Exhibit 10.64
Dated 21 October 2005
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CARNIVAL PLC (1)
as Guarantor
and
THE ROYAL BANK OF SCOTLAND PLC (2)
as Facilities Agent
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DEED OF GUARANTEE
in relation to a US$1,200,000,000,
(euro)400,000,000 and (pound)200,000,000
Multicurrency Revolving
Facilities Agreement
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Contents
Clause Page
1 Interpretation ....................................................... 1
2 Guarantee ............................................................ 2
3 Guarantor as Principal Debtor/Indemnity .............................. 2
4 Interest ............................................................. 2
5 Continuing Guarantee ................................................. 3
6 Liability Unconditional .............................................. 3
7 Demand ............................................................... 3
8 Waiver of Guarantor's Rights ......................................... 3
9 Representations and Warranties ....................................... 4
10 Certificates ......................................................... 5
11 Settlements Conditional .............................................. 5
12 Counterparts ......................................................... 5
13 Assignment and references to Finance Party ........................... 5
14 Notices .............................................................. 6
15 Invalidity ........................................................... 6
16 No Set-Off or Counterclaim ........................................... 7
17 No Implied Waivers, Remedies Cumulative .............................. 7
18 Expenses ............................................................. 7
19 Third Party Rights ................................................... 7
20 Additional Security .................................................. 8
21 Governing Law and Jurisdiction ....................................... 8
THIS GUARANTEE is made by way of deed on 21 October 2005
BETWEEN:
(1) CARNIVAL PLC a company organised and existing under the laws of England
with registered number 04039524 (the "Guarantor"); and
(2) THE ROYAL BANK OF SCOTLAND PLC a company registered in Scotland, with its
registered office at 36 St Andrew Square, Edinburgh, EH2 2YB (the
"Facilities Agent", which expression includes its successors and assigns
for and on behalf of the Finance Parties).
WHEREAS:
(A) By a multicurrency revolving facilities agreement (the "Facilities
Agreement") dated on or about the date of this Guarantee and made between
(1) Carnival Corporation, (2) Carnival plc, (3) the subsidiaries of
Carnival Corporation and Carnival plc listed in Part 1 of Schedule 1
thereto, (4) Carnival Corporation and Carnival plc as guarantors, (5) Banc
of America Securities Limited, Barclays Capital, BNP Paribas, J.P. Morgan
plc, SANPAOLO IMI S.p.A and The Royal Bank of Scotland plc as mandated
lead arrangers, (6) the financial institutions listed in Part 2 and Part 4
of Schedule 1 thereto as lenders (the "Original Lenders"), (7) The Royal
Bank of Scotland plc as facilities agent and (8) the financial
institutions listed in Part 5 of Schedule 1 thereto as fronting banks for
the Bonds it was agreed that the Original Lenders would make available
multicurrency revolving facilities of up to US$1,200,000,000,
(euro)400,000,000 and (pound)200,000,000.
(B) The execution and delivery to the Facilities Agent of this Guarantee is
one of the conditions precedent to the delivery of a Utilisation Request
under the Facilities Agreement.
IT IS AGREED as follows:
1 Interpretation
1.1 Words and expressions defined in the Facilities Agreement shall have the
same meaning when used in this Guarantee, except where the context
otherwise requires or otherwise defined in this Guarantee.
1.2 In this Guarantee:
"Facilities Agreement" means the Facilities Agreement referred to in
Recital (A), and includes any existing or future amendments or
supplements, whether made with the Guarantor's consent or otherwise; and
"Guaranteed Amounts" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantor in Clause 2.1.
1.3 Clause 1.2 of the Facilities Agreement applies, with any necessary
modifications, to this Guarantee.
2 Guarantee
2.1 The Guarantor hereby unconditionally and irrevocably:
2.1.1 guarantees to each Finance Party the punctual payment of all sums payable
by Carnival Corporation to that Finance Party under the Finance Documents,
including, without limitation, default interest payable under Clause 13.3
of the Facilities Agreement and payment upon any indemnity or otherwise;
and
2.1.2 undertakes to each Finance Party that if for any reason Carnival
Corporation shall fail to pay any such sum or sums on its due date the
Guarantor shall, within 5 Business Days after first written demand by the
Facilities Agent, unconditionally pay such sum or sums to the Facilities
Agent in the currency or currencies in which such sum or sums are payable
under the relevant Finance Document.
3 Guarantor as Principal Debtor/Indemnity
3.1 If any sums expressed to be payable by Carnival Corporation under the
terms of the Finance Documents are not recoverable from Carnival
Corporation by reason of (a) any invalidity, unenforceability or
illegality of a Finance Document or any provision thereof (b) any legal
limitation or incapacity of Carnival Corporation or (c) as a result of
such Finance Document or any provision thereof being or becoming void,
voidable or unenforceable such sums shall nevertheless be recoverable by
the Facilities Agent on behalf of the Finance Parties from the Guarantor
as if it were principal debtor. The Guarantor agrees to indemnify the
Finance Parties on demand in an amount equal to any loss or liability
arising from any such invalidity, unenforceability, illegality, legal
limitation or incapacity affecting any Finance Document or Carnival
Corporation.
4 Interest
4.1 The Guarantor agrees to pay interest on each amount demanded of it
hereunder from the date of demand until payment (as well after as before
judgment) at the rate then applicable under the Facilities Agreement to
the sums in respect of which such demand is made (or would be so
applicable but for any legal or other limitation affecting Carnival
Corporation), provided that under no circumstances will the Guarantor be
liable for interest on the same amount both under this Clause 4.1 and
under the Facilities Agreement.
5 Continuing Guarantee
5.1 The guarantee and indemnity constituted by this Guarantee shall continue
in full force and effect until all sums whatsoever payable by Carnival
Corporation under the Finance Documents have been finally and irrevocably
paid in full, notwithstanding any intermediate payment or discharge or
partial settlement or other matter.
6 Liability Unconditional
6.1 The Guarantor's liability under this Guarantee shall not be discharged,
reduced or otherwise affected in any way by reason of (i) any of the
Finance Parties giving Carnival Corporation time or any other concession,
(ii) any composition, discharge, release or other variation of liability
entered into with, or granted to Carnival Corporation, (iii) any of the
Finance Parties taking, holding, varying, realising or not enforcing any
other security for the liabilities of Carnival Corporation under the
Facilities Agreement, (iv) any amendment, variation or waiver (however
fundamental) of any provision of a Finance Document, (v) any legal
limitation or incapacity relating to Carnival Corporation, (vi) the
invalidity, illegality, non-provability or unenforceability of a Finance
Document, (vii) any insolvency or similar proceedings or any other act or
omission of any of the Finance Parties or any other circumstances which,
but for this provision, might discharge the Guarantor.
7 Demand
7.1 The Facilities Agent shall not be entitled to make any demand on the
Guarantor under Clause 2.1.2 for payment by the Guarantor of any sums
payable by Carnival Corporation under any Finance Document unless such
action has first been approved by the Majority Lenders.
8 Waiver of Guarantor's Rights
8.1 Waiver
The Guarantor shall, until all the Guaranteed Amounts have been finally
and irrevocably paid, discharged or satisfied in full, exercise only in
accordance with the Facilities Agent's instructions:
8.1.1 its rights of subrogation, contribution and indemnity against
Carnival Corporation;
8.1.2 its right to take the benefit of, share in or enforce any security
or other guarantee or indemnity for Carnival Corporation's
obligations held by any of the Finance Parties; and
8.1.3 its right to prove or claim in bankruptcy, liquidation,
administration or other insolvency proceedings of Carnival
Corporation.
Any amount obtained by the Guarantor in breach of this Clause 8
shall be held on trust for the relevant Finance Parties and paid to
the Facilities Agent (on behalf of such Finance Parties) on demand.
8.2 Appropriations
Until all amounts which may be or become payable by Carnival Corporation
under or in connection with the Finance Documents have been irrevocably
paid in full, each Finance Party (or any trustee or agent on its behalf)
may:
8.2.1 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 Guarantor shall not be
entitled to the benefit of the same; and
8.2.2 hold in an interest-bearing suspense account any moneys received
from the Guarantor or on account of the Guarantor's liability under
this Guarantee.
8.3 Immediate recourse
The 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 the Guarantor under this Guarantee. This waiver
applies irrespective of any provision of a Finance Document to the
contrary.
9 Representations and Warranties
9.1 The Guarantor represents and warrants to each Finance Party that:
9.1.1 it is duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation as a limited liability company and
has the power to execute, deliver and perform its obligations under
this Guarantee;
9.1.2 all necessary corporate action has been taken by it to authorise the
execution, delivery and performance of this Guarantee and this
Guarantee constitutes valid and legally binding obligations of the
Guarantor enforceable 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));
9.1.3 it 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;
9.1.4 the execution, delivery and performance of this Guarantee by the
Guarantor will not contravene any existing law, regulation or
authorisation to which it is subject, result in the breach of or
default under any agreement or other instrument to which the
Guarantor is a party or which is binding upon the Guarantor or its
assets or contravene any provision of the Guarantor's constitutional
documents;
9.1.5 its obligations under this Guarantee 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; and
9.1.6 the Guarantor has not taken any security from Carnival Corporation
in relation to this Guarantee.
10 Certificates
10.1 A certificate of the Facilities Agent setting forth the amount of any sum
due by the Guarantor and not then paid by Carnival Corporation and/or the
Guarantor shall be conclusive evidence of such amount against the
Guarantor in the absence of any manifest error.
11 Settlements Conditional
11.1 If any moneys paid to any Finance Party in reduction of the obligation of
Carnival Corporation under a Finance Document have to be repaid by such
Finance Party by virtue of any provision or enactment relating to
bankruptcy, insolvency or liquidation for the time being in force or on
any other ground, following such repayment the liability of the Guarantor
under this Guarantee shall be computed as if such moneys had never been
paid to such Finance Party at all.
12 Counterparts
12.1 This Guarantee may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an original
but all of which shall together constitute one and the same instrument.
13 Assignment and references to Finance Party
13.1 A Finance Party may assign its rights under and in connection with this
Guarantee to the same extent as it may assign its rights under the
Facilities Agreement.
13.2 This Guarantee shall remain in effect despite any amalgamation or merger
(however effected) relating to a Finance Party.
13.3 References to a Finance Party shall be deemed to include any assignee or
successor in title of such Finance Party and any person who, under the
laws of its jurisdiction of incorporation or
domicile, has assumed the rights and obligations of the relevant Finance
Party under the Facilities Agreement or this Guarantee or to which under
such laws the same have been transferred.
14 Notices
14.1 Any notice or demand to the Guarantor under or in connection with this
Guarantee shall be given by letter or fax at:
Carnival plc
5 Gainsford Street
London
SE1 2NE
England
Fax No: 0207 940 5382
Attention: Corporate Counsel
With a copy to:
Carnival Corporation
3655 NW 87th Avenue
Miami, FL 33178, USA
Fax No: + 1 (305) 406-4758
Attention: Treasurer
or to such other address which the Guarantor may notify to the Facilities
Agent.
14.2 Clause 35 of the Facilities Agreement applies to any notice or demand
under or in connection with this Guarantee but no notice may be served by
email in connection with this Guarantee.
14.3 A demand under this Guarantee shall be valid notwithstanding that it is
served on the date on which the amount to which it relates is payable by
Carnival Corporation under the Facilities Agreement and a demand under
this Guarantee may refer to all amounts payable under or in connection
with the Facilities Agreement without specifying a particular sum or
aggregate sum.
14.4 The Facilities Agent agrees to send to the Guarantor copies of all formal
demands served on Carnival Corporation pursuant to the Facilities
Agreement.
15 Invalidity
15.1 If any provision of this Guarantee is or becomes illegal, invalid,
prohibited or unenforceable in any jurisdiction, such invalidity,
illegality, prohibition or unenforceability shall not invalidate the
remaining provisions hereof or affect the legality, validity or
enforceability of such provision in any other jurisdiction.
16 No Set-Off or Counterclaim
16.1 All payments by the Guarantor hereunder shall be made in full, without
set-off or counterclaim in immediately available, freely transferable,
cleared funds for value on the date specified in the Facilities Agent's
demand to the account notified to the Guarantor by the Facilities Agent.
16.2 If an Event of Default has occurred and is outstanding, a Finance Party
may set off any matured obligation owed to it by the Guarantor 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 the Guarantor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the relevant 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. The relevant Finance Party shall notify the Guarantor as soon
as practicable after any set-off is effected under this Clause giving
reasonable details of the amounts and accounts involved.
17 No Implied Waivers, Remedies Cumulative
17.1 No failure or delay on the part of any of the Finance Parties to exercise
any power, right or remedy under this Guarantee shall operate as a waiver
thereof, nor shall any single or partial exercise by any of the Finance
Parties of any power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy. The
remedies provided in this Guarantee are cumulative and are not exclusive
of any remedies provided by law.
18 Expenses
18.1 The Guarantor shall pay to each Finance Party on demand all legal fees and
other costs, charges or expenses properly incurred by it in connection
with the preservation of its rights under or enforcement of this
Guarantee.
19 Third Party Rights
19.1 Any person other than any Finance Party who is not a party to this
Guarantee shall have no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any of its terms.
19.2 The Facilities Agent shall be entitled to exercise any and all rights and
benefits under this Guarantee on behalf of each of the Finance Parties.
20 Additional Security
This Guarantee 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.
21 Governing Law and Jurisdiction
21.1 This Guarantee shall be governed by, and construed in accordance with,
English law.
21.2 Subject to the provisions of this Clause 21, the courts of England shall
have exclusive jurisdiction to settle any disputes which may arise out of
or in connection with this Guarantee.
21.3 The Facilities Agent reserves the rights:
21.3.1 to commence proceedings in relation to any matter which arises out
of or in connection with this Guarantee in the courts of any country
other than England; and
21.3.2 to commence such proceedings in the courts of any such country or
countries concurrently with or in addition to proceedings in England
or without commencing proceedings in England.
21.4 The Guarantor shall not commence any proceedings in any country other than
England in relation to a matter which arises out of or in connection with
this Guarantee.
21.5 Nothing in this Clause 21 shall exclude or limit any right which any
Finance Party may have (whether under the law of any country, an
international convention or otherwise) with regard to the bringing of
proceedings, the service of process, the recognition or enforcement of a
judgment or any similar or related matter in any jurisdiction.
21.6 In this Clause 21, "proceedings" means proceedings of any kind, including
an application for a provisional or protective measure.
THIS GUARANTEE has been duly executed as a deed on the date first written above.
EXECUTED as a DEED ) /s/ David Bernstein
by DAVID BERNSTEIN ) -------------------
for and on behalf of CARNIVAL PLC )
pursuant to a power of attorney )
dated 10 October 2005 )
in the presence of: )
THOMAS BROWER
/s/ Thomas Brower
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Witness
Name: THOMAS BROWER
Address: 3301 KAPALUA COURT, FREEHOLD, NEW JERSEY 07728
Occupation: BANKER
SIGNED by MICHAEL IAN PORTER ) s/ Michael Ian Porter
for and on behalf of ) ---------------------
THE ROYAL BANK OF SCOTLAND PLC )
In the presence of: )
WITNESSED BY
PAUL T. FLETCHER
s/ Paul T. Fletcher
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