payments on any operating leases, (ii) any non-cash interest expense resulting from the application of Accounting
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Standards Codification Topic 470-20 “Debt — Debt with Conversion Options — Recognition” or (iii) the interest component of all payments associated with Capital Lease Obligations.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on July 20, 2020. For the purposes of this Schedule, the term “consolidated” with respect to any Person shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business, of all or any part of any Indebtedness (whether arising by agreements to keep-well, to take or pay or to maintain financial statement conditions, pledges of assets, sureties or otherwise).
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
“Immaterial Subsidiary” means any Subsidiary of the Company (a) the assets of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, constitute less than or equal to 5% of the total assets of the Company and its Subsidiaries on a consolidated basis, (b) the revenues of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, account for less than or equal to 5% of the total revenues of the Company and its Subsidiaries on a consolidated basis and (c) the Consolidated EBITDA of which Subsidiary, taken together with all other Immaterial Subsidiaries as of such date, accounts for less than 5% of the Consolidated EBITDA of the Company.
“Indebtedness” means, with respect to any specified Person (excluding accrued expenses and trade payables), without duplication:
(1) the principal amount of indebtedness of such Person in respect of borrowed money;
(2) the principal amount of obligations of such Person evidenced by bonds, notes, debentures or similar instruments for which such Person is responsible or liable;
(3) reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or similar instruments (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of incurrence), in each case only to the extent that the underlying obligation in respect of which the instrument was issued would be treated as Indebtedness;
(4) Capital Lease Obligations of such Person;
(5) the principal component of all obligations of such Person to pay the balance deferred and unpaid of the purchase price of any property or services due more than one year after such property is acquired or such services are completed;
(6) net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or
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arrangement giving rise to such obligation that would be payable by such Person at such time); and
(7) Attributable Debt of such Person;
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
The term “Indebtedness” shall not include:
(1) anything accounted for as an operating lease in accordance with GAAP as at November 25, 2020;
(2) contingent obligations in the ordinary course of business;
(3) in connection with the purchase by the Company or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing;
(4) deferred or prepaid revenues;
(5) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the applicable seller;
(6) any contingent obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes;
(7) Subordinated Shareholder Funding; or
(8) any Capital Stock.
“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations, but excluding advances or extensions of credit to customers or suppliers made in the ordinary course of business), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as Investments on a balance sheet prepared in accordance with GAAP. The acquisition by the Company or any Restricted Subsidiary of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the penultimate and final paragraphs of Section 2.03. Except as otherwise provided in this Schedule, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“Loan Parties” means the Company and any borrowers or guarantors under the Facilities Agreement that are Restricted Subsidiaries of the Company.
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“Loan-to-Value Ratio” means, as of any date, the ratio of (1) Secured Indebtedness to (2) the aggregate Net Book Value of any collateral securing such Secured Indebtedness, with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.” At Carnival Corporation’s option, the Loan-to-Value Ratio can be calculated either (i) at the time the Board of Directors of Carnival Corporation approves the action with which the proceeds of the financing transaction necessitating the calculation of Loan-to-Value Ratio is to be financed or (ii) at the consummation of the financing necessitating the calculation of Loan-to-Value Ratio.
“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers or employees of the Company or any Restricted Subsidiary:
(1) in respect of travel, entertainment or moving (including tax equalization) related expenses incurred in the ordinary course of business;
(2) in respect of moving (including tax equalization) related expenses incurred in connection with any closing or consolidation of any office; or
(3) in the ordinary course of business and (in the case of this clause (3)) not exceeding $5.0 million in the aggregate outstanding at any time.
“Moody’s” means Moody’s Investors Service, Inc.
“Net Book Value” means, with respect to any asset or property at any time, the net book value of such asset or property as reflected on the most recent balance sheet of the Company at such time, determined on a consolidated basis in accordance with GAAP.
“New Vessel Aggregate Secured Debt Cap” means the sum of each of the New Vessel Secured Debt Caps (with such New Vessel Aggregate Secured Debt Cap to be expressed as the sum of the euro and U.S. dollar denominations of the New Vessel Secured Debt Caps reflected in the New Vessel Aggregate Secured Debt Cap).
“New Vessel Financing” means any financing arrangement (including but not limited to a sale and leaseback transaction or bareboat charter or lease or an arrangement whereby a Vessel under construction is pledged as collateral to secure the indebtedness of a shipbuilder, as well as any financing pursuant to export credit agency facilities), entered into by the Company or a Restricted Subsidiary for the purpose of financing or refinancing all or any part of the purchase price, cost of design or construction of a Vessel or Vessels or the acquisition of Capital Stock of entities owning or to own Vessels.
“New Vessel Secured Debt Cap” means, in respect of a New Vessel Financing, no more than 80% of the contract price for the acquisition, plus, as applicable, additional costs permitted to be financed under related export credit financing, and any other Ready for Sea Cost of the related Vessel (and 100% of any related export credit insurance premium), expressed in euros or U.S. dollars, as the case may be, being financed by such New Vessel Financing.
“Note Guarantors” means Carnival plc and any Restricted Subsidiary that guarantees the 2026 Unsecured Notes in accordance with the provisions of the 2026 Unsecured Note Indenture, and their respective successors and assigns, until the guarantee of such Person has been released in accordance with the provisions of the 2026 Unsecured Note Indenture.
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
“Officer” means, with respect to any Person, the Chairman or Vice Chairman of the Board of Directors, the President, the Chief Executive Officer, the Chief Financial Officer, an Executive Vice President, a Vice President, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, an Assistant Secretary, or any individual designated by the Board of Directors of such Person.
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“Officer’s Certificate” means a certificate signed on behalf of Carnival Corporation by an Officer.
“Parent Entity” means any Person of which Carnival Corporation or Carnival plc, as applicable, is a Subsidiary (including any Person of which Carnival Corporation or Carnival plc, as applicable, becomes a Subsidiary after the Signing Date in compliance with this Schedule) and any holding company established by one or more Permitted Holders for purposes of holding its investment in any Parent Entity.
“Permitted Holders” means (i) each of Marilyn B. Arison, Micky Arison, Shari Arison, Michael Arison or their spouses, the children or lineal descendants of Marilyn B. Arison, Micky Arison, Shari Arison, Michael Arison or their spouses, any trust established for the benefit of (or any charitable trust or non-profit entity established by) any Arison family member mentioned in this clause (i), or any trustee, protector or similar person of such trust or non-profit entity or any “person” (as such term is used in Section 13(d) or 14(d) of the Exchange Act), directly or indirectly, controlling, controlled by or under common control with any Permitted Holder mentioned in this clause (i), and (ii) any “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) the members of which include any of the Permitted Holders specified in clause (i) above, and that (directly or indirectly) hold or acquire beneficial ownership of capital stock of Carnival Corporation and/or Carnival plc (a “Permitted Holder Group”); provided that in the case of this clause (ii), the Permitted Holders specified in clause (i) above collectively, directly or indirectly, beneficially own more than 50% on a fully diluted basis of the capital stock of Carnival Corporation and Carnival plc (or, in each case, of the relevant Parent Entity designated as constituting the “Company” (in replacement of Carnival Corporation and/or Carnival plc, as applicable)) held by such Permitted Holder Group.
“Permitted Investments” means:
(1) any Investment in the Company or a Restricted Subsidiary;
(2) any Investment in cash in U.S. dollars, euros, Swiss francs, U.K. pounds sterling or Australian dollars, and Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary;
(4) any Investment made as a result of the receipt of non-cash consideration from an asset sale or disposition;
(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(6) any Investments received in compromise or resolution of (A) obligations of trade creditors, vendors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor, vendor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;
(7) Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business;
(8) Investments represented by Hedging Obligations, which obligations are permitted to be incurred under Section 2.01(b)(9);
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(9) repurchases of Indebtedness not constituting a Restricted Payment (other than any Permitted Investment permitted pursuant to this clause (9));
(10) any Guarantee of Indebtedness permitted to be incurred under Section 2.01 other than a guarantee of Indebtedness of an Affiliate of the Company that is not a Restricted Subsidiary;
(11) any Investment existing on, or made pursuant to binding commitments existing on, the Signing Date and any Investment consisting of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the Signing Date; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Signing Date or (b) as otherwise permitted under this Schedule;
(12) Investments acquired after the Signing Date as a result of the acquisition by the Company or any Restricted Subsidiary of another Person, including by way of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries, to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(13) Management Advances;
(14) Investments consisting of the licensing and contribution of intellectual property rights pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(15) Investments consisting of, or to finance the acquisition, purchase, charter or leasing or the construction, installation or the making of any improvement with respect to any asset (including Vessels) or purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights, licenses or leases of intellectual property rights (including prepaid expenses and advances to suppliers), in each case, in the ordinary course of business (including, for the avoidance of doubt any deposits made to secure the acquisition, purchase or construction of, or any options to acquire, any vessel);
(16) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (16) that are at the time outstanding not to exceed the greater of $300.0 million and 0.8% of Total Tangible Assets of the Company; provided that if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 2.04, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not this clause;
(17) Investments in joint ventures or other Persons having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other investments made pursuant to this clause (17) that are at the time outstanding, not to exceed the greater of $300.0 million and 0.8% of Total Tangible Assets of the Company; provided that if an Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 2.04, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not this clause;
(18) additional Investments in joint ventures in which the Company or any of its Restricted Subsidiaries holds an Investment existing on the Signing Date, provided such Investments are made in the ordinary course of business;
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(19) additional Investments in additional joint ventures, provided that the Equity Interests held by the Company or a Restricted Subsidiary in such joint ventures are pledged to secure the Existing First-Priority Secured Notes, the Existing Second-Priority Secured Notes and the Existing Term Loan Facility, in each case, to the extent such pledge is required by each relevant instrument;
(20) Loans and advances (and similar Investments) in the ordinary course of business to employees, other than executive officers and directors of the Company in an aggregate amount outstanding at any one time not to exceed $100.0 million;
(21) Guarantees of passenger volume or port fees in the ordinary course of business; and
(22) any bareboat charter, lease or similar arrangements between or among the Company, any of its Restricted Subsidiaries and/or any joint venture or similar arrangement.
“Permitted Liens” means:
(1) Liens in favor of the Company or any Restricted Subsidiary;
(2) Liens on property (including Capital Stock) of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such Person becoming a Restricted Subsidiary or such merger or consolidation, were not incurred in contemplation thereof and do not extend to any assets other than those of the Person (or the Capital Stock of such Person) that becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or any Restricted Subsidiary;
(3) Liens to secure the performance of statutory obligations, insurance, surety, bid, performance, travel or appeal bonds, workers compensation obligations, performance bonds or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit or similar instruments issued to assure payment of such obligations or for the protection of customer deposits or credit card payments);
(4) Liens on any property or assets of the Company or any Restricted Subsidiary for the purpose of securing Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness, in each case, incurred pursuant to Section 2.01(b)(4) in connection with the financing of all or any part of the purchase price, lease expense, rental payments or cost of design, construction, installation, repair, replacement or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Company or any of its Restricted Subsidiaries; provided that any such Lien may not extend to any assets or property owned by the Company or any of its Restricted Subsidiaries at the time the Lien is incurred other than (i) the assets (including Vessels) and property acquired, improved, constructed, leased or financed and improvements, accessions, proceeds, products, dividends and distributions in respect thereof (provided that to the extent any such Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness relate to multiple assets or properties, then all such assets and properties may secure any such Capital Lease Obligations, purchase money obligations, mortgage financings or other Indebtedness) and (ii) to the extent such Lien secures financing in connection with the purchase of a Vessel, Related Vessel Property;
(5) Liens existing on the Signing Date;
(6) Liens for taxes, assessments or governmental charges or claims that (x) are not yet due and payable or (y) are being contested in good faith by appropriate proceedings that have the effect of preventing the forfeiture or sale of the property subject to any such Lien and for which adequate reserves are being maintained to the extent required by GAAP;
(7) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested
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in good faith by appropriate proceedings and in respect of which, if applicable, the Company or any Restricted Subsidiary shall have set aside on its books reserves in accordance with GAAP; and with respect to Vessels: (i) Liens fully covered (in excess of customary deductibles) by valid policies of insurance and (ii) Liens for general average and salvage, including contract salvage; or Liens arising solely by virtue of any statutory or common law provisions relating to attorney’s liens or bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution;
(8) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(9) Liens created for the benefit of (and to secure) any of the Facilities Agreement Obligations;
(10) Liens securing Indebtedness under Hedging Obligations, which obligations are permitted to be incurred under Section 2.01(b)(9);
(11) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;
(12) Liens arising out of judgments or awards and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(13) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(14) Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(15) Leases, licenses, subleases and sublicenses of assets in the ordinary course of business and Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of assets entered into in the ordinary course of business;
(16) Liens securing Indebtedness permitted to be incurred under Section 2.01(b)(1);
(17) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any real property leased by the Company or any Restricted Subsidiary and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings or compulsory purchase order affecting real property;
(18) Liens securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities;
(19) Liens on Unearned Customer Deposits (i) in favor of payment processors pursuant to agreements therewith consistent with industry practice or (ii) in favor of customers;
(20) pledges of goods, the related documents of title and/or other related documents arising or created in the ordinary course of the Company’s or any Restricted Subsidiary’s business or operations as Liens only for Indebtedness to a bank or financial institution directly relating to the goods or documents on or over which the pledge exists;
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(21) Liens over cash paid into an escrow account pursuant to any purchase price retention arrangement as part of any permitted disposal by the Company or a Restricted Subsidiary on condition that the cash paid into such escrow account in relation to a disposal does not represent more than 15.0% of the net proceeds of such disposal;
(22) Liens incurred in the ordinary course of business of the Company or any Restricted Subsidiary arising from Vessel chartering, dry-docking, maintenance, repair, refurbishment, the furnishing of supplies and bunkers to Vessels or masters’, officers’ or crews’ wages and maritime Liens (and similar Liens relating to ports or other facilities), in the case of each of the foregoing, which were not incurred or created to secure the payment of Indebtedness;
(23) Liens securing an aggregate principal amount of Indebtedness not to exceed the aggregate amount of Indebtedness permitted to be incurred pursuant to Section 2.01(b)(5); provided that such Lien extends only to (i) the assets (including Vessels), purchase price or cost of design, construction, installation or improvement of which is financed or refinanced thereby and any improvements, accessions, proceeds, products, dividends and distributions in respect thereof, (ii) any Related Vessel Property or (iii) the Capital Stock of a Vessel Holding Issuer;
(24) Liens created on any asset of the Company or a Restricted Subsidiary established to hold assets of any stock option plan or any other management or employee benefit or incentive plan or unit trust of the Company or a Restricted Subsidiary securing any loan to finance the acquisition of such assets;
(25) Liens incurred by the Company or any Restricted Subsidiary with respect to obligations that do not exceed the greater of $500.0 million and 1.0% of Total Tangible Assets at any one time outstanding;
(26) Liens arising from financing statement filings (or similar filings in any applicable jurisdiction) regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;
(27) any interest or title of a lessor under any Capital Lease Obligation or an operating lease or bareboat charter, or any Lien securing Indebtedness permitted to be incurred under clause (21) of the definition of “Permitted Debt”;
(28) Liens on the Equity Interests of Unrestricted Subsidiaries;
(29) Liens on Vessels under construction securing Indebtedness of shipyard owners and operators;
(30) Liens securing Indebtedness permitted to be incurred under Section 2.01(b)(18); provided that after giving pro forma effect to such incurrence and the use of proceeds thereof, the Loan-to-Value Ratio does not exceed 33%; and
(31) any extension, renewal, refinancing or replacement, in whole or in part, of any Lien described in the foregoing clauses (1) through (30) (but excluding clause (25)); provided that (x) any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds, products or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of the outstanding principal amount or, if greater, committed amount of such Indebtedness at the time the original Lien became a Permitted Lien under this Schedule and an amount necessary to pay any fees and expenses, including premiums, related to such extension, renewal, refinancing or replacement.
“Permitted Refinancing Indebtedness” means any Indebtedness incurred by the Company or any of its Restricted Subsidiaries, any Disqualified Stock issued by the Company or any of its Restricted Subsidiaries and any preferred stock issued by any Restricted Subsidiary, in each case, in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, exchange,
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defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Permitted Refinancing Indebtedness; provided that:
(1) the aggregate principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price, or, if greater, committed amount (only to the extent the committed amount could have been incurred on the date of initial incurrence)) of such new Indebtedness, the liquidation preference of such new Disqualified Stock or the amount of such new preferred stock does not exceed the principal amount (or accreted value, if applicable, or if issued with original issue discount, aggregate issue price or, if greater, committed amount (only to the extent the committed amount could have been incurred on the date of initial incurrence)) of the Indebtedness, the liquidation preference of the Disqualified Stock or the amount of the preferred stock (plus in each case the amount of accrued and unpaid interest or dividends on and the amount of all fees and expenses, including premiums, incurred in connection with the incurrence or issuance of, such Indebtedness, Disqualified Stock or preferred stock), renewed, refunded, refinanced, replaced, exchanged, defeased or discharged;
(2) such Permitted Refinancing Indebtedness has (a) a final maturity date that is either (i) no earlier than the final maturity date of the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged or (ii) after the final maturity date of the Facilities Agreement and (b) has a Weighted Average Life to Maturity that is equal to or greater than (i) the Weighted Average Life to Maturity of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged or (ii) the Weighted Average Life to Maturity of the Facility;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Facilities Agreement Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Facilities Agreement Obligations, on terms at least as favorable to the holders of Facilities Agreement Obligations, as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, exchanged, defeased or discharged; and
(4) if such Indebtedness is incurred either by the Company (if the Company was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged) or by the Restricted Subsidiary that was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged, such Indebtedness is guaranteed only by Persons who were obligors on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Ready for Sea Cost” means with respect to a Vessel to be acquired, constructed chartered, or leased by the Company or any Restricted Subsidiary, the aggregate amount of all expenditures incurred to acquire or construct and bring such Vessel to the condition and location necessary for its intended use, including any and all inspections, appraisals, repairs, modifications, additions, permits and licenses in connection with such acquisition or lease, which would be classified as “property, plant and equipment” in accordance with GAAP and any assets relating to such Vessel.
“Reference Date” means April 8, 2020.
“Related Vessel Property” means, with respect to any Vessel (i) any insurance policies on such Vessel, (ii) any requisition compensation payable in respect of any compulsory acquisition thereof, (iii) any earnings derived from the use or operation thereof and/or any earnings account with respect to such earnings, and (iv) any charters, operating leases, licenses and related agreements entered into in respect of the Vessel and any security or guarantee in respect of the relevant charterer’s or lessee’s obligations under any relevant charter, operating lease, license or related agreement, (v) any cash collateral account established with respect to such Vessel pursuant to the financing arrangements with respect thereto, (vi) any inter-company loan or facility agreements relating to the financing of the acquisition of, and/or the leasing or charter arrangements with respect to, such Vessel, (vii) any building or conversion contracts relating to such Vessel and any security or guarantee in
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respect of the builder’s obligations under such contracts, (viii) any interest rate swap, foreign currency hedge, exchange or similar agreement incurred in connection with the financing of such Vessel and required to be assigned by the lender and (ix) any security interest in, or agreement or assignment relating to, any of the foregoing or any mortgage in respect of such Vessel.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.
“S&P” means Standard & Poor’s Ratings Group.
“Secured Indebtedness” means the Existing First-Priority Secured Notes, the Existing Second-Priority Secured Notes and the Existing Term Loan Facility, and any other Indebtedness of the Loan Parties secured by a Lien on the assets of any Loan Party (excluding the Facilities Agreement Obligations).
“Secured Indebtedness Documents” means any agreements, documents or instruments governing or entered into in connection with any Secured Indebtedness, as they may be amended, restated, modified, renewed, supplemented, refunded, replaced or refinanced, from time to time.
“Signing Date” means the date of this Agreement.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Signing Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subordinated Shareholder Funding” means, collectively, any funds provided to the Company by any Parent Entity, any Affiliate of any Parent Entity or any Permitted Holder in exchange for or pursuant to any security, instrument or agreement other than Capital Stock, in each case issued to and held by the foregoing Persons, together with any such security, instrument or agreement and any other security or instrument other than Capital Stock issued in payment of any obligation under any Subordinated Shareholder Funding; provided, however, that such Subordinated Shareholder Funding:
(1) does not mature or require any amortization, redemption or other repayment of principal or any sinking fund payment prior to the first anniversary of the maturity of the Facilities Agreement (other than through conversion or exchange of such funding into Capital Stock (other than Disqualified Stock) of the Company or any funding meeting the requirements of this definition);
(2) does not require, prior to the first anniversary of the maturity of the 2026 Unsecured Notes, payment of cash interest, cash withholding amounts or other cash gross ups, or any similar cash amounts;
(3) contains no change of control or similar provisions and does not accelerate and has no right to declare a default or event of default or take any enforcement action or otherwise require any cash payment, in each case, prior to the first anniversary of the maturity of the 2026 Unsecured Notes;
(4) does not provide for or require any security interest or encumbrance over any asset of the Company or any of its Subsidiaries; and
(5) is fully subordinated and junior in right of payment to the Facilities Agreement Obligations.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’
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agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“Tax” or “Taxes” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and additions to tax related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of Tax). “Taxation” shall be construed to have a corresponding meaning.
“Total Assets” means the total assets of the Company and its Subsidiaries that are Restricted Subsidiaries, as shown on the most recent balance sheet of the Company, determined on a consolidated basis in accordance with GAAP, calculated after giving effect to pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Total Tangible Assets” means the Total Assets excluding consolidated intangible assets, calculated after giving effect to pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Transactions” means the amendments with respect to the Company’s and its Restricted Subsidiaries’ Indebtedness occurring during the thirteen months ended September 30, 2021, the 2021 Transactions (as defined in that certain Amendment No. 4 to Existing Term Loan Facility dated October 18, 2021), the offerings of the Existing Unsecured Notes, the offering of the Company’s 11.500% First-Priority Senior Secured Notes due 2023, the offering of the 2028 First-Priority Secured Notes, the offerings of the Existing Second-Priority Secured Notes, the November Registered Direct Offerings (as defined in the Company’s annual report on Form 10-K for the year ended November 30, 2020), the offerings of the Convertible Notes and the use of proceeds of the foregoing.
“Unearned Customer Deposits” means amounts paid to the Company or any of its Subsidiaries representing customer deposits for unsailed bookings (whether paid directly by the customer or by a credit card company).
“Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of Carnival Corporation as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors of Carnival Corporation but only to the extent that such Subsidiary is a Person with respect to which neither the Company nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results.
“U.S. dollar” or “$” means the lawful currency of the United States of America.
“U.S. Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
“U.S. Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder.
“Vessel” means a passenger cruise vessel which is owned by and registered (or to be owned by and registered) in the name of the Company or any of its Restricted Subsidiaries or operated or to be operated by the Company or any of its Restricted Subsidiaries, in each case together with all related spares, equipment and any additions or improvements.
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“Vessel Holding Issuer” means a Subsidiary of the Company, the assets of which consist solely of one or more Vessels and the corresponding Related Vessel Property and whose activities are limited to the ownership of such Vessels and Related Vessel Property and any other asset reasonably related to or resulting from the acquisition, purchase, charter, leasing, rental, construction, ownership, operation, improvement, expansion and maintenance of such Vessel, the leasing of such Vessels and any activities reasonably incidental to the foregoing.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2) the then outstanding principal amounts of such Indebtedness.
SECTION 1.02 Other Definitions
Term | Section | ||||
“Deemed Date” | 2.01(e) | ||||
“Equal and Ratable Provision” | 2.02(a) | ||||
“Increased Amount” | 2.02(b) | ||||
“incur” | 2.01(a) | ||||
“Junior Liens” | 2.02(a) | ||||
“Permitted Debt” | 2.01(b) | ||||
“Permitted Payments” | 2.03(b) | ||||
“Restricted Payments” | 2.03(a)(D) | ||||
“Tax Group” | 2.03(b)(10) | ||||
“TIA” | 1.03(ix) | ||||
SECTION 1.03 Rules of Construction
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii) “or” is not exclusive;
(iv) “including” or “include” means including or include without limitation;
(v) words in the singular include the plural and words in the plural include the singular;
(vi) unsecured or unguaranteed Indebtedness shall not be deemed to be subordinate or junior to secured or guaranteed Indebtedness merely by virtue of its nature as unsecured or unguaranteed Indebtedness;
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(vii) any Indebtedness secured by a Lien ranking junior to any of the Liens securing other Indebtedness shall not be deemed to be subordinate or junior to such other Indebtedness by virtue of the ranking of such Liens;
(viii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Schedule as a whole and not to any other portion of the Facilities Agreement or related documents or to any particular Article, Section, clause or other subdivision;
(ix) the Trust Indenture Act of 1939, as amended (the “TIA”), shall not apply to this Schedule or any documents or instruments related thereto, and no terms used in any of the foregoing shall have meanings given to them by the TIA;
(x) where a notification or designation is to be made by the “Company,” under this Schedule, such notification or designation may be made either by Carnival Corporation or Carnival plc; and
(xi) unless specifically and explicitly stated, (A) the capitalized terms defined and used in this Schedule shall not be used to interpret any terms of any portion of the Facilities Agreement or related documents other than this Schedule, and (B) the capitalized terms defined and used in the Facilities Agreement or related documents other than this Schedule shall not be used to interpret any terms of any portion of this Schedule.
ARTICLE TWO
COVENANTS
COVENANTS
SECTION 2.01 Incurrence of Indebtedness and Issuance of Preferred Stock
(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not and will not permit any Restricted Subsidiary to issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
(b) Section 2.01(a) shall not, however, prohibit the incurrence of any of the following items of Indebtedness, without duplication (collectively, “Permitted Debt”):
(1) (i) Indebtedness, including under the Credit Facilities, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(i), not to exceed the greater of $4,500.0 million and 8.6% of Total Tangible Assets of the Company, (ii) [reserved], (iii) Indebtedness, including under the Existing Revolving Facility, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(iii), not to exceed the greater of (x) the sum of $1,700.0 million, €1,000.0 million and £300.0 million and (y) 7.3% of Total Tangible Assets of the Company, (iv) Indebtedness, including under the 2027 First-Priority Secured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(iv), not to exceed the greater of $192.0 million and 0.5% of Total Tangible Assets of the Company, (v) Indebtedness, including under the Existing Term Loan Facility, in an aggregate principal amount at
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any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(v), not to exceed the greater of (x) the sum of $4,160.0 million and €800.0 million and (y) 10.0% of Total Tangible Assets of the Company, (vi) Indebtedness, including under the 2026 Second-Priority Secured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(vi), not to exceed the greater of (x) the sum of $775.0 million and €425.0 million and (y) 2.6% of Total Tangible Assets of the Company, (vii) Indebtedness, including under the 2027 Second-Priority Secured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(vii), not to exceed the greater of $900.0 million and 1.7% of Total Tangible Assets of the Company and (viii) Indebtedness, including under the 2028 First-Priority Secured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(1)(viii), not to exceed the greater of $2,405.5 million and 4.7% of Total Tangible Assets of the Company;
(2) the incurrence by the Company and its Restricted Subsidiaries of (i) Existing Indebtedness (other than Indebtedness under the Convertible Notes, the Existing Term Loan Facility, the Existing First-Priority Secured Notes, the Existing Second-Priority Secured Notes and the Existing Unsecured Notes), (ii) Indebtedness, including under the 2026 Unsecured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(ii), not to exceed the greater of (x) the sum of $1,450.0 million and €500.0 million and (y) 4.0% of Total Tangible Assets of the Company, (iii) Indebtedness, including under the 2027 Unsecured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(iii), not to exceed the greater of $3,500.0 million and 6.7% of Total Tangible Assets of the Company, (iv) Indebtedness, including under the 2029 Unsecured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(iv), not to exceed the greater of $2,000.0 million and 3.9% of Total Tangible Assets of the Company, (v) Indebtedness, including under the 2030 Unsecured Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(v), not to exceed the greater of $1,000.0 million and 2.04% of Total Tangible Assets of the Company, (vi) Indebtedness, including under the 2023 Convertible Senior Notes and the 2024 Convertible Senior Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(vi), not to exceed the greater of $2,012.5 million and 4.0% of Total Tangible Assets of the Company, (vii) Indebtedness, including under the 2028 Senior Priority Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(vii), not to exceed the greater of $2,030.0 million and 3.98% of Total Tangible Assets of the Company and (viii) Indebtedness, including under the 2027 Convertible Senior Notes, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 2.01(b)(2)(viii), not to exceed the greater of $1,131.0 million and 2.22% of Total Tangible Assets of the Company;
(3) the incurrence by the Loan Parties of Indebtedness under the Facilities Agreement;
(4) the incurrence by the Company or any Restricted Subsidiary of Indebtedness represented by Attributable Debt, Capital Lease Obligations, mortgage financings or purchase money obligations, the issuance by the Company or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price, lease expense, charter hire, rental payments or cost of design, construction, installation, repair, replacement or improvement of property (including Vessels), plant or equipment or other assets (including Capital Stock) used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate
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principal amount or liquidation preference, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued pursuant to this clause (4), not to exceed the greater of $600.0 million and 1.5% of Total Tangible Assets at any time outstanding (it being understood that any such Indebtedness may be incurred and such Disqualified Stock and preferred stock may be issued after the acquisition, purchase, charter, leasing or rental or the design, construction, installation, repair, replacement or the making of any improvement with respect to any asset (including Vessels)); provided that the principal amount of any Indebtedness, Disqualified Stock or preferred stock permitted under this clause (4) did not in each case at the time of incurrence exceed, together with amounts previously incurred and outstanding under this clause (4) with respect to any applicable Vessel, (i) in the case of a completed Vessel, the book value and (ii) in the case of an uncompleted Vessel, 80% of the contract price for the acquisition or construction of such Vessel, in the case of this clause (ii), as determined on the date on which the agreement for acquisition or construction of such Vessel was entered into by the Company or its Restricted Subsidiary, plus any other Ready for Sea Cost of such Vessel plus 100% of any related export credit insurance premium;
(5) the incurrence by the Company or any Restricted Subsidiary of Indebtedness, the issuance by the Company or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock in connection with any New Vessel Financing in an aggregate principal amount at any one time outstanding (including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued under this clause (5)) not exceeding the New Vessel Aggregate Secured Debt Cap as calculated on the date of the relevant incurrence under this clause (5);
(6) Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge, any Indebtedness (other than intercompany Indebtedness, Disqualified Stock or preferred stock) that was permitted to be incurred under Section 2.01(a) or clause (1), (2), (3), (4), (5), (6), (12) or (18) of this Section 2.01(b);
(7) the incurrence by the Company or any Restricted Subsidiary of intercompany Indebtedness between or among the Company or any Restricted Subsidiary; provided that:
(A) if the Company or any Note Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Note Guarantor, such Indebtedness must be unsecured and ((i) except in respect of the intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its Restricted Subsidiaries and (ii) only to the extent legally permitted (the Company and its Restricted Subsidiaries having completed all procedures required in the reasonable judgment of directors or officers of the obligee or obligor to protect such Persons from any penalty or civil or criminal liability in connection with the subordination of such Indebtedness)) expressly subordinated to the prior payment in full in cash of all Facilities Agreement Obligations; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);
(8) the issuance by any Restricted Subsidiary to the Company or to any of its Restricted Subsidiaries of Disqualified Stock or preferred stock; provided that (i) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred stock being held by a Person other than the Company or a Restricted Subsidiary and (ii) any sale or other transfer of any such Disqualified Stock or preferred stock to a Person that is not either the Company or a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred stock by such Restricted Subsidiary that was not permitted by this clause (8);
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(9) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations not for speculative purposes;
(10) the Guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or any Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 2.01; provided that, in each case, if the Indebtedness being guaranteed is of a Loan Party and is subordinated to or pari passu with the Facilities Agreement Obligations, then the Guarantee must be subordinated or pari passu to the Facilities Agreement Obligations, as applicable, to the same extent as the Indebtedness guaranteed;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness (i) in respect of workers’ compensation claims, self-insurance obligations, captive insurance companies and bankers’ acceptances in the ordinary course of business; (ii) in respect of letters of credit, surety, bid, performance, travel or appeal bonds, completion guarantees, judgment, advance payment, customs, VAT or other tax guarantees or similar instruments issued in the ordinary course of business of such Person or consistent with past practice or industry practice (including as required by any governmental authority) and not in connection with the borrowing of money, including letters of credit or similar instruments in respect of self-insurance and workers compensation obligations, or for the protection of customer deposits or credit card payments; provided, however, that upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing; (iii) arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within 30 days; and (iv) consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(12) Indebtedness, Disqualified Stock or preferred stock (i) of any Person outstanding on the date on which such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or any Restricted Subsidiary or (ii) incurred or issued to provide all or any portion of the funds used to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary; provided, however, with respect to this clause (12), that at the time of the acquisition or other transaction pursuant to which such Indebtedness, Disqualified Stock or preferred stock was deemed to be incurred or issued, (x) the Company would have been able to incur $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 2.01(a) after giving pro forma effect to the relevant acquisition or other transaction and the incurrence of such Indebtedness or issuance of such Disqualified Stock or preferred stock pursuant to this clause (12) or (y) the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or Disqualified Stock or preferred stock is issued pursuant to this clause (12), taken as one period, would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction and the incurrence of such Indebtedness or issuance of such Disqualified Stock or preferred stock;
(13) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for customary indemnification, obligations in respect of earnouts or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Equity Interests of a Subsidiary; provided that (in the case of a disposition) the maximum liability of the Company and its Restricted Subsidiaries in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the Fair Market Value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(14) the incurrence by the Company or any Restricted Subsidiary of Indebtedness in the form of Unearned Customer Deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
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(15) Indebtedness of the Company or any Restricted Subsidiary incurred in connection with credit card processing arrangements or other similar payment processing arrangements entered into in the ordinary course of business;
(16) the incurrence by the Company or any Restricted Subsidiary of Indebtedness, the issuance by the Company or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock to finance the replacement (through construction or acquisition) of a Vessel upon an Event of Loss of such Vessel in an aggregate amount no greater than the Ready for Sea Cost for such replacement Vessel, in each case less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) received by the Company or any of its Restricted Subsidiaries from any Person in connection with such Event of Loss in excess of amounts actually used to repay Indebtedness secured by the Vessel subject to such Event of Loss and any costs and expenses incurred by the Company or any of its Restricted Subsidiaries in connection with such Event of Loss;
(17) the incurrence by the Company or any Restricted Subsidiary of Indebtedness in relation to (i) regular maintenance required on any port or other facilities or any of the Vessels owned or chartered by the Company or any of its Restricted Subsidiaries, and (ii) any expenditures that are, or are reasonably expected to be, recoverable from insurance on such Vessels or facilities;
(18) the incurrence of Indebtedness by the Company or any Restricted Subsidiary of Indebtedness, the issuance by the Company or any Restricted Subsidiary of Disqualified Stock and the issuance by any Restricted Subsidiary of preferred stock in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock or preferred stock issued pursuant to this clause (18), not to exceed the greater of $3,500.0 million and 6.7% of Total Tangible Assets;
(19) Indebtedness existing solely by reason of Permitted Liens described in clause (29) of the definition thereof;
(20) guarantees of passenger volume or port fees in the ordinary course of business; and
(21) any bareboat charter, lease or similar arrangements between or among the Company, any of its Restricted Subsidiaries and/or any joint venture or similar arrangement.
(c) No Loan Party will incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of such Loan Party unless such Indebtedness is also contractually subordinated in right of payment to the Facilities Agreement Obligations on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Loan Parties solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 2.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (21) of Section 2.01(b), or is entitled to be incurred pursuant to Section 2.01(a), Carnival Corporation, in its sole discretion, will be permitted to classify such item of Indebtedness on the date of its incurrence and only be required to include the amount and type of such Indebtedness in one of such clauses and will be permitted on the date of such incurrence to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 2.01(a) and (b) and from time to time to reclassify or redivide (as if incurred at such later time) all or a portion of such item of Indebtedness, in any manner that complies with this Section 2.01.
(e) In connection with the incurrence or issuance, as applicable, of (x) revolving loan Indebtedness or (y) any commitment relating to the incurrence or issuance of Indebtedness, Disqualified Stock or preferred stock, in each case, in compliance with this Section 2.01, and the granting of any Lien to secure such Indebtedness, Carnival Corporation or applicable Restricted Subsidiary may, at its option, designate such incurrence or issuance and the granting of any Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or
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commitment (such date, the “Deemed Date”), and any related subsequent actual incurrence or issuance and granting of such Lien therefor will be deemed for all purposes under this Schedule to have been incurred or issued and granted on such Deemed Date, including, without limitation, for purposes of calculating the Fixed Charge Coverage Ratio, usage of any baskets described herein (if applicable), the Consolidated Total Leverage Ratio, the Loan-to-Value Ratio and Consolidated EBITDA (and all such calculations on and after the Deemed Date until the termination or funding of such commitment shall be made on a pro forma basis giving effect to the deemed incurrence or issuance, the granting of any Lien therefor and related transactions in connection therewith). For the avoidance of doubt, for purposes of this Section 2.01(e), all Indebtedness outstanding on the Signing Date under the Existing Revolving Facility is deemed to have been incurred on the Deemed Date of March 18, 2020 pursuant to this Section 2.01(e) and allocated as having been incurred pursuant to Section 2.01(a).
(f) The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock, the accretion of liquidation preference and the increase in the amount of Indebtedness outstanding solely as a result of fluctuations in exchange rates or currency values will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 2.01; provided, in each such case, that the amount of any such accrual, accretion, amortization, payment, reclassification or increase is included in the Fixed Charges of the Company as accrued.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a different currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred or, in the case of Indebtedness incurred under a revolving credit facility and at the option of Carnival Corporation, first committed; provided that (a) if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than U.S. dollars, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing indebtedness does not exceed the aggregate principal amount of such Indebtedness being refinanced; and (b) if and for so long as any Indebtedness is subject to a Hedging Obligation with respect to the currency in which such Indebtedness is denominated covering principal amounts payable on such Indebtedness, the amount of such Indebtedness, if denominated in U.S. dollars, will be the amount of the principal payment required to be made under such Hedging Obligation and, otherwise, the U.S. dollar-equivalent of such amount plus the U.S. dollar-equivalent of any premium which is at such time due and payable but is not covered by such Hedging Obligation.
(h) Notwithstanding any other provision of this Section 2.01, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 2.01 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, will be calculated based on the currency exchange rate applicable to the currencies in which such refinancing indebtedness is denominated that is in effect on the date of such refinancing.
(i) The amount of any Indebtedness outstanding as of any date will be:
(i) in the case of any Indebtedness issued with original issue discount, the amount of the liability in respect thereof determined in accordance with GAAP;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
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(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
SECTION 2.02 Liens
(a) The Loan Parties shall not, directly or indirectly, create, incur, assume or otherwise cause to exist or become effective any Lien of any kind securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, except:
(1) Permitted Liens; and
(2) a Lien on such property or assets that is not a Permitted Lien (each Lien under clause (2), a “Triggering Lien”) if, contemporaneously with (or prior to) the incurrence of such Triggering Lien, all Facilities Agreement Obligations are secured on an equal and ratable basis with or on a senior basis to the Indebtedness so secured until such time as such Indebtedness is no longer secured by such Triggering Lien; provided that, (i) if the Indebtedness secured by such Triggering Lien is subordinate or junior in right of payment to the Facilities Agreement Obligations, as the case may be, then such Triggering Lien securing such Indebtedness shall be subordinate or junior in priority to the Lien securing the Facilities Agreement Obligations and (ii) if any Secured Indebtedness is also required to be secured by Liens on such property or assets pursuant to provisions in the Secured Indebtedness Documents that are similar to this clause (2), the Liens on such property or assets securing the Facilities Agreement Obligations may rank junior in priority to the Liens on such property or assets securing such Secured Indebtedness pursuant to a Customary Intercreditor Agreement.
For purposes of determining compliance with this Section 2.02, (A) Liens securing Indebtedness and obligations need not be incurred solely by reference to one category of Permitted Liens (or subparts thereof) but are permitted to be incurred in part under any combination thereof, and (B) in the event that a Lien meets the criteria of one or more of the categories of Permitted Liens (or subparts thereof), Carnival Corporation shall, in its sole discretion, classify, divide or later reclassify or redivide (as if incurred at such later time) such Liens (or any portions thereof) in any manner that complies with the definition of Permitted Liens, and such Liens (or portions thereof, as applicable) will be treated as having been incurred pursuant to such clause, clauses or subparts of the definition of Permitted Liens (and in the case of a subsequent division, classification or reclassification, such Liens shall cease to be divided or classified as it was prior to such subsequent division, classification or reclassification).
To the extent that any Liens are imposed pursuant to Section 2.02(a)(2) (the “Equal and Ratable Provision”), (i) Permitted Liens may be of any priority (including senior in priority) relative to any Liens imposed pursuant to the Equal and Ratable Provision, except where otherwise specified, and (ii) the Company and its Restricted Subsidiaries may incur Liens ranking junior in priority to the liens imposed pursuant to the Equal and Ratable Provision (“Junior Liens”). The Facilities Agreement Agent shall enter into a Customary Intercreditor Agreement with respect to such Permitted Liens, Junior Liens and Liens imposed pursuant to the Equal and Ratable Provision, if any.
(b) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of the Company, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness. For the avoidance of doubt, any Lien that is permitted under this Schedule to secure Indebtedness shall also be permitted to secure any obligations related to such Indebtedness.
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(c) Any Lien created in favor of the Facilities Agreement Obligations pursuant to the Equal and Ratable Provision will be automatically and unconditionally released and discharged upon the release and discharge of the Triggering Lien to which it relates.
SECTION 2.03 Restricted Payments
(a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly:
(A) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as holders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or in Subordinated Shareholder Funding and other than dividends or distributions payable to the Company or a Restricted Subsidiary);
(B) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent entity of the Company;
(C) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of the Loan Parties that is expressly contractually subordinated in right of payment to the Facilities Agreement Obligations (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except (i) a payment of principal at the Stated Maturity thereof or (ii) the purchase, repurchase, redemption, defeasance or other acquisition of Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or scheduled maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition, or make any cash interest payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Shareholder Funding; or
(D) make any Restricted Investment
(all such payments and other actions set forth in these clauses (A) through (D) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(i) no Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;
(ii) after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 2.01(a);
(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Reference Date (excluding Restricted Payments permitted by clauses (1) (without duplication of amounts paid pursuant to any other clause of Section 2.03(b)), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) of Section 2.03(b)), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the first day of the fiscal quarter commencing immediately following the fiscal quarter in which the Reference Date occurred to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
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(B) 100% of the aggregate net cash proceeds and the Fair Market Value of other assets received by the Company since the Reference Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or Subordinated Shareholder Funding or from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or any Restricted Subsidiary or convertible or exchangeable debt securities of the Company or any Restricted Subsidiary, in each case that have been converted into or exchanged for Equity Interests of the Company or Subordinated Shareholder Funding (other than (x) net cash proceeds and marketable securities received from an issuance or sale of Equity Interests, Disqualified Stock or convertible or exchangeable debt securities sold to a Subsidiary of the Company, (y) net cash proceeds and marketable securities received from an issuance or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities that have been converted into, exchanged or redeemed for Disqualified Stock and (z) net cash proceeds and marketable securities to the extent any Restricted Payment has been made from such proceeds pursuant to Section 2.03(b)(4)); plus
(C) to the extent that any Restricted Investment that was made after the Reference Date is (i) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (ii) made in an entity that subsequently becomes a Restricted Subsidiary, 100% of the Fair Market Value of such Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the Reference Date is redesignated as a Restricted Subsidiary, or is merged or consolidated into the Company or a Restricted Subsidiary, or all of the assets of such Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after the Reference Date, the Fair Market Value of the Company’s and its Restricted Subsidiaries’ Restricted Investment in such Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (iii) and were not previously repaid or otherwise reduced; provided, however, that no amount will be included in Consolidated Net Income of the Company for purposes of the preceding clause (A) to the extent that it is included under this clause (D); plus
(E) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after the Reference Date from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Company for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Permitted Investment pursuant to clause (16) of the definition thereof); and
(iv) the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries would not have been greater than 5.00:1.00 on a pro forma basis.
(b) The preceding provisions will not prohibit the following (“Permitted Payments”):
(1) the payment of any dividend or distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or distribution or redemption payment would have complied with the provisions of this Schedule;
(2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or Subordinated Shareholder Funding or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash
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proceeds that are utilized for any such Restricted Payment will be excluded from Section 2.03(a)(iii)(B);
(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Loan Parties that is contractually subordinated to the Facilities Agreement Obligations with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) so long as no Default has occurred and is continuing, the purchase, repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary held by any current or former officer, director, employee or consultant of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, restricted stock grant, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such purchased, repurchased, redeemed, acquired or retired Equity Interests may not exceed $25.0 million in the aggregate in any twelve-month period with unused amounts being carried over to any subsequent twelve-month period subject to a maximum aggregate amount of $50.0 million being available in any twelve-month period; and provided, further, that such amount in any twelve-month period may be increased by an amount not to exceed the cash proceeds from the sale of Equity Interests of the Company or Subordinated Shareholder Funding, in each case, received by the Company during such twelve-month period, in each case to members of management, directors or consultants of the Company, any of its Restricted Subsidiaries or any of its direct or indirect parent companies to the extent the cash proceeds from the sale of such Equity Interests or Subordinated Shareholder Funding have not otherwise been applied to the making of Restricted Payments pursuant to Section 2.03(a)(iii) or Section 2.03(b)(2);
(5) the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default has occurred and is continuing, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary or any preferred stock of any Restricted Subsidiary issued on or after the Reference Date in accordance with Section 2.01;
(7) payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or warrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(8) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis;
(9) the making of (i) cash payments made by the Company or any of its Restricted Subsidiaries in satisfaction of the conversion obligation upon conversion of convertible Indebtedness issued in a convertible notes offering and (ii) any payments by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related capped call, hedge, warrant or other similar transactions (including, for the avoidance of doubt, any payments due upon entering into such transactions);
(10) with respect to any Tax period in which (i) any of the Restricted Subsidiaries are members of a consolidated, combined, unitary or similar income Tax group for U.S. federal or applicable state and local, or non-U.S. income Tax purposes (a “Tax Group”) of which a Parent Entity, or any Subsidiary of a Parent Entity, is a common parent, (ii) any Company is a member of a Tax Group of which a Parent Entity (other than such Company), or a Subsidiary of a Parent Entity (other than such Company), is the common parent, or (iii) for which a Restricted Subsidiary or Company is disregarded for U.S. federal income tax purposes as separate from a Parent Entity, or any Subsidiary of a Parent Entity that is a C corporation for U.S. federal income tax purposes, payments by each such Restricted Subsidiary or each such Company, as applicable, in an amount not to exceed the
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amount of its allocable share of any U.S. federal, state and/or local and/or foreign income Taxes, as applicable, of such Tax Group for such taxable period that are attributable to the income, revenue, receipts or capital of such Restricted Subsidiary or such Company, as applicable, in an aggregate amount not to exceed the amount of such income Taxes that such Restricted Subsidiary or such Company, as applicable, would have paid had it been a standalone corporate tax payer or standalone corporate tax group (without duplication, for the avoidance of doubt, of any such Taxes paid by such Restricted Subsidiary or such Company, as applicable, directly to the relevant taxing authority); and
(11) other Restricted Payments in an aggregate amount not to exceed $225.0 million since the Reference Date so long as, immediately after giving effect to such Restricted Payment, no Default has occurred and is continuing.
The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
For purposes of determining compliance with this Section 2.03, (1) in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of one or more categories (or subparts thereof) of Permitted Payments or Permitted Investments, or is entitled to be incurred pursuant to Section 2.03(a), Carnival Corporation will be entitled to classify or re-classify such payment (or portion thereof) based on circumstances existing on the date of such reclassification in any manner that complies with this Section 2.03, and such payment (or portion thereof) will be treated as having been made pursuant to Section 2.03(a) or such clause or clauses (or subparts thereof) in the definition of Permitted Payments or Permitted Investments, (2) the amount of any return of or on capital from any Investment shall be netted against the amount of such Investment for purposes of determining compliance with this Section 2.03 and (3) payments made among the Company and its Restricted Subsidiaries pursuant to the agreements, constituent documents, guarantees, deeds and other instruments governing the “dual listed company” structure of the Company shall not be deemed to be Restricted Payments.
SECTION 2.04 Designation of Restricted and Unrestricted Subsidiaries
(a) The Board of Directors of Carnival Corporation may designate any Restricted Subsidiary (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default.
(b) If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 2.03 or under one or more clauses of the definition of “Permitted Investments,” as determined by Carnival Corporation. The designation of a Restricted Subsidiary as an Unrestricted Subsidiary will only be permitted if the deemed Investment resulting from such designation would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(c) Carnival Corporation may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
(d) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Facilities Agreement Agent by filing with the Facilities Agreement Agent a copy of a resolution of the Board of Directors of Carnival Corporation giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 2.03. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Schedule and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 2.01, Carnival Corporation will be in default of such Section 2.01. The Board of Directors of Carnival Corporation may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
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outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (i) such Indebtedness is permitted under Section 2.01, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (ii) no Default would be in existence following such designation.
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SIGNATORIES
Borrower
CARNIVAL HOLDINGS (BERMUDA) II LIMITED
By: /s/ Lourdes Suarez
Lourdes Suarez
Treasurer
Original Guarantors
CARNIVAL CORPORATION
By: /s/ Lourdes Suarez
Lourdes Suarez
Treasurer
CARNIVAL PLC
By: /s/ Lourdes Suarez
Lourdes Suarez
Treasurer
Carnival Corp.
CARNIVAL CORPORATION
By: /s/ Lourdes Suarez
Lourdes Suarez
Treasurer
Carnival plc
CARNIVAL PLC
By: /s/ Lourdes Suarez
Lourdes Suarez
Treasurer
Facilities Agent
J.P. MORGAN SE
By: /s/ Haaris Amjad
Haaris Amjad
Associate
Active Bookrunners & Global Coordinators and Mandated Lead Arrangers
JPMORGAN CHASE BANK, N.A.
By: /s/ Nadeige Dang
Nadeige Dang
Executive Director
By:
Active Bookrunners & Global Coordinators and Mandated Lead Arrangers
BANK OF AMERICA EUROPE DAC
By: /s/ Scot Mitchell
Scot Mitchell
By:
Active Bookrunners & Global Coordinators and Mandated Lead Arrangers
BNP PARIBAS
By: /s/ James Goodall
James Goodall
Managing Director
By: /s/ Kyle Fitzpatrick
Kyle Fitzpatrick
Director
Bookrunners and Mandated Lead Arrangers
BARCLAYS BANK PLC
By: /s/ Michael Joyner
Michael Joyner
Director
By:
Bookrunners and Mandated Lead Arrangers
CITIBANK, N.A.
By: /s/ David Bouton
David Bouton
Authorized Signatory
Citibank, N.A.
By:
Bookrunners and Mandated Lead Arrangers
GOLDMAN SACHS BANK USA
By: /s/ Jonathan Dworkin
Jonathan Dworkin
By:
Bookrunners and Mandated Lead Arrangers
INTESA SANPAOLO S.P.A., NEW YORK BRANCH
By: /s/ Nicola Baiocchi Di Silvestri
Nicola Baiocchi Di Silvestri
General Manager - New York Branch
By: /s/ Alessandro Toigo
Alessandro Toigo
Head of Corporate Desk
Bookrunners and Mandated Lead Arrangers
LLOYDS BANK PLC
By: /s/ Blair Daly
Blair Daly
Associate Director
By:
Bookrunners and Mandated Lead Arrangers
MIZUHO BANK, LTD.
By: /s/ Mark Ralston
Mark Ralston
Senior Director
By:
Bookrunners and Mandated Lead Arrangers
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Michael King
Michael King
Vice President
By:
Bookrunners and Mandated Lead Arrangers
PNC CAPITAL MARKETS, LLC
By: /s/ Brian Prettyman
Brian Prettyman
Managing Director
By:
Syndication Agents
KFW IPEX BANK GMBH
By: /s/ Delphine Deroche
Delphine Deroche
Director
By: /s/ Andre Tiele
Andre Tiele
Director
Syndication Agents
NATIONAL WESTMINSTER BANK PLC
By: /s/ Libby Bishop
Libby Bishop
Director
By:
Syndication Agents
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Valery Amouroux
Valery Amouroux
Director
By:
Arrangers
JPMORGAN CHASE BANK, N.A.
By: /s/ Nadeige Dang
Nadeige Dang
Executive Director
By:
Arrangers
BANK OF AMERICA EUROPE DAC
By: /s/ Scot Mitchell
Scot Mitchell
By:
Arrangers
BARCLAYS BANK PLC
By: /s/ Michael Joyner
Michael Joyner
Director
By:
Arrangers
BNP PARIBAS
By: /s/ James Goodall
James Goodall
Managing Director
By: /s/ Kyle Fitzpatrick
Kyle Fitzpatrick
Director
Arrangers
CITIBANK, N.A.
By: /s/ David Bouton
David Bouton
Authorized Signatory
Citibank, N.A.
By:
Arrangers
GOLDMAN SACHS BANK USA
By: /s/ Jonathan Dworkin
Jonathan Dworkin
By:
Arrangers
INTESA SANPAOLO S.P.A., NEW YORK BRANCH
By: /s/ Nicola Baiocchi Di Silvestri
Nicola Baiocchi Di Silvestri
General Manager - New York Branch
By: /s/ Alessandro Toigo
Alessandro Toigo
Head of Corporate Desk
Arrangers
LLOYDS BANK PLC
By: /s/ Blair Daly
Blair Daly
Associate Director
By:
Arrangers
MIZUHO BANK, LTD.
By: /s/ Mark Ralston
Mark Ralston
Senior Director
By:
Arrangers
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Michael King
Michael King
Vice President
By:
Arrangers
PNC CAPITAL MARKETS, LLC
By: /s/ Brian Prettyman
Brian Prettyman
Managing Director
By:
Arrangers
KFW IPEX-BANK GMBH
By: /s/ Delphine Deroche
Delphine Deroche
Director
By: /s/ Andre Tiele
Andre Tiele
Director
Arrangers
NATIONAL WESTMINSTER BANK PLC
By: /s/ Libby Bishop
Libby Bishop
Director
By:
Arrangers
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Valery Amouroux
Valery Amouroux
Director
By:
Original Lenders
JPMORGAN CHASE BANK, N.A.
By: /s/ Nadiege Dang
Nadiege Dang
Executive Director
By:
Original Lenders
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
By: /s/ Amit David
Amit David
Executive Director
By:
Original Lenders
BANK OF AMERICA NA (CHARLOTTE)
By: /s/ Cameron Taylor
Cameron Taylor
By:
Original Lenders
BARCLAYS BANK PLC
By: /s/ Michael Joyner
Michael Joyner
Director
By:
Original Lenders
BNP PARIBAS
By: /s/ James Goodall
James Goodall
Managing Director
By: /s/ Kyle Fitzpatrick
Kyle Fitzpatrick
Director
Original Lenders
CITIBANK, N.A., LONDON
By: /s/ Emrose Ahmed
Emrose Ahmed
Authorized Signatory
Citibank, N.A.
Original Lenders
CITIBANK, N.A., NEW YORK
By: /s/ David Bouton
David Bouton
Authorized Signatory
Citibank, N.A.
Original Lenders
GOLDMAN SACHS BANK USA
By: /s/ Jonathan Dworkin
Jonathan Dworkin
Original Lenders
INTESA SANPAOLO S.P.A., NEW YORK BRANCH
By: /s/ Nicola Baiocchi Di Silvestri
Nicola Baiocchi Di Silvestri
General Manager
By: /s/ Alessandro Toigo
Alessandro Toigo
Head of Corporate Desk
Original Lenders
KFW IPEX-BANK GMBH
By: /s/ Delphine Deroche
Delphine Deroche
Director
By: /s/ Andre Tiele
Andre Tiele
Director
Original Lenders
NATIONAL WESTMINSTER BANK PLC
By: /s/ Libby Bishop
Libby Bishop
Director
Original Lenders
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Ryan Garr
Ryan Garr
Vice President
Original Lenders
LLOYDS BANK PLC
By: /s/ Blair Daly
Blair Daly
Associate Director
Original Lenders
MIZUHO BANK, LTD.
By: /s/ Mark Ralston
Mark Ralston
Senior Director
Original Lenders
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Michael King
Michael King
Vice President
Original Lenders
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Valery Amouroux
Valery Amouroux
Director
Exhibit 31.1
I, Josh Weinstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d–15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 29, 2023
By:/s/ Josh Weinstein
Josh Weinstein
President, Chief Executive Officer and Chief Climate Officer
Exhibit 31.2
I, David Bernstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d–15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 29, 2023
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 31.3
I, Josh Weinstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 29, 2023
By:/s/ Josh Weinstein
Josh Weinstein
President, Chief Executive Officer and Chief Climate Officer
Exhibit 31.4
I, David Bernstein, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Carnival plc;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: March 29, 2023
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 32.1
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2023 as filed by Carnival Corporation with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival Corporation.
Date: March 29, 2023
By:/s/ Josh Weinstein
Josh Weinstein
President, Chief Executive Officer and Chief Climate Officer
Exhibit 32.2
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2023 as filed by Carnival Corporation with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival Corporation.
Date: March 29, 2023
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer
Exhibit 32.3
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2023 as filed by Carnival plc with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival plc.
Date: March 29, 2023
By:/s/ Josh Weinstein
Josh Weinstein
President, Chief Executive Officer and Chief Climate Officer
Exhibit 32.4
In connection with the Quarterly Report on Form 10-Q for the quarter ended February 28, 2023 as filed by Carnival plc with the Securities and Exchange Commission on the date hereof (the “Report”), I certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Carnival plc.
Date: March 29, 2023
By:/s/ David Bernstein
David Bernstein
Chief Financial Officer and Chief Accounting Officer