As filed with the Securities and Exchange Commission on March 31, 2004
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________
CARNIVAL CORPORATION CARNIVAL PLC
(Exact name of registrant as specified in its charter)
REPUBLIC OF PANAMA ENGLAND AND WALES
(State or other jurisdiction of incorporation or organization)
4400 4400
(Primary Standard Industrial Classification Code Number)
59-1562976 NONE
(I.R.S. Employer Identification No.)
3655 N.W. 87TH AVENUE CARNIVAL HOUSE
MIAMI, FLORIDA 33178-2428 5 GAINSFORD STREET
(305) 599-2600 LONDON SE1
2NE, UNITED KINGDOM 011
44 20 7940 5381
(Address,including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ARNALDO PEREZ, ESQ. ARNALDO PEREZ, ESQ.
SENIOR VICE PRESIDENT, SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY GENERAL COUNSEL AND COMPANY SECRETARY
CARNIVAL CORPORATION CARNIVAL PLC
3655 N.W. 87TH AVENUE CARNIVAL HOUSE
MIAMI, FLORIDA 33178-2428 5 GAINSFORD STREET
(305)599-2600 LONDON, SE1 2NE
011 44 20 7940 5381
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
JOHN C. KENNEDY, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
_______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
_______________________
CALCULATION OF REGISTRATION FEE
=========================================================================================================
TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE (2)
REGISTERED PER SHARE PRICE (1)
- ---------------------------------------------------------------------------------------------------------
3 3/4% Senior Notes Due $550,000,000 100% $550,000,000 $69,685
2007
- ---------------------------------------------------------------------------------------------------------
Guarantees of 3 3/4 % Senior N/A N/A N/A N/A (3)
Notes due 2007
- ---------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(f) of the Securities Act of 1933.
(2) The registration fee has been calculated pursuant to Rule 457(f) under the
Securities Act of 1933.
(3) No additional consideration is being received for the guarantees and
therefore no additional fee is required.
_______________________
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED __________ , 2004
PROSPECTUS
CARNIVAL CORPORATION
EXCHANGE OFFER FOR $550,000,000
3 3/4% SENIOR NOTES DUE 2007
GUARANTEED BY CARNIVAL PLC
THE NOTES AND THE GUARANTEES
We are offering to exchange $550,000,000 of our outstanding 3 3/4%
Senior Notes due 2007, which were issued on November 10, 2003 and which we refer
to as the initial notes, for a like aggregate amount of our registered 3 3/4%
Senior Notes due 2007, which we refer to as the exchange notes. The exchange
notes will be issued under an indenture dated as of April 25, 2001, as
supplemented by a fourth supplemental indenture dated as of November 10, 2003,
pursuant to which we issued the initial notes.
We will pay interest on the exchange notes on May 15 and November 15 of
each year, beginning on May 15, 2004. The notes will mature on November 15,
2007. We may redeem all of the notes in the event of tax law changes requiring
the payment of additional amounts.
The exchange notes will be our senior, unsecured obligations. Carnival
plc is guaranteeing our monetary obligations under the notes on an unsecured and
unsubordinated basis. The notes, as guaranteed, will rank equally with all of
the unsecured and unsubordinated indebtedness of Carnival Corporation and
Carnival plc, effectively junior to all of the secured indebtedness of Carnival
Corporation and Carnival plc, to the extent of the assets securing that
indebtedness, and effectively junior to all indebtedness of the subsidiaries of
Carnival Corporation and Carnival plc.
TERMS OF THE EXCHANGE OFFER
o It will expire at 5:00 p.m., New York City time, on ,
2004, unless we extend it.
o If all the conditions to this exchange offer are satisfied, we
will exchange all of our initial notes, that are validly
tendered and not withdrawn for new notes, which we refer to as
the exchange notes.
o You may withdraw your tender of initial notes at any time
before the expiration of this exchange offer.
o The exchange notes that we will issue you in exchange for your
initial notes will be substantially identical to your initial
notes except that, unlike your initial notes, the exchange
notes will have no transfer restrictions or registration
rights.
o The exchange notes that we will issue you in exchange for your
initial notes are new securities with no established market
for trading.
BEFORE PARTICIPATING IN THIS EXCHANGE OFFER, PLEASE REFER TO THE
SECTION IN THIS PROSPECTUS ENTITLED "RISK FACTORS" COMMENCING ON PAGE 12.
Each broker-dealer that receives exchange notes for its own account
pursuant to this exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of the exchange notes. The letter of
transmittal accompanying this prospectus states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of exchange notes received in exchange
for initial notes where the initial notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities. Carnival
Corporation and Carnival plc have agreed that, for a period of 90 days after the
expiration date of this exchange offer, Carnival Corporation will make this
prospectus available to any broker-dealer for use in connection with any such
resale. Please refer to the section of this prospectus entitled "Plan of
Distribution."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
--------------------------------------------------
The date of this prospectus is , 2004.
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TABLE OF CONTENTS
INCORPORATION BY REFERENCE.....................................................i
SUMMARY........................................................................1
RISK FACTORS..................................................................12
FORWARD-LOOKING STATEMENTS....................................................19
USE OF PROCEEDS...............................................................22
RATIO OF EARNINGS TO FIXED CHARGES............................................22
SELECTED HISTORICAL FINANCIAL AND OPERATING DATA OF CARNIVAL
CORPORATION & PLC...........................................................23
CAPITALIZATION................................................................25
DESCRIPTION OF THE DLC TRANSACTION............................................27
THE EXCHANGE OFFER............................................................29
DESCRIPTION OF THE NOTES......................................................38
DESCRIPTION OF THE CARNIVAL PLC GUARANTEE.....................................46
CERTAIN PANAMANIAN AND UNITED STATES FEDERAL INCOME TAX CONSEQUENCES..........49
PLAN OF DISTRIBUTION..........................................................53
LEGAL MATTERS.................................................................54
EXPERTS.......................................................................54
WHERE YOU CAN FIND MORE INFORMATION...........................................54
___________
Unless the context otherwise requires, references in this prospectus to
"Carnival Corporation," "we," "our," and "us" are to Carnival Corporation and
its consolidated subsidiaries, references to "Carnival plc" are to Carnival plc
(formerly known as P&O Princess Cruises plc) and its consolidated subsidiaries
and references to "Carnival Corporation & plc" are to both Carnival Corporation
and Carnival plc collectively following the establishment of the dual listed
company structure.
INCORPORATION BY REFERENCE
This prospectus incorporates by reference important business and
financial information about Carnival plc, Carnival Corporation & plc and us that
is not included in or delivered with this document. The information incorporated
by reference is considered to be part of this prospectus, and later information
that Carnival Corporation and Carnival plc file with the Commission will
automatically update and supersede this information. Any statement modified or
superseded by subsequently filed materials shall not be deemed, except as so
modified or superseded, to constitute a part of this prospectus. Subject to the
preceding, the information in this prospectus is qualified in its entirety by
the information appearing in the documents incorporated by reference. Carnival
Corporation (file number 1-9610) and Carnival plc (file number 1-5136)
incorporate by reference the documents listed below (excluding any portions of
such documents that have been "furnished" but not "filed"):
o Carnival Corporation's and Carnival plc's joint Annual Report
on Form 10-K for the year ended November 30, 2003;
o Carnival Corporation's and Carnival plc's joint Current Report
on Form 8-K filed on March 5, 2004;
o The historical audited financial statements of Carnival plc
contained in its Annual Report on Form 20-F for the year ended
December 31, 2002 (filed under its former name, P&O Princess
Cruises plc); and
o All other documents filed by Carnival Corporation and Carnival
plc pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and prior to
the termination of the offering.
You should rely only on the information contained in this document or
that information to which Carnival Corporation and Carnival plc have referred
you. Carnival Corporation and Carnival plc have not authorized anyone to provide
you with any additional information.
The documents incorporated by reference into this prospectus are
available from Carnival Corporation and Carnival plc upon request. Carnival
Corporation and Carnival plc will provide a copy of any and all of the
information that is
i
incorporated by reference in this prospectus to any person, without charge, upon
written or oral request. Requests for such copies should be directed to the
following:
Carnival Corporation
Carnival plc
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
Attention: Corporate Secretary
Telephone: (305) 599-2600, Ext. 18018
Except as provided above, no other information, including, but not limited to,
information on the web sites of Carnival Corporation or Carnival plc, is
incorporated by reference into this prospectus.
You should only rely on information contained in this prospectus and
incorporated by reference in it.
ii
SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION INCLUDED ELSEWHERE OR INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS. BECAUSE THIS IS A SUMMARY, IT MAY NOT CONTAIN ALL THE INFORMATION
THAT MAY BE IMPORTANT TO YOU. YOU SHOULD READ THE ENTIRE PROSPECTUS, AS WELL AS
THE INFORMATION INCORPORATED BY REFERENCE, BEFORE MAKING AN INVESTMENT DECISION.
SOME OF THE STATEMENTS IN THIS "SUMMARY" ARE FORWARD-LOOKING STATEMENTS. PLEASE
SEE "FORWARD-LOOKING STATEMENTS" FOR MORE INFORMATION REGARDING THESE
STATEMENTS. UNLESS OTHERWISE NOTED, ALL FINANCIAL INFORMATION INCLUDED IN THIS
PROSPECTUS HAS BEEN PREPARED IN ACCORDANCE WITH U.S. GAAP. THE TERM "INITIAL
NOTES" REFERS TO THE 3 3/4% SENIOR NOTES DUE 2007 THAT WERE ISSUED ON NOVEMBER
10, 2003 IN A PRIVATE OFFERING. THE TERM "EXCHANGE NOTES" REFERS TO THE 3 3/4%
SENIOR NOTES DUE 2007 OFFERED WITH THIS PROSPECTUS. THE TERM "NOTES" REFERS TO
THE INITIAL NOTES AND THE EXCHANGE NOTES, COLLECTIVELY.
CARNIVAL CORPORATION & PLC
On April 17, 2003, Carnival Corporation and Carnival plc (formerly
known as P&O Princess Cruises plc) completed a dual listed company transaction,
or DLC transaction, which implemented Carnival Corporation & plc's DLC
structure. Carnival Corporation and Carnival plc are both public companies, with
separate stock exchange listings and their own shareholders. The two companies
have a single senior executive management team and identical boards of directors
and are operated as if they were a single economic enterprise. On a pro forma
basis, giving effect to the DLC transaction as of December 1, 2002, Carnival
Corporation & plc would have reported revenues of $7.6 billion and net income of
$1.2 billion for the year ended November 30, 2003. Carnival Corporation & plc
had shareholders' equity of $13.8 billion as at November 30, 2003. See
"Description of the DLC Transaction" for a more detailed description of the
transaction.
Carnival Corporation & plc is the largest cruise vacation group in the
world, based on revenues, passengers carried and available capacity. Carnival
Corporation & plc had, as at February 15, 2004, a combined fleet of 73 cruise
ships offering 118,040 lower berths, with 11 additional cruise ships, having
28,894 lower berths scheduled to be added after February 15, 2004 through
mid-2006, and is the leading provider of cruises to all major destinations
outside the Far East. Carnival Corporation and Carnival plc together carried
approximately 5.4 million passengers in fiscal 2003.
Carnival Corporation & plc currently offers 12 complementary brands
with leading positions in North America, the UK, Germany, Italy, France, Spain,
Brazil, Argentina and Australia. Carnival Corporation & plc has multi-brand
strategies that are intended to differentiate it from its competitors and
provide products and services appealing to the widest possible target audience
across all major segments of the vacation industry. Carnival Corporation & plc
is the leading global cruise vacation operator with brands appealing to the
widest target audience, focused on sourcing passengers from developed vacation
markets where cruising is one of the fastest growing vacation alternatives.
In addition to Carnival Corporation & plc's cruise operations, Carnival
Corporation & plc operates the leading tour companies in Alaska and the Canadian
Yukon, through Holland America Tours and Princess Tours. Holland America Tours
and Princess Tours operate 17 hotels and lodges in Alaska and the Canadian
Yukon, two luxury dayboats and a fleet of more than 500 motorcoaches and more
than 20 domed rail cars.
As of February 15, 2004, a summary of the number of cruise ships
Carnival Corporation & plc operates, by brand, their passenger capacity and the
primary areas in which they are marketed is as follows:
CRUISE BRANDS NUMBER OF CRUISE SHIPS PASSENGER CAPACITY(1) PRIMARY MARKET
- ------------- ---------------------- --------------------- --------------
Carnival Cruise Lines(2)........ 20 43,446 North America
Princess Cruises(3)(4).......... 11 19,880 North America
Holland America Line(4)(5)...... 12 16,320 North America
Costa Cruises................... 10 15,570 Europe
P&O Cruises..................... 4 7,724 United Kingdom
AIDA............................ 4 5,314 Germany
1
CRUISE BRANDS NUMBER OF CRUISE SHIPS PASSENGER CAPACITY(1) PRIMARY MARKET
- ------------- ---------------------- --------------------- --------------
Cunard Line(6).................. 3 5,078 United Kingdom/North
America
Ocean Village................... 1 1,602 United Kingdom
P&O Cruises Australia(2)(3)..... 1 1,200 Australia
Swan Hellenic(7)................ 1 678 United Kingdom
Seabourn Cruise Line............ 3 624 North America
Windstar Cruises................ 3 604 North America
---------------------- ------------------
73 118,040
====================== ==================
- --------------
(1) In accordance with the cruise industry practice, passenger capacity is
calculated based on two passengers per cabin even though some cabins
can accommodate three or more passengers.
(2) Carnival Cruise Lines includes the 1,486-passenger Jubilee, which
Carnival Cruise Lines expects to transfer to P&O Cruises Australia in
the fall of 2004 and rename the Pacific Sun.
(3) One ship, the Pacific Princess, which is only included in Princess
Cruises' capacity, operates on a split deployment between Princess and
P&O Cruises Australia. Subsequent to February 15, 2004, the Diamond
Princess and the Caribbean Princess were delivered.
(4) Holland America Line and Princess Cruises also operate the leading tour
companies in Alaska and the Canadian Yukon, Holland America Tours and
Princess Tours, respectively, that primarily complement their cruise
operations.
(5) Holland America Line includes the Noordam, which was recently bare boat
chartered under a long-term agreement, but will continue to be operated
by Holland America Line through November 12, 2004.
(6) Cunard Line includes the Caronia, which was sold in May 2003 and is
being chartered back for use by Cunard Line until November 2004.
(7) The Minerva II is operated by Swan Hellenic pursuant to a bare boat
charter agreement that expires in 2006.
A description of Carnival Corporation & plc's ships under contract for
construction at November 30, 2003 was as follows (in millions, except passenger
capacity):
EXPECTED
SERVICE PASSENGER ESTIMATED
BRAND AND SHIP DATE(A) SHIPYARD CAPACITY TOTAL COST(B)
- -------------- ------- -------- -------- -------------
PRINCESS CRUISES
Diamond Princess.............. 3/04 Mitsubishi(d) 2,674 $475
Caribbean Princess............ 4/04 Fincantieri(c)(d) 3,114 500
Sapphire Princess............. 6/04 Mitsubishi 2,674 475
Newbuild...................... 6/06 Fincantieri 3,114 500
------ ------
Total Princess Cruises..... 11,576 1,950
------ ------
CARNIVAL CRUISE LINES
Carnival Miracle.............. 2/04 Masa-Yards(c)(d) 2,124 375
Carnival Valor................ 12/04 Fincantieri(c) 2,974 510
Carnival Liberty.............. 8/05 Fincantieri 2,974 460
------ ------
Total Carnival Cruise Lines 8,072 1,345
------ ------
2
EXPECTED
SERVICE PASSENGER ESTIMATED
BRAND AND SHIP DATE(A) SHIPYARD CAPACITY TOTAL COST(B)
- -------------- ------- -------- -------- -------------
HOLLAND AMERICA LINE
Westerdam..................... 4/04 Fincantieri(c) 1,848 410
Noordam....................... 2/06 Fincantieri(c) 1,848 410
------ ------
Total Holland America Line. 3,696 820
------ ------
CUNARD LINE
Queen Mary 2.................. 1/04 Chantiers de l'Atlantique(c)(d) 2,620 800
Queen Victoria................ 4/05 Fincantieri(c) 1,968 410
------ ------
Total Cunard Line.......... 4,588 1,210
------ ------
COSTA CRUISES
Costa Magica.................. 11/04 Fincantieri(e) 2,702 545
------ ------
Total......................... 30,634 $5,870
====== ======
- ---------------
(a) The expected service date is the month in which the ship is currently
expected to begin its first revenue generating cruise.
(b) Estimated total cost of the completed ship includes the contract price
with the shipyard, design and engineering fees, capitalized interest,
construction oversight costs and various owner supplied items.
(c) These construction contracts are denominated in euros and have been
fixed into U.S. dollars through the utilization of forward foreign
currency contracts.
(d) The Carnival Miracle and the Queen Mary 2 were delivered February 2004
and December 2003, respectively. Subsequent to February 15, 2004, the
Diamond Princess and the Caribbean Princess were delivered.
(e) This construction contract is denominated in euros, which is Costa
Cruises' functional currency and therefore, we have not entered into a
forward foreign currency contract to hedge this commitment. The
estimated total cost has been translated into U.S. dollars using the
November 30, 2003 exchange rate.
Subsequent to November 30, 2003, Costa entered into a ship construction
contract for a 3,004-passenger ship with Fincantieri for a June 2006 delivery
date at an estimated total cost of 450 million euros.
In connection with cruise ships under contract for construction,
Carnival Corporation & plc has paid $876 million through November 30, 2003 and
anticipates paying $2.98 billion in 2004, $1.24 billion in 2005 and $775 million
in 2006.
CARNIVAL CORPORATION
Carnival Corporation was incorporated under the laws of the Republic of
Panama in November 1974. Carnival Corporation's common stock and paired trust
shares, which trade together with the common stock, are listed on the NYSE under
the symbol "CCL." Carnival Corporation's principal executive offices are located
at Carnival Place, 3655 N.W. 87th Avenue, Miami, Florida 33178-2428. The
telephone number of Carnival Corporation's principal executive offices is (305)
599-2600.
CARNIVAL PLC
Carnival plc was incorporated and registered in England and Wales as
P&O Princess Cruises plc in July 2000 and was renamed "Carnival plc" on April
17, 2003, the date on which the DLC transaction with Carnival Corporation
closed. Carnival plc's ordinary shares are listed on the London Stock Exchange,
and Carnival plc's American Depositary Shares, or ADSs, are listed on the NYSE.
Effective April 22, 2003, Carnival plc ordinary shares trade under the symbol
"CCL" (formerly trading under "POC") on the London Stock Exchange. Effective
April 21, 2003, Carnival plc ADSs trade under the symbol "CUK" (formerly trading
under "POC") on the NYSE. Carnival plc's principal executive offices are located
at Carnival House, 5 Gainsford Street, London SE1 2NE, United Kingdom. The
telephone number of Carnival plc's principal executive offices is 011 44 20 7940
5381.
3
RECENT DEVELOPMENTS
On March 22, 2004, Carnival Corporation & plc reported net income of
$203 million ($0.25 diluted EPS) on revenues of $2.0 billion for its first
quarter ended February 29, 2004 compared to reported net income of $127 million
($0.22 diluted EPS) on reported revenues of $1.0 billion for the same quarter in
2003 and pro forma net income of $147 million ($0.18 diluted EPS) on pro forma
revenues of $1.6 billion for the same quarter in 2003. Both the pro forma and
reported 2003 earnings per share included a $0.02 nonrecurring gain from
insurance settlements.
Revenues for the first quarter of 2004 increased by $945 million
compared to reported revenues in the first quarter of 2003 primarily due to the
inclusion of $749 million of Carnival plc revenues, a 16.8 percent increase in
Carnival Corporation standalone capacity and higher revenue yields (revenue per
available lower berth day). Operating costs and selling, general and
administrative expenses increased by $735 million compared to reported operating
costs and selling, general and administrative expenses in the first quarter of
2003. Approximately $590 million of the increase was due to the inclusion of
Carnival plc costs, and the remainder was primarily due to increased capacity.
4
SUMMARY OF THE EXCHANGE OFFER
We are offering to exchange $550,000,000 aggregate principal amount of
our exchange notes for a like aggregate principal amount of our initial notes.
In order to exchange your initial notes, you must properly tender them and we
must accept your tender. We will exchange all outstanding initial notes that are
validly tendered and not validly withdrawn.
Exchange Offer....................... We will exchange our exchange notes for a
like aggregate principal amount at
maturity of our initial notes.
Expiration Date...................... This exchange offer will expire at 5:00
p.m., New York City time, on ___________,
2004, unless we decide to extend it.
Conditions to the Exchange
Offer........................... We will complete this exchange offer only
if:
o this exchange offer, or the making
of any exchange by a holder of our
initial notes, does not violate
applicable law, rule or regulation
or any applicable interpretation of
the staff of the SEC;
o the initial notes are duly tendered
in accordance with this exchange
offer;
o each holder of initial notes
exchanged in this exchange offer
shall have represented that all
exchange notes received by it shall
be acquired by it in the ordinary
course of its business and that at
the time of the consummation of
this exchange offer it shall have
no arrangement or understanding
with any person to participate in
the distribution (within the
meaning of the Securities Act) of
the exchange notes and shall have
made such other representations as
may be reasonably necessary under
applicable Securities rules,
regulations or interpretations to
render the use of Form S-4
available; and
o no action or proceeding shall have
been instituted or threatened in
any court or by or before any
governmental agency with respect to
this exchange offer which, in
Carnival Corporation & plc's
judgment, would reasonably be
expected to impair the ability of
Carnival Corporation & plc to
proceed with this exchange offer.
Please refer to the section in this
prospectus entitled "The Exchange
Offer--Conditions to the Exchange Offer."
5
Procedures for Tendering Initial
Notes........................... To participate in this exchange offer,
you must complete, sign and date the
letter of transmittal or its facsimile
and transmit it, together with your
initial notes to be exchanged and all
other documents required by the letter of
transmittal, to U.S. Bank National
Association, as exchange agent, at its
address indicated under "The Exchange
Offer--Exchange Agent." In the
alternative, you can tender your initial
notes by book-entry delivery following
the procedures described in this
prospectus. If your initial notes are
registered in the name of a broker,
dealer, commercial bank, trust company or
other nominee, you should contact that
person promptly to tender your initial
notes in this exchange offer. For more
information on tendering your notes,
please refer to the section in this
prospectus entitled "The Exchange
Offer--Procedures for Tendering Initial
Notes."
Special Procedures for Beneficial
Owners.......................... If you are a beneficial owner of initial
notes that are registered in the name of
a broker, dealer, commercial bank, trust
company or other nominee and you wish to
tender your initial notes in the exchange
offer, you should contact the registered
holder promptly and instruct that person
to tender on your behalf.
Guaranteed Delivery Procedures....... If you wish to tender your initial notes
and you cannot get the required documents
to the exchange agent on time, you may
tender your notes by using the guaranteed
delivery procedures described under the
section of this prospectus entitled "The
Exchange Offer--Procedures for Tendering
Initial Notes--Guaranteed Delivery
Procedure."
Withdrawal Rights.................... You may withdraw the tender of your
initial notes at any time before 5:00
p.m., New York City time, on the
expiration date of the exchange offer. To
withdraw, you must send a written or
facsimile transmission notice of
withdrawal to the exchange agent at its
address indicated under "The Exchange
Offer--Exchange Agent" before 5:00 p.m.,
New York City time, on the expiration
date of the exchange offer.
Acceptance of Initial Notes and
Delivery of Exchange Notes...... If all the conditions to the completion
of this exchange offer are satisfied, we
will accept any and all initial notes
that are properly tendered in this
exchange offer on or before 5:00 p.m.,
New York City time, on the expiration
date. We will return any initial note
that we do not accept for exchange to you
without expense promptly after the
expiration date. We will deliver the
exchange notes to you promptly after the
expiration date and acceptance of your
initial notes for exchange. Please refer
to the section in this prospectus
entitled "The Exchange Offer--Acceptance
of Initial Notes for Exchange; Delivery
of Exchange Notes."
Federal Income Tax Considerations
Relating to the Exchange Offer.. Exchanging your initial notes for
exchange notes will not be a taxable
event to you for United States federal
income tax purposes. Please refer to the
section of this prospectus entitled
"United States Federal Income Tax
Considerations."
Exchange Agent....................... U.S. Bank National Association is serving
as exchange agent in the exchange offer.
6
Fees and Expenses.................... We will pay all expenses related to this
exchange offer. Please refer to the
section of this prospectus entitled "The
Exchange Offer--Fees and Expenses."
Use of Proceeds...................... We will not receive any proceeds from the
issuance of the exchange notes in
exchange for the outstanding initial
notes. We are making this exchange solely
to satisfy our obligations under the
registration rights agreement entered
into in connection with the offering of
the initial notes.
Consequences to Holders Who Do Not
Participate in the
Exchange Offer ............ If you do not participate in this
exchange offer:
o except as set forth in the next
paragraph, you will not be able to
require us to register your initial
notes under the Securities Act,
o you will not be able to resell,
offer to resell or otherwise
transfer your initial notes unless
they are registered under the
Securities Act or unless you
resell, offer to resell or
otherwise transfer them under an
exemption from the registration
requirements of, or in a
transaction not subject to, the
Securities Act, and
o the trading market for your initial
notes will become more limited to
the extent other holders of initial
notes participate in the exchange
offer.
You will not be able to require us to
register your initial notes under the
Securities Act unless:
o there is a change in law, SEC rules
or regulations or applicable
interpretations thereof by the
staff of the Commission and, as a
result of such change, Carnival
Corporation and Carnival plc are
not permitted to effect an exchange
offer;
o the exchange offer is not declared
effective within 210 days of the
date of the issuance of the initial
notes or it is not consummated
within 240 days of the date of the
issuance of the initial notes;
o the initial purchasers not
permitted under applicable law to
participate in the exchange offer
so request a registration; or
o you are not permitted by the
federal securities laws or
applicable interpretations thereof
by the staff of the Commission to
participate in the exchange offer
or do not receive fully tradable
exchange notes in the exchange
offer.
In these cases, we and Carnival plc will
at our sole expense:
o as promptly as practicable, file a
shelf registration statement
covering resales of the notes (the
"Shelf Registration Statement");
7
o use commercially reasonable efforts
to cause the Shelf Registration
Statement to be declared effective
under the Securities Act no later
than 240 days after the date of the
issuance of the initial notes; and
o use commercially reasonable efforts
to keep effective the Shelf
Registration Statement until the
earlier of two years after the date
of issuance of the initial notes or
such time as all of the applicable
notes have been sold thereunder.
We do not currently anticipate that we
will register under the Securities Act
any initial notes that remain outstanding
after completion of the exchange offer.
Please refer to the section of this
prospectus entitled "Risk Factors--Your
failure to participate in the exchange
offer will have adverse consequences."
Resales.............................. It may be possible for you to resell the
notes issued in the exchange offer
without compliance with the registration
and/or prospectus delivery provisions of
the Securities Act, subject to the
conditions set forth in the following
paragraph and, in the case of
broker-dealers, the conditions described
under "--Obligations of Broker-Dealers"
below.
To tender your initial notes in this
exchange offer and resell the exchange
notes without compliance with the
registration and prospectus delivery
requirements of the Securities Act, you
must make the following representations:
o you are authorized to tender the
initial notes and to acquire
exchange notes, and that we will
acquire good and unencumbered title
thereto,
o the exchange notes acquired by you
are being acquired in the ordinary
course of business,
o you have no arrangement or
understanding with any person to
participate in a distribution of
the exchange notes and are not
participating in, and do not intend
to participate in, the distribution
of such exchange notes,
o you are not an "affiliate," as
defined in Rule 405 under the
Securities Act, of ours,
o if you are not a broker-dealer, you
are not engaging in, and do not
intend to engage in, a distribution
of exchange notes, and
o if you are a broker-dealer, the
initial notes to be exchanged were
acquired by you as a result of
market-making or other trading
activities and you will deliver a
prospectus in connection with any
resale, offer to resell or other
transfer of such exchange notes.
8
Please refer to the sections of this
prospectus entitled "The Exchange Offer--
Procedure for Tendering Initial
Notes--Proper Execution and Delivery of
Letters of Transmittal," "Risk
Factors--Risks Relating to the Exchange
Offer--Some persons who participate in
the exchange offer must deliver a
prospectus in connection with resales of
the exchange notes" and "Plan of
Distribution."
Obligations of Broker-Dealers........ If you are a broker-dealer (1) that
receives exchange notes, you must
acknowledge that you will deliver a
prospectus in connection with any resales
of the exchange notes, (2) who acquired
the initial notes as a result of market
making or other trading activities, you
may use the exchange offer prospectus as
supplemented or amended, in connection
with resales of the exchange notes, or
(3) who acquired the initial notes
directly from the issuers in the initial
offering and not as a result of market
making and trading activities, you must,
in the absence of an exemption, comply
with the registration and prospectus
delivery requirements of the Securities
Act in connection with resales of the
exchange notes.
9
SUMMARY OF THE TERMS OF THE EXCHANGE NOTES
THE FOLLOWING IS A BRIEF SUMMARY OF THE TERMS OF THIS EXCHANGE OFFER,
THE NOTES AND GUARANTEES. FOR A MORE COMPLETE DESCRIPTION. SEE "DESCRIPTION OF
THE EXCHANGE OFFER," "DESCRIPTION OF THE NOTES," AND "DESCRIPTION OF THE
CARNIVAL PLC GUARANTEE," IN THIS PROSPECTUS.
Issuer............................ Carnival Corporation
Notes Offered..................... $550.0 million aggregate principal amount of
3.75% senior notes due 2007. The forms and
terms of the exchange notes are the same as
the form and terms of the initial notes
except that the issuance of the exchange
notes is registered under the Securities Act,
will not bear legends restricting their
transfer and will not be entitled to
registration rights under our registration
rights agreement. The exchange notes will
evidence the same debt as the initial notes,
and both the initial notes and the exchange
notes will be governed by the same indenture
and supplemental indenture.
Maturity.......................... The exchange notes will mature on November
15, 2007 unless redeemed earlier by us as
described in "Description of the
Notes--Redemption or Assumption of Notes
Upon Changes or Amendment to Laws."
Interest Rate..................... 3.75% per year.
Interest Payment Dates............ We will pay interest on the exchange notes
semi-annually in arrears on May 15 and
November 15 of each year, beginning on May
15, 2004.
Guarantees........................ Our monetary obligations under the exchange
notes will be guaranteed on an
unsubordinated, unsecured basis by Carnival
plc. See "Description of the Carnival plc
Guarantee." No subsidiaries of Carnival
Corporation or Carnival plc will be
guaranteeing the exchange notes.
Ranking........................... The exchange notes will be our senior
unsecured obligations and, as guaranteed,
will rank equally with all of the unsecured
and unsubordinated indebtedness of Carnival
Corporation and Carnival plc, effectively
junior to all of the secured indebtedness of
Carnival Corporation and Carnival plc, to the
extent of the assets securing that
indebtedness, and effectively junior to all
indebtedness of the subsidiaries of Carnival
Corporation and Carnival plc. As of February
29, 2004, Carnival Corporation & plc had
$7.83 billion of consolidated indebtedness.
Of this amount:
o Carnival Corporation and Carnival plc
had an aggregate of $5.89 billion of
unsecured, unsubordinated indebtedness
outstanding, which amount includes
guarantees of $1.63 billion of
unsecured indebtedness of their
subsidiaries;
o Carnival Corporation and Carnival plc
had an aggregate of $192 million of
secured indebtedness outstanding, not
including any guarantees of their
subsidiaries' secured indebtedness;
o The subsidiaries of Carnival
Corporation and Carnival plc had an
aggregate of $1.21 billion of secured
indebtedness, of which $985 million was
guaranteed by Carnival Corporation
and/or Carnival plc;
o The subsidiaries of Carnival
Corporation and Carnival plc had an
aggregate of $2.17 billion of unsecured
indebtedness outstanding; and
10
o The subsidiaries of Carnival
Corporation and Carnival plc had an
aggregate of $3.38 billion of
indebtedness, of which $765 million was
not guaranteed by Carnival Corporation
or Carnival plc.
Absence of a Public Market for
the Exchange Notes............. The exchange notes are new securities with no
established market for them. We cannot assure
you that a market for these exchange notes
will develop or that this market will be
liquid. Please refer to the section of this
prospectus entitled "Risk
Factors--Risks Relating to the Exchange
Notes--An active trading market for the
exchange notes may not develop."
Form of the Exchange Notes........ The exchange notes will be represented by one
or more permanent global securities in
registered form deposited on behalf of The
Depository Trust Company with U.S. Bank
National Association, as custodian. You will
not receive exchange notes in certificated
form unless one of the events described in
the section of this prospectus entitled
"Description of Notes--Book Entry System"
occurs. Instead, beneficial interests in the
exchange notes will be shown on, and
transfers of these exchange notes will be
effected only through, records maintained in
book entry form by The Depository Trust
Company, with respect to its participants.
Risk Factors...................... See "Risk Factors" and other information in
this prospectus for a discussion of the
factors you should carefully consider before
deciding to invest in the notes.
11
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE SPECIFIC RISK FACTORS SET FORTH BELOW
AS WELL AS THE OTHER INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS BEFORE DECIDING TO INVEST IN THE NOTES. SOME STATEMENTS IN THIS
SECTION ARE "FORWARD-LOOKING STATEMENTS." FOR A DISCUSSION OF THOSE STATEMENTS
AND OF OTHER FACTORS FOR INVESTORS TO CONSIDER, SEE "FORWARD-LOOKING
STATEMENTS."
RISKS RELATING TO CARNIVAL CORPORATION & PLC'S BUSINESS
CARNIVAL CORPORATION & PLC MAY LOSE BUSINESS TO COMPETITORS THROUGHOUT THE
VACATION MARKET.
Carnival Corporation & plc operates in the vacation market, and
cruising is one of many alternatives for people choosing a vacation. Carnival
Corporation & plc therefore risks losing business not only to other cruise
lines, but also to other vacation operators that provide other leisure options,
including hotels, resorts and package holidays and tours.
Carnival Corporation & plc faces significant competition from other
cruise lines, both on the basis of cruise pricing and also in terms of the
nature of ships and services it will offer to cruise passengers. Carnival
Corporation & plc's principal competitors include:
o Royal Caribbean Cruises Ltd., which owns Royal Caribbean
International and Celebrity Cruises;
o Norwegian Cruise Line and Orient Lines;
o Disney Cruise Line;
o My Travel's Sun Cruises, Thomson, Saga and Fred Olsen in the
UK;
o Festival Cruises, Hapag-Lloyd, Peter Deilmann, Transocean
Cruises and Phoenix Reisen in Germany;
o Festival Cruises, Mediterranean Shipping Cruises, Spanish
Cruise Line and Louis Cruise Line in southern Europe;
o Crystal Cruises;
o Radisson Seven Seas Cruise Line; and
o Silversea Cruises.
Carnival Corporation & plc also competes with land-based vacation
alternatives throughout the world, including, among others, resorts, hotels,
theme parks and vacation ownership properties located in Las Vegas, Nevada,
Orlando, Florida, various Caribbean, Mexican, Bahamian and Hawaiian Island
destination resorts and numerous other vacation destinations throughout Europe
and the rest of the world.
In the event that Carnival Corporation & plc does not compete
effectively with other vacation alternatives and cruise companies, its results
of operations and financial condition could be adversely affected.
THE INTERNATIONAL POLITICAL AND ECONOMIC CLIMATE AND OTHER WORLD EVENTS
AFFECTING SAFETY AND SECURITY COULD ADVERSELY AFFECT THE DEMAND FOR CRUISES AND
COULD HARM CARNIVAL CORPORATION & PLC'S FUTURE SALES AND PROFITABILITY.
Demand for cruises and other vacation options has been, and is expected
to continue to be, affected by the public's attitude towards the safety of
travel, the international political climate and the political climate of
destination countries. Events such as the terrorist attacks in the United States
on September 11, 2001 and the threat
12
of additional attacks, concerns of an outbreak of additional hostilities and
national government travel advisories, together with the resulting political
instability and concerns over safety and security aspects of traveling, have had
a significant adverse impact on demand and pricing in the travel and vacation
industry and may continue to do so in the future. Demand for cruises is also
likely to be increasingly dependent on the underlying economic strength of the
countries from which cruise companies source their passengers. Economic or
political changes that reduce disposable income or consumer confidence in the
countries from which Carnival Corporation & plc will source its passengers may
affect demand for vacations, including cruise vacations, which are a
discretionary purchase. Decreases in demand could lead to price discounting
which, in turn, could reduce the profitability of its business.
OVERCAPACITY WITHIN THE CRUISE AND LAND-BASED VACATION INDUSTRY COULD HAVE A
NEGATIVE IMPACT ON NET REVENUE YIELDS, INCREASE OPERATING COSTS, RESULTING IN
SHIP, GOODWILL AND/OR TRADEMARK ASSET IMPAIRMENTS AND COULD ADVERSELY AFFECT
PROFITABILITY.
Cruising capacity has grown in recent years and Carnival Corporation &
plc expects it to continue to increase over the next two and a half years as all
of the major cruise vacation companies are expected to introduce new ships. Over
the past few years, Carnival Corporation & plc's net revenue yields have been
negatively impacted as a result of a variety of factors, including capacity
increases. In order to utilize new capacity, the cruise vacation industry will
probably need to increase its share of the overall vacation market. The overall
vacation market is also facing increases in land-based vacation capacity, which
also will impact Carnival Corporation & plc. Failure of the cruise vacation
industry to increase its share of the overall vacation market is one of a number
of factors that could have a negative impact on Carnival Corporation & plc's net
revenue yields. Should net revenue yields be negatively impacted, Carnival
Corporation & plc's results of operations and financial condition could be
adversely affected, including the impairment of the value of its ships, goodwill
and/or trademark assets. In addition, increased cruise capacity could impact
Carnival Corporation & plc's ability to retain and attract qualified crew at
competitive costs and, therefore, increase Carnival Corporation & plc's
shipboard employee costs.
CARNIVAL CORPORATION & PLC'S FUTURE OPERATING CASH FLOW MAY NOT BE SUFFICIENT TO
FUND FUTURE OBLIGATIONS, AND CARNIVAL CORPORATION & PLC MAY NOT BE ABLE TO
OBTAIN ADDITIONAL FINANCING, IF NECESSARY, AT A COST THAT IS FAVORABLE OR THAT
MEETS ITS EXPECTATIONS.
Carnival Corporation & plc's forecasted cash flow from future
operations may be adversely affected by various factors, including, but not
limited to, declines in customer demand, increased competition, overcapacity,
the deterioration in general economic and business conditions, terrorist
attacks, ship incidents, adverse publicity and increases in fuel prices, as well
as other factors noted under these risk factors and under the "Forward-Looking
Statements" section below. To the extent that Carnival Corporation & plc is
required, or chooses, to fund future cash requirements, including future
shipbuilding commitments, from sources other than cash flow from operations,
cash on hand and current external sources of liquidity, including committed
financings, Carnival Corporation & plc will have to secure such financing from
banks or through the offering of debt and/or equity securities in the public or
private markets.
Carnival Corporation & plc's access to financing will depend on, among
other things, the maintenance of strong long-term credit ratings. Carnival
Corporation and Carnival plc's senior, unsecured long-term debt ratings are "A3"
by Moody's, "A-" by Standard & Poor's and "A-" by Fitch Ratings. Carnival
Corporation's short-term corporate credit ratings are "Prime-2" by Moody's,
"A-2" by Standard & Poor's and "F2" by Fitch Ratings.
ACCIDENTS AND OTHER INCIDENTS OR ADVERSE PUBLICITY CONCERNING THE CRUISE
INDUSTRY OR CARNIVAL CORPORATION & PLC COULD AFFECT CARNIVAL CORPORATION & PLC'S
REPUTATION AND HARM ITS FUTURE SALES AND PROFITABILITY.
The operation of cruise ships involves the risk of accidents, passenger
and crew illnesses, mechanical failures and other incidents at sea or while in
port, which may bring into question passenger safety, health, security and
vacation satisfaction and thereby adversely affect future industry performance.
Incidents involving passenger cruise ships could occur and could adversely
affect future sales and profitability. In addition, adverse publicity concerning
the vacation industry in general or the cruise industry or Carnival Corporation
& plc in particular could impact demand and, consequently, have an adverse
effect on Carnival Corporation & plc's profitability.
13
OPERATING, FINANCING AND TAX COSTS ARE SUBJECT TO MANY ECONOMIC AND POLITICAL
FACTORS THAT ARE BEYOND CARNIVAL CORPORATION & PLC'S CONTROL, WHICH COULD RESULT
IN INCREASES IN ITS OPERATING, FINANCING AND TAX COSTS.
Some of Carnival Corporation & plc's operating costs, including fuel,
food, insurance, payroll and security costs, are subject to increases because of
market forces and economic instability or political instability beyond Carnival
Corporation & plc's control. In addition, interest rates, currency fluctuations
and Carnival Corporation & plc's ability to obtain debt or equity financing are
dependent on many economic and political factors. Actions by U.S. and non-U.S.
taxing jurisdictions could also cause an increase in Carnival Corporation &
plc's costs. Increases in operating, financing and tax costs could adversely
affect Carnival Corporation & plc's results because Carnival Corporation & plc
may not be able to recover these increased costs through price increases of its
cruise vacations.
ENVIRONMENTAL LEGISLATION AND REGULATIONS COULD AFFECT OPERATIONS AND INCREASE
CARNIVAL CORPORATION & PLC OPERATING COSTS.
Some environmental groups have lobbied for more stringent regulation of
cruise ships. Some groups have also generated negative publicity about the
cruise industry and its environmental impact. The U.S. Environmental Protection
Agency is considering new laws and rules to manage cruise ship waste. In
addition, various state regulatory agencies in Alaska, California, Florida and
elsewhere are considering new regulations which could adversely impact the
cruise industry.
Alaskan authorities are currently investigating an incident that
occurred in August 2002 onboard Holland America Line's Ryndam involving a
wastewater discharge from the ship. As a result of this incident, various Ryndam
ship officers and crew have received grand jury subpoenas from the Office of the
U.S. Attorney in Anchorage, Alaska, requesting that they appear before the grand
jury. If the investigation results in charges being filed, a judgment could
include, among other forms of relief, fines and debarment from federal
contracting, which would prohibit Holland America Line's operations in Alaska's
Glacier Bay National Park and Preserve during the period of debarment.
In addition, pursuant to a settlement with the U.S. government in April
2002, Carnival Corporation pled guilty to certain environmental violations.
Carnival Corporation was sentenced under a plea agreement pursuant to which
Carnival Corporation paid fines in fiscal 2002 totaling $18 million to the U.S.
government and other parties. Carnival Corporation was also placed on probation
for a term of five years. Under the terms of the probation, any future violation
of environmental laws by Carnival Corporation may be deemed a violation of
probation. In addition, Carnival Corporation was required as a special term of
probation to develop, implement and enforce a worldwide environmental compliance
program, which probation is also applicable to Carnival plc. Carnival
Corporation & plc has implemented the environmental compliance program at
Carnival Corporation and are in the process of implementing it at Carnival plc
and expect to incur approximately $5 million in additional 2004 annual
environmental compliance costs compared to 2003 as a result of the program.
Carnival Corporation & plc's costs of complying with current and future
environmental laws and regulations, or liabilities arising from past or future
releases of, or exposure to, hazardous substances or to vessel discharges, could
increase the cost of compliance or otherwise materially adversely affect
Carnival Corporation & plc's business, results of operations and/or financial
condition.
NEW REGULATION OF HEALTH, SAFETY, SECURITY AND OTHER REGULATORY ISSUES COULD
INCREASE OPERATING COSTS AND ADVERSELY AFFECT NET INCOME.
Carnival Corporation & plc is subject to various international,
national, state and local health, safety and security laws, regulations and
treaties. The International Maritime Organization, sometimes referred to as the
IMO, which operates under the United Nations, has adopted safety standards as
part of the International Convention for the Safety of Life at Sea, sometimes
referred to as SOLAS, which is applicable to all of Carnival Corporation & plc's
ships. Generally SOLAS establishes vessel design, structural features,
materials, construction and life saving equipment requirements to improve
passenger safety and security.
14
In addition, ships that call on U.S. ports are subject to inspection by
the U.S. Coast Guard for compliance with SOLAS and by the U.S. Public Health
Service for sanitary standards. Carnival Corporation & plc's ships are also
subject to similar inspections pursuant to the laws and regulations of various
other countries such ships visit. Finally, the U.S. Congress recently enacted
the Maritime Transportation Security Act of 2002 which implemented a number of
security measures at U.S. ports, including measures that relate to foreign
flagged vessels calling at U.S. ports.
Carnival Corporation & plc believes that health, safety, security and
other regulatory issues will continue to be areas of focus by relevant
government authorities both in the U.S. and elsewhere. Resulting legislation or
regulations, or changes in existing legislation or regulations, could impact the
operations of Carnival Corporation & plc and would likely subject Carnival
Corporation & plc to increasing compliance costs in the future.
DELAYS IN SHIP CONSTRUCTION AND PROBLEMS ENCOUNTERED AT SHIPYARDS COULD REDUCE
CARNIVAL CORPORATION & PLC'S PROFITABILITY.
The construction of cruise ships is a complex process and involves
risks similar to those encountered in other sophisticated construction projects,
including delays in completion and delivery. In addition, industrial actions and
insolvency or financial problems of the shipyards building Carnival Corporation
& plc's ships could also delay or prevent the delivery of its ships under
construction. These events could adversely affect Carnival Corporation & plc's
profitability. However, the impact from a delay in delivery could be mitigated
by contractual provisions and refund guarantees obtained by Carnival Corporation
& plc.
In addition, as of February 15, 2004 Carnival Corporation & plc has
entered into forward foreign currency contracts to fix the cost in U.S. dollars
of five of Carnival Corporation & plc's foreign currency denominated
shipbuilding contracts. If the shipyard with which we have contracted is unable
to perform under the related contract, the foreign currency forward contracts
related to that shipyard's shipbuilding contracts would still have to be
honored. This might require Carnival Corporation & plc to realize a loss on an
existing contract without having the ability to have an offsetting gain on its
foreign currency denominated shipbuilding contract, thus resulting in an adverse
effect on the financial results of Carnival Corporation & plc.
THE LACK OF ATTRACTIVE PORT DESTINATIONS FOR CARNIVAL CORPORATION & PLC'S CRUISE
SHIPS COULD REDUCE OUR NET REVENUE YIELDS AND NET INCOME.
Carnival Corporation & plc believes that attractive port destinations,
including ports that are not overly congested with tourists, are major reasons
why Carnival Corporation & plc customers choose a cruise versus an alternative
vacation option. The availability of ports, including the specific port facility
at which our guests will embark and disembark, is affected by a number of
factors including, but not limited to, existing capacity constraints, security
concerns, adverse weather conditions and natural disasters, financial
limitations on port development, local governmental regulations and local
community concerns about both port development and other adverse impacts on
their communities from additional tourists. The inability to continue to
maintain and increase Carnival Corporation & plc's ports of call could adversely
affect Carnival Corporation & plc's net revenue yields and net income.
RISKS RELATING TO THE DLC TRANSACTION
THE STRUCTURE OF THE DLC TRANSACTION INVOLVES RISKS NOT ASSOCIATED WITH THE MORE
COMMON WAYS OF COMBINING THE OPERATIONS OF TWO COMPANIES AND THESE RISKS MAY
HAVE AN ADVERSE EFFECT ON THE ECONOMIC PERFORMANCE OF THE COMPANIES AND/OR THEIR
RESPECTIVE SHARE PRICES.
The DLC structure is a relatively uncommon way of combining the
management and operations of two companies and it involves different issues and
risks from those associated with the other more common ways of effecting such a
business combination, such as a merger or exchange offer to create a wholly
owned subsidiary. In the DLC transaction, the combination was effected primarily
by means of contracts between Carnival Corporation and Carnival plc and not by
operation of a statute or court order. The legal effect of these contractual
rights may be different from the legal effect of a merger or amalgamation under
statute or court order and there may be difficulties
15
in enforcing these contractual rights. Shareholders and creditors of either
company might challenge the validity of the contracts or their lack of standing
to enforce rights under these contracts, and courts may interpret or enforce
these contracts in a manner inconsistent with the express provisions and
intentions that Carnival Corporation and Carnival plc included in such
contracts. In addition, shareholders and creditors of other companies might
successfully challenge other DLC structures and establish legal precedents that
could increase the risk of a successful challenge to the DLC transaction.
Carnival Corporation & plc is maintaining two separate public companies and
complies with both Panamanian corporate law and English company laws and
different securities and other regulatory and stock exchange requirements in the
UK and the U.S. This structure requires more administrative time and cost than
was the case for each company individually, which may have an adverse effect on
Carnival Corporation & plc's operating efficiency.
CHANGES UNDER THE INTERNAL REVENUE CODE, APPLICABLE U.S. INCOME TAX TREATIES,
AND THE UNCERTAINTY OF THE DLC STRUCTURE UNDER THE INTERNAL REVENUE CODE MAY
ADVERSELY AFFECT THE U.S. FEDERAL INCOME TAXATION OF THE U.S. SOURCE SHIPPING
INCOME OF CARNIVAL CORPORATION & PLC. IN ADDITION, CHANGES IN THE UK, ITALIAN,
GERMAN AND AUSTRALIAN INCOME TAX LAWS OR REGULATIONS COULD ADVERSELY AFFECT
CARNIVAL CORPORATION & PLC'S NET INCOME.
Carnival Corporation & plc believes that substantially all of the U.S.
source shipping income of each of Carnival Corporation and Carnival plc
qualifies for exemption from U.S. federal income tax, either under:
o Section 883 of the Internal Revenue Code;
o as appropriate in the case of Carnival plc and its UK resident
subsidiaries, the U.S.-UK Income Tax Treaty that entered into
force on April 25, 1980, which is referred to below as the
"old U.S.-UK treaty", and, when applicable, the new U.S.-UK
Income Tax Treaty that entered into force on March 31, 2003,
which is referred to below as the "new U.S.-UK treaty"; or
o other applicable U.S. income tax treaties,
and should continue to so qualify now that the DLC transaction has been
completed. There is, however, no existing U.S. federal income tax authority that
directly addresses the tax consequences of implementation of a dual listed
company structure such as the DLC structure for purposes of Section 883 or any
other provision of the Internal Revenue Code or any income tax treaty and,
consequently, the matters discussed above are not free from doubt.
Under recently finalized regulations, the scope of income that is
considered shipping income under Section 883 has been narrowed but, because the
regulations are new, the scope of income that will not qualify for exemption
under Section 883 is not clear. The provisions of Section 883 and the
Regulations under Section 883 are subject to change at any time. Moreover,
changes could occur in the future with respect to the trading volume or trading
frequency of Carnival Corporation shares and/or Carnival plc shares on their
respective exchanges or with respect to the identity, residence, or holdings of
Carnival Corporation's and/or Carnival plc's direct or indirect shareholders
that could affect the eligibility of Carnival Corporation and its subsidiaries
and/or certain members of the group consisting of Carnival plc, its subsidiaries
and its subsidiary undertakings which are otherwise eligible for the benefits of
Section 883 to qualify for the benefits of the Section 883 exemption.
Accordingly, it is possible that Carnival Corporation and its ship-owning or
operating subsidiaries and/or certain members of the group consisting of
Carnival plc, its subsidiaries and its subsidiary undertakings whose tax
exemption is based on Section 883 may lose this exemption. If any such
corporation were not entitled to the benefits of Section 883, it would become
subject to U.S. federal income taxation on a portion of its income, which would
reduce the net profits of such corporation.
Carnival plc's UK, German and Australian operations are entered into
the UK tonnage tax regime, whereby UK corporation tax is payable based on
shipping profits calculated by reference to the net tonnage of qualifying
vessels. Costa is subject to Italian tax law, which exempts a large portion of
its shipping income from Italian income tax. If these countries' tax laws or
regulations were to change in a manner adverse to these operations, our net
income could be adversely affected.
16
A SMALL GROUP OF SHAREHOLDERS COLLECTIVELY OWNED, AS OF FEBRUARY 23, 2004,
APPROXIMATELY 33% OF THE TOTAL COMBINED VOTING POWER OF THE OUTSTANDING SHARES
OF CARNIVAL CORPORATION & PLC AND MAY BE ABLE TO EFFECTIVELY CONTROL THE OUTCOME
OF SHAREHOLDER VOTING.
A group of shareholders, consisting of some members of the Arison
family, including Micky Arison, and trusts established for their benefit,
beneficially owned, as of February 23, 2004, approximately 42% of the
outstanding common stock of Carnival Corporation, which shares represented
sufficient shares entitled to constitute a quorum at shareholder meetings and to
cast approximately 33% of the total combined voting power of the outstanding
shares of Carnival Corporation & plc. Depending upon the nature and extent of
the shareholder vote, this group of shareholders may have the power to
effectively control, or at least to influence substantially, the outcome of
shareholder votes and, therefore, the corporate actions requiring such votes.
WE AND CARNIVAL PLC ARE NOT U.S. CORPORATIONS, AND HOLDERS OF THE NOTES MAY BE
SUBJECT TO THE UNCERTAINTIES OF A FOREIGN LEGAL SYSTEM IN PROTECTING THEIR
INTERESTS.
Our corporate affairs are governed by our third amended and restated
articles of incorporation and amended and restated by-laws and by the corporate
laws of Panama. Carnival plc is governed by its Articles of Association and
Memorandum of Association and is organized under the laws of England and Wales.
The corporate laws of Panama, and England and Wales may differ in some respects
from the corporate laws in the United States.
RISKS RELATING TO THE EXCHANGE NOTES
AN ACTIVE TRADING MARKET FOR THE EXCHANGE NOTES MAY NOT DEVELOP.
The exchange notes are a new issue of securities for which there is
currently no public market, and no active trading market might ever develop. If
the exchange notes are traded after their initial issuance, they may trade at a
discount from their initial offering price, depending on prevailing interest
rates, the market for similar securities, the price, and volatility in the
price, of our shares of common stock, our performance and other factors. In
addition, we do not know whether an active trading market will develop for the
notes. To the extent that an active trading market does not develop, the
liquidity and trading prices for the notes may be harmed.
RISKS RELATING TO THE GUARANTEE
CARNIVAL PLC'S GUARANTEE IS GOVERNED BY THE LAWS OF A FOREIGN JURISDICTION, AND
AN ACTION TO ENFORCE THE GUARANTEE MUST BE BROUGHT IN THE COURTS OF ENGLAND.
Unlike the exchange notes offered by this prospectus, which will be
governed by the laws of the State of New York, Carnival plc's guarantee of the
exchange notes will be issued under a separate deed of guarantee that is
governed by the laws of the Isle of Man. An action to enforce the guarantee must
be brought exclusively in the courts of England. Because of the exclusive
jurisdiction of English courts, an action to enforce the guarantee may be
separate from an action to enforce the terms of the notes or the related
indenture. Furthermore, the deed of guarantee was executed in connection with
the DLC transaction. DLC transactions are relatively unusual and there is little
or no case law in the Isle of Man or the United Kingdom relating to DLC
transactions or the agreements related to them. As a result of all of these
factors, it may be more difficult, expensive and time consuming for holders of
notes to enforce the guarantee of Carnival plc than a guarantee governed by New
York law in a more traditional financing. Furthermore, because a substantial
portion of Carnival plc's assets are located outside the United Kingdom, any
judgment related to the Carnival plc guarantee would then need to be enforced in
other countries, such as Italy, which may require further litigation.
CARNIVAL PLC'S GUARANTEE MAY BE UNENFORCEABLE DUE TO FRAUDULENT CONVEYANCE
STATUTES AND, ACCORDINGLY, YOU COULD HAVE NO CLAIM AGAINST IT, AS GUARANTOR OF
THE NOTES.
Although laws differ among various jurisdictions, a court could, under
fraudulent conveyance laws, subordinate or avoid the guarantee of Carnival plc
if it found that the guarantee was incurred with actual intent to
17
hinder, delay or defraud creditors, or if the relevant guarantor did not receive
fair consideration or reasonably equivalent value for the guarantee and that the
relevant guarantor:
o was insolvent or rendered insolvent because of the guarantee;
o was engaged in a business or transaction for which its
remaining assets constituted unreasonably small capital; or
o intended to incur, or believed that it would incur, debts
beyond the guarantor's ability to pay at maturity.
Carnival plc does not believe that the issuance of its guarantee will
be a fraudulent conveyance because, among other things, Carnival plc received
benefits from the offering of initial notes and the application of the proceeds
from such offering. However, if a court were to void the guarantee as the result
of a fraudulent conveyance by Carnival plc or hold it unenforceable for any
other reason, you would cease to have a claim against Carnival plc based on its
guarantee and would solely be a creditor of Carnival Corporation.
RISKS RELATING TO THE EXCHANGE OFFER
THE ISSUANCE OF EXCHANGE NOTES MAY ADVERSELY AFFECT THE MARKET FOR THE INITIAL
NOTES.
To the extent the initial notes are tendered and accepted in the
exchange offer, the trading market for the untendered and tendered but
unaccepted initial notes could be adversely affected. Because we anticipate that
most holders of the initial notes will elect to exchange their initial notes for
exchange notes due to the absence of restrictions on the resale of exchange
notes under the Securities Act, we anticipate that the liquidity of the market
for any initial notes remaining after the completion of this exchange offer may
be substantially limited.
YOUR FAILURE TO PARTICIPATE IN THE EXCHANGE OFFER WILL HAVE ADVERSE
CONSEQUENCES.
The initial notes were not registered under the Securities Act or under
the securities laws of any state and you may not resell them, offer them for
resale or otherwise transfer them unless they are subsequently registered or
resold under an exemption from the registration requirements of the Securities
Act and applicable state securities laws. If you do not exchange your initial
notes for exchange notes in accordance with this exchange offer, or if you do
not properly tender your initial notes in this exchange offer, you will not be
able to resell, offer to resell or otherwise transfer the initial notes unless
they are registered under the Securities Act or unless you resell them, offer to
resell or otherwise transfer them under an exemption from the registration
requirements of, or in a transaction not subject to, the Securities Act.
In addition, except as set forth in this paragraph, you will not be
able to obligate us to register the initial notes under the Securities Act. You
will not be able to require us to register your initial notes under the
Securities Act unless:
o there is a change in law, SEC rules or regulations or
applicable interpretations thereof by the staff of the
Commission and, as a result of such change, Carnival
Corporation and Carnival plc are not permitted to effect an
exchange offer;
o the exchange offer is not declared effective within 210 days
of the date of the issuance of the initial notes or it is not
consummated within 240 days of the date of the issuance of the
initial notes;
o the initial purchasers not permitted under applicable law to
participate in the exchange offer so request a registration;
or
18
o you are not permitted by the federal securities laws or
applicable interpretations thereof by the staff of the
Commission to participate in the exchange offer or do not
receive fully tradable exchange notes in the exchange offer.
In these cases, we and Carnival plc will at our sole expense:
o as promptly as practicable, file the Shelf Registration
Statement covering resales of the notes;
o use commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the
Securities Act no later than 240 days after the date of the
issuance of the initial notes; and
o use commercially reasonable efforts to keep effective the
Shelf Registration Statement until the earlier of two years
after the date of issuance of the initial notes or such time
as all of the applicable notes have been sold thereunder.
We do not currently anticipate that we will register under the
Securities Act any initial notes that remain outstanding after
completion of the exchange offer.
SOME PERSONS WHO PARTICIPATE IN THE EXCHANGE OFFER MUST DELIVER A PROSPECTUS IN
CONNECTION WITH RESALES OF THE EXCHANGE NOTES.
Based on interpretations of the staff of the Commission contained in
Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan
Stanley & Co. Inc., SEC no-action letter (June 5, 1991) and Shearman & Sterling,
SEC no-action letter (July 2, 1983), we believe that you may offer for resale,
resell or otherwise transfer the exchange notes without compliance with the
registration and prospectus delivery requirements of the Securities Act if
certain conditions are met. However, in some instances described in this
prospectus under "Plan of Distribution," you will remain obligated to comply
with the registration and prospectus delivery requirements of the Securities Act
to transfer your exchange notes. In these cases, if you transfer any exchange
note without delivering a prospectus meeting the requirements of the Securities
Act or without an exemption from registration of your exchange notes under the
Securities Act, you may incur liability under this act. We do not and will not
assume, or indemnify you against, this liability.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus are
"forward-looking statements" that involve risks, uncertainties and assumptions
with respect to Carnival Corporation, Carnival plc and Carnival Corporation &
plc including certain statements concerning future results, outlook, plans,
goals 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 U.S. Securities Act of 1933 and Section 21E of the U.S. Securities
Exchange Act of 1934. You can find many, but not all, of these statements by
looking for words like "will," "may," "believes," "expects," "anticipates,"
"forecast," "future," "intends," "plans," and "estimates" and for similar
expressions.
Because forward-looking statements involve risks and uncertainties,
there are many factors that could cause Carnival Corporation's, Carnival plc's
and Carnival Corporation & plc's actual results, performance or achievements to
differ materially from those expressed or implied in this prospectus.
Forward-looking statements include those statements which may impact the
forecasting of Carnival Corporation & plc's earnings per share, net revenue
yields, booking levels, pricing, occupancy, operating, financing and tax costs,
cost per available lower berth day, estimates of ship depreciable lives and
residual values, outlook or business prospects. These factors include, but are
not limited to, the following:
o achievement of expected benefits from the DLC transaction;
o risks associated with the DLC structure;
19
o risks associated with the uncertainty of the tax status of the
DLC structure;
o general economic and business conditions, which may impact
levels of disposable income of consumers and the net revenue
yields for the cruise brands of Carnival Corporation & plc;
o conditions in the cruise and land-based vacation industries,
including competition from other cruise ship operators and
providers of other vacation alternatives and increases in
capacity offered by cruise ship and land-based vacation
alternatives;
o the impact of operating internationally;
o the international political and economic climate, armed
conflicts, terrorist attacks, availability of air service and
other world events and adverse publicity, and their impact on
the demand for cruises;
o accidents and other incidents affecting the health, safety,
security and vacation satisfaction of passengers;
o the ability of Carnival Corporation & plc to implement its
shipbuilding programs and brand strategies and to continue to
expand its business worldwide;
o the ability of Carnival Corporation & plc to attract and
retain shipboard crew and maintain good relations with
employee unions;
o the ability to obtain financing on terms that are favorable or
consistent with Carnival Corporation & plc's expectations;
o the impact of changes in operating and financing costs,
including changes in foreign currency and interest rates and
fuel, food, payroll, insurance and security costs;
o changes in the tax, environmental, health, safety, security
and other regulatory regimes under which Carnival Corporation
& plc operates;
o continued availability of attractive port destinations;
o the ability to successfully implement cost improvement plans
and to integrate business acquisitions;
o continuing financial viability of Carnival Corporation & plc's
travel agent distribution system;
o weather patterns or natural disasters; and
o the ability of a small group of shareholders to effectively
control the outcome of shareholder voting.
These risks and other risks are detailed in the section entitled "Risk
Factors" and in the SEC joint reports of Carnival Corporation & plc. That
section and those reports contain important cautionary statements and a
discussion of many of the factors that could materially affect the accuracy of
Carnival Corporation & plc's forward-looking statements and/or adversely affect
Carnival Corporation & plc's business, results of operations and financial
positions, which statements and factors are incorporated in this prospectus by
reference.
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 listing rules, we expressly disclaim any obligation to
20
disseminate, after the date of this prospectus, 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.
21
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the exchange
notes in exchange for the outstanding initial notes. We are making this exchange
solely to satisfy our obligations under the registration rights agreement
entered into in connection with the offering of the initial notes. In
consideration for issuing the exchange notes, we will receive initial notes in
like aggregate principal amount.
On November 10, 2003, we issued and sold the initial notes in a private
placement, receiving gross proceeds of $550 million. We used the net proceeds of
$546,419,500 received from that offering to repay $400 million of the amounts
outstanding under Carnival plc's euro revolving credit facilities and the
remainder for general corporate purposes.
Amounts outstanding under the euro revolving credit facilities that
were repaid with the net proceeds of this offering were to mature on September
14, 2005 and bore interest at floating rates. At August 31, 2003, the euro
revolving credit facilities had a weighted average interest rate of
approximately 3.1%. The proceeds of the indebtedness repaid were used for
general corporate purposes from time to time.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth Carnival Corporation & plc's ratio of
earnings to fixed charges on a reported basis for the periods indicated. The
ratio for the year ended November 30, 2003 includes the results of Carnival plc
from and after April 17, 2003, the date of the completion of the DLC
transaction. Earnings include net income, adjusted for income taxes, minority
interest and loss (income) from affiliated operations and dividends received,
plus fixed charges and exclude capitalized interest. Fixed charges include gross
interest expense, amortization of deferred financing expenses and an amount
equivalent to interest included in rental charges. We have assumed that
one-third of rental expense is representative of the interest portion of rent
expense.
YEARS ENDED NOVEMBER 30,
-------------------------------------
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
Ratio of earnings to fixed charges....... 5.5x 6.9x 7.1x 11.5x 11.3x
==== ==== ==== ===== =====
On a pro forma combined basis, giving effect to the DLC transaction as
if it had occurred on December 1, 2002, Carnival Corporation & plc's ratio of
earnings to fixed charges would have been 4.8x for the year ended November 30,
2003.
22
SELECTED HISTORICAL FINANCIAL AND
OPERATING DATA OF CARNIVAL CORPORATION & PLC
Carnival Corporation and Carnival plc completed the DLC transaction on
April 17, 2003. See "Description of the DLC Transaction." The combination of
Carnival Corporation with Carnival plc under the DLC structure has been
accounted for under U.S. GAAP as an acquisition of Carnival plc by Carnival
Corporation pursuant to Statement of Financial Accounting Standards ("SFAS") No.
141, "Business Combinations." Therefore, the selected consolidated financial
data of Carnival Corporation & plc presented below for fiscal years 1999 through
2003 and as of the end of each such fiscal year are derived from Carnival
Corporation & plc's audited consolidated financial statements and should be read
in conjunction with the audited consolidated financial statements and the
related notes, including those incorporated in this prospectus by reference to
Carnival Corporation's and Carnival plc's joint Annual Report on Form 10-K for
the year ended November 30, 2003. In accordance with U.S. GAAP, the selected
consolidated financial data of Carnival Corporation & plc for the year ended
November 30, 2003 include the results of Carnival plc beginning on April 17,
2003. Carnival Corporation & plc's consolidated financial statements have been
prepared in accordance with U.S. GAAP. See "Where You Can Find More
Information."
YEARS ENDED NOVEMBER 30,
---------------------------------------------------------------------
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
(IN MILLIONS, EXCEPT PER SHARE DATA AND PERCENTAGES)
STATEMENT OF OPERATIONS AND CASH
FLOW DATA: (A)(B)
Revenues (c)....................... $ 6,718 $ 4,383 $ 4,549 $ 3,791 $ 3,509
Operating income................... $ 1,383 $ 1,042 $ 892 $ 983 $ 1,020
Net income (d)..................... $ 1,194 $ 1,016(e) $ 926(e) $ 965 $ 1,027
Earnings per share: (d)
Basic......................... $ 1.66 $ 1.73 $ 1.58 $ 1.61 $ 1.68
Diluted....................... $ 1.66 $ 1.73 $ 1.58 $ 1.60 $ 1.66
Dividends declared per share....... $ 0.440 $ 0.420 $ 0.420 $ 0.420 $ 0.375
Cash from operations............... $ 1,933 $ 1,469 $ 1,239 $ 1,280 $ 1,330
Capital expenditures............... $ 2,516 $ 1,986 $ 827 $ 1,003 $ 873
OTHER OPERATING DATA: (a)(b)
Available lower berth days (f)..... 33.3 21.4 20.7 15.9 14.3
Passengers carried................. 5.0 3.5 3.4 2.7 2.4
Occupancy percentage (g)........... 103.4% 105.2% 104.7% 105.4% 104.3%
- -------------------------------------------------------------------------------------------------------------------
AS OF NOVEMBER 30,
---------------------------------------------------------------------
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
(IN MILLIONS, EXCEPT PERCENTAGES)
BALANCE SHEET AND OTHER DATA: (a)(b)
Total assets....................... $ 24,491(h) $ 12,335(h) $ 11,564(h) $ 9,831 $ 8,286
Long-term debt, excluding current
portion....................... $ 6,918 $ 3,014 $ 2,955 $ 2,099 $ 868
Total shareholders' equity......... $ 13,793 $ 7,418 $ 6,591 $ 5,871 $ 5,931
Debt to capital (i)................ 34.9% 29.9% 31.1% 28.6% 15.3%
- ------------------------------------
(a) Includes the results of Carnival plc since April 17, 2003. Accordingly,
the information for 2003 is not comparable to the prior periods.
(b) From June 1997 through September 28, 2000, Carnival Corporation owned
50% of Costa Cruises. On September 29, 2000, Carnival Corporation
completed the acquisition of the remaining 50% interest in Costa.
Carnival Corporation accounted for this transaction using the purchase
accounting method. Prior to the fiscal 2000 acquisition, Carnival
Corporation accounted for its 50% interest in Costa using the equity
method. Commencing in fiscal 2001, Costa's results of operations have
been consolidated in the same manner as Carnival Corporation's other
wholly-owned subsidiaries. Carnival Corporation & plc's
23
November 30, 2000 and subsequent consolidated balance sheets include
Costa's balance sheet. All statistical information prior to 2001 does
not include Costa.
(c) Reclassifications have been made to prior period amounts to conform to
the current period presentation.
(d) Effective December 1, 2001, Carnival Corporation adopted SFAS No. 142,
"Goodwill and Other Intangible Assets", which required us to stop
amortizing goodwill as of December 1, 2001, and requires an annual, or
when events or circumstances dictate a more frequent, impairment review
of goodwill. If goodwill had not been recorded for periods prior to
December 1, 2001, Carnival Corporation & plc's adjusted net income and
adjusted basic and diluted earnings per share would have been as
follows (in millions, except per share data):
YEARS ENDED NOVEMBER 30,
-----------------------------
2001 2000 1999
----- ----- -------
Net income............................ $ 926 $ 965 $ 1,027
Goodwill amortization................. 26 23 21
----- ----- -------
Adjusted net income................... $ 952 $ 988 $ 1,048
===== ===== =======
Adjusted earnings per share
Basic.............................. $1.63 $1.65 $ 1.71
===== ===== =======
Diluted............................ 1.62 $1.64 1.70
===== ===== =======
(e) Carnival Corporation & plc's net income for fiscal 2002 and 2001
includes an impairment charge of $20 million and $140 million,
respectively, and fiscal 2001 includes a nonoperating net gain of $101
million from the sale of Carnival Corporation & plc's investment in
Airtours plc. In addition, fiscal 2002 includes a $51 million income
tax benefit, as a result of an Italian investment incentive.
(f) Total annual passenger capacity for the period, assuming two passengers
per cabin, that Carnival Corporation & plc offered for sale, which is
computed by multiplying passenger capacity by revenue-producing ship
operating days in the period.
(g) In accordance with cruise industry practice, occupancy percentage is
calculated using a denominator of two passengers per cabin even though
some cabins can accommodate three or more passengers. The percentages
in excess of 100% indicate that more than two passengers occupied some
cabins.
(h) Effective December 1, 2000, Carnival Corporation & plc's adopted SFAS
No. 133, "Accounting for Derivative Instruments and Hedging Activities"
which requires that all derivative instruments be recorded on the
balance sheet. At November 30, 2003, total assets included $410 million
of derivative contract fair values. Total assets at November 30, 2002
and 2001 included $187 million and $578 million, respectively, of fair
value of hedged firm commitments. See Note 2 in Carnival Corporation &
plc's 2003 consolidated financial statements, which are incorporated by
reference in this prospectus.
(i) Percentage of total debt to the sum of total debt and shareholders'
equity.
24
CAPITALIZATION
The following table sets forth Carnival Corporation & plc's actual
capitalization as of November 30, 2003 (in millions, except par/stated values).
AS OF
NOVEMBER 30,
2003
-----------
LONG-TERM DEBT (a)(b)
SECURED
Floating rate notes, collateralized by two ships, due through 2015............................. $ 631
Euro floating rate note, collateralized by one ship, due through 2008.......................... 115
Euro fixed rate note, collateralized by one ship, due through 2012............................. 182
Capitalized lease obligations, collateralized by two ships, due through 2005................... 115
Other.......................................................................................... 3
--------
Total secured............................................................................ 1,046
--------
UNSECURED
Notes offered hereby........................................................................... 550
Fixed rate notes, due through 2028............................................................. 1,573
Euro floating rate notes, due through 2008..................................................... 1,129
Euro revolving credit facilities, due through 2006............................................. 300
Sterling fixed rate notes, due in 2012......................................................... 355
Euro fixed rate notes, due in 2006............................................................. 353
Floating rate note, due through 2008........................................................... 244
Other.......................................................................................... 44
Convertible notes, due in 2021, with first put option in 2005.................................. 600
Zero-coupon convertible notes, net of discount, with a face value of $1.05 billion, due in 2021,
with first put option in 2006............................................................... 541
Convertible notes, net of discount, with a face value of $889 million, due in 2033, with first
put option in 2008.......................................................................... 575
--------
Total unsecured.......................................................................... 6,264
--------
Total long-term debt..................................................................... 7,310
Less portion due within one year......................................................... (392)
--------
Total long-term debt (excluding portion due within one year)........................ 6,918
--------
SHAREHOLDERS' EQUITY
Common stock of Carnival Corporation; $.01 par value; 1,960 shares authorized; 630 shares
issued and outstanding (c).................................................................. 6
Ordinary shares of Carnival plc; $1.66 stated value; 226 shares authorized; 210 shares
issued (c).................................................................................. 349
Additional paid-in capital..................................................................... 7,163
Retained earnings.............................................................................. 7,191
Unearned stock compensation.................................................................... (18)
Accumulated other comprehensive income......................................................... 160
Treasury stock, 42 shares of Carnival plc at cost.............................................. (1,058)
--------
Total shareholders' equity............................................................... 13,793
--------
Total capitalization (excluding portion of long-term debt due within one year)........... $ 20,711
========
- --------------
(a) All borrowings are in U.S. dollars unless otherwise noted. Euro and
sterling denominated notes have been translated to U.S. dollars at the
period-end exchange rates.
(b) Carnival Corporation & plc's long-term debt at November 30, 2003 bears
interest at the rates disclosed in its joint Annual Report filed on
Form 10-K for the year ended November 30, 2003.
25
(c) The number of shares of issued and outstanding common stock and
ordinary shares does not include a maximum of 53.6 million shares
issuable upon conversion of outstanding convertible debt securities and
19.3 million shares issuable upon exercise of outstanding stock
options, of which 7.8 million shares were exercisable.
26
DESCRIPTION OF THE DLC TRANSACTION
The DLC transaction combined the businesses of Carnival Corporation and
Carnival plc through a number of contracts and amendments to Carnival
Corporation's articles of incorporation and by-laws and to Carnival plc's
memorandum of association and articles of association. The two companies have
retained their separate legal identities, and each company's shares continue to
be publicly traded on the NYSE for Carnival Corporation and the London Stock
Exchange for Carnival plc, as well as Carnival plc's ADSs on the NYSE. However,
both companies operate as if they were a single economic enterprise. The
contracts governing the DLC transaction provide that Carnival Corporation and
Carnival plc each continue to have separate boards of directors, but the boards
and senior executive management of both companies are identical. In addition to
their normal fiduciary duties to their respective companies and obligation to
have regard to the interests of the shareholders of their respective companies,
the directors of each company are entitled to have regard to the interests of
the other company and its shareholders. Under the terms of the DLC documents,
Carnival Corporation and Carnival plc are permitted to transfer assets between
the companies for valid business purposes at fair market value so long as the
transfer is not as a part of a plan to collapse the DLC structure. See
"Summary--Recent Developments--Proposed Corporate Reorganization."
The amendments to the constituent documents of each of the companies
also provide that, on most matters, the holders of the common equity of both
companies effectively vote as a single body. On specified matters where the
interests of Carnival Corporation shareholders may differ from the interests of
Carnival plc shareholders, each shareholder body will vote separately as a
class. These matters are called class rights actions and include, among others:
o transactions primarily designed to amend or unwind the DLC
structure;
o adjustments to the equalization ratio, which reflects the
relative economic and voting interests represented by an
individual share in each company, not in accordance with the
equalization and governance agreement described below; and
o amendments to tax-related provisions in Carnival Corporation's
articles of incorporation.
No class rights action generally may be implemented unless approved by both
shareholder bodies, which means that each shareholder body generally has a veto
with respect to class rights actions. The current equalization ratio is 1:1, so
one Carnival plc ordinary share is entitled to the same economic and voting
interests in Carnival Corporation & plc as one share of Carnival Corporation
common stock.
Carnival Corporation's constituent documents and Carnival plc's
constituent documents have been harmonized, to the extent practicable and
permitted by law, to ensure that Carnival Corporation's and Carnival plc's
corporate procedures are substantially similar. As part of the DLC transaction,
Carnival plc changed its name from P&O Princess Cruises plc to Carnival plc.
The shareholders of Carnival Corporation hold approximately 79% of the
economic interests in Carnival Corporation & plc, and the shareholders of
Carnival plc hold approximately 21% of the economic interests in Carnival
Corporation & plc.
Carnival plc and Carnival Corporation executed deeds of guarantee at
the closing of the DLC transaction. Under Carnival plc's deed of guarantee,
Carnival plc has agreed to guarantee all indebtedness and certain other monetary
obligations of Carnival Corporation that are incurred under agreements entered
into on or after April 17, 2003, which is the date of the closing of the DLC
transaction, along with all other obligations of Carnival Corporation that
Carnival Corporation and Carnival plc specify in a separate agreement relating
to the deed of guarantee. As a result, Carnival plc guaranteed the initial notes
and will guarantee the exchange notes under the deed of guarantee. The terms of
Carnival Corporation's deed of guarantee are substantially similar to those
contained in Carnival plc's. Subsequent to April 17, 2003, Carnival Corporation
extended its deed of guarantee to cover certain of Carnival plc's pre-existing
indebtedness in exchange for certain amendments to such debt. As a result,
subject to the terms of the guarantee, the holders of indebtedness and other
obligations that are subject to the guarantees will have recourse to both
Carnival plc and Carnival Corporation, though a Carnival plc creditor must first
make written
27
demand on Carnival plc and vice-versa. For more information regarding the
Carnival plc deed of guarantee, please see "Description of the Carnival plc
Guarantee."
On June 19, 2003, POPCIL, Carnival Corporation and Carnival plc
executed a deed of guarantee under which P&O Princess Cruises International
Limited, or "POPCIL," agreed to guarantee all indebtedness and related
obligations of both Carnival Corporation and Carnival plc incurred under
agreements entered into after April 17, 2003. Under this deed of guarantee,
POPCIL also agreed to guarantee all other indebtedness and related obligations
that Carnival Corporation and Carnival plc agreed to guarantee under their
respective deeds of guarantee. POPCIL initially guaranteed the initial notes
under this deed of guarantee. However, in connection with corporate
reorganization transactions that were completed on February 27, 2003, the POPCIL
guarantee was terminated in accordance with its terms.
Upon the closing of the DLC transaction, Carnival plc and Carnival
Corporation also executed an equalization and governance agreement, which
provides for the equalization of dividends and liquidation distributions based
on the equalization ratio, and contains various other provisions relating to the
governance of the DLC structure. Because the current equalization ratio is 1:1,
one Carnival plc ordinary share would be entitled to the same distributions,
subject to the terms of the equalization and governance agreement, as one share
of Carnival Corporation common stock. In a liquidation of either company or both
companies, if the hypothetical potential per share liquidation distributions to
each company's shareholders are not equivalent, taking into account the relative
value of the two companies' assets and the indebtedness of each company, to the
extent that one company has greater net assets so that any liquidation
distribution to its shareholders would not be equivalent on a per share basis,
the company with the ability to make a higher net distribution is required to
make a payment to the other company to equalize the possible net distribution to
shareholders. The requirement to make an equalizing payment is subject to some
limitations. First, a reorganization under Chapter 11 of the U.S. Bankruptcy
Code or a similar statute would not be considered a "liquidation," so such a
reorganization would not result in equalizing payments. Second, neither company
will be required to make the equalizing payment if the payment would result in
neither group of shareholders being entitled to any liquidation proceeds.
Therefore, if the assets of Carnival Corporation & plc are not sufficient to
satisfy all of the creditors of Carnival Corporation & plc, no equalization
payment would be required to be made.
28
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER
We are offering to exchange our exchange notes for a like aggregate
principal amount of our initial notes.
The exchange notes that we propose to issue in this exchange offer will
be substantially identical to our initial notes except that, unlike our initial
notes, the exchange notes will have no transfer restrictions or registration
rights. You should read the description of the exchange notes in the section in
this prospectus entitled "Description of the Notes."
We reserve the right in our sole discretion to purchase or make offers
for any initial notes that remain outstanding following the expiration or
termination of this exchange offer and, to the extent permitted by applicable
law, to purchase initial notes in the open market or privately negotiated
transactions, one or more additional tender or exchange offers or otherwise. The
terms and prices of these purchases or offers could differ significantly from
the terms of this exchange offer.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS; TERMINATION
This exchange offer will expire at 5:00 p.m., New York City time, on
_____________, 2004, unless we extend it in our reasonable discretion. The
expiration date of this exchange offer will be at least 20 business days after
the commencement of the exchange offer in accordance with Rule 14e-1(a) under
the Securities Exchange Act of 1934.
We expressly reserve the right to delay acceptance of any initial
notes, extend or terminate this exchange offer and not accept any initial notes
that we have not previously accepted if any of the conditions described below
under "--Conditions to the Exchange Offer" have not been satisfied or waived by
us. We will notify the exchange agent of any extension by oral notice promptly
confirmed in writing or by written notice. We will also notify the holders of
the initial notes by a press release or other public announcement communicated
before 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date unless applicable laws require us to do
otherwise.
We also expressly reserve the right to amend the terms of this exchange
offer in any manner. If we make any material change, we will promptly disclose
this change in a manner reasonably calculated to inform the holders of our
initial notes of the change including providing public announcement or giving
oral or written notice to these holders. A material change in the terms of this
exchange offer could include a change in the timing of the exchange offer, a
change in the exchange agent and other similar changes in the terms of this
exchange offer. If we make any material change to this exchange offer, we will
disclose this change by means of a post-effective amendment to the registration
statement which includes this prospectus and will distribute an amended or
supplemented prospectus to each registered holder of initial notes. In addition,
we will extend this exchange offer for an additional five to ten business days
as required by the Exchange Act, depending on the significance of the amendment,
if the exchange offer would otherwise expire during that period. We will
promptly notify the exchange agent by oral notice, promptly confirmed in
writing, or written notice of any delay in acceptance, extension, termination or
amendment of this exchange offer.
PROCEDURES FOR TENDERING INITIAL NOTES
PROPER EXECUTION AND DELIVERY OF LETTERS OF TRANSMITTAL
To tender your initial notes in this exchange offer, you must use one
of the three alternative procedures described below:
(1) REGULAR DELIVERY PROCEDURE: Complete, sign and date the letter
of transmittal, or a facsimile of the letter of transmittal.
Have the signatures on the letter of transmittal guaranteed if
required by the letter of transmittal. Mail or otherwise
deliver the letter of transmittal or the facsimile together
29
with the certificates representing the initial notes being
tendered and any other required documents to the exchange
agent on or before 5:00 p.m., New York City time, on the
expiration date.
(2) BOOK-ENTRY DELIVERY PROCEDURE: Send a timely confirmation of a
book-entry transfer of your initial notes, if this procedure
is available, into the exchange agent's account at The
Depository Trust Company in accordance with the procedures for
book-entry transfer described under "--Book-Entry Delivery
Procedure" below, on or before 5:00 p.m., New York City time,
on the expiration date.
(3) GUARANTEED DELIVERY PROCEDURE: If time will not permit you to
complete your tender by using the procedures described in (1)
or (2) above before the expiration date and this procedure is
available, comply with the guaranteed delivery procedures
described under "--Guaranteed Delivery Procedure" below.
The method of delivery of the initial notes, the letter of transmittal
and all other required documents is at your election and risk. Instead of
delivery by mail, we recommend that you use an overnight or hand-delivery
service. If you choose the mail, we recommend that you use registered mail,
properly insured, with return receipt requested. IN ALL CASES, YOU SHOULD ALLOW
SUFFICIENT TIME TO ASSURE TIMELY DELIVERY. You should not send any letters of
transmittal or initial notes to us. You must deliver all documents to the
exchange agent at its address provided below. You may also request your broker,
dealer, commercial bank, trust company or nominee to tender your initial notes
on your behalf.
Only a holder of initial notes may tender initial notes in this
exchange offer. A holder is any person in whose name initial notes are
registered on our books or any other person who has obtained a properly
completed bond power from the registered holder.
If you are the beneficial owner of initial notes that are registered in
the name of a broker, dealer, commercial bank, trust company or other nominee
and you wish to tender your notes, you must contact that registered holder
promptly and instruct that registered holder to tender your notes on your
behalf. If you wish to tender your initial notes on your own behalf, you must,
before completing and executing the letter of transmittal and delivering your
initial notes, either make appropriate arrangements to register the ownership of
these notes in your name or obtain a properly completed bond power from the
registered holder. The transfer of registered ownership may take considerable
time.
You must have any signatures on a letter of transmittal or a notice of
withdrawal guaranteed by:
(1) a member firm of a registered national securities exchange or
of the National Association of Securities Dealers, Inc.,
(2) a commercial bank or trust company having an office or
correspondent in the United States, or
(3) an eligible guarantor institution within the meaning of Rule
17Ad-15 under the Exchange Act, unless the initial notes are
tendered:
(1) by a registered holder or by a participant in The
Depository Trust Company whose name appears on a
security position listing as the owner, who has not
completed the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" on
the letter of transmittal and only if the exchange
notes are being issued directly to this registered
holder or deposited into this participant's account
at The Depository Trust Company, or
(2) for the account of a member firm of a registered
national securities exchange or of the National
Association of Securities Dealers, Inc., a commercial
bank or trust company having an office or
correspondent in the United States or an eligible
guarantor institution within the meaning of Rule
17Ad-15 under the Securities Exchange Act of 1934.
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If the letter of transmittal or any bond powers are signed by:
(1) the recordholder(s) of the initial notes tendered, the
signature must correspond with the name(s) written on the face
of the initial notes without alteration, enlargement or any
change whatsoever.
(2) a participant in The Depository Trust Company, the signature
must correspond with the name as it appears on the security
position listing as the holder of the initial notes.
(3) a person other than the registered holder of any initial
notes, the initial notes must be endorsed or accompanied by
bond powers and a proxy that authorize this person to tender
the initial notes on behalf of the registered holder, in
satisfactory form to us as determined in our sole discretion,
in each case, as the name of the registered holder or holders
appears on the initial notes.
(4) trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting
in a fiduciary or representative capacity, these persons
should so indicate when signing. Unless waived by us, evidence
satisfactory to us of their authority to so act must also be
submitted with the letter of transmittal.
To tender your initial notes in this exchange offer, you must make the following
representations:
(1) you are authorized to tender, sell, assign and transfer the
initial notes tendered and to acquire exchange notes issuable
upon the exchange of such tendered initial notes, and that we
will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim when the same are accepted by
us,
(2) any exchange notes acquired by you pursuant to the exchange
offer are being acquired in the ordinary course of business,
whether or not you are the holder,
(3) you or any other person who receives exchange notes, whether
or not such person is the holder of the exchange notes, has no
arrangement or understanding with any person to participate in
a distribution of such exchange notes within the meaning of
the Securities Act and is not participating in, and does not
intend to participate in, the distribution of such exchange
notes within the meaning of the Securities Act,
(4) you or such other person who receives exchange notes, whether
or not such person is the holder of the exchange notes, is not
an "affiliate," as defined in Rule 405 of the Securities Act,
of ours,
(5) if you are not a broker-dealer, you represent that you are not
engaging in, and do not intend to engage in, a distribution of
exchange notes, and
(6) if you are a broker-dealer that will receive exchange notes
for your own account in exchange for initial notes, you
represent that the initial notes to be exchanged for the
exchange notes were acquired by you as a result of
market-making or other trading activities and acknowledge that
you will deliver a prospectus in connection with any resale,
offer to resell or other transfer of such exchange notes.
You must also warrant that the acceptance of any tendered initial notes
by the issuers and the issuance of exchange notes in exchange therefor shall
constitute performance in full by the issuers of its obligations under the
registration rights agreement relating to the initial notes.
To effectively tender notes through The Depository Trust Company, the
financial institution that is a participant in The Depository Trust Company will
electronically transmit its acceptance through the Automatic Tender Offer
Program. The Depository Trust Company will then edit and verify the acceptance
and send an agent's message to the exchange agent for its acceptance. An agent's
message is a message transmitted by The Depository Trust Company to the exchange
agent stating that The Depository Trust Company has received an express
31
acknowledgment from the participant in The Depository Trust Company tendering
the notes that this participant has received and agrees to be bound by the terms
of the letter of transmittal, and that we may enforce this agreement against
this participant.
BOOK-ENTRY DELIVERY PROCEDURE
Any financial institution that is a participant in The Depository Trust
Company's systems may make book-entry deliveries of initial notes by causing The
Depository Trust Company to transfer these initial notes into the exchange
agent's account at The Depository Trust Company in accordance with The
Depository Trust Company's procedures for transfer. To effectively tender notes
through The Depository Trust Company, the financial institution that is a
participant in The Depository Trust Company will electronically transmit its
acceptance through the Automatic Tender Offer Program. The Depository Trust
Company will then edit and verify the acceptance and send an agent's message to
the exchange agent for its acceptance. An agent's message is a message
transmitted by The Depository Trust Company to the exchange agent stating that
The Depository Trust Company has received an express acknowledgment from the
participant in The Depository Trust Company tendering the notes that this
participant has received and agrees to be bound by the terms of the letter of
transmittal, and that we may enforce this agreement against this participant.
The exchange agent will make a request to establish an account for the initial
notes at The Depository Trust Company for purposes of the exchange offer within
two business days after the date of this prospectus.
A delivery of initial notes through a book-entry transfer into the
exchange agent's account at The Depository Trust Company will only be effective
if an agent's message or the letter of transmittal or a facsimile of the letter
of transmittal with any required signature guarantees and any other required
documents is transmitted to and received by the exchange agent at the address
indicated below under "--Exchange Agent" on or before the expiration date unless
the guaranteed delivery procedures described below are complied with. DELIVERY
OF DOCUMENTS TO THE DEPOSITORY TRUST COMPANY DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
GUARANTEED DELIVERY PROCEDURE
If you are a registered holder of initial notes and desire to tender
your notes, and (1) these notes are not immediately available, (2) time will not
permit your notes or other required documents to reach the exchange agent before
the expiration date or (3) the procedures for book-entry transfer cannot be
completed on a timely basis and an agent's message delivered, you may still
tender in this exchange offer if:
(1) you tender through a member firm of a registered national
securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company
having an office or correspondent in the United States, or an
eligible guarantor institution within the meaning of Rule
17Ad-15 under the Exchange Act,
(2) on or before the expiration date, the exchange agent receives
a properly completed and duly executed letter of transmittal
or facsimile of the letter of transmittal, and a notice of
guaranteed delivery, substantially in the form provided by us,
with your name and address as holder of the initial notes and
the amount of notes tendered, stating that the tender is being
made by that letter and notice and guaranteeing that within
three New York Stock Exchange trading days after the
expiration date the certificates for all the initial notes
tendered, in proper form for transfer, or a book-entry
confirmation with an agent's message, as the case may be, and
any other documents required by the letter of transmittal will
be deposited by the eligible institution with the exchange
agent, and
(3) the certificates for all your tendered initial notes in proper
form for transfer or a book-entry confirmation as the case may
be, and all other documents required by the letter of
transmittal are received by the exchange agent within three
New York Stock Exchange trading days after the expiration
date.
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ACCEPTANCE OF INITIAL NOTES FOR EXCHANGE; DELIVERY OF EXCHANGE NOTES
Your tender of initial notes will constitute an agreement between you
and us governed by the terms and conditions provided in this prospectus and in
the related letter of transmittal.
We will be deemed to have received your tender as of the date when your
duly signed letter of transmittal accompanied by your initial notes tendered, or
a timely confirmation of a book-entry transfer of these notes into the exchange
agent's account at The Depository Trust Company with an agent's message, or a
notice of guaranteed delivery from an eligible institution is received by the
exchange agent.
All questions as to the validity, form, eligibility, including time of
receipt, acceptance and withdrawal of tenders will be determined by us in our
sole discretion. Our determination will be final and binding.
We reserve the absolute right to reject any and all initial notes not
properly tendered or any initial notes which, if accepted, would, in our opinion
or our counsel's opinion, be unlawful. We also reserve the absolute right to
waive any conditions of this exchange offer or irregularities or defects in
tender as to particular notes. If we waive a condition to this exchange offer,
the waiver will be applied equally to all note holders. Our interpretation of
the terms and conditions of this exchange offer, including the instructions in
the letter of transmittal, will be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders of initial
notes must be cured within such time as we shall determine. We, the exchange
agent or any other person will be under no duty to give notification of defects
or irregularities with respect to tenders of initial notes. We and the exchange
agent or any other person will incur no liability for any failure to give
notification of these defects or irregularities. Tenders of initial notes will
not be deemed to have been made until such irregularities have been cured or
waived. The exchange agent will return without cost to their holders any initial
notes that are not properly tendered and as to which the defects or
irregularities have not been cured or waived promptly following the expiration
date.
If all the conditions to the exchange offer are satisfied or waived on
the expiration date, we will accept all initial notes properly tendered and will
issue the exchange notes promptly thereafter. Please refer to the section of
this prospectus entitled "--Conditions to the Exchange Offer" below. For
purposes of this exchange offer, initial notes will be deemed to have been
accepted as validly tendered for exchange when, as and if we give oral or
written notice of acceptance to the exchange agent.
We will issue the exchange notes in exchange for the initial notes
tendered pursuant to a notice of guaranteed delivery by an eligible institution
only against delivery to the exchange agent of the letter of transmittal, the
tendered initial notes and any other required documents, or the receipt by the
exchange agent of a timely confirmation of a book-entry transfer of initial
notes into the exchange agent's account at The Depository Trust Company with an
agent's message, in each case, in form satisfactory to us and the exchange
agent.
If any tendered initial notes are not accepted for any reason provided
by the terms and conditions of this exchange offer or if initial notes are
submitted for a greater principal amount than the holder desires to exchange,
the unaccepted or non-exchanged initial notes will be returned without expense
to the tendering holder, or, in the case of initial notes tendered by book-entry
transfer procedures described above, will be credited to an account maintained
with the book-entry transfer facility, promptly after withdrawal, rejection of
tender or the expiration or termination of the exchange offer.
By tendering into this exchange offer, you will irrevocably appoint our
designees as your attorney-in-fact and proxy with full power of substitution and
resubstitution to the full extent of your rights on the notes tendered. This
proxy will be considered coupled with an interest in the tendered notes. This
appointment will be effective only when, and to the extent that we accept your
notes in this exchange offer. All prior proxies on these notes will then be
revoked and you will not be entitled to give any subsequent proxy. Any proxy
that you may give subsequently will not be deemed effective. Our designees will
be empowered to exercise all voting and other rights of the holders as they may
deem proper at any meeting of note holders or otherwise. The initial notes will
be validly tendered only if we are able to exercise full voting rights on the
notes, including voting at any meeting of the note holders, and full rights to
consent to any action taken by the note holders.
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WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus, you may withdraw
tenders of initial notes at any time before 5:00 p.m., New York City time, on
the expiration date.
For a withdrawal to be effective, you must send a written or facsimile
transmission notice of withdrawal to the exchange agent before 5:00 p.m., New
York City time, on the expiration date at the address provided below under
"-Exchange Agent" and before acceptance of your tendered notes for exchange by
us.
Any notice of withdrawal must:
(1) specify the name of the person having tendered the initial
notes to be withdrawn,
(2) identify the notes to be withdrawn, including, if applicable,
the registration number or numbers and total principal amount
of these notes,
(3) be signed by the person having tendered the initial notes to
be withdrawn in the same manner as the original signature on
the letter of transmittal by which these notes were tendered,
including any required signature guarantees, or be accompanied
by documents of transfer sufficient to permit the trustee for
the initial notes to register the transfer of these notes into
the name of the person having made the original tender and
withdrawing the tender,
(4) specify the name in which any of these initial notes are to be
registered, if this name is different from that of the person
having tendered the initial notes to be withdrawn, and
(5) if applicable because the initial notes have been tendered
through the book-entry procedure, specify the name and number
of the participant's account at The Depository Trust Company
to be credited, if different than that of the person having
tendered the initial notes to be withdrawn.
We will determine all questions as to the validity, form and
eligibility, including time of receipt, of all notices of withdrawal and our
determination will be final and binding on all parties. Initial notes that are
withdrawn will be deemed not to have been validly tendered for exchange in this
exchange offer.
The exchange agent will return without cost to their holders all
initial notes that have been tendered for exchange and are not exchanged for any
reason, promptly after withdrawal, rejection of tender or expiration or
termination of this exchange offer.
You may retender properly withdrawn initial notes in this exchange
offer by following one of the procedures described under "--Procedures for
Tendering Initial Notes" above at any time on or before the expiration date.
CONDITIONS TO THE EXCHANGE OFFER
We will complete this exchange offer only:
(1) if this exchange offer, or the making of any exchange by a
holder of our initial notes, does not violate applicable law,
rule or regulation or any applicable interpretation of the
staff of the SEC;
(2) with respect to the initial notes which are duly tendered in
accordance with this exchange offer;
(3) if each holder of initial notes exchanged in this exchange
offer shall have represented that all exchange notes received
by it shall be acquired by it in the ordinary course of its
business and that at the time of the consummation of this
exchange offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the
meaning of the Securities Act) of the exchange notes and shall
have made such other representations as may
34
be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4
available; and
(4) if no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental
agency with respect to this exchange offer which, in Carnival
Corporation's and Carnival plc's judgment, would reasonably be
expected to impair the ability of Carnival Corporation and
Carnival plc to proceed with this exchange offer.
These conditions are for our sole benefit. We may assert any one of
these conditions regardless of the circumstances giving rise to it and may also
waive any one of them, in whole or in part, at any time and from time to time,
if we determine in our reasonable discretion that it has not been satisfied,
subject to applicable law. Notwithstanding the foregoing, all conditions to the
exchange offer must be satisfied or waived before the expiration of this
exchange offer. If we waive a condition to this exchange offer, the waiver will
be applied equally to all note holders. We will not be deemed to have waived our
rights to assert or waive these conditions if we fail at any time to exercise
any of them. Each of these rights will be deemed an ongoing right which we may
assert at any time and from time to time.
If we determine that we may terminate this exchange offer because any
of these conditions are not satisfied, we may:
(1) refuse to accept and return to their holders any initial notes
that have been tendered,
(2) extend the exchange offer and retain all notes tendered before
the expiration date, subject to the rights of the holders of
these notes to withdraw their tenders, or
(3) waive any condition that has not been satisfied and accept all
properly tendered notes that have not been withdrawn or
otherwise amend the terms of this exchange offer in any
respect as provided under the section in this prospectus
entitled "--Expiration Date; Extensions; Amendments;
Termination."
ACCOUNTING TREATMENT
We will record the exchange notes at the same carrying value as the
initial notes as reflected in our accounting records on the date of the
exchange. Accordingly, we will not recognize any gain or loss for accounting
purposes. We will amortize the costs of the exchange offer and the unamortized
expenses related to the issuance of the exchange notes over the term of the
exchange notes.
EXCHANGE AGENT
We have appointed U.S. Bank National Association, as exchange agent for
this exchange offer. You should direct all questions and requests for assistance
on the procedures for tendering and all requests for additional copies of this
prospectus or the letter of transmittal to the exchange agent as follows:
By mail:
U.S. Bank National Association
EP-MN-WS2N
60 Livingston Avenue
St. Paul, MN 55107
Attention: Specialized Finance Department
35
By hand/overnight delivery:
U.S. Bank National Association
EP-MN-WS2N
60 Livingston Avenue
St. Paul, MN 55107
Facsimile Transmission: (651) 495-8158
Confirm by Telephone: (800) 934-6802
Attention: Specialized Finance Department
FEES AND EXPENSES
We will bear the expenses of soliciting tenders in this exchange offer,
including fees and expenses of the exchange agent and trustee and accounting,
legal, printing and related fees and expenses.
We will not make any payments to brokers, dealers or other persons
soliciting acceptances of this exchange offer. However, we will pay the exchange
agent reasonable and customary fees for its services and will reimburse the
exchange agent for its reasonable out-of-pocket expenses in connection with this
exchange offer. We will also pay brokerage houses and other custodians, nominees
and fiduciaries their reasonable out-of-pocket expenses for forwarding copies of
the prospectus, letters of transmittal and related documents to the beneficial
owners of the initial notes and for handling or forwarding tenders for exchange
to their customers.
We will pay all transfer taxes, if any, applicable to the exchange of
initial notes in accordance with this exchange offer. However, tendering holders
will pay the amount of any transfer taxes, whether imposed on the registered
holder or any other persons, if:
(1) certificates representing exchange notes or initial notes for
principal amounts not tendered or accepted for exchange are to
be delivered to, or are to be registered or issued in the name
of, any person other than the registered holder of the notes
tendered,
(2) tendered initial notes are registered in the name of any
person other than the person signing the letter of
transmittal, or
(3) a transfer tax is payable for any reason other than the
exchange of the initial notes in this exchange offer.
If you do not submit satisfactory evidence of the payment of any of
these taxes or of any exemption from this payment with the letter of
transmittal, we will bill you directly the amount of these transfer taxes.
YOUR FAILURE TO PARTICIPATE IN THE EXCHANGE OFFER WILL HAVE ADVERSE CONSEQUENCES
The initial notes were not registered under the Securities Act or under
the securities laws of any state and you may not resell them, offer them for
resale or otherwise transfer them unless they are subsequently registered or
resold under an exemption from the registration requirements of the Securities
Act and applicable state securities laws. If you do not exchange your initial
notes for exchange notes in accordance with this exchange offer, or if you do
not properly tender your initial notes in this exchange offer, you will not be
able to resell, offer to resell or otherwise transfer the initial notes unless
they are registered under the Securities Act or unless you resell them, offer to
resell or otherwise transfer them under an exemption from the registration
requirements of, or in a transaction not subject to, the Securities Act.
In addition, except as set forth in this paragraph, you will not be
able to otherwise obligate us to register the initial notes under the Securities
Act. You will not be able to require us to register your initial notes under the
Securities Act unless:
36
o there is a change in law, SEC rules or regulations or
applicable interpretations thereof by the staff of the
Commission and, as a result of such change, Carnival
Corporation and Carnival plc are not permitted to effect an
exchange offer;
o the exchange offer is not declared effective within 210 days
of the date of the issuance of the initial notes or it is not
consummated within 240 days of the date of the issuance of the
initial notes;
o the initial purchasers not permitted under applicable law to
participate in the exchange offer so request a registration;
or
o you are not permitted by the federal securities laws or
applicable interpretations thereof by the staff of the
Commission to participate in the exchange offer or do not
receive fully tradable exchange notes in the exchange offer.
In these cases, solely with respect to those persons affected by any of
the points listed above, we and Carnival plc will at our sole expense,
o as promptly as practicable, file the Shelf Registration
Statement covering resales of the initial notes;
o use commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the
Securities Act no later than 240 days after the date of the
issuance of the initial notes; and
o use commercially reasonable efforts to keep effective the
Shelf Registration Statement until the earlier of two years
after the date of issuance of the initial notes or such time
as all of the applicable notes have been sold thereunder.
We do not currently anticipate that we will register under the
Securities Act any initial notes that remain outstanding after
completion of the exchange offer.
DELIVERY OF PROSPECTUS
Each broker-dealer that receives exchange notes for its own account in
exchange for initial notes, where such initial notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such exchange notes. See "Plan of Distribution."
37
DESCRIPTION OF THE NOTES
The initial notes were issued and the exchange notes will be issued
under the indenture dated as of April 25, 2001, between us and U.S. Bank
National Association (formerly known as U.S. Bank Trust National Association),
as trustee, as supplemented by a fourth supplemental indenture executed on the
issue date of the initial notes. We refer to the indenture, as so supplemented,
as the "indenture." When we refer to the notes in this "Description of Notes,"
we mean the initial notes and the exchange notes.
The following summary does not purport to be complete, and is subject
to, and is qualified in its entirety by reference to, all of the provisions of
the notes and the indenture. We urge you to read the indenture and the form of
the notes, which you may obtain from us upon request. As used in this
description, all references to "our company," "we," "us" or "our" mean Carnival
Corporation, excluding, unless otherwise expressly stated or the context
otherwise requires, its subsidiaries and all references to Carnival plc mean
Carnival plc, excluding, unless otherwise expressly stated or the context
otherwise requires, its subsidiaries.
GENERAL
The exchange notes will be exchanged for the initial notes of which
$550,000,000 in aggregate principal amount were issued on November 10, 2003. The
indenture provides that we will have the ability to issue additional notes
having the same ranking and the same interest rate, maturity and other terms as
the notes. Any additional notes will, together with the notes issued, constitute
a single series of notes under the indenture. The notes will mature on November
15, 2007. The notes will be payable at the office of the paying agent, which
initially will be an office or agency of the trustee, or an office or agency
maintained by us for such purpose, in the Borough of Manhattan, The City of New
York.
The notes bear interest at the rate of 3.75% per year on the principal
amount from the issue date, or from the most recent date to which interest has
been paid or provided for, until November 15, 2007. Interest will be payable
semi-annually in arrears on May 15 and November 15 of each year, commencing on
May 15, 2004, to holders of record at the close of business on the May 1 or
November 1 immediately preceding such interest payment date. Each payment of
interest on the notes will include interest accrued through the day before the
applicable interest payment date (or redemption date, as the case may be). Any
payment required to be made on any day that is not a business day will be made
on the next succeeding business day.
Interest will cease to accrue on a note upon its maturity or
redemption. We may not reissue a note that has matured or been redeemed or
otherwise cancelled, except for registration of transfer, exchange or
replacement of such note.
Notes may be presented for exchange or registration of transfer at the
office of the registrar, such agent initially being the trustee. We will not
charge a service fee for any registration of transfer or exchange of the notes.
GUARANTEE
Carnival plc is guaranteeing Carnival Corporation's monetary
obligations under the notes on an unsecured and unsubordinated basis. See
"Description of the Carnival plc Guarantee."
RANKING
The notes and the Carnival plc guarantee will be unsecured and
unsubordinated obligations and will rank equal in right of payment to all of the
existing and future unsecured and unsubordinated indebtedness of Carnival
Corporation and Carnival plc, respectively. However, the notes and the Carnival
plc guarantee will be effectively subordinated to all existing and future
obligations of our subsidiaries and the subsidiaries of Carnival plc,
respectively, and to any secured debt of Carnival Corporation and Carnival plc,
respectively, to the extent of any security.
38
As of February 29, 2004, Carnival Corporation and Carnival plc had
$7.83 billion of total consolidated indebtedness. Of this amount:
o Carnival Corporation and Carnival plc had an aggregate of
$5.89 billion of unsecured, unsubordinated indebtedness
outstanding, which amount includes guarantees of $1.63 billion
of unsecured indebtedness of their subsidiaries;
o Carnival Corporation and Carnival plc had an aggregate of $192
million of secured indebtedness outstanding, not including any
guarantees of their subsidiaries' secured indebtedness;
o The subsidiaries of Carnival Corporation and Carnival plc had
an aggregate of $1.21 billion of secured indebtedness, of
which $985 million was guaranteed by Carnival Corporation
and/or Carnival plc;
o The subsidiaries of Carnival Corporation and Carnival plc had
an aggregate of $2.17 billion of unsecured indebtedness
outstanding; and
o The subsidiaries of Carnival Corporation and Carnival plc had
an aggregate of $3.38 billion of indebtedness, of which $765
million was not guaranteed by Carnival Corporation or Carnival
plc.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The indenture provides that we may not consolidate with or merge into
any other entity or convey or transfer our properties and assets substantially
as an entirety to any entity, unless:
o the successor or transferee entity, if other than us,
expressly assumes by a supplemental indenture executed and
delivered to the trustee, in form reasonably satisfactory to
the trustee, the due and punctual payment of the principal of,
any premium on and any interest on, all the outstanding notes
and the performance of every covenant in the indenture to be
performed or observed by us;
o immediately after giving effect to the transaction, no Event
of Default, as defined in the indenture, and no event which,
after notice or lapse of time or both, would become an Event
of Default, has happened and is continuing; and
o we have delivered to the trustee an officers' certificate and
an opinion of counsel, each in the form required by the
indenture and stating that such consolidation, merger,
conveyance or transfer and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with the foregoing provisions
relating to such transaction.
In case of any such consolidation, merger, conveyance or transfer, the
successor entity will succeed to and be substituted for us as obligor on the
notes, with the same effect as if it had been named in the indenture as our
company.
EVENTS OF DEFAULT; WAIVER AND NOTICE
An event of default is defined in the indenture as:
(a) default for 30 days in payment of any interest on the notes
(including additional interest under the registration rights agreement described
below) when it becomes due and payable;
(b) default in payment of principal of or any premium on the notes
at maturity or redemption price when the same becomes due and payable;
(c) default in the payment (after any applicable grace period) of
any indebtedness for money borrowed by our company, Carnival plc or a Subsidiary
of either in excess of $50 million in aggregate principal
39
amount (excluding such indebtedness of any Subsidiary other than a Significant
Subsidiary, all the indebtedness of which Subsidiary is nonrecourse to our
company or any other Subsidiary) or default on such indebtedness that results in
the acceleration of such indebtedness prior to its express maturity, if such
indebtedness is not discharged, or such acceleration is not annulled, by the end
of a period of 30 days after written notice to us by the trustee or to us and
the trustee by the holders of at least 25% of the aggregate principal amount of
the outstanding notes;
(d) default by us in the performance of any other covenant
contained in the indenture for the benefit of the notes that has not been
remedied by the end of a period of 60 days after notice is given as specified in
the indenture;
(e) unless Carnival plc has become or has been merged with or has
been otherwise consolidated with the primary obligor under the notes and the
indenture, the Carnival plc guarantee ceases to be in full force and effect or
is declared null and void or Carnival plc denies that it has any further
liability under its guarantee to the note holders, or has given notice to such
effect (other than by reason of the termination of the indenture or the release
of such guarantee in accordance with the indenture), and such condition shall
have continued for period of 30 days after written notice of such failure
requiring Carnival plc or us to remedy the same shall have been given to us by
the trustee or to us and the trustee by the holders of 25% in aggregate
principal amount of the notes outstanding; and
(f) certain events of bankruptcy, insolvency and reorganization of
our company, Carnival plc or a Significant Subsidiary of either.
When we refer to a "Significant Subsidiary," we mean any Subsidiary,
the Net Worth of which represents more than 10% of the Consolidated Net Worth of
Carnival Corporation, Carnival plc and their combined Subsidiaries. The terms
"Subsidiary," "Net Worth" and "Consolidated Net Worth" are defined in the
indenture.
The indenture provides that:
o if an event of default described in clause (a), (b), (c), (d)
or (e) above has occurred and is continuing, either the
trustee or the holders of not less than 25% in aggregate
principal amount of the notes may declare the principal amount
of the notes then outstanding, and any accrued and unpaid cash
interest through the date of such declaration, to be due and
payable immediately;
o upon certain conditions such declarations may be annulled, and
past defaults (except for defaults in the payment of principal
of, any premium on or interest on, the notes and in compliance
with certain covenants) may be waived by the holders of a
majority in aggregate principal amount of the notes then
outstanding; and
o if an event of default described in clause (f) occurs and is
continuing, then the aggregate principal amount of all notes
issued under the indenture and then outstanding, together with
any accrued interest through the occurrence of such event,
shall become and be due and payable immediately, without any
declaration or other act by the trustee or any other holder.
In case of default in payment of the principal amount of the notes,
whether at the stated maturity or upon redemption, from and after the maturity
date, the notes will bear interest, payable upon demand of their beneficial
owners, at the rate of 3.75% per year, to the extent that payment of any
interest is legally enforceable, on the unpaid amount due and payable on that
date in accordance with the terms of the notes to the date payment of that
amount has been made or duly provided for.
Under the indenture, the trustee must give to the holders of notes
notice of all uncured defaults known to it with respect to the notes within 90
days after such a default occurs (the term default to include the events
specified above without notice or grace periods); provided that, except in the
case of default in the payments of principal of, any premium on, any of the
notes, the trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interests of the
holders of the notes.
No holder of any notes may institute any action under the indenture
unless:
40
o such holder has given the trustee written notice of a
continuing event of default with respect to the notes;
o the holders of not less than 25% in aggregate principal amount
of the notes then outstanding have requested the trustee to
institute proceedings in respect of such event of default;
o such holder or holders have offered the trustee such
reasonable indemnity as the trustee may require;
o the trustee has failed to institute an action for 60 days
thereafter; and
o no inconsistent direction has been given to the trustee during
such 60-day period by the holders of a majority in aggregate
principal amount of notes.
The holders of a majority in aggregate principal amount of the notes
affected and then outstanding will have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the notes. The indenture provides that,
if an event of default occurs and is continuing, the trustee, in exercising its
rights and powers under the indenture, will be required to use the degree of
care of a prudent man in the conduct of his own affairs. The indenture further
provides that the trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties under the indenture unless it has reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
reasonably assured to it.
We must furnish to the trustee within 120 days after the end of each
fiscal year a statement of our company signed by one of the officers of our
company to the effect that a review of our activities during such year and our
performance under the indenture and the terms of the notes has been made, and,
to the knowledge of the signatory based on such review, we have complied with
all conditions and covenants of the indenture or, if we are in default,
specifying such default.
MODIFICATION OF THE INDENTURE
We and the trustee may, without the consent of the holders of the notes
issued under the indenture, enter into supplemental indentures for, among
others, one or more of the following purposes:
o to evidence the succession of another company to our company,
and the assumption by such successor of our obligations under
the indenture and the notes;
o to add covenants of our company, or surrender any rights of
our company, or add any rights for the benefit of the holders
of notes;
o to cure any ambiguity, omission, defect or inconsistency in
such indenture;
o to provide for the issuance of additional notes in accordance
with the indenture;
o to establish the form or terms of any other series of debt
securities, including any subordinated securities;
o to evidence and provide the acceptance of any successor
trustee with respect to the notes or one or more other series
of debt securities or to facilitate the administration of the
trusts thereunder by one or more trustees in accordance with
such indenture; and
o to provide any additional events of default.
41
With certain exceptions, the indenture, the Carnival plc guarantee and
the rights of the holders of the notes may be modified by us and the trustee
with the consent of the holders of a majority in aggregate principal amount of
the notes then outstanding, but no such modification may be made without the
consent of the holder of each outstanding note affected thereby that would:
o reduce the principal amount or interest rate of a note, change
the maturity of any payment of principal of, or any premium
on, any notes, or change any place of payment where, or the
coin or currency in which, any note or any premium is payable,
or impair the right to institute suit for the enforcement of
any such payment on or after the maturity thereof (or, in the
case of redemption, on or after the redemption date);
o reduce the percentage in principal amount of the outstanding
notes, the consent of whose holders is required for any such
modification, or the consent of whose holders is required for
any waiver of compliance with certain provisions of the
indenture or certain defaults thereunder and their
consequences provided for in the indenture; or
o modify any of the provisions of certain sections of the
indenture, including the provisions summarized in this
paragraph, except to increase any such percentage or to
provide that certain other provisions of the indenture cannot
be modified or waived without the consent of the holder of
each outstanding notes affected thereby.
DISCHARGE OF THE INDENTURE
We may satisfy and discharge our obligations under the indenture by
delivering to the trustee for cancellation all outstanding notes or by
depositing with the trustee or the paying agent after the notes have become due
and payable, whether at maturity, on any redemption date or otherwise, cash
sufficient to pay all of the outstanding notes and paying all other sums payable
under the indenture by our company.
GOVERNING LAW
The indenture and the notes are governed by and construed in accordance
with the laws of the State of New York.
BOOK-ENTRY SYSTEM
The exchange notes initially will be represented by one or more notes
in registered, global form without interest coupons (each, a "global security").
The global securities will be deposited upon issuance with the trustee as
custodian for DTC and registered in the name of DTC or its respective nominee,
as the case may be, in each case for credit to an account of a direct or
indirect participant in the depositaries as described below.
Upon the issuance of a global security, DTC will credit on its
book-entry registration and transfer system the accounts of persons designated
by the initial purchasers with the respective principal amounts of the notes
represented by the global security. Ownership of beneficial interests in a
global security will be limited to persons that have accounts with DTC or its
nominee ("participants") or persons that may hold interests through
participants. Owners of beneficial interests in the notes represented by the
global securities will hold their interests pursuant to the procedures and
practices of DTC. Ownership of beneficial interests in a global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by DTC or its nominee (with respect to interests of persons
other than participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a global security.
So long as DTC or its respective nominee, as the case may be, is the
registered owner of a global security, DTC or its respective nominee, as the
case may be, will be considered the sole owner or holder of the notes presented
by that global security for all purposes under the indenture. Except as provided
below, owners of beneficial interests in a global security will not be entitled
to have notes represented by that global security
42
registered in their names, will not receive or be entitled to receive physical
delivery of notes in definitive form and will not be considered the owners or
holders thereof under the indenture. Beneficial owners will not be holders and
will not be entitled to any rights provided to the holders of notes under the
global securities or the indenture. Payment of principal amounts on notes
registered in the name of DTC or its nominee will be made to DTC or its nominee,
as the case may be, as the registered owner of the relevant global security.
None of our company, Carnival plc, the trustee, any paying agent or the
registrar for the notes will have any responsibility or liability for any aspect
of the records relating to or payment made on account of beneficial interests in
a global security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
We expect that DTC or its nominees, upon receipt of any payment of the
principal amount will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of the relevant global security as shown on the records of DTC or its
nominee. We also expect that payments by participants to owners of beneficial
interests in a global security held through such participants will be governed
by standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "Clearing Agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entry
changes in accounts of its participants, thereby eliminating the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations and certain other
organizations. Indirect access to the DTC system is available to others such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Note among participants of DTC,
it is under no obligation to perform such procedures, and such procedures may be
discontinued at any time. Neither we nor the Trustee will have any
responsibility for the performance by DTC or its participants or indirect
participants of their respective obligations under the rules and procedures
governing their operations.
If DTC is at any time unwilling or unable to continue as a depositary
and a successor depositary is not appointed by us within 90 days or if an event
of default has occurred and is continuing, we will issue notes in definitive
form in exchange for that entire global security for the notes. In any such
instance, an owner of a beneficial interest in a global security will be
entitled to physical delivery in definitive form of notes represented by such
global security equal in principal amount to such beneficial interest and to
have such notes registered in its name. Notes so issued in definitive form will
be issued as registered notes, appropriately legended, in denominations of
$1,000 principal amount and integral multiples thereof, unless otherwise
specified by us.
PAYMENT OF ADDITIONAL AMOUNTS
We will agree that any amounts payable on the notes will be paid
without deduction or withholding for any taxes, levies, imposts or other
governmental charges imposed, assessed, levied or collected by or for the
account of the Republic of Panama or any of its political subdivisions or taxing
authorities or by or for the account of the jurisdiction of incorporation (other
than the United States) of a successor corporation to us, to the extent that
such taxes first become applicable as a result of the successor corporation
becoming the obligor on the notes ("covered taxes"). In addition, if deduction
or withholding of any covered taxes is ever required by the Republic of Panama
or any of its political subdivisions or taxing authorities (or the jurisdiction
of incorporation (other than the United States) of a successor corporation to
us), we will pay any additional amounts ("additional amounts") required to make
the net amounts paid to the holders of the notes or the trustee under the
indenture, as the case may be, after such deduction or withholding, equal to the
amounts of principal, premium, if any, interest, if any, and sinking fund or
analogous payments, if any, to which those holders or the trustee are entitled.
We are not required to pay additional amounts in respect of the following taxes
("excluded taxes"):
43
o any present or future covered taxes which would not have been
so imposed, assessed, levied or collected if the holder or
beneficial owner of the relevant note did not have some
present or former connection with the Republic of Panama (or
jurisdiction of incorporation of a successor corporation to
us) or any such political subdivision of any such jurisdiction
other than holding or owning a note, or collecting principal
and interest, if any, on, or the enforcement of such note,
which connection may include its domicile, residence or
physical presence in such jurisdiction, or its conduct of a
business or maintenance of a permanent establishment therein;
o any present or future covered taxes which would not have been
so imposed, assessed, levied or collected but for the fact
that, where presentation is required, the relevant note was
presented for payment on a date more than thirty days after
the date the payment became due or was provided for, whichever
is later; or
o any present or future covered taxes which would not have been
so imposed, assessed, levied or collected but for the failure
by the holder to comply with any certification, identification
or other reporting requirements concerning the nationality,
residence, identity or connection with the Republic of Panama
(or the jurisdiction of incorporation of a successor
corporation to us) or any of its political subdivisions of the
holder or beneficial owner of the relevant note, if compliance
is required by statute or by rules or regulations of any such
jurisdiction as a condition to relief or exemption from
covered taxes.
We or any successor to us, as the case may be, will indemnify and hold
harmless each holder of the notes and upon written request reimburse each holder
for the amount of:
o any covered taxes levied or imposed and paid by the holder of
the notes (other than excluded taxes) as a result of payments
made with respect to the notes;
o any liability (including penalties, interest and expenses)
arising from or in connection with the levying or imposing of
any covered taxes; and
o any covered taxes levied or imposed with respect to payment of
additional amounts or any reimbursement pursuant to this list.
We or our successor, as the case may be, will also (1) make such
withholding or deduction and (2) remit the full amount deducted or withheld, to
the relevant authority in accordance with applicable law. We or any successor to
us, as the case may be, will furnish the trustee within 30 days after the date
the payment of any covered taxes is due, certified copies of tax receipts
evidencing the payment by us or any successor to us, as the case may be. The
trustee will forward copies of the tax receipts to the holders of the notes.
At least 30 days prior to each date on which any payment under or with
respect to the notes is due and payable, if we will be obligated to pay
additional amounts with respect to those payments, we will deliver to the
trustee an officers' certificate stating that additional amounts will be
payable, stating the amounts that will be payable, and setting forth any other
information necessary to enable the trustee to pay the additional amounts to
holders of the notes on the payment date.
REDEMPTION OR ASSUMPTION OF NOTES UPON CHANGES OR AMENDMENT TO LAWS
If as the result of any change in or any amendment to the laws,
including any regulations and any applicable double taxation treaty or
convention, of the Republic of Panama (or any jurisdiction of incorporation of a
successor corporation to us other than the United States), or of any of its
political subdivisions or taxing authorities affecting taxation, or any change
in an application or interpretation of those laws, which change, amendment,
application or interpretation becomes effective on or after the original
issuance date of the notes (or, in certain circumstances, the later date on
which a corporation becomes a successor corporation to us), we determine based
upon an opinion of independent counsel of recognized standing that (i) we would
be required to pay additional amounts on the next succeeding date for the
payment thereof, or (ii) any taxes would be imposed (whether by way of
44
deduction, withholding or otherwise) by the Republic of Panama (or the
jurisdiction of incorporation, other than the United States, of a successor
corporation to us) or by any of its political subdivisions or taxing
authorities, upon or with respect to any principal, premium, if any, interest,
if any, or sinking fund or analogous payments, if any, then we may, at our
option, on giving not less than 30 nor more than 60 days irrevocable notice,
redeem the notes in whole at any time at a redemption price equal to 100% of the
principal amount of the notes to be purchased plus accrued interest to the
redemption date. No notice of redemption may be given more than 90 days prior to
the earliest date on which we would be obligated to pay the additional amounts
or tax would be imposed, as the case may be. Also, at the time that the notice
of redemption is given, the obligation to pay additional amounts or tax, as the
case may be, must be in effect.
45
DESCRIPTION OF THE CARNIVAL PLC GUARANTEE
Carnival plc is guaranteeing our monetary obligations under the
exchange notes on an unsecured and unsubordinated basis. Carnival plc's
guarantee is being issued under its deed of guarantee, which Carnival plc and we
executed at the closing of the DLC transaction on April 17, 2003. At the closing
of the DLC transaction, Carnival plc and we also executed a separate deed of
guarantee reciprocal to Carnival plc's, under which we guaranteed specified
obligations of Carnival plc owed to its creditors. The following description is
a summary of the material provisions of Carnival plc's deed of guarantee. The
summary is not complete and may not cover information that you may find
important. Accordingly, this summary is subject to, and qualified in its
entirety by reference to, the detailed provisions of Carnival plc's deed of
guarantee. You should read Carnival plc's deed of guarantee carefully and in its
entirety because it, and not this description, defines your rights under the
Carnival plc deed of guarantee.
FORM OF GUARANTEE
The Carnival plc guarantee will be in uncertificated form.
OBLIGATIONS GUARANTEED
Under Carnival plc's deed of guarantee, Carnival plc has fully,
unconditionally and irrevocably undertaken and promised to us that Carnival plc
will, as a continuing obligation, make to the creditor to whom or to which it is
owed the proper and punctual payment of each of the following obligations,
following written demand on us and/or, to the extent applicable the relevant
primary obligor, if for any reason we do not make such payment on the relevant
due date:
o any contractual monetary obligations owed to our creditors
incurred under an agreement entered into since completion of
the DLC transaction;
o any contractual monetary obligations of other persons,
referred to as principal debtors, which are guaranteed by us
and incurred under an agreement entered into since completion
of the DLC transaction; and
o any other obligation of any kind that may be agreed in writing
between us and Carnival plc.
Carnival plc's deed of guarantee provides that the creditors to whom
our obligations are owed are intended third party beneficiaries of Carnival
plc's deed of guarantee. Subject to protective procedures for existing and new
beneficiaries of Carnival plc's deed of guarantee, we and Carnival plc may
exclude obligations from coverage under Carnival plc's deed of guarantee by
agreement, as described below under "--Exclusions from the Guarantee."
Should any obligation not be recoverable from Carnival plc as a result
of the obligation becoming void, voidable or unenforceable against us, Carnival
plc also has agreed that it will, as sole, original and independent obligor,
make payment on such obligation by way of a full indemnity. Unless otherwise
provided in Carnival plc's deed of guarantee, Carnival plc's liabilities and
obligations under Carnival plc's deed of guarantee will remain in force
notwithstanding any act, omission, neglect, event or matter which would not
affect or discharge our liabilities owed to the relevant creditor, including,
without limitation:
o anything which would have discharged Carnival plc, wholly or
in part, but not us;
o anything which would have offered Carnival plc, but not us,
any legal or equitable defense; and
o any winding-up, insolvency, dissolution and/or analogous
proceeding of, or any change in constitution or corporate
identity or loss of corporate identity by, us or any other
person or entity.
In the event that Carnival plc is required under the Carnival plc deed
of guarantee to make a payment to a creditor, we will reimburse Carnival plc for
those payments.
46
EXCLUSIONS FROM THE GUARANTEE
We and Carnival plc may, by entering into a supplemental deed and by
giving the required notice, exclude from the scope of Carnival plc's deed of
guarantee obligations of a particular type, or a particular obligation or
obligations, incurred after a specified date. The specified date must be:
o in the case of obligations of a particular type, at least
three months after the date on which notice of the relevant
exclusion is given, or
o in the case of a particular obligation, at least five business
days, or such shorter period as the relevant creditor may
agree, after the date on which notice is given to the relevant
creditor.
However, no such agreement or exclusion shall be effective with respect to any
obligation incurred before, or arising out of, any credit or similar facility
available for use at, the time at which the relevant agreement or exclusion
becomes effective. Therefore, under this provision we and Carnival plc would not
be able to exclude the notes or the indenture governing the notes from the scope
of Carnival plc's deed of guarantee after the issuance of the notes without the
consent of the trustee under the indenture and the requisite holders of the
notes.
NO DEFENSE, SET-OFF AND COUNTERCLAIM
In respect of any claim against Carnival plc by a creditor under
Carnival plc's deed of guarantee, Carnival plc will not have available to it:
o by way of defense or set-off, any matter that arises from or
in connection with Carnival plc's deed of guarantee, and which
would have been available to Carnival plc by way of defense or
set-off if the proceedings had been brought against Carnival
plc by us,
o by way of defense or set-off, any matter that would have been
available to Carnival plc by way of defense or set-off against
a creditor if the creditor had been a party to Carnival plc's
deed of guarantee, or
o by way of counterclaim any matter not arising from Carnival
plc's deed of guarantee that would have been available to
Carnival plc by way of counterclaim against a creditor if the
creditor had been a party to Carnival plc's deed of guarantee.
GOVERNING LAW AND JURISDICTION
Carnival plc's deed of guarantee is governed and construed in
accordance with the laws of the Isle of Man. All actions or proceedings arising
out of or in connection with Carnival plc's deed of guarantee must be
exclusively brought in courts in England. In addition, the issuance of the
Carnival plc guarantee will not affect the governing law of the notes and the
related indenture, which will be governed by the laws of the State of New York.
It is therefore likely that the governing law and the jurisdiction in which
actions may be brought in respect of the Carnival plc guarantee will be
different from those for the notes. See "Risk Factors--Risks Relating to the
Guarantees--Carnival plc's guarantee is governed by the laws of a foreign
jurisdiction, and an action to enforce the guarantee must be brought in the
courts of England."
TERMINATION
No termination of Carnival plc's deed of guarantee will be effective
with respect to any obligation under Carnival plc's deed of guarantee incurred
before, or arising out of, any credit or similar facility available for use at,
the time at which the termination becomes effective. Therefore, after the
issuance of the notes, the termination provisions described below will not apply
to the notes without the consent of the trustee under the indenture and the
requisite holders of the notes.
47
Subject to that limitation, Carnival plc's deed of guarantee will
terminate:
o automatically upon the termination or the discontinuance of
effectiveness of the Equalization and Governance Agreement,
which was entered into by us and Carnival plc at the closing
of the DLC transaction and is the primary agreement governing
the ongoing relationship between us and Carnival plc as a dual
listed company operating as a single economic entity,
o automatically upon the termination or discontinuance of
effectiveness of our deed of guarantee, or
o on such future date as Carnival plc may determine with the
giving of three months' notice following our consenting to
such termination, although our consent shall not be required
if prior to the date set out in such notice a resolution is
passed or an order is made for the liquidation of us.
AMENDMENT
We and Carnival plc may amend Carnival plc's deed of guarantee by
entering into a supplemental deed. However, no amendment of Carnival plc's deed
of guarantee will be effective with respect to any obligation under Carnival
plc's deed of guarantee incurred before, or arising out of, any credit or
similar facility available for use at, the time at which the amendment becomes
effective. Therefore, after the issuance of the notes, no such amendment may
become effective with respect to the notes without the consent of the trustee
and the requisite holders of the notes.
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CERTAIN PANAMANIAN AND UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES
PANAMA
Under current Panamanian law, because we conduct all of our operations
outside of Panama, we believe that no Panamanian taxes or withholding will be
imposed on payments to holders of the notes.
UNITED STATES
The following is a discussion of certain United States federal income
tax consequences associated with the exchange of initial notes for exchange
notes pursuant to the exchange offer and of the ownership and disposition of
those exchange notes by U.S. holders and non-U.S. holders, each as defined
below, who acquire the exchange notes in the exchange offer. This discussion is
based on existing provisions of the Internal Revenue Code of 1986, as amended
(the "Code"), Treasury Regulations promulgated thereunder, judicial decisions
and administrative rulings and practice, and interpretations of the foregoing,
all as of the date of this offering. All of the foregoing authorities are
subject to change, possibly with retroactive effect, and any such change may
result in United States federal income tax consequences to a holder that are
materially different from those described below. This summary applies to you
only if you hold the exchange notes as capital assets within the meaning of the
Code. This discussion does not purport to be a complete analysis of all the
potential U.S. federal income tax considerations of participation in the
exchange offer and does not discuss any estate, gift, state, local or foreign
considerations. This discussion also does not address all federal income tax
consequences applicable to all categories of investors, some of which may be
subject to special rules, such as life insurance companies, tax-exempt
organizations, dealers in securities or currencies, regulated investment
companies, banks or other financial institutions, partnerships, S corporations
and other flow-through entities for federal income tax purposes, holders subject
to the alternative minimum tax, expatriates, investors whose functional currency
is not the U.S. dollar and investors who hold notes as part of a hedge,
straddle, conversion transaction or a synthetic security or other integrated
transaction. We have not obtained, nor do we intend to obtain, any ruling from
the Internal Revenue Service (the "IRS") with respect to the statements made and
the conclusions reached in the following summary, and we can not assure you it
the IRS will agree with these statements and conclusions.
IF YOU ARE CONSIDERING PARTICIPATING IN THE EXCHANGE OFFER, YOU SHOULD
CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE APPLICATION OF THE UNITED
STATES FEDERAL TAX LAWS TO YOUR PARTICULAR SITUATION AS WELL AS ANY TAX
CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING
JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.
THE EXCHANGE OFFER
The exchange of the initial notes for the exchange notes pursuant to
the exchange offer will not be treated as a taxable event to U.S. holders or
non-U.S. holders, each as defined below. Consequently, no gain or loss will be
realized by a holder upon a receipt of an exchange note, the holding period of
the exchange note will include the holding period of the initial note exchanged
for such exchange note and the adjusted tax basis of the exchange note will be
the same as the adjusted tax basis, immediately before the exchange, of the
initial note exchanged for the exchange note. The U.S. federal income tax
consequences of holding and disposing of an exchange note generally should be
the same as the U.S. federal income tax consequences of holding and disposing of
an initial note.
U.S. HOLDERS
This summary applies to you if you are a U.S. holder. For purposes of
this summary, the term "U.S. holder" means a beneficial owner of initial notes
who exchanges such notes for exchange notes pursuant to the exchange offer that
is:
o a citizen or individual resident of the United States;
49
o a corporation, or other entity taxable as a corporation for
United States federal income tax purposes, created or
organized in or under the laws of the U.S. or any of its
political subdivisions;
o an estate the income of which is subject to United States
federal income taxation regardless of its source; and
o a trust if (a) a court within the United States is able to
exercise primary supervision over the administration of the
trust and one or more persons have the authority to control
all substantial decisions of the trust, or (b) the trust has a
valid election in effect under applicable Treasury Regulations
to be treated as a U.S. person.
If a partnership holds exchange notes, the tax treatment of a partner
will generally depend upon the status of the partner and upon the activities of
the partnership. If you are a partner in such a partnership, you should consult
your own tax advisor.
PAYMENTS OF INTEREST ON THE NOTES. Interest paid on an exchange note
generally will be taxable to a U.S. holder as ordinary interest income at the
time it accrues or is received in accordance with the U.S. holder's method of
accounting for United States federal income tax purposes. Under the "branch tax"
rules of the Code, it is possible that, notwithstanding that the Company is a
Panamanian corporation, some or all interest payable on the exchange notes may
be treated as United States source income for United States federal income tax
purposes.
We do not expect the exchange notes to be issued with original issue
discount. If, however, the exchange notes are issued with more than a de minimis
amount of original issue discount, then such original issue discount would be
treated for United States federal income tax purposes as accruing over the term
of the exchange notes as interest income to a U.S. holder. For these purposes, a
de minimis amount of original issue discount is an amount equal to 0.0025
multiplied by the stated redemption price at maturity and the number of complete
years to maturity from the issue date. If it is determined that the exchange
notes have original issue discount, in compliance with Treasury Regulations, we
will provide certain information to the IRS and U.S. holders that is relevant to
determining the amount of original issue discount in each accrual period.
Holders should consult their tax advisors regarding the consequences to them if
the exchange notes are issued with more than a de minimis amount of original
issue discount.
MARKET DISCOUNT. If a U.S. holder purchased an initial note at initial
issuance for an amount that is less than its issue price or purchased an initial
note after initial issuance but prior to this exchange offer for an amount that
was less than the stated principal amount of the note and in either case a DE
MINIMIS exception does not apply, the difference will be treated as market
discount. If a U.S. holder exchanges an initial note, with respect to which
there is market discount, for an exchange note pursuant to the exchange offer,
the market discount applicable to the initial note will carry over to the
exchange note so received. In that case, unless the U.S. holder makes an
election to include market discount in income as it accrues, any partial
principal payment on the exchange note, gain realized on the sale, exchange or
retirement of the exchange note and unrealized appreciation on some nontaxable
dispositions of the exchange note will be treated as ordinary income to the
extent of the market discount that has not been previously included in income
and that is treated as having accrued on the exchange note prior to the payment
or disposition. A U.S. holder also might be required to defer all or a portion
of the interest expense on any indebtedness incurred or continued to purchase or
carry the exchange note, unless the U.S. holder has made an election to include
the market discount in income as it accrues. Unless the U.S. holder elects to
treat market discount as accruing on a constant yield method, market discount
will be treated as accruing on a straight line basis over the term of the
exchange note. An election made to include market discount in income as it
accrues will apply to all debt instruments acquired by the U.S. holder on or
after the first day of the taxable year to which the election applies and may be
revoked only with the consent of the Internal Revenue Service.
BOND PREMIUM. If a U.S. holder purchased an initial note prior to this
exchange offer for an amount that is in excess of all amounts payable on the
initial note after the purchase date, other than payments of qualified stated
interest, the excess will be treated as bond premium. If a U.S. holder exchanges
an initial note, with respect to which there is bond premium, for an exchange
note pursuant to the exchange offer, the bond premium applicable to the initial
note will carry over to the exchange note so received. In general, a U.S. holder
may elect to amortize bond
50
premium over the remaining term of the exchange note on a constant yield method.
The amount of bond premium allocable to any accrual period is offset against the
qualified stated interest allocable to the accrual period. If, following the
offset determination described in the immediately preceding sentence, there is
an excess allocable bond premium remaining, that excess may, in some
circumstances, be deducted. An election to amortize bond premium applies to all
taxable debt instruments held at the beginning of the first taxable year to
which the election applies and thereafter acquired by the U.S. holder and may be
revoked only with the consent of the Internal Revenue Service.
SALE, EXCHANGE, REDEMPTION AND OTHER DISPOSITION OF NOTES. You
generally will recognize gain or loss upon the sale, exchange, redemption,
retirement or other disposition of an exchange note measured by the difference
between (i) the amount of cash proceeds and the fair market value of any
property you receive (except to the extent attributable to accrued but unpaid
interest which, to the extent not previously taken into income, will generally
be taxable as ordinary income), and (ii) your adjusted tax basis in such
exchange note. A U.S. holder's tax basis in an exchange note will generally be
the U.S. holder's cost for the initial note that was exchanged for such exchange
note, increased by any accrued market discount previously included in income,
and decreased by any amortized bond premium. Subject to the discussion of market
discount above, gain or loss on the disposition of an exchange note will
generally be capital gain or loss and will be long-term gain or loss if such
exchange note has been held for more than one year at the time of such
disposition. As indicated above, a holder's holding period of an exchange note
will include such holder's holding period of the initial note exchanged for such
exchange note pursuant to the exchange offer. If the U.S. holder is a U.S.
resident (as defined in section 865 of the Code), gains realized upon
disposition of an exchange note by such U.S. holder generally will be U.S.
source income, and disposition losses generally will be allocated to reduce U.S.
source income. The deductibility of capital losses is subject to limitations.
NON-U.S. HOLDERS
The following is a summary of certain material U.S. federal tax
consequences that will apply to you if you are a non-U.S. holder of exchange
notes. The term "non-U.S. holder" means a beneficial owner of exchange notes
that is not a U.S. holder. Special rules may apply to certain non-U.S. holders
such as "controlled foreign corporations", "passive foreign investment
companies", "foreign personal holding companies", persons eligible for benefits
under income tax conventions to which the United States is a party and certain
U.S. expatriates. Non-U.S. holders should consult their own tax advisers to
determine the U.S. federal, state, local and other tax consequences that may be
relevant to them.
PAYMENTS OF INTEREST. Under the "branch tax" rules of the Code, it is
possible that, notwithstanding that the Company is a Panamanian corporation,
some or all interest payable on the exchange notes may be treated as United
States source income for United States federal income tax purposes. If any
interest paid on the exchange notes is determined to be United States source
income, the 30% United States federal withholding tax will not apply to any such
payment of interest to you on a note provided that:
o you do not actually or constructively own 10% or more of the
total combined voting power of all classes of our stock that
are entitled to vote within the meaning of section 871(h)(3)
of the Code;
o you are not a "controlled foreign corporation" that is related
to us within the meaning of section 864(d)(4) of the Code;
o you are not a bank whose receipt of interest on an exchange
note is described in section 881(c)(3)(A) of the Code; and
o you provide your name and address, and certify, under
penalties of perjury, that you are not a U.S. person (which
certification may be made on an IRS Form W-8BEN (or successor
form)) or (b) you hold your exchange notes through certain
foreign intermediaries, and you and the foreign intermediary
satisfy the certification requirements of applicable U.S.
Treasury regulations.
Special certification rules apply to non-U.S. holders that are
pass-through entities rather than corporations or individuals.
51
If you cannot satisfy the requirements described above, payments of
interest will be subject to the 30% United States federal withholding tax,
unless you provide us with a properly executed (1) IRS Form W-8BEN (or successor
form) claiming an exemption from or reduction in withholding under the benefit
of any applicable tax treaty or (2) IRS Form W-8ECI (or successor form) stating
that interest paid on the exchange note is not subject to withholding tax
because it is effectively connected with your conduct of a trade or business in
the United States. If you are engaged in a trade or business in the United
States and interest on an exchange note is effectively connected with the
conduct of that trade or business, you will be subject to U.S. federal income
tax on that interest on a net income basis (although you will be exempt from the
30% withholding tax, provided you satisfy the certification requirements
described above) in the same manner as if you were a U.S. person as defined
under the Code, regardless of whether interest paid on the exchange notes is
determined to be United States source income or not. In addition, if you are a
foreign corporation, you may be subject to a branch profits tax equal to 30% (or
lower applicable treaty rate) of your earnings and profits for the taxable year,
subject to adjustments, that are effectively connected with your conduct of a
trade or business in the United States.
ISSUES RELEVANT TO U.S. HOLDERS AND NON-U.S. HOLDERS
INFORMATION REPORTING AND BACKUP WITHHOLDING. If you are a U.S. holder,
in general, information reporting requirements may apply to payments of interest
on the exchange notes and the proceeds of sale of an exchange note unless you
are an exempt recipient (such as a corporation). Backup withholding tax will
apply to such payments if you fail to provide your taxpayer identification
number or certification of foreign or other exempt status or fail to report in
full dividend and interest income.
If you are a non-U.S. holder, in general, you will not be subject to
backup withholding and information reporting with respect to payments that we
make to you provided that we do not have actual knowledge or reason to know that
you are a U.S. person and you have given us the statement described above under
"--Non-U.S. holders--Payments of Interest." In addition, you will not be subject
to backup withholding or information reporting with respect to the proceeds of
the sale of an exchange note within the United States or conducted through
certain U.S.-related financial intermediaries, if the payor receives the
statement described above and does not have actual knowledge or reason to know
that you are a U.S. person, as defined under the Code, or you otherwise
establish an exemption. However, we may be required to report annually to the
IRS and to you the amount of, and the tax withheld respect to, any interest paid
to you, regardless of whether any tax was actually withheld. Copies of these
information returns may also be made available under the provisions of a
specific treaty or agreement to the tax authorities of the country in which the
non-U.S. holder resides.
Any amounts withheld under the backup withholding rules will be allowed
as a refund or a credit against your U.S. federal income tax liability provided
the required information is furnished timely to the IRS.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE DOES
NOT ADDRESS ALL THE U.S. FEDERAL INCOME TAX CONSEQUENCES THAT MAY BE APPLICABLE
TO A HOLDER OF EXCHANGE NOTES AND MAY NOT BE APPLICABLE DEPENDING UPON YOUR
PARTICULAR SITUATION. YOU SHOULD CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO
THE TAX CONSEQUENCES TO YOU OF PARTICIPATING IN THE EXCHANGE OFFER AND THE
OWNERSHIP AND DISPOSITION OF EXCHANGE NOTES INCLUDING THE TAX CONSEQUENCES UNDER
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN
UNITED STATES OR OTHER TAX LAWS.
52
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of exchange notes received in
exchange for initial notes where such initial notes were acquired as a result of
market-making activities or other trading activities. We and Carnival plc have
agreed that, for a period of 90 days after the expiration of this exchange
offer, we will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale.
We will not receive any proceeds from any sale of exchange notes by
broker-dealers. Exchange notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the exchange notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related
to-such prevailing market prices or negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such exchange notes. Any broker-dealer
that resells exchange notes that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of exchange
notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The letter of
transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the expiration of this exchange offer, we
will promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the letter of transmittal. We have agreed to pay all expenses incident to the
exchange offer other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
53
LEGAL MATTERS
The validity of the exchange notes has been passed upon for Carnival
Corporation by Paul, Weiss, Rifkind, Wharton & Garrison LLP. Freshfields
Bruckhaus Deringer has passed upon certain matters with respect to the laws of
England and Wales. Dickinson Cruickshank & Co. has passed upon the validity of
the guarantee offered by this prospectus by Carnival plc. Certain matters with
respect to Panamanian law have been passed upon for Carnival Corporation by
Tapia Linares y Alfaro.
James M. Dubin and John J. O'Neil, partners of Paul, Weiss, Rifkind,
Wharton & Garrison LLP, are the sole securityholders of various corporations
which act as trustees or protectors of various trusts established for the
benefit of members of the Arison family and charitable trusts. In these
capacities, Messrs. Dubin and O'Neil had, as of February 23, 2004, shared voting
or dispositive rights over approximately 23% of Carnival Corporation's
outstanding common stock, representing approximately 18% of the total voting
power of Carnival Corporation & plc. Paul, Weiss, Rifkind, Wharton & Garrison
LLP also serves as counsel to Micky Arison, who is the chairman and chief
executive officer of us and Carnival plc and other Arison family members and
trusts.
EXPERTS
The consolidated financial statements of Carnival Corporation & plc
incorporated in this prospectus by reference to Carnival Corporation & plc's
joint Annual Report on Form 10-K for the fiscal year ended November 30, 2003
have been incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent certified public accountants, given on the authority of said firm as
experts in auditing and accounting.
The consolidated financial statements of Carnival plc, formerly known
as P&O Princess Cruises plc, as of December 31, 2002 and 2001, and for each of
the years in the three year period ended December 31, 2002 have been
incorporated by reference here in reliance on the report of KPMG Audit Plc,
chartered accountants and registered auditor, incorporated by reference herein
and upon the authority of said firm as experts in auditing and accounting. The
audit report covering the December 31, 2002 financial statements refers to the
adoption of FRS 19 Deferred Tax.
WHERE YOU CAN FIND MORE INFORMATION
Carnival Corporation and Carnival plc are required to comply with the
reporting requirements of the Securities Exchange Act of 1934 and, in accordance
with those requirements, each of Carnival Corporation and Carnival plc file
combined reports, proxy statements and other information with the SEC. We have
also filed with the Commission a registration statement on Form S-4 to register
the exchange notes. This prospectus, which forms part of the registration
statement, does not contain all of the information included in that registration
statement. For further information about us and the exchange notes offered in
this prospectus, you should refer to the registration statement and its
exhibits. You can inspect and copy these reports, proxy statements and other
information at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-732-0330. In addition, the SEC
maintains a website (www.sec.gov) that contains the reports, proxy statements
and other information that Carnival Corporation and Carnival plc have filed or
will file. Material that Carnival Corporation and Carnival plc have filed may
also be inspected at the library of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
Anyone who receives a copy of this prospectus may obtain a copy of the
indenture and supplemental indenture without charge by writing: Carnival
Corporation, 3655 N.W. 87th Avenue, Miami, Florida, 33178-2428, Attention:
Corporate Secretary.
54
================================================================================
CARNIVAL CORPORATION
EXCHANGE OFFER FOR ITS $550,000,000
3 3/4% SENIOR NOTES DUE 2007
__________________________
PROSPECTUS
, 2004
__________________________
No person has been authorized to give any information or to make any
representation other than those contained in this prospectus, and, if given or
made, any information or representations must not be relied upon as having been
authorized. This prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates or an offer to sell or the solicitation of an offer to buy
these securities in any circumstances in which this offer or solicitation is
unlawful. Neither the delivery of this prospectus nor any sale made under this
prospectus shall, under any circumstances, create any implication that there has
been no change in the affairs of Carnival Corporation since the date of this
prospectus or that the information contained in this prospectus is correct as of
any time subsequent to its date. We will update the information contained in
this prospectus to the extent required by law during such time as this
prospectus is required to be in use.
================================================================================
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Carnival Corporation's third amended and restated articles of
incorporation and by-laws provide, subject to the requirements set forth
therein, that with respect to any person who was or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, Carnival Corporation
shall indemnify such person by reason of the fact that he is or was one of
Carnival Corporation's or Carnival plc's directors or officers, and may
indemnify such person by reason of the fact that he is or was one of Carnival
Corporation's or Carnival plc's employees or agents or is or was serving at
Carnival Corporation's or Carnival plc's request as a director, officer,
employee or agent in another corporation, partnership, joint venture, trust or
other enterprise, in either case against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to Carnival
Corporation's or Carnival plc's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. Carnival Corporation has entered into agreements with each of its
directors providing essentially the same indemnities as are described in
Carnival Corporation's third amended and restated articles of incorporation in
the event that such director or such director's heirs, executors or
administrators are made a party to threatened, pending or completed actions,
suits or proceedings as described above.
Article 288 of Carnival plc's articles of association provides:
"Subject to the provisions of the Companies Acts but without prejudice
to any Indemnity to which a director may otherwise be entitled, every director
or other officer of Carnival plc or of Carnival Corporation shall be indemnified
out of the assets of Carnival plc against any liability incurred by him to the
fullest extent permitted under the law."
Under the UK Companies Act 1985, a UK company is not permitted to
indemnify a director or officer of the company (or any person employed by the
company as an auditor) against any liability in respect of any negligence,
default, breach of duty or breach of trust of which he may be guilty in relation
to the company.
UK companies, however, may:
o purchase and maintain liability insurance for officers and
directors; and
o indemnify officers and directors against any liability
incurred by him either in defending any proceedings in which
judgment is given in his favor or he is acquitted, or in
connection with the court granting him relief from liability
in the case of honest and reasonable conduct.
Carnival plc has entered into agreements with each of its directors
providing essentially the same indemnities as are described in Carnival plc's
articles of association as described above.
II-1
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
3.1 Third Amended and Restated Articles of Incorporation of Carnival
Corporation (incorporated by reference to Exhibit 3.1 to the joint
Current Report on Form 8-K of Carnival Corporation and Carnival plc,
filed on April 17, 2003)
3.2 Amended and Restated By-laws of Carnival Corporation (incorporated by
reference to Exhibit 3.2 to the joint Current Report on Form 8-K of
Carnival Corporation and Carnival plc, filed on April 17, 2003)
3.3 Articles of Association of Carnival plc (incorporated by reference to
Exhibit 3.3 to the joint Current Report on Form 8-K of Carnival
Corporation and Carnival plc, filed on April 17, 2003)
3.4 Memorandum of Association of Carnival plc (incorporated by reference to
Exhibit 3.4 to the joint Current Report on Form 8-K of Carnival
Corporation and Carnival plc, filed on April 17, 2003)
4.1 Indenture dated as of April 25, 2001, between Carnival Corporation and
U.S. Bank Trust National Association, as trustee, relating to unsecured
and unsubordinated debt securities (incorporated by reference to
Exhibit No. 4.5 to the Registrant's registration statement on Form S-3,
File No. 333-62950)
4.2 Fourth Supplemental Indenture, dated as of November 10, 2003, between
Carnival Corporation and U.S. Bank National Association, as trustee,
supplemental to Indenture, dated as of April 25, 2001, creating a
series of Securities designated 3 3/4% Senior Notes due 2007.
4.3 Form of Exchange Note (included in Exhibit 4.2)
4.4 Carnival Corporation Deed of Guarantee between Carnival plc (formerly
P&O Princess Cruises plc) and Carnival Corporation, dated as of April
17, 2003 (incorporated by reference to Exhibit 4.3 to Carnival plc and
Carnival Corporation's joint registration statement on Form S-4, File
No. 333-105671)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP
5.2 Opinion of Tapia Linares y Alfaro
5.3 Opinion of Freshfields Bruckhaus Deringer
5.4 Opinion of Dickinson Cruickshank & Co.
8.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP
8.2 Opinion of Tapia Linares y Alfaro (included in Exhibit 5.2)
12.1 Pro Forma Ratio of Earnings to Fixed Charges of Carnival Corporation &
plc for the year ended November 30, 2003 (incorporated by reference to
Exhibit 12.1 to Carnival plc and Carnival Corporation's joint
registration statement on Form S-3, File No. 333-11331001)
12.2 Ratio of Earnings to Fixed Charges of Carnival Corporation & plc for
each of the five years ended November 30, 2003, 2002, 2001, 2000 and
1999 (incorporated by reference to Exhibit 12 to Carnival Corporation &
plc joint Annual Report on Form 10-K for the year ended November 30,
2003)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified Public
Accountants
23.2 Consent of KPMG Audit plc, Chartered Accountants
23.3 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5.1)
23.4 Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
23.5 Consent of Freshfields Bruckhaus Deringer (included in Exhibit 5.3)
23.6 Consent of Dickinson Cruickshank & Co. (included in Exhibit 5.4)
24 Powers of Attorney (included on signature pages)
II-2
25 Statement of Eligibility under the Trust Indenture Act of 1939 on Form
T-1 of U.S. Bank National Association to act as Trustee under the
Indenture dated as of April 25, 2001, as supplemented by the fourth
supplemental indenture dated as of November 10, 2003 (incorporated by
reference to Exhibit 25.1 to Carnival Corporation's Registration
Statement on Form S-3, File No. 333-62950)
99.1 Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrants' annual
reports pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof;
(2) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to
provide such interim financial information; and
(3) (i) For purposes of determining any liability under
the Securities Act of 1933, the information omitted
from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
Registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be
deemed to be part of this Registration Statement as
of the time it was declared effective.
(ii) For purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment
that contains a form of prospectus shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrants of expenses incurred or paid by a director, officer, or
controlling person of the Registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer, or controlling person
in connection with the securities being registered, the Registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(b) The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11, or 13 of this Form, within one business
day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective
date of the registration statement through the date of responding to
the request.
II-3
(c) The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject
of and included in the registration statement when it became effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Miami, State of Florida,
on the 31st day of March, 2004.
CARNIVAL CORPORATION
By: /s/ Micky Arison
-----------------------------------------
Name: Micky Arison
Title: Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned directors and officers of Carnival Corporation
hereby severally constitutes and appoints Howard S. Frank, Gerald R. Cahill,
David Bernstein or Arnaldo Perez and each of them, as attorneys-in-fact for the
undersigned, in any and all capacities, with full power of substitution, to sign
any amendments to this registration statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the dates indicated by the following
persons in the capacities indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Micky Arison Chairman of the Board of Directors March 31, 2004
- ------------------------- and Chief Executive Officer (Principal Executive
Micky Arison Officer)
/s/ Howard S. Frank
- ------------------------- Vice-Chairman of the Board of Directors March 31, 2004
Howard S. Frank
/s/ Gerald R. Cahill Executive Vice President and Chief Financial and March 31, 2004
- ------------------------- Accounting Officer (Principal Financial Officer
Gerald R. Cahill and Principal Accounting Officer)
/s/ Richard G. Capen, Jr.
- ------------------------- Director March 31, 2004
Richard G. Capen, Jr.
II-5
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Robert H. Dickinson
- ------------------------- Director March 31, 2004
Robert H. Dickinson
/s/ Arnold W. Donald
- ------------------------- Director March 31, 2004
Arnold W. Donald
/s/ Pier Luigi Foschi
- ------------------------- Director March 31, 2004
Pier Luigi Foschi
/s/ Baroness Hogg
- ------------------------- Director March 31, 2004
Baroness Hogg
/s/ A. Kirk Lanterman
- ------------------------- Director March 31, 2004
A. Kirk Lanterman
/s/ Modesto A. Maidique
- ------------------------- Director March 31, 2004
Modesto A. Maidique
/s/ John P. McNulty
- ------------------------- Director March 31, 2004
John P. McNulty
/s/ Sir John Parker
- ------------------------- Director March 31, 2004
Sir John Parker
/s/ Peter G. Ratcliffe
- ------------------------- Director March 31, 2004
Peter G. Ratcliffe
/s/ Stuart Subotnick
- ------------------------- Director March 31, 2004
Stuart Subotnick
/s/ Uzi Zucker
- ------------------------- Director March 31, 2004
Uzi Zucker
II-6
SIGNATURES OF CARNIVAL PLC
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Miami, State of Florida,
on the 31st day of March, 2004.
CARNIVAL PLC
By: /s/ Micky Arison
-----------------------------------------
Name: Micky Arison
Title: Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned directors and officers of Carnival plc hereby
severally constitutes and appoints Howard S. Frank, Gerald R. Cahill, David
Bernstein or Arnaldo Perez and each of them, as attorneys-in-fact for the
undersigned, in any and all capacities, with full power of substitution, to sign
any amendments to this registration statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the dates indicated by the following
persons in the capacities indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Micky Arison Chairman of the Board of Directors March 31, 2004
- ------------------------- and Chief Executive Officer (Principal Executive
Micky Arison Officer)
/s/ Howard S. Frank
- ------------------------- Vice-Chairman of the Board of Directors March 31, 2004
Howard S. Frank
/s/ Gerald R. Cahill Executive Vice President and Chief Financial and March 31, 2004
- ------------------------- Accounting Officer (Principal Financial Officer
Gerald R. Cahill and Principal Accounting Officer)
/s/ Richard G. Capen, Jr.
- ------------------------- Director March 31, 2004
Richard G. Capen, Jr.
II-7
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Robert H. Dickinson
- ------------------------- Director March 31, 2004
Robert H. Dickinson
/s/ Arnold W. Donald
- ------------------------- Director March 31, 2004
Arnold W. Donald
/s/ Pier Luigi Foschi
- ------------------------- Director March 31, 2004
Pier Luigi Foschi
/s/ Baroness Hogg
- ------------------------- Director March 31, 2004
Baroness Hogg
/s/ A. Kirk Lanterman
- ------------------------- Director March 31, 2004
A. Kirk Lanterman
/s/ Modesto A. Maidique
- ------------------------- Director March 31, 2004
Modesto A. Maidique
/s/ John P. McNulty
- ------------------------- Director March 31, 2004
John P. McNulty
/s/ Sir John Parker
- ------------------------- Director March 31, 2004
Sir John Parker
/s/ Peter G. Ratcliffe
- ------------------------- Director March 31, 2004
Peter G. Ratcliffe
/s/ Stuart Subotnick
- ------------------------- Director March 31, 2004
Stuart Subotnick
/s/ Uzi Zucker
- ------------------------- Director March 31, 2004
Uzi Zucker
II-8
EXHIBIT INDEX
3.1 Third Amended and Restated Articles of Incorporation of Carnival
Corporation (incorporated by reference to Exhibit 3.1 to the joint
Current Report on Form 8-K of Carnival Corporation and Carnival plc,
filed on April 17, 2003)
3.2 Amended and Restated By-laws of Carnival Corporation (incorporated by
reference to Exhibit 3.2 to the joint Current Report on Form 8-K of
Carnival Corporation and Carnival plc, filed on April 17, 2003)
3.3 Articles of Association of Carnival plc (incorporated by reference to
Exhibit 3.3 to the joint Current Report on Form 8-K of Carnival
Corporation and Carnival plc, filed on April 17, 2003)
3.4 Memorandum of Association of Carnival plc (incorporated by reference to
Exhibit 3.4 to the joint Current Report on Form 8-K of Carnival
Corporation and Carnival plc, filed on April 17, 2003)
4.1 Indenture dated as of April 25, 2001, between Carnival Corporation and
U.S. Bank Trust National Association, as trustee, relating to unsecured
and unsubordinated debt securities (incorporated by reference to
Exhibit No. 4.5 to the Registrant's registration statement on Form S-3,
File No. 333-62950)
4.2 Fourth Supplemental Indenture, dated as of November 10, 2003, between
Carnival Corporation and U.S. Bank National Association, as trustee,
supplemental to Indenture, dated as of April 25, 2001, creating a
series of Securities designated 3 3/4% Senior Notes due 2007.
4.3 Form of Exchange Note (included in Exhibit 4.2)
4.4 Carnival Corporation Deed of Guarantee between Carnival plc (formerly
P&O Princess Cruises plc) and Carnival Corporation, dated as of April
17, 2003 (incorporated by reference to Exhibit 4.3 to Carnival plc and
Carnival Corporation's joint registration statement on Form S-4, File
No. 333-105671)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP
5.2 Opinion of Tapia Linares y Alfaro
5.3 Opinion of Freshfields Bruckhaus Deringer
5.4 Opinion of Dickinson Cruickshank & Co.
8.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP
8.2 Opinion of Tapia Linares y Alfaro (included in Exhibit 5.2)
12.1 Pro Forma Ratio of Earnings to Fixed Charges of Carnival Corporation &
plc for the year ended November 30, 2003 (incorporated by reference to
Exhibit 12.1 to Carnival plc and Carnival Corporation's joint
registration statement on Form S-3, File No. 333-11331001)
12.2 Ratio of Earnings to Fixed Charges of Carnival Corporation & plc for
each of the five years ended November 30, 2003, 2002, 2001, 2000 and
1999 (incorporated by reference to Exhibit 12 to Carnival Corporation &
plc joint Annual Report on Form 10-K for the year ended November 30,
2003)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified Public
Accountants
23.2 Consent of KPMG Audit plc, Chartered Accountants
23.3 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5.1)
23.4 Consent of Tapia Linares y Alfaro (included in Exhibit 5.2)
23.5 Consent of Freshfields Bruckhaus Deringer (included in Exhibit 5.3)
23.6 Consent of Dickinson Cruickshank & Co. (included in Exhibit 5.4)
24 Powers of Attorney (included on signature pages)
25 Statement of Eligibility under the Trust Indenture Act of 1939 on Form
T-1 of U.S. Bank National Association to act as Trustee under the
Indenture dated as of April 25, 2001, as supplemented by the fourth
supplemental indenture dated as of November 10, 2003 (incorporated by
reference to Exhibit 25.1 to Carnival Corporation's Registration
Statement on Form S-3, File No. 333-62950)
II-9
99.1 Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
II-10
EXHIBIT 4.2
-----------
EXECUTION COPY
CARNIVAL CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
__________________________
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 10, 2003
__________________________
Supplemental to Indenture
DATED AS OF APRIL 25, 2001
__________________________
Creating a series of Securities
designated
3 3/4% Senior Notes due 2007
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions..................................................2
ARTICLE TWO
THE 2007 NOTES
Section 201 Designation of 2007 Notes; Establishment of Form.............6
Section 202 Transfer and Exchange........................................8
Section 203 Amount......................................................18
Section 204 Interest....................................................18
Section 205 Additional Interest.........................................19
Section 206 Denominations...............................................19
Section 207 Place of Payment............................................19
Section 208 Redemption..................................................19
Section 209 Reserved....................................................20
Section 210 Stated Maturity.............................................20
Section 211 Reserved....................................................20
Section 212 Discharge of Liability on 2007 Notes........................20
Section 213 Other Terms of 2007 Notes...................................20
Section 214 Reserved....................................................20
Section 215 Payments of Additional Amounts..............................20
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
Section 301 Provisions Applicable Only to 2007 Notes....................20
Section 302 Registration, Registration of Transfer and Exchange.........21
Section 303 Reserved....................................................21
Section 304 Reserved....................................................21
Section 305 Discharge of Liability on Securities........................21
Section 306 Repayment to the Company....................................21
Section 307 Events of Default...........................................22
Section 308 Acceleration of Maturity; Rescission and Annulment..........24
Section 309 Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................25
Section 310 Reports by Company..........................................25
Section 311 Consolidation, Merger and Sale..............................26
Section 312 Supplemental Indentures Without Consent of Holders..........27
i
Section 313 Supplemental Indentures with Consent of Holders.............27
Section 314 Maintenance of Office or Agency.............................28
Section 315 Reserved....................................................28
Section 316 Reserved....................................................28
Section 317 Optional Redemption or Assumption of Securities under
Certain Circumstances.......................................28
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 Integral Part...............................................28
Section 402 General Definitions.........................................28
Section 403 Adoption, Ratification and Confirmation.....................29
Section 404 Counterparts................................................29
Section 405 Governing Law...............................................29
Section 406 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.......................................29
Section 407 Effect of Headings..........................................29
Section 408 Severability of Provisions..................................29
Section 409 Successors and Assigns......................................30
Section 410 Benefit of Supplemental Indenture...........................30
Section 411 Acceptance by Trustee.......................................30
Exhibit A................................................................ A-1
Exhibit B................................................................ B-1
ii
CARNIVAL CORPORATION
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of November 10, 2003,
between Carnival Corporation, a corporation organized and existing under the
laws of the Republic of Panama (the "Company"), and U.S. Bank National
Association, a national banking association organized and existing under the
laws of the United States of America (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of April 25, 2001 (the "Indenture"), providing
for the issuance from time to time of its debentures, notes, bonds or other
evidences of indebtedness (hereinafter called "Securities") in one or more fully
registered series;
WHEREAS, Section 9.1(7) of the Indenture provides that the Company and
the Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Section 3.1 of the Indenture provides that the Company may
enter into supplemental indentures to establish the terms and provisions of a
series of Securities issued pursuant to the Indenture;
WHEREAS, on April 25, 2001, the Company issued its 2% Convertible
Senior Debentures due 2021 under a First Supplemental Indenture dated as of
April 25, 2001;
WHEREAS, on October 24, 2001, the Company issued its Liquid Yield
Option Notes due 2021 under a Second Supplemental Indenture dated as of October
24, 2001;
WHEREAS, on April 29, 2003, the Company issued its Senior Convertible
Debentures due 2033 under a Third Supplemental Indenture dated as of April 29,
2003;
WHEREAS, the Company desires to issue 3 3/4% Senior Notes due 2007 (the
"2007 Notes") guaranteed by Carnival plc, a public limited company incorporated
in England and Wales in July 2000 as P&O Princess Cruises plc ("Carnival plc"),
under the Deed of Guarantee, dated as of April 17, 2003, between the Company and
Carnival plc, and P&O Princess Cruises International Limited ("POPCIL" and
together with Carnival plc, the "Guarantors") under the Deed of Guarantee dated
as of June 19, 2003, among the Company, Carnival plc and POPCIL, such 2007 Notes
being a new series of Security, the issuance of which was authorized by a
resolution of the Executive Committee of the Board of Directors of the Company,
dated October 27, 2003;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Fourth Supplemental Indenture (the "Fourth Supplemental Indenture")
to supplement and amend in certain respects the Indenture insofar as it will
apply only to the 2007 Notes (and not to any other series);
1
WHEREAS, all things necessary have been done to make the 2007 Notes,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Fourth Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms; and
WHEREAS, the Company, pursuant to the foregoing authority, has entered
into a Registration Rights Agreement for the benefit of Holders of the 2007
Notes to file and cause to be declared effective an Exchange Offer Registration
Statement with the SEC, and consummate the related exchange offer for the
Exchange Notes, which will have terms identical in all material respects to the
2007 Notes, except that the Exchange Notes will not contain terms with respect
to transfer restrictions.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the 2007 Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of the Indenture and this Fourth Supplemental
Indenture relating to the series of Securities created hereby, except as
otherwise expressly provided or unless the context otherwise requires, the terms
defined in this Article have the meanings assigned to them in this Article. Each
capitalized term that is used in this Fourth Supplemental Indenture but not
defined herein shall have the meaning specified in the Indenture.
"2007 NOTES" has the meaning specified in the recitals.
"144A GLOBAL NOTE" means a Global Security substantially in the form of
EXHIBIT A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee, that shall be issued in a denomination equal to the
outstanding principal amount of the 2007 Notes sold in reliance on Rule 144A.
"ADDITIONAL INTEREST" shall have the meaning set forth in the
Registration Rights Agreement.
"AGENT MEMBERS" has the meaning specified in Section 201(c).
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the Depositaries that are applicable to such transfer or exchange.
2
"CARNIVAL PLC" has the meaning specified in the recitals.
"CARNIVAL PLC GUARANTEE" means the guarantee of the 2007 Notes issued
under the Deed of Guarantee, dated as of April 17, 2003, between the Company and
Carnival plc, as amended, supplemented or modified.
"CERTIFICATED SECURITY" means a certificated 2007 Note registered in
the name of the Holder thereof, substantially in the form attached hereto as
EXHIBIT A, and such 2007 Note shall not bear the Global Security Legend and
shall not have the "Schedule of Exchanges of Securities" attached thereto.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"CONSOLIDATED NET WORTH" means, at any time, the Net Worth of the
Company, Carnival plc and their combined Subsidiaries on a consolidated basis
determined in accordance with GAAP.
"DEPOSITARIES" has the meaning specified in Section 201(a).
"DTC" has the meaning specified in Section 201(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"EXCHANGE NOTES" means any securities of the Company containing terms
identical in all material respects to the 2007 Notes, except that such Exchange
Notes will not bear legends restricting their transfer, and will be issued and
exchanged for the 2007 Notes pursuant to the Registration Rights Agreement and
this Indenture.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"FOURTH SUPPLEMENTAL INDENTURE " has the meanings specified in the
recitals.
"GAAP" means generally accepted accounting principles as in effect on
the date of this Fourth Supplemental Indenture in the United States.
"GLOBAL SECURITIES" means, individually and collectively, each of the
Restricted Global Securities and the Unrestricted Global Securities,
substantially in the form of EXHIBIT A hereto.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
202(f)(2), which is required to be placed on all Global Securities issued under
this Indenture.
"INDENTURE" has the meaning specified in the recitals.
"ISSUE DATE" of any 2007 Note means the date on which the 2007 Note was
originally issued or deemed issued as set forth on the face of the 2007 Note.
3
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the 2007 Notes for use by such Holders
in connection with the Exchange Offer.
"NET WORTH" means, at any time with respect to the Company, Carnival
plc or any of their respective Subsidiaries, the net worth of the Company,
Carnival plc or any such respective Subsidiary, as the case may be, determined
in accordance with GAAP.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Securities which have been cancelled pursuant to
Section 3.9 of the Indenture or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Principal Amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" shall be the agent specified in Section 201(e).
"PERMANENT REGULATION S GLOBAL NOTE" means a permanent Global Security
in the form of EXHIBIT A hereto bearing the Global Note Legend, deposited with
or on behalf of and registered in the name of the Depositary or its nominee and
issued upon expiration of the Restricted Period.
4
"POPCIL GUARANTEE" means the guarantee of the 2007 Notes issued under
the Deed of Guarantee, dated as of June 19, 2003, among the Company, Carnival
plc and POPCIL, as amended, supplemented or modified.
"PRINCIPAL AMOUNT" of any 2007 Note means the principal amount as set
forth on the face of the 2007 Note.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
202(f)(1) to be placed on all 2007 Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" has the meaning specified in Section 201(a).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 10, 2003, among the Company, Carnival plc and
POPCIL and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and UBS Securities LLC, as representatives of the initial
purchasers listed on Schedule I to the Purchase Agreement dated November 5,
2003, as amended, supplemented or modified.
"REGISTRATION STATEMENT" means a Registration Statement as defined and
described in the Registration Rights Agreement.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means the Temporary Regulation S Global Note
and the Permanent Regulation S Global Note.
"RESTRICTED CERTIFICATED SECURITY" means a Certificated Security, which
shall bear a Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security, which shall bear
a Private Placement Legend.
"RESTRICTED PERIOD" means the "distribution compliance period" as
defined in Regulation S.
"RULE 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"RULE 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SECURITIES" has the meaning specified in the preamble of this Fourth
Supplemental Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute.
"SECURITIES CUSTODIAN" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
5
"SIGNIFICANT SUBSIDIARY" means any Subsidiary, the Net Worth of which
represents more than 10% of the Consolidated Net Worth.
"SUBSIDIARY" means, with respect to any Person, (i) a corporation, a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is, at the date of determination, directly or indirectly
owned by such Person, by one or more Subsidiaries of the such Person or by such
Person and one or more Subsidiaries of such Person, (ii) a partnership in which
such Person or a Subsidiary of such Person holds a majority interest in the
equity capital or profits of such partnership, or (iii) any other Person (other
than a corporation or a partnership) in which such Person, a Subsidiary of such
Person or such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination, has (x) at least a majority equity
ownership interest or (y) the power to elect or direct the election of a
majority of the directors or other governing body of such other Person.
"TEMPORARY REGULATION S GLOBAL NOTE" means a Global Security in the
form of EXHIBIT A hereto bearing the Global Security Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the 2007 Notes initially sold in reliance on
Rule 903 of Regulation S.
"TRANSFER CERTIFICATE" means a written certification substantially in
the form set forth in EXHIBIT B hereto.
"UNRESTRICTED CERTIFICATED SECURITY" means a Certificated Security
which does not bear a Private Placement Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent Global Security
substantially in the form of EXHIBIT A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Securities" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of 2007 Notes, and that does not bear
the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
ARTICLE TWO
THE 2007 NOTES
Section 201 Designation of 2007 Notes; Establishment of Form.
There shall be a series of Securities designated "3 3/4% Senior Notes
due 2007" of the Company, and the form thereof shall be substantially as set
forth in EXHIBIT A hereto, which is incorporated into and shall be deemed a part
of this Fourth Supplemental Indenture, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such 2007 Notes, as evidenced by their execution of the 2007 Notes.
6
(a) RESTRICTED GLOBAL SECURITIES. The 2007 Notes are
initially being offered and sold to qualified institutional buyers as defined in
Rule 144A (collectively, "QIBs" or individually a "QIB") in reliance on Rule
144A under the Securities Act or in offshore transactions in reliance on
Regulation S under the Securities Act and shall be issued initially in the form
of one or more Restricted Global Securities, which shall be deposited on behalf
of the purchasers of the 2007 Notes represented thereby with the Trustee, at its
Corporate Trust Office, as Securities Custodian for the depositaries, The
Depository Trust Company ("DTC"), Clearstream Banking, S.A. ("Clearstream
Luxembourg") and Euroclear Bank S.A./N.V., as operator of the Euroclear System
("Euroclear") (together such depositaries, or any successors thereto, being
hereinafter referred to as the "Depositaries"), and registered in the name of
their nominees, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. During the Restricted Period, beneficial interests in the
Temporary Regulation S Notes may be held only through Participants or Indirect
Participants of Euroclear or Clearstream Luxembourg. Upon the issuance of the
2007 Notes, the Company will only deliver beneficial interests in the Temporary
Regulation S Global Notes solely through Euroclear and Clearstream. The
aggregate Principal Amount of a Restricted Global Security may from time to time
be increased or decreased by adjustments made on the records of the Securities
Custodian as hereinafter provided, subject in each case to compliance with the
Applicable Procedures.
(b) REGULATION S GLOBAL SECURITY. The 2007 Notes offered
and sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of a Temporary Regulation S Global Note registered in the
name of a nominee of Euroclear and/or Clearstream, as applicable, deposited on
behalf of the purchasers of the 2007 Notes represented thereby with
Depositaries, and duly executed by the Company and authenticated by the Trustee
as hereinafter provided. After the Restricted Period, one or more Permanent
Regulation S Global Notes, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, shall be deposited with the Depositaries.
Prior to the expiration of the Restricted Period, beneficial interests
in a Temporary Regulation S Global Note may be exchanged for beneficial
interests in a 144A Global Note only if the transferor first delivers to the
Trustee a Transfer Certificate to the effect that:
(1) the transfer of the Temporary Regulation S Global
Note is being made in accordance with Rule 144A; and
(2) the Temporary Regulation S Global Note is being
transferred to a person:
(A) whom the transferor reasonably believes to
be a QIB within the meaning of Rule 144A purchasing for its
own account or the account of a QIB in a transaction meeting
the requirements of Rule 144A; and
(B) in accordance with all applicable securities
laws of the states of the United States.
(c) GLOBAL SECURITIES IN GENERAL. Each Global Security
shall represent such of the Outstanding 2007 Notes as shall be specified therein
and each shall provide that it shall
7
represent the aggregate Principal Amount of Outstanding 2007 Notes from time to
time endorsed thereon and that the aggregate Principal Amount of Outstanding
2007 Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions or purchases of such 2007 Notes.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the Principal Amount of Outstanding 2007 Notes represented thereby
shall be made by the Securities Custodian in accordance with the standing
instructions and procedures existing between the Depositaries and the Securities
Custodian.
Neither any members of, or participants in, the Depositaries ("Agent
Members") nor any other Persons on whose behalf Agent Members may act shall have
rights under this Indenture with respect to any Global Security held in the name
of the Depositaries or any nominees thereof, or under the Global Security, and
the Depositaries (including, for this purpose, their nominees) may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owners and Holders of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositaries or (B) impair, as between the Depositaries, their Agent Members and
any other Person on whose behalf an Agent Member may act, the operation of
customary practices governing the exercise of the rights of a Holder of any 2007
Note.
(d) CERTIFICATED SECURITIES. Certificated Securities
shall be issued only under the limited circumstances provided in Section
202(a)(1) hereof.
(e) PAYING AGENT. The Company shall maintain an office or
agency where 2007 Notes may be presented for purchase or payment ("Paying
Agent"). The Company may have one or more additional paying agents.
The Company shall enter into an appropriate agency agreement with any
Paying Agent (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 6.7 of the Indenture. The
Company or any Subsidiary or an Affiliate of either of them may act as Paying
Agent.
The Company initially appoints the Trustee as Paying Agent in
connection with the 2007 Notes.
Section 202 Transfer and Exchange.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(1) Certificated Securities shall be issued in exchange
for interests in the Global Securities only if (x) the Depositaries
notify the Company that they are unwilling or unable to continue as
depositaries for the Global Securities or if they at any time cease to
be "clearing agencies" registered under the Exchange Act if so required
by applicable law or regulation and a successor depositary is not
appointed by the Company within 90 days, (y) at any time the Company so
determines, in its sole discretion, or (z) an Event of
8
Default has occurred and is continuing with respect to the 2007 Notes.
In any of the foregoing cases, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), authenticate and deliver Certificated
Securities in an aggregate Principal Amount equal to the Principal
Amount of such Global Securities in exchange therefor. Only Restricted
Certificated Securities shall be issued in exchange for beneficial
interests in Restricted Global Securities, and only Unrestricted
Certificated Securities shall be issued in exchange for beneficial
interests in Unrestricted Global Securities. Certificated Securities
issued in exchange for beneficial interests in Global Securities shall
be registered in such names and shall be in such authorized
denominations as the Depositaries, pursuant to instructions from their
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver or cause to be delivered such
Certificated Securities to the persons in whose names such Securities
are so registered. Such exchange shall be effected in accordance with
the Applicable Procedures. Nothing herein shall require the Trustee to
communicate directly with beneficial owners, and the Trustee shall in
connection with any transfers hereunder be entitled to rely on
instructions received through the registered Holder.
In the event that Certificated Securities
are issued in exchange for beneficial interests in Global Securities in
accordance with the foregoing paragraph and, thereafter, the events or
conditions specified in this Section 202(a)(1) which required such
exchange shall have ceased to exist, the Company shall give notice to
the Trustee and to the Holders stating that Holders may exchange
Certificated Securities for interests in Global Securities by complying
with the procedures set forth in this Indenture and briefly describing
such procedures and the events or circumstances requiring that such
notice be given.
(2) Notwithstanding any other provisions of this Fourth
Supplemental Indenture other than the provisions set forth in Section
202(a)(1) hereof, a Global Security may not be transferred, except as a
whole by the Depositaries to a nominee of the Depositaries or by a
nominee of the Depositaries to the Depositaries or another nominee of
the Depositaries or by the Depositaries or any such nominee to
successor Depositaries or a nominee of such successor Depositaries.
Nothing in this Section 202(a)(2) shall prohibit or render ineffective
any transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 202.
(b) TRANSFER AND EXCHANGE. The 2007 Notes are issuable
only in registered form. Subject to Section 201(b) hereof, a Holder may transfer
a 2007 Note only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Security Register. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee and any agent
of the Company shall treat the person in whose name the 2007 Note is registered
as the owner thereof for all purposes whether or not the 2007 Note shall be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary. Furthermore, any Holder of a Global Security
shall, by acceptance of such Global
9
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent) and that ownership of a beneficial interest
in the 2007 Note shall be required to be reflected in a book entry. When 2007
Notes are presented to the Registrar or a co-Registrar with a request to
register the transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations (including an exchange of 2007
Notes for Exchange Notes), the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met
(including that such 2007 Notes are duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and Registrar duly
executed by the Holder thereof or by an attorney who is authorized in writing to
act on behalf of the Holder); PROVIDED that no exchanges of 2007 Notes for
Exchange Notes shall occur until a Registration Statement shall have been
declared effective by the SEC and that any 2007 Notes that are exchanged for
Exchange Notes shall be canceled by the Trustee. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate 2007 Notes at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange or redemption of the 2007
Notes, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 3.5).
The Registrar shall not be required (i) to issue, register the transfer
of or exchange any 2007 Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of 2007
Notes under Section 11.8 and ending at the close of business on the day of such
mailing, (ii) to register the transfer of or exchange any 2007 Note so selected
for redemption in whole or in part, except the unredeemed portion of any 2007
Note being redeemed in part, or (iii) register a 2007 Note that has matured or
been redeemed or cancelled, except for registration of transfer, exchange or
replacement of such 2007 Note.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any 2007 Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(c) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES.
When Certificated Securities are presented by a Holder to a Security Registrar
with a request:
(1) to register the transfer of the Certificated
Securities to a person who will take delivery thereof in the form of
Certificated Securities only; or
(2) to exchange such Certificated Securities for an equal
Principal Amount of Certificated Securities of other authorized
denominations,
10
such Security Registrar shall register the transfer or make the exchange as
requested; PROVIDED, HOWEVER, that the Certificated Securities presented or
surrendered for register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the fifth paragraph of
Section 3.5 of the Indenture; and
(2) in the case of a Restricted Certificated Security,
such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Certificated Security is
being delivered to the Security Registrar by a Holder for
registration in the name of such Holder, without transfer, or
such Restricted Certificated Security is being transferred to
the Company or a Subsidiary of the Company, a certification to
that effect from such Holder (in substantially the form set
forth in the Transfer Certificate);
(B) if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes
is a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate);
or
(C) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or such Security
Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to
the Company and such Security Registrar to the effect that
such transfer is in compliance with the Securities Act.
(d) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL SECURITIES. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositaries, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (1) or (2) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
SECURITY. Beneficial interests in any Restricted Global Securities may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement
11
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Temporary
Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser)
except in connection with a transfer pursuant to Section 201(b).
Beneficial interests in any Unrestricted Global Security may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security. No written
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 202(d)(1).
(2) TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL SECURITIES NOT SUBJECT TO SECTION 202(d)(1). In connection with
all transfers and exchanges of beneficial interests that are not
subject to Section 202(d)(1) above, the transferor of such beneficial
interest must deliver to the Registrar either (i) a written order from
a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be
transferred or exchanged and (ii) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase. Upon
consummation of an Exchange Offer by the Company in accordance with
Section 202(h) hereof, the requirements of this Section 202(d)(2) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global
Securities. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Securities contained in
this Indenture and the 2007 Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount at
maturity of the relevant Global Securities.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER
RESTRICTED GLOBAL SECURITY. A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Security if the transfer complies with the requirements of
Section 202(d)(2) above and the Registrar receives the following:
(A) if the transferee is to take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a Transfer Certificate, including
the certifications in item (1) thereof; and
(B) if the transferee is to take delivery in the
form of a beneficial interest in a Temporary Regulation S
Global Note, then the transferor must deliver a Transfer
Certificate, including the certifications in item (2) thereof.
(4) TRANSFER OF A BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. Any person having a beneficial interest in a Restricted
Global Security may upon request, subject to the Applicable Procedures,
transfer such beneficial interest to a person who is required or
permitted to take delivery thereof in the form of an Unrestricted
Global Security. Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the Depositaries,
from the Depositaries or their nominee on behalf of any person having a
beneficial interest in a Restricted Global Security and the following
additional information and documents in such form as is customary for
the
12
depositaries from the Depositaries or their nominee on behalf of the
person having such beneficial interest in the Restricted Global
Security (all of which may be submitted by facsimile or
electronically):
(A) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
the transferor (in substantially the form set forth in the
Transfer Certificate); or
(B) if such beneficial interest is being
transferred (i) pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
or (ii) pursuant to an exemption from the registration
requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case
of a Security transferred pursuant to this clause (ii), such
Security shall cease to be a "restricted security" within the
meaning of Rule 144, a certification to that effect from the
transferor (in substantially the form set forth in the
Transfer Certificate) and, if the Company or the Trustee so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and the
Trustee to the effect that such transfer is in compliance with
the Securities Act,
the Trustee, as a Security Registrar and Securities Custodian, shall reduce or
cause to be reduced the aggregate Principal Amount of the Restricted Global
Security by the appropriate Principal Amount and shall increase or cause to be
increased the aggregate Principal Amount of the Unrestricted Global Security by
a like Principal Amount. Such transfer shall otherwise be effected in accordance
with the Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver an Unrestricted Global Security.
(e) TRANSFERS OF CERTIFICATED SECURITIES FOR BENEFICIAL
INTEREST IN GLOBAL SECURITIES. If Certificated Securities are presented by a
Holder to a Security Registrar with a request:
(1) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall specify
whether such Global Security will be a Restricted Global Security or an
Unrestricted Global Security; or
(2) to exchange such Certificated Securities for an equal
Principal Amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (PROVIDED that in the case of such an exchange,
Restricted Certificated Securities may be exchanged only for Restricted
Global
13
Securities and Unrestricted Certificated Securities may be exchanged
only for Unrestricted Global Securities),
the Security Registrar shall register the transfer or make the exchange as
requested by canceling such Certificated Security and causing, or directing the
Securities Custodian to cause, the aggregate Principal Amount of the applicable
Global Security to be increased accordingly and, if no such Global Security is
then outstanding, the Company shall issue and the Trustee shall authenticate and
deliver a new Global Security; PROVIDED, HOWEVER, that the Certificated
Securities presented or surrendered for registration of transfer or exchange:
(3) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the fifth paragraph of
Section 3.5 of the Indenture;
(4) in the case of a Restricted Certificated Security to
be transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Certificated Security is
being transferred pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form set forth
in the Transfer Certificate);
(B) if such Restricted Certificated Security is
being transferred pursuant to (i) an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from such Holder (in substantially the form set forth in item
3(a) of the Transfer Certificate, and, if the Company or the
Security Registrar so requests, a customary opinion of
counsel, certificates and other information reasonably
acceptable to the Company and the Trustee to the effect that
such transfer is in compliance with the Securities Act; or
(C) if such Restricted Security is being
transferred pursuant to and in accordance with Rule 903 or 904
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in item 3(b)
of the Transfer Certificate);
(5) in the case of a Restricted Certificated Security to
be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A; and
14
(6) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in an
Unrestricted Global Security, such request need not be accompanied by
any additional information or documents.
(f) LEGENDS.
(1) PRIVATE PLACEMENT LEGEND. Except as permitted below,
each Restricted Global Security shall bear the legend in substantially
the following form:
THIS SECURITY, THE CARNIVAL PLC GUARANTEE AND THE POPCIL GUARANTEE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NONE OF THIS SECURITY,
THE CARNIVAL PLC GUARANTEE, THE POPCIL GUARANTEE OR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY, CARNIVAL PLC, POPCIL OR ANY AFFILIATE OF ANY OF THE FOREGOING
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
ONLY (A) TO THE COMPANY, CARNIVAL PLC, POPCIL OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS IN OFFSHORE TRANSACTIONS OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING UNDER RULE 144, IF AVAILABLE, SUBJECT TO THE
COMPANY'S, CARNIVAL PLC'S, POPCIL'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO, PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE, REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR,
15
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
(2) GLOBAL SECURITY LEGEND. Each Global Security shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE
AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR
BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 202 OF THE INDENTURE, (2)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 202(b) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE
INDENTURE AND (3) THIS GLOBAL NOTE MAY BE DELIVERED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
(3) TEMPORARY REGULATION S GLOBAL NOTE LEGEND. The
Temporary Regulation S Global Note shall bear a legend in substantially
the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE TRANSFERRED IN THE UNITED STATES OR TO, OR
16
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED
ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
(4) DTC LEGEND. For so long as DTC is the Depositary,
each Global Security shall bear a legend in substantially the following
form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(5) Upon any sale or transfer of a Restricted Global
Security or Restricted Certificated Security (x) pursuant to Rule 144,
(y) pursuant to an effective registration statement under the
Securities Act or (z) pursuant to any other available exemption (other
than Rule 144A) from the registration requirements of the Securities
Act and as a result of which, in the case of a Security transferred
pursuant to this clause (z), such Security shall cease to be a
"restricted security" within the meaning of Rule 144:
(A) in the case of any Restricted Certificated
Security, any Security Registrar shall permit the Holder
thereof to exchange such Restricted Certificated Security for
an Unrestricted Certificated Security, or (under the
circumstances described in Section 202(e) hereof) to transfer
such Restricted Certificated Security to a transferee who
shall take such Security in the form of a beneficial interest
in an Unrestricted Global Security, and in each case shall
rescind any restriction on the transfer of such Security;
PROVIDED, HOWEVER, that the Holder of such Restricted
Certificated Security shall, in connection with such exchange
or transfer, comply with the other applicable provisions of
this Section 202; and
(B) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; PROVIDED, HOWEVER, that such Unrestricted Global
Security shall continue to be subject to the provisions of
Section 202(a)(2) hereof, and PROVIDED FURTHER, HOWEVER, that
the owner of such
17
beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section
202.
(6) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in paragraph
(1) above, the Company shall execute, and the Trustee shall
authenticate and deliver, Securities that do not bear such legend and
which do not have a Transfer Certificate attached thereto.
(g) TRANSFERS TO THE COMPANY. Nothing in this Fourth
Supplemental Indenture or in the Securities shall prohibit the sale or other
transfer of any Securities (including beneficial interests in Global Securities)
to the Company, Carnival plc or any of their respective Subsidiaries, which
Securities (if transferred to the Company or any of its Subsidiaries) shall
thereupon be canceled in accordance Section 3.9 of the Indenture.
(h) EXCHANGE OFFER. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
3.3 of the Indenture, the Trustee shall authenticate (i) one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Securities
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not participating in a distribution of the 2007
Notes and (y) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Certificated Securities
in an aggregate principal amount equal to the principal amount of the Restricted
Certificated Securities accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such 2007 Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Restricted
Global Securities so accepted Unrestricted Global Securities in the appropriate
principal amount.
Section 203 AMOUNT.
(a) The Trustee shall authenticate and deliver 2007 Notes
for original issue in an aggregate Principal Amount of up to $550,000,000 upon a
Company Order for the authentication and delivery of 2007 Notes, without any
further action by the Company. The aggregate Principal Amount of 2007 Notes that
may be authenticated and delivered under the Indenture, as supplemented hereby,
is unlimited. The Company may issue additional 2007 Notes having the same
ranking and the same interest rate, maturity and other terms. Any additional
2007 Notes, together with the original issuance of 2007 Notes, including the
Exchange Notes, will constitute a single series of 2007 Notes under the
Indenture.
(b) The Company may not issue new 2007 Notes to replace
2007 Notes that it has paid or delivered to the Trustee for cancellation.
Section 204 INTEREST.
Outstanding 2007 Notes shall bear interest at the rate of 3 3/4% per
annum on the Principal Amount from November 10, 2003, or from the most recent
Interest Payment Date to which
18
interest has been paid or duly provided for, to, but excluding, November 15,
2007 (or such earlier date as determined pursuant to Section 317 of this Fourth
Supplemental Indenture), payable semiannually in arrears on May 15 and November
15 of each year, commencing May 15, 2004, to the Persons in whose names the 2007
Notes are registered at the close of business on the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date; PROVIDED, HOWEVER, that interest on each Exchange Note
will accrue from the last Interest Payment Date to which interest was paid on
the 2007 Note surrendered in exchange for the Exchange Note or, if no interest
has been paid on such 2007 Note, from the Issuance Date of such 2007 Note.
Interest on the 2007 Notes will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Each payment of interest on the 2007 Notes
shall include interest accrued through the day before the applicable Interest
Payment Date. Any payment required to be made on any day that is not a Business
Day shall be made on the next succeeding Business Day. Interest will cease to
accrue on a 2007 Note upon its maturity or redemption.
Section 205 ADDITIONAL INTEREST.
Additional Interest with respect to the 2007 Notes shall be payable in
accordance with the provisions and in the amounts set forth in the Registration
Rights Agreement.
Section 206 DENOMINATIONS.
Each 2007 Note shall be in fully registered form without coupons in the
denominations of $1,000 of Principal Amount or any integral multiple thereof.
Section 207 PLACE OF PAYMENT.
The Place of Payment for the 2007 Notes and the place or places where
the 2007 Notes may be surrendered for registration of transfer, exchange or
redemption and where notices may be given to the Company in respect of the 2007
Notes is at the office of the Trustee in New York, New York and at the agency of
the Trustee maintained for that purpose at the office of the Trustee; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register (as defined in the Indenture).
Section 208 REDEMPTION
(a) There shall be no sinking fund for the retirement of
the 2007 Notes.
(b) The Company may redeem the 2007 Notes in accordance
with the provisions of the Indenture and this Fourth Supplemental Indenture.
19
Section 209 RESERVED.
Section 210 STATED MATURITY.
The date on which the principal of the 2007 Notes is due and payable,
unless earlier accelerated or redeemed pursuant to the Indenture or this Fourth
Supplemental Indenture, shall be November 15, 2007.
Section 211 RESERVED.
Section 212 DISCHARGE OF LIABILITY ON 2007 NOTES.
The 2007 Notes may be discharged by the Company in accordance with the
provisions of Article IV of the Indenture, as amended by Section 305 hereof.
Section 213 OTHER TERMS OF 2007 NOTES.
Without limiting the foregoing provisions of this Article, the terms of
the 2007 Notes shall be as set forth in the form of the 2007 Notes set forth in
EXHIBIT A hereto and as provided in the Indenture.
Section 214 RESERVED.
Section 215 PAYMENTS OF ADDITIONAL AMOUNTS.
Sections 10.5 and 11.8 of the Indenture shall apply to the 2007 Notes;
PROVIDED that Section 10.5 of the Indenture shall be amended by replacing the
first clause (i) of such Section 10.5 with the following clause:
(i) any present or future Panamanian Taxes which would not have
been so imposed, assessed, levied or collected if the Holder or beneficial owner
of such Security did not have some present or former connection with the
Republic of Panama (or the jurisdiction of incorporation of a successor
corporation to the Company pursuant to Section 8.1) or any political subdivision
thereof (or of any such jurisdiction of incorporation) other than holding or
ownership of a Security, or the collection of principal and interest, if any,
on, or the enforcement of such Security, which connection may include its
domicile, residence or physical presence in the Republic of Panama or such
jurisdiction of incorporation, or its conduct of a business or maintenance of a
permanent establishment therein.
ARTICLE THREE
AMENDMENTS TO THE INDENTURE
Section 301 PROVISIONS APPLICABLE ONLY TO 2007 NOTES.
The Provisions contained herein shall apply to the 2007 Notes only and
not to any other series of Security issued under the Indenture and any covenants
provided herein are expressly being included solely for the benefit of the 2007
Notes and not for the benefit of any other series
20
of Security issued under the Indenture. These amendments shall be effective for
so long as there remain any 2007 Notes Outstanding.
Section 302 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing the seventh paragraph of Section
3.5 with the following paragraph:
The Company shall not be required (i) to issue, register the transfer
of or exchange the 2007 Notes of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of the 2007 Notes and ending at the close of business on the day of
such mailing or (ii) to register the transfer of or exchange any 2007 Notes so
selected for redemption.
Section 303 RESERVED.
Section 304 RESERVED.
Section 305 DISCHARGE OF LIABILITY ON SECURITIES.
When (i) the Company delivers to the Trustee or any Paying Agent all
Outstanding 2007 Notes (other than 2007 Notes replaced pursuant to Section 3.6
of the Indenture) for cancellation or (ii) all Outstanding 2007 Notes have
become due and payable and the Company deposits with the Trustee or any Paying
Agent cash sufficient to pay all amounts due and owing on all Outstanding 2007
Notes (other than 2007 Notes replaced pursuant to Section 3.6), and if in either
case the Company pays all other sums payable hereunder by the Company, then this
Fourth Supplemental Indenture shall, subject to Section 6.7 of the Indenture,
cease to be of further effect, except for the indemnification of the Trustee,
which shall survive. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this Fourth
Supplemental Indenture on demand of the Company accompanied by an Officers'
Certificate and Opinion of Counsel and at the reasonable cost and expense of the
Company.
Section 306 REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the 2007 Notes that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person and the Trustee and the Paying Agent shall have no further
liability to the Holders of 2007 Notes with respect to such money or securities
for that period commencing after the return thereof.
21
Section 307 EVENTS OF DEFAULT.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing Section 5.1 with the following
paragraph:
"Event of Default," wherever used herein, means with respect to the
2007 Notes any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (including
Additional Interest) upon any 2007 Note when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal amount of or
any premium on the 2007 Notes at Maturity or the Redemption Price in
respect of the 2007 Notes when the same become due and payable; or
(3) a default under any bonds, debentures, notes or other
evidences of indebtedness for money borrowed by the Company, Carnival
plc or any of their respective Subsidiaries or under any mortgages,
indentures or instruments under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Company, Carnival plc or any of their respective Subsidiaries,
whether such indebtedness now exists or shall hereafter be created,
which indebtedness, individually or in the aggregate, is in excess of
$50,000,000 principal amount (excluding any such indebtedness of any
Subsidiary other than a Significant Subsidiary, all the indebtedness of
which Subsidiary is nonrecourse to the Company, or its Subsidiaries),
which default shall constitute a failure to pay any portion of the
principal of or interest on such indebtedness when due and payable
after the expiration of any applicable grace or cure period with
respect thereto or shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or
annulled, within a period of 30 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Outstanding 2007 Notes a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(4) default by the Company in the performance, or breach,
of any covenant or warranty of the Company in the Indenture or this
Fourth Supplemental Indenture for the benefit of the 2007 Notes (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section 307 specifically dealt with), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the
22
Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount of the Outstanding 2007 Notes a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) unless Carnival plc has become or has been merged
with or has been otherwise consolidated with the primary obligor under
the 2007 Notes and the Indenture (as supplemented by this Fourth
Supplemental Indenture), the Carnival plc Guarantee ceases to be in
full force and effect or is declared null and void or Carnival plc
denies that it has any further liability under the Carnival plc
Guarantee in respect of the 2007 Notes and/or the Indenture, or gives
notice to such effect (other than by reason of the termination of this
Fourth Supplemental Indenture or the release of any such Carnival plc
Guarantee in accordance with this Fourth Supplemental Indenture) and
such condition shall have continued for a period of 30 days after
written notice of such failure requiring Carnival plc and the Company
to remedy the same shall have been given, by registered or certified
mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the holders of 25% in aggregate Principal Amount of the 2007
Notes then outstanding; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company,
Carnival plc or any of their respective Significant Subsidiaries in an
involuntary case or proceeding under any applicable Federal, State or
foreign bankruptcy, insolvency, reorganization or other similar law
(each, a "Bankruptcy Law") or (B) a decree or order adjudging the
Company, Carnival plc or any of their respective Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company, Carnival plc or any of their
respective Significant Subsidiaries under any applicable Federal, State
or foreign law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company, Carnival plc or any of their respective Significant
Subsidiaries or of any substantial part of their respective properties,
or ordering the winding up or liquidation of the affairs of the
Company, Carnival plc or any of their respective Significant
Subsidiaries, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company, Carnival plc or any
of their respective Significant Subsidiaries of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
either the Company, Carnival plc or any of their respective Significant
Subsidiaries to the entry of a decree or order for relief in respect of
the Company, Carnival plc or any of their respective Significant
Subsidiaries in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against any of the Company, Carnival plc or any of
their respective Significant Subsidiaries, or the filing by any of the
Company, Carnival plc or any of their respective Significant
Subsidiaries of a petition or answer or consent seeking reorganization
or relief under any applicable Federal, State or foreign law, or the
consent by any of the Company, Carnival plc or any
23
of their respective Significant Subsidiaries to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, Carnival plc or any of their respective
Significant Subsidiaries or of any substantial part of their respective
properties, or the making by any of the Company, Carnival plc or any of
their respective Significant Subsidiaries of an assignment for the
benefit of creditors, or the admission by any of the Company, Carnival
plc or any of their respective Significant Subsidiaries in writing of
an inability to pay the debts of any of the Company, Carnival plc or
any of their respective Significant Subsidiaries generally as they
become due, or the taking of corporate action by the Company, Carnival
plc or any of their respective Significant Subsidiaries in furtherance
of any such action.
Upon the occurrence of a default in payment of the Principal Amount
(whether upon acceleration pursuant to Section 5.2 of the Indenture, upon the
date set for payment of the Redemption Price or upon the Stated Maturity of the
2007 Note), from and after such date the 2007 Notes shall bear interest at the
rate of 3 3/4% per annum on the unpaid amount due and payable on such date,
compounded on a semi-annual basis (based on a 360-day year of 12 30-day months)
to the extent that payment of any interest is legally enforceable, payable upon
demand of the Holder or beneficial Holder of any such 2007 Note, in accordance
with the terms of the 2007 Notes, to the date that payment of such amount has
been made or provided for upon the terms set forth herein.
Section 308 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
The Indenture is hereby amended, subject to Section 301 hereof and with
respect to the 2007 Notes only, by replacing Section 5.2 with the following
paragraphs:
If an Event of Default under clauses (1), (2), (3), (4) or (5) of the
definition of Event of Default in Section 307 above, with respect to 2007 Notes
at the time Outstanding, occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding 2007 Notes may declare the Principal Amount of all of the
Outstanding 2007 Notes, and accrued and unpaid interest, if any, on all of the
Outstanding 2007 Notes through the date of such declaration, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration, such Principal Amount shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
2007 Notes has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in Principal Amount of the Outstanding 2007
Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) the Principal Amount and accrued and unpaid
interest, if any, on the 2007 Notes to the date of such
payment or deposit;
24
(B) to the extent that payment of such interest
is enforceable under applicable law, interest on the Principal
Amount and accrued and unpaid interest, if any, on the 2007
Notes to the date of such payment or deposit, at the rate
borne by the 2007 Notes during the period of such default in
accordance with the last paragraph of Section 307 of this
Fourth Supplemental Indenture; and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to the 2007 Notes,
other than the non-payment of the Principal Amount of, and accrued and
unpaid interest, if any, on, the 2007 Notes which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13 of the Indenture.
No such waiver or rescission and annulment shall affect any subsequent default
or impair any right consequent thereon.
If an Event of Default described in clauses (6) and (7) of the
definition of Event of Default in Section 307 above, with respect to 2007 Notes
at the time Outstanding, occurs and is continuing, then the Principal Amount of,
and accrued and unpaid interest, if any, on, the Outstanding 2007 Notes shall
become due and payable immediately, without any declaration or other act by the
Trustee or any Holder.
Section 309 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Fourth Supplemental
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7 of the Indenture) interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or in the case of
redemption, to receive the Redemption Price on the Redemption Date), and to
institute suit for the enforcement of any such payment on or after such
respective dates, and such rights shall not be impaired without the consent of
such Holder.
Section 310 REPORTS BY COMPANY.
The Company shall:
(1) provide to the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections,
then it shall provide to the Trustee and file with the SEC, in
accordance with rules and regulations prescribed from time to time by
the SEC, such of
25
the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Securityholders, as their
names and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the SEC.
If at any time while any of the Securities are "restricted securities"
within the meaning of Rule 144, the Company is no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall prepare and shall furnish to any Holder, any beneficial owner of
Securities and any prospective purchaser of Securities designated by a Holder or
a beneficial owner of Securities, promptly upon request, the information
required pursuant to Rule 144A(d)(4) (or any successor thereto) under the
Securities Act in connection with the offer, sale or transfer of Securities.
Section 311 CONSOLIDATION, MERGER AND SALE.
Section 8.1 of the Indenture is, with respect to the 2007 Notes only,
hereby amended and restated in its entirety to read as follows:
The Company shall not consolidate with or merge into any other
entity or convey or transfer its properties and assets substantially as an
entirety to any entity, unless:
(a) the successor or transferee entity, if other than the
Company, expressly assumes by a supplemental indenture executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium on and any interest on, all
the Outstanding 2007 Notes and the performance of every covenant in the
Indenture (as supplemented by this Fourth Supplemental Indenture) to be
performed or observed by the Company;
(b) immediately after giving the effect to the
transaction, no Event of Default and no event which, after notice or lapse of
time or both, would become an Event of Default, has occurred and is continuing;
and
(c) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, each in the form required by the
Indenture and this Fourth Supplemental Indenture, stating that such
consolidation, merger, conveyance or transfer and such supplemental indenture
comply with the foregoing provisions relating to such transaction.
26
In case of any such consolidation, merger, conveyance or transfer, the
successor entity shall succeed to and be substituted for the Company as obligor
under the Indenture (as supplemented hereby), with the same effect as if it had
been named in the Indenture (as supplemented hereby) as the Company.
Section 312 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Section 9.1 of the Indenture is hereby amended, subject to Section 301
hereof and with respect to the 2007 Notes only, by inserting the following
clauses immediately following clause (11) thereof:
(12) to add any rights for the benefit of Holders of 2007
Notes; and
(13) to provide any additional events of default.
Section 313 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Section 9.2 of the Indenture is, with respect to the 2007 Notes only,
hereby amended and restated in its entirety to read as follows:
With the consent of the Holders of not less than a majority in
Principal Amount of the Outstanding 2007 Notes, by Act of said Holders delivered
to the Company and the Trustee, the Company (and Carnival plc or POPCIL to the
extent that any supplemental indenture relates to the Carnival plc Guarantee or
the POPCIL Guarantee, respectively), when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture, the Carnival plc Guarantee, the POPCIL
Guarantee or of any supplemental indenture or of modifying in any manner the
rights of the Holders of 2007 Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) change the Maturity of any payment of principal
of, or any premium on, or any installment of interest on any 2007 Note, or
reduce the Principal Amount thereof or any premium thereon or the rate of
interest thereon, or change the place of payment where, or the coin or currency
in which, any 2007 Note or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Maturity thereof (or, in the case of redemption, on or after the redemption
date), (ii) reduce the percentage in aggregate Principal Amount of the
Outstanding 2007 Notes, the consent of whose holders is required for any such
modification, or the consent of whose holders is required for any waiver of
compliance with the provisions of the Indenture or this Fourth Supplemental
Indenture or for any waiver of an Event of Default; or (iii) modify this Section
9.2, except to increase any percentages required for approval or to provide that
certain other provisions of the Indenture or this Fourth Supplemental Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding 2007 Note affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities or such
27
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
Upon the request of the Company accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture. It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 314 MAINTENANCE OF OFFICE OR AGENCY.
The first paragraph of Section 10.2 of the Indenture is hereby amended,
subject to Section 301 hereof and with respect to the 2007 Notes only, by
changing the first sentence thereof to read in its entirety as follows:
The Company shall maintain in each Place of Payment for the 2007 Notes
an office or agency where the 2007 Notes may be presented or surrendered for
payment, where the 2007 Notes may be surrendered for registration of transfer or
exchange, where notices and demands to or upon the Company in respect of the
2007 Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Section 315 RESERVED.
Section 316 RESERVED.
Section 317 OPTIONAL REDEMPTION OR ASSUMPTION OF SECURITIES UNDER CERTAIN
CIRCUMSTANCES.
The 2007 Notes may be redeemed in accordance with Section 11.8 of the
Indenture.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 INTEGRAL PART.
This Fourth Supplemental Indenture constitutes an integral part of the
Indenture with respect to the 2007 Notes only.
Section 402 GENERAL DEFINITIONS.
For all purposes of this Fourth Supplemental Indenture:
28
(a) capitalized terms used herein without definition
shall have the meanings specified in the Indenture, and
(b) the terms "herein," "hereof," "hereunder" and other
words of similar import refer to this Fourth Supplemental Indenture.
Section 403 ADOPTION, RATIFICATION AND CONFIRMATION.
The Indenture, as supplemented and amended by this Fourth Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed, and this
Fourth Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided. The provisions of this
Fourth Supplemental Indenture shall, subject to the terms hereof, supersede the
provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
Section 404 COUNTERPARTS.
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
Section 405 GOVERNING LAW.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE THAT WOULD INDICATE THE APPLICABILITY OF
THE LAWS OF ANY OTHER JURISDICTION.
Section 406 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939.
If and to the extent that any provision of this Fourth Supplemental
Indenture limits, qualifies or conflicts with a provision required under the
terms of the Trust Indenture Act of 1939, as amended, such Trust Indenture Act
provision shall control.
Section 407 EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 408 SEVERABILITY OF PROVISIONS.
In case any provision in this Fourth Supplemental Indenture or in the
2007 Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
29
Section 409 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Fourth Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their respective successors and assigns, whether so expressed
or not.
Section 410 BENEFIT OF SUPPLEMENTAL INDENTURE.
Nothing in this Fourth Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, and the Holders of the 2007
Notes, any benefit or any legal or equitable right, remedy or claim under this
Fourth Supplemental Indenture.
Section 411 ACCEPTANCE BY TRUSTEE.
The Trustee accepts the amendments to the Indenture effected by this
Fourth Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in
this Fourth Supplemental Indenture and the Indenture. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals contained herein, which shall be taken as the
statements of the Company and except as provided in the Indenture the Trustee
shall not be responsible or accountable in any way whatsoever for or with
respect to the validity or execution or sufficiency of this Fourth Supplemental
Indenture and the Trustee makes no representation with respect thereto.
30
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested as of the day and year
first written above.
CARNIVAL CORPORATION
By: /s/ David Bernstein
---------------------------------------
Name: David Bernstein
Title: Vice President & Treasurer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Julie Eddington
---------------------------------------
Name: Julie Eddington
Title: Assistance Vice Presideent
31
EXHIBIT A
GLOBAL SECURITY
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] (1)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1)
THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 202 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 202(b) OF THE INDENTURE, (3) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE
INDENTURE AND (3) THIS GLOBAL NOTE MAY BE DELIVERED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.](2)
- ------------------------
1 This paragraph should be included only if DTC is the Depositary.
2 These paragraphs should be included only if the Security is a Global
Security.
A-1
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.]3
[THIS SECURITY, THE CARNIVAL PLC GUARANTEE AND THE POPCIL GUARANTEE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NONE OF THIS SECURITY, THE
CARNIVAL PLC GUARANTEE, THE POPCIL GUARANTEE OR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY, CARNIVAL PLC, POPCIL OR ANY AFFILIATE OF ANY
OF THE FOREGOING WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, CARNIVAL PLC, POPCIL OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS IN OFFSHORE TRANSACTIONS OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING UNDER RULE
144, IF AVAILABLE, SUBJECT TO THE COMPANY'S, CARNIVAL PLC'S, POPCIL'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E)
TO, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE,
- ------------------------
3 This paragraph should be included only if the Security is a Temporary
Regulation S Global.
A-2
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR, OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION" AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.] (4)
- ------------------------
4 These paragraphs to be included only if the 2007 Note requires a Private
Placement Legend.
A-3
[FORM OF FACE OF SECURITY]
CARNIVAL CORPORATION
SENIOR NOTES DUE 2007
GUARANTEED BY CARNIVAL PLC
AND P&O PRINCESS CRUISES INTERNATIONAL LIMITED
Issue Date: November 10, 2003 Principal Amount:
$________________
Registered: No. R- CUSIP:
Carnival Corporation, a corporation organized and existing under the
laws of the Republic of Panama (herein called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________ DOLLARS ($____________) on November 15, 2007,
[or such greater or lesser amount as is indicated in the Schedule of Exchanges
of Securities on the other side of this 2007 Note],5 and to pay interest thereon
from November 10, 2003 or from the most recent date to which interest has been
paid or duly provided for, to, but excluding, November 15, 2007 (or to such
earlier date as determined pursuant to Section 317 of the Fourth Supplemental
Indenture) payable semiannually on May 15 and November 15 in each year (each, an
"Interest Payment Date"), commencing May 15, 2004, at the rate of 3 3/4% per
annum on the Principal Amount; PROVIDED, HOWEVER, that interest on each Exchange
Note will accrue from the last Interest Payment Date to which interest was paid
on the 2007 Note surrendered in exchange for the Exchange Note or, if no
interest has been paid on such 2007 Note, from the Issuance Date of such 2007
Note. Interest on this 2007 Note shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. Each payment of cash interest on the
2007 Notes shall include interest accrued through the day before the applicable
Interest Payment Date. Any payment required to be made on any day that is not a
Business Day shall be made on the next succeeding Business Day. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
2007 Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any interest which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this 2007 Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to the Holders of 2007 Notes not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any
- ------------------------
5 To be included only if the Security is a Global Security.
A-4
securities exchange on which the 2007 Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in such
Indenture.
Payment of any amounts in respect of this 2007 Note will be made at the
office or agency of the Company maintained for that purpose in The City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Company, payment of interest, if any, may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this 2007 Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this 2007
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November 10, 2003
CARNIVAL CORPORATION
By:
---------------------------------------
Name:
Title:
A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
___________________________________________
Authorized Signature
Date of Authentication: November 10, 2003
A-7
(FORM OF REVERSE SIDE OF SECURITY)
CARNIVAL CORPORATION
SENIOR NOTES DUE 2007
This Security is one of a duly authorized issue of senior securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of April 25, 2001, as amended by the
Fourth Supplemental Indenture thereto, dated as of November 10, 2003 (as so
amended, herein called the "Indenture"), between the Company and U.S. Bank
National Association, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof (herein called the
"2007 Notes"), with an aggregate principal amount at Stated Maturity set forth
on the face hereof (the "Principal Amount") created pursuant to the Indenture as
supplemented by the Fourth Supplemental Indenture. Capitalized terms used and
not otherwise defined in this 2007 Note are used as defined in the Indenture.
The 2007 Notes are general unsecured and unsubordinated obligations of
the Company. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
[Additional Interest may be paid in respect of this Note under the
circumstances described in the Registration Rights Agreement. The Holder of this
Note is entitled to the benefits of such Registration Rights Agreement.]6
INTEREST ON OVERDUE AMOUNTS
If the Principal Amount hereof or any portion of such principal amount
at Maturity is not paid when due (whether upon acceleration pursuant to Section
5.2 of the Indenture, upon the date set for payment of the Redemption Price or
upon the Stated Maturity of this 2007 Note) or of interest hereon, if any (or
any portion of such interest), then in each such case the overdue amount shall,
to the extent permitted by law, bear interest at the rate of 3 3/4% per annum
(computed on a semi-annual bond equivalent basis based on a 360-day year of
twelve 30-day months), which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
as set forth in the Indenture.
- ------------------------
6 Delete from all 2007 Notes that are not "Registrable Securities" as defined
in the Registration Rights Agreement.
A-8
METHOD OF PAYMENT
Payments in respect of the Principal Amount of, and interest on the
2007 Notes shall be made by the Company in immediately available funds.
PAYING AGENT AND SECURITY REGISTRAR
Initially, the Trustee shall act as Paying Agent and Security
Registrar. The Company may appoint and change any Paying Agent, Security
Registrar or co-registrar without notice, other than notice to the Trustee,
except that the Company shall maintain at least one Paying Agent in the State of
New York, City of New York, Borough of Manhattan, which shall initially be an
office or agency of the Trustee. The Company or any of its Subsidiaries or any
of their Affiliates may act as Paying Agent, Security Registrar or co-registrar.
TRANSFER
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this 2007 Note is registrable in the Security
Register, upon surrender of this 2007 Note for registration or transfer at the
office or agency in a Place of Payment for the 2007 Notes, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new 2007 Notes,
of any authorized denominations and for the same aggregate Principal Amount,
executed by the Company and authenticated and delivered by the Trustee, will be
issued to the designated transferee or transferees.
The 2007 Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
of this 2007 Note, 2007 Notes are exchangeable for a like aggregate Principal
Amount of 2007 Notes of a different authorized denomination as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 2007 Note for registration of
transfer, the Company, the Trustee or any agent of the Company or the Trustee
may treat the Person in whose name this 2007 Note is registered as the owner
hereof for all purposes, whether or not this 2007 Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
AMENDMENT, SUPPLEMENT AND WAIVER
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the 2007 Notes under the Indenture, the
Carnival plc Guarantee and the POPCIL Guarantee at any time by the Company and
the Trustee with the consent of the Holders of a
A-9
majority in Principal Amount of the 2007 Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in Principal Amount of the 2007 Notes at the time Outstanding, on
behalf of the Holders of all 2007 Notes, to waive compliance by the Company with
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this 2007 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this 2007 Note and of
any 2007 Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this 2007 Note.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of its
predecessor under the 2007 Notes and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in the
payment of any interest on the 2007 Notes (including Additional Interest) when
it becomes due and payable and continuance of such default for a period of 30
days; (ii) default in payment of any premium on the 2007 Notes at Maturity or of
the Principal Amount or Redemption Price, in respect of the 2007 Notes when the
same becomes due and payable; (iii) default by the Company in the performance,
or breach, of any covenant or warranty of the Company in the Indenture, and
continuance of such default or breach for a period of 60 days after there has
been given notice to the Company; (iv) default under any bond, debenture, note
or other evidence of indebtedness for money borrowed by the Company, Carnival
plc or any of their respective Subsidiaries having an aggregate outstanding
principal amount in excess of $50,000,000 (excluding such indebtedness of any
Subsidiary other than a Significant Subsidiary, all the indebtedness of which is
nonrecourse to the Company, or its Subsidiaries), which default shall be with
respect to payment or shall have resulted in such indebtedness being
accelerated, without such indebtedness being discharged or such acceleration
having been rescinded or annulled, subject to notice and passage of time; (v)
unless Carnival plc has become or has been merged with or has been otherwise
consolidated with the primary obligor under the 2007 Notes and the Indenture,
the Carnival plc Guarantee ceases to be in full force and effect or is declared
null and void or any Carnival plc denies that it has any further liability under
the Carnival plc Guarantee in respect of the 2007 Notes and/or the Indenture, or
gives notice to such effect (other than by reason of the termination of the
Fourth Supplemental Indenture or the release of any such Carnival plc Guarantee
in accordance with the Fourth Supplemental Indenture) and continuance of such
default for a period of 30 days after written notice thereof; and (vi) certain
events of bankruptcy, insolvency or reorganization of the Company, Carnival plc
or any of their Significant Subsidiaries. If an Event of Default with respect to
2007 Notes shall occur and be continuing, the Principal Amount of, and accrued
and unpaid interest, if any, on, the 2007 Notes through the acceleration date
may be declared due and payable in the manner and with the effect provided in
the Indenture. If an Event of Default occurs as a result of certain events of
bankruptcy, insolvency or reorganization of the Company, Carnival plc or their
Significant Subsidiaries the Principal Amount of, and accrued and unpaid
interest, if any, on, the 2007 Notes Outstanding shall become due and
A-10
payable immediately without any declaration or other act on the part of the
Trustee or any Holder, all as and to the extent provided in the Indenture.
INDENTURE
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Securities themselves and
the Trust Indenture Act of 1939, as in effect from time to time (the "TIA"). The
2007 Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms.
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of or the
interest, if any, on this 2007 Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
AUTHENTICATION
This 2007 Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this 2007 Note.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this 2007 Note
and the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE THAT WOULD INDICATE THE APPLICABILITY OF
THE LAWS OF ANY OTHER JURISDICTION.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All terms defined in the Indenture and used in this 2007 Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
A-11
SCHEDULE OF EXCHANGES OF SECURITIES (6)
The following exchanges or redemptions of a part of this Global
Security have been made:
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF THIS OF THE
DATE OF TRANSACTION GLOBAL SECURITY GLOBAL SECURITY
------------------- --------------- ---------------
- ------------------------
6 This schedule should be included only if the Security is a Global Security.
A-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Attention: Corporate Trust Administration
CARNIVAL CORPORATION
3 3/4% SENIOR NOTES DUE 2007 ("2007 NOTES")
-------------------------------------------
Reference is hereby made to the Indenture dated as of April 25, 2001,
as supplemented by the Fourth Supplemental Indenture dated as of November 10,
2003 (the "Indenture"), among Carnival Corporation, a Panamanian corporation
(the "Company") and U.S. Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, as trustee, relating to the 2007 Notes issued by the Company and
guaranteed by the Guarantors. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the 2007 Note[s] or interest in such 2007 Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such 2007 Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
[_] 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A CERTIFICATED SECURITY. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Certificated Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Security for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable securities laws
of any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend.
B-1
[_] 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S GLOBAL NOTE OR A CERTIFICATED
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) the transfer is not being made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Security will be subject to the restrictions on transfer enumerated
in the Private Placement Legend.
3. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED
CERTIFICATED SECURITY.
[_] (a) Check if Transfer is Pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Security will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend.
[_] (b) Check if Transfer is Pursuant to Regulation S. (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and, in the case of a transfer from a
Restricted Global Security or a Restricted Certificated Security, the Transferor
hereby further certifies that (a) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (b) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (c) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities Act
and (d) the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person, and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in
B-2
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Security will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend.
[_] (c) Check if Transfer is Pursuant to Other Exemption. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States, (ii) an opinion of counsel, certification and/or other
information satisfactory to each of the Company, Carnival plc, POPCIL and the
Trustee has been obtained by the Transferor and (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Security will not
be subject to the restrictions on transfer enumerated in the Private Placement
Legend.
[_] 4. CHECK IF TRANSFEREE IS THE COMPANY OR CARNIVAL PLC OR
A SUBSIDIARY OF THE COMPANY OR CARNIVAL PLC. The Transferee is the Company or a
Subsidiary of the Company.
[_] 5. CHECK IF TRANSFER IS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT. The transfer is being effected pursuant to an effective
registration statement under the Securities Act (file no. _________________).
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Security will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend.
B-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: ____________________________
___________________________________________
[Insert Name of Transferor]
By: _______________________________________
Name:
Title:
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
[_] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
[_] (B) a Restricted Certificated Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[_] (A) a beneficial interest in the:
(i) 144A Global Note (CUSIP __________); or
(ii) Regulation S Global Note (CUSIP __________); or
(iii) Unrestricted Global Security (CUSIP __________).
[_] (B) a Restricted Certificated Security; or
[_] (C) an Unrestricted Certificated Security.
in accordance with the terms of the Indenture.
B-5
EXHIBIT 5.1
-----------
March 31, 2004
Carnival Corporation
3655 N.W. 87th Avenue
Miami, FL 33178-2428
REGISTRATION STATEMENT ON FORM S-4
----------------------------------
Dear Ladies and Gentlemen:
In connection with the Registration Statement on Form S-4 (the
"Registration Statement") of Carnival Corporation, a Panamanian corporation (the
"Company"), and Carnival plc, a public limited company existing under the laws
of England and Wales (the "Guarantor"), filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations thereunder (the "Rules"), you have asked us to furnish
our opinion as to the legality of certain of the securities being registered
under the Registration Statement. The Registration Statement relates to the
registration under the Act of the Company's 3.75% Senior Notes due 2007 (the
"Exchange Notes") and the guarantee of the Exchange
Carnival Corporation 2
Notes by the Guarantor (the "Guarantee" and, together with the Exchange Notes,
the "Securities").
The Exchange Notes are to be offered in exchange for the Company's
$550,000,000 aggregate principal amount of outstanding 3.75% Senior Notes due
2007 (the "Initial Notes") issued and sold by the Company on November 10, 2003
in an offering exempt from registration under the Act. The Exchange Notes will
be issued by the Company in accordance with the terms of the Indenture (the
"Indenture"), dated as of April 25, 2001, between the Company and U.S. Bank
National Association, as trustee, as supplemented by a fourth supplemental
indenture dated as of November 10, 2003 (the "Supplemental Indenture") between
those same parties.
In connection with the furnishing of this opinion, we have examined
originals or copies certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. the Registration Statement;
2. the Indenture, included as Exhibit 4.1 to the Registration
Statement;
3. the Supplemental Indenture, including as an exhibit thereto
the form of the Securities, included as Exhibit 4.2 to the Registration
Statement; and
4. the Registration Rights Agreement, dated as of November 10,
2003, among the Company, the Guarantor, P&O Princess Cruises International
Limited and the initial purchasers named therein.
Carnival Corporation 3
In addition, we have examined those certificates, agreements and
documents that we deemed relevant and necessary as a basis for our opinion. We
have also relied upon the factual matters contained in the representations and
warranties of the Company and the Guarantor made in the Documents and upon
certificates of public officials and the officers of the Company and the
Guarantor.
In our examination of the documents referred to above, we have assumed,
without independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the documents reviewed by
us, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as certified,
photostatic, reproduced or conformed copies of valid existing agreements or
other documents, the authenticity of all the latter documents and that the
statements regarding matters of fact in the certificates, records, agreements,
instruments and documents that we have examined are accurate and complete. We
have also assumed, without independent investigation, (i) that the Securities
will be issued as described in the Registration Statement and (ii) that the
Securities will be in substantially the form attached to the Supplemental
Indenture and that any information omitted from such form will be properly
added. With regard to certain matters of Panamanian law, we have relied, with
the Company's permission, upon the opinion of Tapia Linares y Alfaro filed as
Exhibit 5.2 to the Registration Statement.
Based upon the above, and subject to the stated assumptions, exceptions
and qualifications, we are of the opinion that when duly issued, authenticated
and delivered against the surrender and cancellation of the Initial Notes as set
forth in the
Carnival Corporation 4
Registration Statement and in accordance with the terms of the Indenture and the
Supplemental Indenture, the Exchange Notes will be legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, except that the enforceability of the Exchange Notes may be subject
to bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). The opinion expressed above is limited to the
laws of the State of New York. Our opinion is rendered only with respect to
laws, and the rules, regulations and orders under those laws, that are currently
in effect. We hereby consent to use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" contained in the Prospectus included in the Registration Statement. In
giving this consent, we do not thereby admit that we come within the category of
persons whose consent is required by the Act or the Rules.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
------------------------------------------------
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
EXHIBIT 5.2
-----------
March [ ], 2004
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
U.S.A.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
U.S.A.
RE: Registration Statement on Form S-4
Dear Ladies and Gentlemen:
In connection with the above-captioned Registration Statement on Form
S-4 (the "Registration Statement") filed jointly by Carnival Corporation (the
"Company") and Carnival plc (the "Guarantor") with the United States Securities
and Exchange Commission on March [ ], 2004 pursuant to the Securities Act of
1933, as amended (the "Act"), and the rules and regulations promulgated
thereunder, we have been requested to render our opinion as to the power of the
Company to issue certain of the securities being registered under the
Registration Statement.
The Registration Statement relates to the registration under the Act of
the Company's 3.75% Senior Notes due 2007 (the "Exchange Notes") and the
guarantee of the Exchange Notes by the Guarantor. The Exchange Notes will be
issued by the Company in accordance with the terms of the Indenture (the
"Indenture"), dated as of April 25, 2001, between the Company and U.S. Bank
National Association, as trustee, as supplemented by a fourth supplemental
indenture dated as of November 10, 2003 (the "Supplemental Indenture") between
those same parties.
Carnival Corporation
Paul, Weiss, Rifkind, Wharton & Garrison LLP
March [ ], 2004
Page 2
- --------------------------------------------------------------------------------
In connection with our opinion, we have examined the Registration
Statement, the Indenture, the Supplemental Indenture and the Registration Rights
Agreement, dated as of November 10, 2003, among the Company, the Guarantor, P&O
Princess Cruises International Limited and the initial purchasers named therein
(collectively, the "Documents"). In addition, we have examined copies of the
Articles of Incorporation and By-Laws of the Company and all amendments thereto,
and copies of certain corporate records and documents. We have also examined and
relied upon certificates, affidavits and advice from officers of the Company or
from public officials, as to certain factual matters, as we have deemed
necessary or appropriate for the purposes of this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of the Republic of Panama.
2. The Company has full power and authority under the laws of the Republic
of Panama and its Articles of Incorporation to execute, deliver and perform its
obligations under the Documents, to issue and deliver the Exchange Notes, and to
own, occupy, possess its properties and carry on its activities as described in
the Registration Statement.
3. The execution and delivery of the Documents, the performance of the
Company's obligations thereunder, the execution, issuance and delivery of the
Exchange Notes, as applicable, and the performance of the Company's obligations
thereunder have been duly authorized by all necessary corporate action by the
Company.
4. The execution, delivery and performance of the Documents by the Company
and the issuance and delivery of the Exchange Notes by the Company do not
violate the Articles of Incorporation, Bylaws or other organizational documents
of the Company or the laws of the Republic of Panama applicable thereto.
5. Because the Company conducts its operations outside the Republic of
Panama, no Panamanian taxes or withholding will be imposed on payments to
holders of the Exchange Notes.
We hereby consent to the use of our name in the Registration Statement,
to the filing of this opinion as Exhibit 5.2 and Exhibit 8.2 to the Registration
Statement and the use of this opinion by the addressees hereof. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required by the Act or by the rules and regulations promulgated
thereunder.
Carnival Corporation
Paul, Weiss, Rifkind, Wharton & Garrison LLP
March [ ], 2004
Page 3
- --------------------------------------------------------------------------------
We are practicing in the Republic of Panama and do not purport to be
experts on the laws of any other jurisdiction other than Panamanian law and
therefore we express no opinion as to the laws of any jurisdiction other than
Panamanian law.
Yours truly,
TAPIA, LINARES Y ALFARO
/s/ Mario E. Correa
-----------------------------
Mario E. Correa
EXHIBIT 5.3
-----------
LONDON
65 Fleet Street
London EC4Y 1HS
Carnival plc T + 44 20 7936 4000
Carnival House Direct T + 44 20 7427 3959
5 Gainsford Street F + 44 20 7832 7001
London Direct F +
SE1 2NE LDE No 23
United Kingdom E
W freshfields.com
DOC ID LB889580/5+
OUR REF DH/CM
YOUR REF
[o] March 2004
Dear Sirs
REGISTRATION STATEMENT ON FORM S-4
INTRODUCTION
1. In connection with the registration statement (the REGISTRATION
STATEMENT) on Form S-4 of Carnival plc, a public limited company incorporated
under the laws of England and Wales (the COMPANY) and Carnival Corporation, a
corporation organised under the laws of the Republic of Panama (CARNIVAL
CORPORATION), under the Securities Act of 1933 (the SECURITIES ACT), we have
been requested to provide an opinion on certain matters in connection with the
Registration Statement. The Registration Statement relates to the registration
under the Securities Act of the exchange offer for US$550,000,000 3 3/4% senior
notes due 2007, issued on 10 November 2003 (the INITIAL NOTES) for a like amount
of Carnival Corporation's registered 3 3/4% senior notes due 2007, as
supplemented by a fourTh supplemental indenture dated 10 November 2003, pursuant
to which the Initial Notes were issued (the EXCHANGE Notes) and (ii) a guarantee
by the Company of Carnival Corporation's contractual monetary obligations under
the Exchange Notes pursuant to the Carnival plc Deed of Guarantee between
Carnival Corporation and the Company, dated as of April 17, 2003 (the CARNIVAL
PLC GUARANTEE) (collectively, the SECURITIES).
2. We are acting as English legal advisers to you, the Company, for the
purposes of giving this opinion. In so acting, we have examined the following
documents:
(a) the Registration Statement to be filed under the Act (the REGISTRATION
STATEMENT);
(b) a copy of the current Memorandum and Articles of Association of the
Company adopted on 17 April 2003;
(c) a copy of the Carnival plc Guarantee;
Freshfields Bruckhaus Deringer are registered foreign lawyers and solicitors
regulated by the Law Society A list of the partners and their qualifications is
open to inspection at the above address
Amsterdam Bangkok Barcelona Beijing Berlin Bratislava Brussels Budapest Cologne
Dusseldorf Frankfurt am Main Hamburg Hanoi Ho Chi Minh City Hong Kong London
Madrid Milan Moscow Munich New York Paris Rome Shanghai Singapore Tokyo Vienna
Washington
2/6
(d) a copy of the Company's Certificate of Incorporation dated 19 July
2000, issued by the Registrar of Companies of England and Wales,
together with a copy of the Company's Certificate of Incorporation on
change of name dated 17 April 2003;
(e) a company search carried out on [o] 2004 (carried out by us or by ICC
Information Ltd. on our behalf) of the public documents of the Company
kept at Companies House in Cardiff and Wales (the COMPANY SEARCH);
(f) a certificate issued to us by the Company Secretary of the Company
dated [o] 2004,
and relied upon the statements as to factual matters contained in or made
pursuant to each of the above mentioned documents.
3. This opinion is confined to matters of English law as at the date of
this opinion and is governed by and should be construed in accordance with
English law. Accordingly, we express no opinion herein with regard to any system
of law other than the laws of England as currently applied by the English
courts. In particular, we express no opinion on European Community law as it
affects any jurisdiction other than England. We also express no opinion as to
whether or not a foreign court (applying its own conflict of law rules) will act
in accordance with the parties' agreement as to jurisdiction and/or choice of
law or uphold the terms of the Securities. To the extent that the laws of the
United States, the laws of the State of New York, the laws of the Isle of Man or
the laws of the Republic of Panama may be relevant, we have made no independent
investigation thereof and our opinion is subject to the effect of such laws,
including the matters contained in the opinions of Paul, Weiss, Rifkind, Wharton
& Garrison LLP, Dickinson Cruickshank & Co. and Tapia Linares y Alfaro, referred
to in the Registration Statement. We express no views on the validity of matters
set out in such opinions.
ASSUMPTIONS
4. In considering the above documents and in rendering this opinion we
have with your consent and without any further enquiry assumed:
(a) the genuineness of all signatures on, and the authenticity and
completeness of, all documents submitted to us whether as originals or
copies;
(b) the conformity to originals of all documents supplied to us as
photocopies or facsimile copies;
(c) that, where a document has been examined by us in draft or specimen
form, it will be or has been executed in the form of that draft or
specimen;
3/6
(d) that each of the statements contained in the certificate of the Company
Secretary of the Company dated [o] 2004 is true and correct as at the
date hereof;
(e) that the Carnival plc Guarantee has been duly authorized, executed and
delivered by each of the parties thereto in accordance with all
applicable laws (other than, in the case of the Company, the laws of
England);
(f) that each of the Carnival plc Guarantee and the Exchange Notes
constitute legal, valid and binding obligations of each of the parties
thereto enforceable in accordance with its terms under all applicable
laws including the laws of the State of New York and the laws of the
Isle of Man by which they are expressed to be governed (other than in
the case of the Company, the laws of England) and assumed that
satisfactory evidence of the laws of each of New York and the Isle of
Man respectively, which is required to be pleaded and proved as a fact
in any proceedings before the English Courts, could be so pleaded and
proved;
(g) that the Carnival plc Guarantee has been entered into for bona fide
commercial reasons and on arm's length terms by each of the parties
thereto;
(h) that the Carnival plc Guarantee has not been terminated or amended and
has been performed by each of the parties thereof in accordance with
its terms;
(i) that the directors of the Company in authorising the filing of the
Registration Statement and the execution and delivery of and
performance of obligations under, the Carnival plc Guarantee and, when
issued, the Exchange Notes have exercised their powers in accordance
with their duties under all applicable laws and the Memorandum and
Articles of Association of the Company;
(j) that the sale of the Securities or the consummation by the Company of
the transactions contemplated by the issue of the Exchange Notes and
the Carnival plc Guarantee (as relevant) will not constitute an "offer
to the public" within the meaning of section 6 of the Public Offers of
Securities Regulations 1995;
(k) that entering into or performing any of the above documents neither
constitutes, nor is part of, a regulated activity carried on by any
person in contravention of section 19 of the Financial Services and
Markets Act 2000 (the FSMA);
(l) that none of the above documents has been entered into:
(i) in consequence of any communication in relation to which there
has been a contravention of section 21 of the FSMA; or
4/6
(ii) with a person who is authorised for the purposes of the FSMA,
in consequence of something said or done by another person in
the course of a regulated activity carried on by that person
in contravention of section 19 of the FSMA;
(m) that the Registration Statement in draft and preliminary form and any
other invitation or inducement to engage in investment activity (within
the meaning of section 21 of the FSMA) in connection with the issue or
sale of the Securities has only been and will only be communicated or
caused to be communicated in circumstances in which section 21(1) of
the FSMA does not apply to the Company. These circumstances are set out
in the Financial Services and Markets Act 2000 (Financial Promotion)
Order 2001 (as amended) (the ORDER) and include circumstances where any
such communication is made only to or may reasonably be regarded as
directed only at persons who are "investment professionals" within the
meaning of Article 19(5) of the Order or are persons falling within
Article 49(2)(a) to (d) of the Order;
(n) that any act done or any conduct engaged in for the purposes of
stabilizing the price of the Notes will be, or has been, done or
engaged in conformity with the rules made under sections 144(1) and
144(3) of FSMA;
(o) that the information revealed by the Company Search was accurate in all
respects and has not since the time of such search been altered; and
(p) that the information revealed by our oral enquiries on [o] 2004 of the
Central Registry of Winding up Petitions (the WINDING UP ENQUIRY) was
accurate in all respects and has not since the time of such enquiry
been altered.
OPINION
5. On the basis of and subject to the foregoing and the matters set out in
paragraphs 6 and 7 below and any matters not disclosed to us, and having regard
to such considerations of English law in force as at the date of this opinion as
we consider relevant we are of the opinion that:
(a) the Company has been duly incorporated in Great Britain and registered
in England and Wales as a public limited company and the Company Search
revealed no order or resolution for the winding up of the Company and
revealed no notice of appointment in respect of the Company of a
liquidator, receiver, administrative receiver or administrator and our
Winding up Enquiry has confirmed that no petition for the winding up of
the Company has been presented within the period covered by such
enquiries;
5/6
(b) the Company had the corporate power and capacity to enter into and
perform its obligations under the Carnival plc Guarantee;
(c) the execution and delivery of the Carnival plc Guarantee and the
performance of the Company's obligations thereunder do not violate the
Memorandum and Articles of Association of the Company or any other
relevant organisational documents of the Company or the laws of England
and Wales applicable thereto.
QUALIFICATIONS
6. Our opinion is subject to the following qualifications:
(a) the Company Search is not capable of revealing conclusively whether or
not:
(i) a winding up order has been made or a resolution passed for
the winding up of a company; or
(ii) an administration order has been made; or
(iii) a receiver, administrative receiver, administrator or
liquidator has been appointed,
since notice of these matters may not be filed with the Registrar of
Companies immediately and, when filed, may not be entered on the public
database or recorded on the public microfiches of the relevant company
immediately.
In addition, the Company Search is not capable of revealing, prior to
the making of the relevant order, whether or not a winding up petition
or a petition for an administration order has been presented;
(b) the Winding up Enquiry relates only to a compulsory winding up and is
not capable of revealing conclusively whether or not a winding up
petition in respect of a compulsory winding up has been presented,
since details of the petition may not have been entered on the records
of the Central Registry of Winding up Petitions immediately or, in the
case of a petition presented to a County Court, may not have been
notified to the Central Registry and entered on such records at all,
and the response to an enquiry only relates to the period of
approximately four years prior to the date when the enquiry was made;
(c) no opinion is given as to whether or not the chosen court will take
jurisdiction, or whether the English courts would grant a stay of any
proceedings commenced in England, or whether the English courts would
grant any relief ancillary to proceedings commenced in a foreign court;
6/6
(d) this opinion is subject to all applicable laws relating to insolvency,
bankruptcy, administration, reorganisation, liquidation or analogous
circumstances.
OBSERVATIONS
7. It should be understood that we have not been responsible for
investigating or verifying the accuracy of the facts, including the statements
of foreign law, or the reasonableness of any statement or opinion or intention
contained in or relevant to any document referred to herein, or that no material
facts have been omitted therefrom.
8. We hereby consent to the use of our name in the Registration Statement
and to the filing of this opinion as Exhibit 5.3 to the Registration Statement.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required by the Securities Act or by the rules and
regulations promulgated thereunder.
9. This opinion is addressed to you for your benefit for the purposes of
the Registration Statement to be filed under the Securities Act and, except with
our prior written consent, is not to be transmitted or disclosed to or used or
relied upon by any other person or used or relied upon by you for any other
purpose.
Yours faithfully
/s/ FRESHFIELDS BRUCKHAUS DERINGER
- ----------------------------------
FRESHFIELDS BRUCKHAUS DERINGER
EXHIBIT 5.4
-----------
10 March 2004
Carnival Corporation
Carnival Place
3655 N.W. 87th Avenue,
Miami, Florida 33178-2428
Dear Sirs,
EXCHANGE OFFER FOR $550,000,000 3 3/4 % SENIOR NOTES DUE 2007; MARCH 2004
1. We are a firm of Isle of Man advocates duly qualified to advise on Isle
of Man law. In connection with the above-captioned Registration
Statement on Form S-4 ("Registration Statement") to be filed by
Carnival plc and Carnival Corporation on [ ] March 2004, with the
United States Securities and Exchange Commission pursuant to the
Securities Act of 1933, and the rules and regulations promulgated
thereunder, we have been asked to provide this opinion on the P & O
Princess Cruises plc Deed of Guarantee between Carnival plc (then
called P & O Princess Cruises plc) and Carnival Corporation, dated as
of April 17, 2003 (the "Guarantee").
2. THE ASSUMPTIONS
In rendering the opinion stated below we have, with your permission,
made the following assumptions:
2.1 that each party to the Guarantee is duly incorporated and
organised, validly existing and in good standing under the
laws of its jurisdiction of incorporation or the jurisdiction
of its principal place of business and has full power capacity
and authority to enter into the Guarantee and to exercise its
rights and perform its obligations thereunder, and all
corporate and other action required to authorise the execution
of the same and the performance of its obligations thereunder
was duly taken;
2.2 that all acts, conditions and things required to be done,
fulfilled or undertaken under any law (including any and all
authorisations and consents of any public authority of any
jurisdiction) other than that of the Isle of Man in respect of
the lawful execution delivery or performance of the Guarantee
and in order to ensure that it is binding upon and enforceable
against the parties have been or will be done, fulfilled,
undertaken or obtained;
2.3 insofar as any obligation under the Guarantee is to be
performed in any jurisdiction outside the Isle of Man its
performance will be legal and effective in accordance with the
law of that jurisdiction;
2.4 that by entering into the Guarantee the parties thereto were
not in conflict with or in breach of their constitutional
documents or in breach of or otherwise in violation of any
provision of the laws of the jurisdictions in which they are
respectively constituted and established;
2.5 that none of the parties to the Guarantee by entering into the
Guarantee were in breach of any other agreement to which it
was/is a party; and
2.6 that no circumstances exist which would justify the setting
aside of the Guarantee by reason of fraud, misrepresentation,
mistake or undue influence.
The making of each of the above assumptions indicates that we have
assumed that each matter the subject of each assumption is true correct
and complete in every particular. That we have made an assumption in
this opinion does not imply that we have made any enquiry to verify an
assumption. No assumption specified above is limited by reference to
any other assumption.
3. THE OPINION
Based upon and subject to the foregoing and subject to the
qualifications set out below, we confirm our opinion that the Guarantee
constitutes the legal, valid and binding obligations of Carnival plc,
enforceable against Carnival plc in accordance with its terms.
4. QUALIFICATIONS
The opinion expressed above is subject to the following qualifications
which are not to be limited by reference to each other:
4.1 The Courts of the Isle of Man would determine in their
discretion whether or not any provision of any document may be
severed from the other provisions thereof on account of
invalidity illegality or unenforceability in order to save the
other provisions thereof.
4.2 Where any obligation of any person is to be performed in any
jurisdiction outside of the Isle of Man, such obligation may
not be enforceable under the law of the Isle of Man to the
extent that the performance thereof would be illegal or
contrary to public policy under the laws of that foreign
jurisdiction.
4.3 The courts of the Isle of Man might not give effect to any
indemnity for legal costs incurred by a litigant as costs will
be in the court's discretion.
4.4 The effectiveness of any term exculpating a party from a
liability or duty otherwise owed may be limited by law.
4.5 Whilst an Isle of Man court has power to give judgment
expressed as an order to pay in a currency other than pounds
sterling, it may decline to do so in its discretion.
4.6 Our opinion is subject to any limitations arising from
bankruptcy, insolvency, liquidation, reorganisation, court
schemes, moratoriums and similar laws affecting the rights of
creditors generally.
4.7 Enforcement may be limited by general principles of private
international law and of equity. Equitable remedies are
available only at the discretion of the court and are not
available where damages are considered to be an adequate
remedy.
4.8 A foreign judgment could not form the basis of an action in
the Isle of Man without a re-trial or re-examination of the
matters thereby adjudicated upon if such judgment were
obtained by fraud or in a manner contrary to natural justice
or if the enforcement were contrary to Isle of Man public
policy. Enforcement may be withheld if the relevant judgment
is not a final and conclusive money judgment being both
unrelated to taxation and free of conflict with any other
judgment in the same cause of action.
4.9 Claims may be or become statute-barred under the Limitation
Acts of the Isle of Man or become subject to a defence of
set-off or counterclaim.
4.10 Any provision as to payment of default interest or agreed
compensation contained in any document may be unenforceable to
the extent that any element of interest or agreed compensation
constitutes a penalty rather than a compensatory amount.
4.11 If proceedings were commenced in the Isle of Man courts any
provision in any document to the effect that calculations
and/or certifications and/or determinations will be conclusive
and binding will not be effective in Manx law if such
calculations and/or certifications and/or determinations are
fraudulent or erroneous on their face or manifestly inaccurate
and will not necessarily prevent judicial enquiry into the
merits of any claim by any party to any such document
respecting any such calculation, certification or
determination.
4.12 Under Isle of Man law the terms of an agreement under hand may
be varied by oral or written agreement of the parties and this
should be borne in mind if proceedings are intended to be
brought in the Isle of Man courts.
4.13 As regards any provision in any document relating to
jurisdiction, Isle of Man courts may stay proceedings if
concurrent proceedings are being brought elsewhere.
4.14 Any clause in any document which provides that remedies in the
courts of enforcement shall not be affected by invalidity
under other laws could be seen to contemplate the ousting of
the jurisdiction of the court by the parties; a Manx court
would be unlikely to permit parties to contract out of the
invalidating effect of a foreign law where it is material to
the transaction envisaged by any document.
4.15 Save as otherwise specifically stated herein this opinion
addresses law and not fact.
4.16 We do not purport to be experts on and do not purport to be
generally familiar with or qualified to express legal opinions
based on any law other than the laws of the Isle of Man and
accordingly express no legal opinion herein based upon any law
other than the laws of the Isle of Man in force at the date
hereof.
4.17 Our opinion is limited to the present laws of the Isle of Man
and the present practice of the Isle of Man courts and is
limited to facts and circumstances known to us and subsisting
at the date hereof.
4.18 This opinion is given on the basis that it will be governed
and construed in accordance with the laws of the Isle of Man,
is solely for the benefit of the persons to whom it is
addressed and their legal advisers and (save as stated below)
is not to be disclosed to or relied upon by any other person
or for any other purpose nor is it to be quoted or made public
in any way, it is strictly limited to the matters stated
herein and does not extend to, and is not to be extended by
implication, to any other matters. We hereby consent
to the use of our name in the Registration Statement and to
the filing of this opinion as Exhibit 5.4 to the Registration
Statement. In giving this opinion we do not thereby admit that
we are within the category of persons whose consent is
required by the Securities Act of 1933, as amended, or by the
rules and regulations promulgated thereunder.
Yours faithfully
/s/ DICKINSON, CRUICKSHANK & CO
- -------------------------------
DICKINSON, CRUICKSHANK & CO
EXHIBIT 8.1
-----------
March 31, 2004
Carnival plc
Carnival House
5 Gainsford Street
London, SE1 2NE
Carnival Corporation
3655 N.W. 87th Avenue
Miami, Florida 33178-2428
REGISTRATION STATEMENT ON FORM S-4
Ladies and Gentlemen:
We have acted as United States federal income tax counsel for
Carnival Corporation, a Panamanian corporation (the "Company"), and Carnival
plc, a public limited company existing under the laws of England and Wales (the
"Guarantor," and together with the Company, the "Issuers"), in connection with
the Registration Statement on Form S-4 (the "Registration Statement") filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations thereunder. The
Registration Statement relates to the registration under the Securities Act of
the Company's 3.75% Senior Notes due 2007 (the "Exchange Notes") and the
guarantee of the Exchange Notes by the Guarantor (the "Guarantee" and, together
with the Exchange Notes, the "Securities"). You have asked us to furnish our
opinion as to certain tax matters in connection with the Registration Statement.
2
In rendering our opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such
agreements and other documents as we have deemed relevant and necessary and we
have made such investigations of law as we have deemed appropriate as a basis
for the opinion expressed below. In our examination, we have assumed, without
independent verification, (i) the authenticity of original documents; (ii) the
accuracy of copies and the genuineness of signatures; (iii) that each such
agreement represents the valid and binding obligation of the respective parties
thereto, is enforceable in accordance with its respective terms and represents
the entire agreement between the parties with respect to the subject matter
thereof; (iv) the parties to each agreement have complied, and will comply, with
all of their respective covenants, agreements and undertakings contained
therein; and (v) the transactions provided for by each agreement were and will
be carried out in accordance with their terms.
The opinion set forth below is limited to the Internal Revenue
Code of 1986, as amended, administrative rulings, judicial decisions, proposed,
temporary and final Treasury Regulations and other applicable authorities, all
as in effect on the date of effectiveness of the Registration Statement. The
statutory provisions, regulations, and interpretations upon which our opinion is
based are subject to change, and any such changes could apply retroactively. Any
such change could materially affect the continuing validity of the opinion set
forth below.
The opinion set forth herein has no binding effect on the
United States Internal Revenue Service (the "IRS") or the courts of the United
States. No assurance can be given that, if the matter were contested, a court
would agree with the opinion set forth herein.
We hereby confirm that the discussion set forth under the
caption "Certain Panamanian and United States Federal Income Tax Consequences -
Unites States" in the Registration Statement is our opinion. Such discussion
does not, however, purport to discuss all United States federal income tax
consequences that may be applicable to a U.S. holder of Securities and is
limited to those United States federal income tax consequences specifically
discussed therein and subject to the qualifications set forth therein.
In giving the foregoing opinion, we express no opinion other
than as to the federal income tax laws of the United States of America.
Furthermore, in rendering our opinion, we have made no independent investigation
of the facts referred to herein and have relied for the purpose of rendering
this opinion exclusively on those facts that have been provided to us by you and
your agents, which we assume have been, and will continue to be, true.
We are furnishing this letter in our capacity as United States
federal income tax counsel to the Issuers. This letter is not to be used,
circulated, quoted or otherwise referred to for any other purpose, except as set
forth below.
3
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. The issuance of such a consent does not concede
that we are an "expert" for purposes of the Securities Act.
Very truly yours,
/s/ PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
------------------------------------------------
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of our report dated January 29, 2004 relating to the
financial statements, which appears in the 2003 Annual Report to Shareholders,
which is incorporated by reference in Carnival Corporation and Carnival plc's
joint Annual Report on Form 10-K for the year ended November 30, 2003. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Miami, Florida
March 29, 2004
EXHIBIT 23.2
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the registration statement on
Form S-4 of Carnival Corporation and Carnival plc of our report dated 6 February
2003, with respect to the consolidated balance sheets of Carnival plc (formerly
P&O Princess Cruises plc) as of 31 December 2002 and 2001, and the related
consolidated profit and loss accounts, cash flow statements, statements of total
recognised gains and losses and reconciliation of movements in consolidated
shareholders' funds for each of the years in the three-year period ended 31
December 2002, which report appears in the Form 20-F of Carnival plc (formerly
P&O Princess Cruises plc) dated 14 March 2003. Our report refers to the adoption
of FRS19 Deferred Tax. We consent to the reference to our firm under the heading
"Experts" in the prospectus.
/s/ KPMG Audit Plc
KPMG Audit Plc
Chartered Accountants
Registered Auditor
London, England
29 March 2004
EXHIBIT 99.1
------------
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
$550,000,000 AGGREGATE PRINCIPAL AMOUNT
3 3/4% SENIOR NOTES DUE 2007
CARNIVAL CORPORATION
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME,
ON [___________], 2004, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS
OF INITIAL NOTES MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
DELIVERY TO: U.S. Bank National Association, Exchange Agent
BY REGISTERED OR CERTIFIED MAIL: BY FACSIMILE:
U.S. Bank National Association (for Eligible Institutions only)
EP-MN-WS2N (651) 495-8158
60 Livingston Avenue
St. Paul, MN 55107
Attention: Specialized Finance Department CONFIRM BY TELEPHONE:
(800) 934-6802
BY OVERNIGHT COURIER OR HAND:
U.S. Bank National Association
EP-MN-WS2N
60 Livingston Avenue
St. Paul, MN 55107
Attention: Specialized Finance Department
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING ANY BOX BELOW.
The undersigned acknowledges that he or she has received and reviewed
the prospectus, dated [ ], 2004 (the "Prospectus"), of Carnival Corporation, a
Panamanian corporation (the "Company"), and this Letter of Transmittal (the
"Letter"), which together constitute the Company's offer (the "Exchange Offer")
to exchange $550,000,000 in aggregate principal amount of its 3 3/4% Senior
Notes due 2007 (the "Exchange Notes"), for a like aggregate principal amount of
its outstanding 3 3/4% Senior Notes due 2007 (the "Initial Notes") that were
issued and sold in reliance upon an exemption from registration under the
Securities Act of 1933, as amended (the "Securities Act").
For each Initial Note accepted for exchange, the holder of such Initial
Note will receive an Exchange Note having an aggregate principal amount equal to
that of the surrendered Initial Note.
This Letter is to be completed by a holder of Initial Notes either if
certificates are to be forwarded herewith or if a tender of certificates for
Initial Notes, if available, is to be made by book-entry transfer to the account
maintained by the Exchange Agent at The Depository Trust Company (the
"Book-Entry Transfer Facility") pursuant to the procedures set forth in "The
Exchange Offer-Procedures for Tendering Initial Notes-Book-Entry Delivery
Procedure" section of the Prospectus and an Agent's Message (as defined herein)
is not delivered. Delivery of this Letter and any other required documents
should be made to the Exchange Agent. Delivery of documents to the Book-Entry
Transfer Facility does not constitute delivery to the Exchange Agent.
Holders of Initial Notes whose certificates are not immediately
available, or who are unable to deliver their certificates (or cannot obtain a
confirmation of the book-entry tender of their Initial Notes into the Exchange
Agent's account at the Book-Entry Transfer Facility (a "Book-Entry
Confirmation") on a timely basis) and all other documents required by this
Letter to the Exchange Agent on or prior to the Expiration Date, must tender
their Initial Notes according to the guaranteed delivery procedures set forth in
"The Exchange Offer-Procedures for Tendering Initial Notes-Guaranteed Delivery
Procedure" section of the Prospectus. See Instruction 1.
The undersigned has completed the appropriate boxes below and signed
this Letter to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to exchange their Initial Notes must
complete this Letter in its entirety.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER MUST BE FOLLOWED. QUESTIONS
AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS
LETTER MAY BE DIRECTED TO THE EXCHANGE AGENT.
List below the Initial Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Initial Notes should be listed on a separate signed schedule affixed to this
Letter.
- -------------------------------------------------------------------------------------------------------
DESCRIPTION OF INITIAL NOTES
(SEE INSTRUCTION 2)
- -------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AGGREGATE PRINCIPAL
EXACTLY AS NAME(S) APPEAR(S) ON INITIAL NOTES NUMBER(S)* PRINCIPAL AMOUNT
(PLEASE FILL IN, IF BLANK) AMOUNT TENDERED (IF
REPRESENTED LESS THAN
BY CERTIFICATE ALL)**
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
TOTAL
- -------------------------------------------------------------------------------------------------------
* Need not be completed if Initial Notes are being tendered by book-entry transfer.
** Unless otherwise indicated in this column, the holder will be deemed to have tendered the full
aggregate principal amount represented by such Initial Notes. See Instruction 2. Initial Notes
tendered hereby must be in integral multiples of $1,000. See Instruction 1.
- -------------------------------------------------------------------------------------------------------
2
[_] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of
Tendering Institution: ___________________________________________
Account Number: ______________ Transaction Code Number: ___________
By crediting Initial Notes to the Exchange Agent's Account at the
Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's Automated Tender Offer Program ("ATOP") and by complying with
applicable ATOP procedures with respect to the Exchange Offer, including
transmitting an Agent's Message to the Exchange Agent in which the holder of
Initial Notes acknowledges and agrees to be bound by the terms of this Letter,
the participant in ATOP confirms on behalf of itself and the beneficial owners
of such Initial Notes all provisions of this Letter applicable to it and such
beneficial owners as if it had completed the information required herein and
executed and transmitted this Letter to the Exchange Agent.
[_] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):_______________________________________
Window Ticket Number (if any):_________________________________________
Date of Execution of Notice of Guaranteed Delivery:____________________
Name of Eligible Institution that Guaranteed Delivery:_________________
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number:_______________ Transaction Code Number:_______________
[_] CHECK HERE IF YOU ARE A BROKER-DEALER.
[_] CHECK HERE IF YOU WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
INDICATE THE ADDRESS AND THE NAME OF THE PERSON TO WHOSE ATTENTION SUCH
PROSPECTUSES SHOULD BE DELIVERED.
Name:__________________________________________________________________
Address:_______________________________________________________________
Attention:_____________________________________________________________
3
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company for exchange the aggregate principal
amount of Initial Notes indicated above. Subject to, and effective upon, the
acceptance for exchange of the Initial Notes tendered hereby, the undersigned
hereby sells, assigns and transfers to, or upon the order of, the Company all
right, title and interest in and to such Initial Notes as are being tendered
hereby.
The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as the attorney-in-fact and proxy of the undersigned (with full
knowledge that the Exchange Agent also acts as the agent of the Company in
connection with the Exchange Offer) with respect to the tendered Initial Notes
with full power of substitution and resubstitution to (i) deliver such Initial
Notes, or transfer ownership of such Initial Notes on the account books
maintained by the Book-Entry Transfer Facility, to the Company and deliver all
accompanying evidences of transfer and authenticity, and (ii) present such
Initial Notes for transfer on the books of the Company and receive all benefits
and otherwise exercise all rights of beneficial ownership of such Initial Notes,
all in accordance with the terms of the Exchange Offer. The power of attorney
granted in this paragraph shall be deemed to be irrevocable and coupled with an
interest in the tendered notes.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Initial Notes
tendered hereby and to acquire Exchange Notes issuable upon the exchange of such
tendered Initial Notes, and that the Company will acquire good and unencumbered
title thereto, free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim when the same are accepted by
the Company.
The undersigned acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the Exchange Notes issued in exchange for the Initial Notes
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than (i) any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act or (ii) any broker-dealer that purchased Initial Notes from the Company to
resell pursuant to Rule 144A under the Securities Act ("Rule 144A") or any other
available exemption), without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange Notes are
acquired in the ordinary course of such holders' business and such holders have
no arrangement or understanding with any person to participate in the
distribution of such Exchange Notes and are not participating in, and do not
intend to participate in, the distribution of the Exchange Notes. The
undersigned acknowledges that the Company does not intend to request the SEC to
consider, and the SEC has not considered the Exchange Offer in the context of a
no-action letter, and there can be no assurance that the staff of the SEC would
make a similar determination with respect to the Exchange Offer as in other
circumstances. The undersigned acknowledges that any holder that is an affiliate
of the Company, or is participating in or intends to participate in or has any
4
arrangement or understanding with respect to the distribution of the Exchange
Notes to be acquired pursuant to the Exchange Offer, (i) cannot rely on the
applicable interpretations of the staff of the SEC and (ii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
The undersigned hereby further represents that (i) any Exchange Notes
acquired pursuant to the Exchange Offer are being acquired in the ordinary
course of business of the person receiving such Exchange Notes, whether or not
such person is the holder; (ii) such holder or other person has no arrangement
or understanding with any person to participate in, a distribution of such
Exchange Notes within the meaning of the Securities Act and is not participating
in, and does not intend to participate in, the distribution of such Exchange
Notes within the meaning of the Securities Act and (iii) such holder or such
other person is not an "affiliate," as defined in Rule 405 under the Securities
Act, of the Company.
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer holding Initial Notes
acquired for its own account as a result of market-making activities or other
trading activities, it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes received in
respect of such Initial Notes pursuant to the Exchange Offer. However, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
The undersigned also warrants that acceptance of any tendered Initial
Notes by the Company and the issuance of Exchange Notes in exchange therefor
shall constitute performance in full by the Company of its obligations under the
Registration Rights Agreement relating to the Initial Notes, which has been
filed as an exhibit to the registration statement in connection with the
Exchange Offer.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Initial Notes tendered hereby. All
authority conferred or agreed to be conferred in this Letter and every
obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in this Letter.
The undersigned understands that tenders of the Initial Notes pursuant
to any one of the procedures described under "The Exchange Offer-Procedures for
Tendering Initial Notes" in the Prospectus and in the instructions hereto will
constitute a binding agreement between the undersigned and the Company in
accordance with the terms and subject to the conditions of the Exchange Offer.
The undersigned recognizes that, under certain circumstances set forth
in the Prospectus under "The Exchange Offer-Conditions to the Exchange Offer"
the Company may not be required to accept for exchange any of the Initial Notes
tendered. Initial Notes not accepted for exchange or withdrawn will be returned
to the undersigned at the address set forth below unless otherwise indicated
under "Special Delivery Instructions" below.
5
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the Exchange Notes (and, if applicable,
substitute certificates representing Initial Notes for any Initial Notes not
exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Initial Notes, please credit the account indicated above maintained
at the Book Entry Transfer Facility. Similarly, unless otherwise indicated under
the box entitled "Special Delivery Instructions" below, please send the Exchange
Notes (and, if applicable, substitute certificates representing Initial Notes
for any Initial Notes not exchanged) to the undersigned at the address shown
below the undersigned's signature(s). In the event that both "Special Issuance
Instructions" and "Special Delivery Instructions" are completed, please issue
the Exchange Notes issued in exchange for the Initial Notes accepted for
exchange (and, if applicable, substitute certificates representing Initial Notes
for any Initial Notes not exchanged) in the names of the person(s) so indicated.
The undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Initial Notes from the name of the registered holder(s) thereof if the
Company does not accept for exchange any of the Initial Notes so tendered for
exchange.
THE BOOK-ENTRY TRANSFER FACILITY, AS THE HOLDER OF RECORD OF CERTAIN
INITIAL NOTES, HAS GRANTED AUTHORITY TO THE BOOK-ENTRY TRANSFER FACILITY
PARTICIPANTS WHOSE NAMES APPEAR ON A SECURITY POSITION LISTING WITH RESPECT TO
SUCH INITIAL NOTES AS OF THE DATE OF TENDER OF SUCH INITIAL NOTES TO EXECUTE AND
DELIVER THIS LETTER AS IF THEY WERE THE HOLDERS OF RECORD. ACCORDINGLY, FOR
PURPOSES OF THIS LETTER, THE TERM "HOLDER" SHALL BE DEEMED TO INCLUDE SUCH
BOOK-ENTRY TRANSFER FACILITY PARTICIPANTS.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF INITIAL
NOTES" ABOVE AND SIGNING THIS LETTER AND DELIVERING SUCH NOTES AND THIS LETTER
TO THE EXCHANGE AGENT, WILL BE DEEMED TO HAVE TENDERED THE INITIAL NOTES AS SET
FORTH IN SUCH BOX ABOVE.
6
- --------------------------------------------------------- ---------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4 AND 5) (SEE INSTRUCTIONS 3, 4 AND 5)
To be completed ONLY if certificates for Initial To be completed ONLY if certificates for Initial
Notes not tendered or not accepted for exchange, or Notes not tendered or not accepted for exchange, or
Exchange Notes issued in exchange for Initial Notes Exchange Notes issued in exchange for Initial Notes
accepted for exchange, are to be issued in the name of accepted for exchange, are to be sent to someone other
and sent to someone other than the undersigned, or if than the undersigned or to the undersigned at an
Initial Notes delivered by book-entry transfer which address other than shown in the box entitled
are not accepted for exchange are to be returned by "Description of Initial Notes" above.
credit to an account maintained at the Book-Entry
Transfer Facility other than the account indicated
above.
Issue (certificates) to: Mail to:
Name(s):________________________________________________ Name(s):________________________________________________
(PLEASE TYPE OR PRINT) (PLEASE TYPE OR PRINT)
________________________________________________________ ________________________________________________________
(PLEASE TYPE OR PRINT) (PLEASE TYPE OR PRINT)
Address:________________________________________________ Address:________________________________________________
________________________________________________________ ________________________________________________________
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
________________________________________________________ ________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(COMPLETE SUBSTITUTE FORM W-9) (COMPLETE SUBSTITUTE FORM W-9)
Credit unexchanged Initial Notes delivered by book-
entry transfer to the Book-Entry Transfer Facility
account set forth below.
___________________________________________
(BOOK-ENTRY TRANSFER FACILITY
ACCOUNT NUMBER, IF APPLICABLE)
- --------------------------------------------------------- ---------------------------------------------------------
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS LETTER OR A FACSIMILE HEREOF OR
AN AGENT'S MESSAGE IN LIEU HEREOF (IN EACH CASE, TOGETHER WITH THE CERTIFICATE(S) FOR INITIAL NOTES OR A
CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE
EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
7
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS WHETHER OR NOT
INITIAL NOTES ARE BEING PHYSICALLY TENDERED HEREBY)
(PLEASE ALSO COMPLETE AND RETURN THE ACCOMPANYING SUBSTITUTE FORM W-9)
X_______________________________________________________________________________
X_______________________________________________________________________________
SIGNATURE(S) OF OWNER(S) DATE
Area Code and Telephone Number:_________________________________________________
THIS LETTER MUST BE SIGNED BY THE REGISTERED HOLDER(S) TENDERING ANY INITIAL
NOTES EXACTLY AS THE NAME(S) OF THE HOLDER(S) APPEAR(S) ON THE CERTIFICATE(S)
FOR THE INITIAL NOTES OR ON A SECURITY POSITION LISTING AS THE OWNER OF INITIAL
NOTES BY PERSON(S) AUTHORIZED TO BECOME REGISTERED HOLDER(S) BY A PROPERLY
COMPLETED BOND POWER FROM THE REGISTERED HOLDER(S), A COPY OF WHICH MUST BE
TRANSMITTED WITH THIS LETTER. IF INITIAL NOTES TO WHICH THIS LETTER RELATES ARE
HELD OF RECORD BY TWO OR MORE JOINT HOLDERS, THEN ALL SUCH HOLDERS MUST SIGN
THIS LETTER. IF SIGNATURE IS BY A TRUSTEE, EXECUTOR, ADMINISTRATOR, GUARDIAN,
OFFICER OR OTHER PERSON ACTING IN A FIDUCIARY OR REPRESENTATIVE CAPACITY, THEN
SUCH PERSON MUST (I) SET FORTH HIS OR HER FULL TITLE BELOW AND (II) UNLESS
WAIVED BY THE COMPANY, SUBMIT EVIDENCE SATISFACTORY TO THE COMPANY OF SUCH
PERSON'S AUTHORITY TO SO ACT. SEE INSTRUCTION 3.
NAME(S):________________________________________________________________________
(PLEASE TYPE OR PRINT)
________________________________________________________________________________
(PLEASE TYPE OR PRINT)
CAPACITY: ______________________________________________________________________
ADDRESS: ______________________________________________________________________
________________________________________________________________________________
(INCLUDING ZIP CODE)
SIGNATURE GUARANTEE BY AN ELIGIBLE INSTITUTION
(IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guaranteed by an Eligible Institution:
________________________________________________________________________________
(AUTHORIZED SIGNATURE)
__________________________________________________________________________
(TITLE)
__________________________________________________________________________
(NAME OF FIRM)
__________________________________________________________________________
(ADDRESS, INCLUDE ZIP CODE)
__________________________________________________________________________
(AREA CODE AND TELEPHONE NUMBER)
Dated:______________________________
- --------------------------------------------------------------------------------
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER AND INITIAL NOTES; GUARANTEED DELIVERY
PROCEDURES.
This Letter is to be completed by noteholders either if certificates
are to be forwarded herewith or if tenders are to be made pursuant to the
procedures for delivery by book-entry transfer set forth in "The Exchange
Offer-Procedures for Tendering Initial Notes-Book-Entry Delivery Procedure"
section of the Prospectus and an Agent's Message is not delivered. Certificates
for all physically tendered Initial Notes, or Book-Entry Confirmation, as the
case may be, as well as a properly completed and duly executed Letter (or
manually signed facsimile hereof) and any other documents required by this
Letter, must be received by the Exchange Agent at the address set forth herein
on or prior to 5:00 p.m., New York City time, on the Expiration Date, or the
tendering holder must comply with the guaranteed delivery procedures set forth
below. Initial Notes tendered hereby must be in denominations of principal
amount that are integral multiples of $1,000. The term "Agent's Message" means a
message, transmitted by the Book-Entry Transfer Facility and received by the
Exchange Agent and forming a part of the Book-Entry Confirmation, which states
that the Book-Entry Transfer Facility has received an express acknowledgment
from a participant tendering Initial Notes which are subject to the Book-Entry
Confirmation and that such participant has received and agrees to be bound by
this Letter and that the Company may enforce this Letter against such
participant.
For the registered holders of Initial Notes who wish to tender their
Initial Notes, but for which (a) such Initial Notes are not immediately
available, (b) time will not permit such Initial Notes or other required
documents to reach the Exchange Agent on or prior to the Expiration Date, or (c)
the procedures for book-entry transfer cannot be completed on a timely basis,
the registered holders must tender their Initial Notes pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer-Procedures for
Tendering Initial Notes-Guaranteed Delivery Procedure" section of the
Prospectus. Pursuant to such procedures,
(i) such tender must be made through an Eligible Institution (as
defined in Instruction 3 below),
(ii) on or before the Expiration Date, the Exchange Agent must
receive from such Eligible Institution a properly completed and duly
executed Letter (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by
telegram, telex, facsimile transmission, mail or hand delivery), with
the name and address of the holder of Initial Notes and the amount of
Initial Notes tendered, stating that the tender is being made by that
letter and notice, and guaranteeing that within three New York Stock
Exchange ("NYSE") trading days after the Expiration Date, the
certificates for all tendered Initial Notes, in proper form for
transfer, or a Book-Entry Confirmation with an Agent's Message, as the
case may be, and any other documents required by the Letter will be
deposited by the Eligible Institution with the Exchange Agent, and
(iii) the certificates for all tendered Initial Notes, in proper
form for transfer, or Book-Entry Confirmation, as the case may be, and
all other documents required by this
9
Letter, must be received by the Exchange Agent within three NYSE
trading days after the Expiration Date.
The method of delivery of this Letter, the Initial Notes and all other
required documents is at the election and risk of the tendering holders, but the
delivery will be deemed made only when actually received or confirmed by the
Exchange Agent. If Initial Notes are sent by mail, it is suggested that the
mailing be made sufficiently in advance of the Expiration Date to permit
delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on the
Expiration Date.
For more information, see "The Exchange Offer" section of the
Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO NOTEHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER).
Tenders of Initial Notes will be accepted only in integral multiples of
$1,000. If less than the entire principal amount of any Initial Notes is
tendered, the tendering holder(s) should fill in the principal amount of Initial
Notes to be tendered in the box above entitled "Description of Initial Notes."
The entire principal amount of the Initial Notes delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated. If the entire
principal amount of Initial Notes is not tendered, then Initial Notes for the
principal amount of Initial Notes not tendered and Exchange Notes issued in
exchange for any Initial Notes accepted will be sent to the holder at his or her
registered address, unless otherwise provided in the appropriate box on this
Letter, promptly after the Initial Notes are accepted for exchange.
3. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF
SIGNATURES.
If this Letter is signed by the registered holder of the Initial Notes
tendered hereby, the signature must correspond with the name(s) as written on
the face of the certificates representing such Initial Notes without alteration
or any change whatsoever.
If this Letter is signed by a participant in the Book-Entry Transfer
Facility, the signature must correspond with the name as it appears on the
security position listing as the holder of the Initial Notes.
If any tendered Initial Notes are owned of record by two or more joint
owners, all of such owners must sign this Letter.
If any tendered Initial Notes are registered in different names on
several certificates, it will be necessary to complete, sign and submit as many
separate copies of this Letter as there are different registrations of
certificates.
When this Letter is signed by the registered holder or holders of the
Initial Notes specified herein and tendered hereby, no endorsements of
certificates or separate bond powers are required. If, however, the Exchange
Notes are to be issued, or any untendered Initial Notes are to be reissued, to a
person other than the registered holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required.
10
Signatures on such certificate(s) must be guaranteed by an Eligible Institution
(defined herein).
If this Letter is signed by a person other than the registered holder
or holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers and a proxy that authorizes
this person to tender the Initial Notes on behalf of the registered holder, in
form satisfactory to the Company determined in its sole discretion, in each
case, signed exactly as the name or names of the registered holder or holders
appear(s) on the certificate(s) and signatures on such certificate(s) must be
guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
evidence satisfactory to the Company of such person's authority to so act must
be submitted with this Letter.
Endorsements on certificates for Initial Notes or signatures on bond
powers required by this Instruction 3 must be guaranteed by a firm which is a
member of a registered national securities exchange or a member of the National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States or an "eligible
guarantor" institution within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (each an "Eligible Institution").
Signatures on this Letter need not be guaranteed by an Eligible
Institution if the Initial Notes are tendered: (i) by a registered holder of
Initial Notes (which term, for purposes of the Exchange Offer, includes any
participant in the Book-Entry Transfer Facility system whose name appears on a
security position listing as the holder of such Initial Notes) who has not
completed the box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on this Letter and only if the Exchange Notes are being issued
directly to this registered holder or deposited into any participant's account
at the Book-Entry Transfer Facility, or (ii) for the account of an Eligible
Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Initial Notes should indicate, in the applicable
box or boxes, the name and address (or account at the Book-Entry Transfer
Facility) to which Exchange Notes issued pursuant to the Exchange Offer, or
substitute Initial Notes not tendered or accepted for exchange, are to be issued
or sent, if different from the name or address of the person signing this
Letter. In the case of issuance in a different name, the employer identification
or social security number of the person named must also be indicated. Holders
tendering Initial Notes by book-entry transfer may request that Initial Notes
not exchanged be credited to such account maintained at the Book-Entry Transfer
Facility as such noteholder may designate hereon. If no such instructions are
given, such Initial Notes not exchanged will be returned to the name or address
of the person signing this Letter.
11
5. TAX IDENTIFICATION NUMBER.
Under the federal income tax laws, payments that may be made by the
Company on account of Exchange Notes issued pursuant to the Exchange Offer may
be subject to backup withholding at the rate specified in Section 3406(a)(1) of
the Code (the "Specified Rate"). In order to avoid such backup withholding, each
tendering holder that is a U.S. person (including a U.S. alien individual) is
required to complete and sign the Substitute Form W-9 included in this Letter
(providing such holder's correct taxpayer identification number ("TIN") and
certifying, under penalties of perjury, that (a) the TIN provided is correct;
(b) that (i) the holder has not been notified by the Internal Revenue Service
(the "IRS") that the holder is subject to backup withholding as a result of
failure to report all interest or dividends, (ii) the IRS has notified the
holder that the holder is no longer subject to backup withholding, or (iii) the
holder is exempt from backup withholding; and (c) the holder is a U.S. person
(including a U.S. resident alien)). Alternatively, a tendering holder that is a
U.S. person (including a U.S. resident alien individual) may establish another
basis for exemption from backup withholding. A holder that is a U.S. person
(including a U.S. resident alien individual) must cross out item (2) in the
Certification box on Substitute Form W-9 if such holder is subject to backup
withholding. If the tendering holder has not been issued a TIN and has applied
for one, or intends to apply for one in the near future, such holder should
write "Applied For" in the space provided for the TIN in Part I of the
Substitute Form W-9, sign and date the Substitute Form W-9, and sign the
Certificate of Awaiting Taxpayer Identification Number. If "Applied For" is
written in Part I, the Company (or the Paying Agent under the Indenture
governing the Exchange Notes) shall retain the Specified Rate of payments made
to the tendering holder during the sixty (60) day period following the date of
the Substitute Form W-9. If the holder furnishes the Exchange Agent or the
Company with his or her TIN within sixty (60) days after the date of the
Substitute Form W-9, the Company (or the Paying Agent) shall remit such amounts
retained during the sixty (60) day period to the holder and no further amounts
shall be retained or withheld from payments made to the holder thereafter. If,
however, the holder has not provided the Exchange Agent or the Company with his
or her TIN within such sixty (60) day period, the Company (or the Paying Agent)
shall remit such previously retained amounts to the IRS as backup withholding.
In general, if a holder is an individual, the TIN is the Social Security number
of such individual. If the Exchange Agent or the Company is not provided with
the correct TIN, the holder may be subject to a $50 penalty imposed by the IRS.
Failure to comply truthfully with the backup withholding requirements also may
result in the imposition of severe criminal and/or civil fines and penalties.
Certain holders (including, among others, all corporations and certain foreign
persons) are not subject to these backup withholding and reporting requirements.
Exempt holders should furnish their TIN, write "Exempt" on the face of the
Substitute Form W-9, and sign, date and return the Substitute Form W-9. For
further information concerning backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a TIN if you do not
have one and how to complete the Substitute Form W-9 if Initial Notes are
registered in more than one name), consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9."
Generally, each tendering holder that is not a U.S. person (other than
a U.S. resident alien individual) including entities, must submit an appropriate
properly completed IRS Form W-8 BEN, W-8 ECI, W-8 IMY, or W-8 EXP, as
applicable, certifying, under penalties of perjury, to such holder's foreign
status in order to establish an exemption from backup
12
withholding. An appropriate IRS Form W-8 can be obtained from the IRS website
(at http://www.irs.gov).
Failure to complete the Substitute Form W-9 or, in the case of non-U.S.
persons (other than a U.S. resident alien individual), the appropriate IRS Form
W-8, will not, by itself, cause Initial Notes to be deemed invalidly tendered,
but may require the Company (or the Paying Agent) to withhold the Specified Rate
of the amount of any payments made on account of the Exchange Notes. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of a person subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtainable from the IRS, provided the required information is
furnished to the IRS.
6. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Initial Notes to it or its order pursuant to the Exchange Offer. If,
however, Exchange Notes or substitute Initial Notes not tendered or accepted for
exchange are to be delivered to, or are to be registered or issued in the name
of, any person other than the registered holder of the Initial Notes tendered
hereby, or if tendered Initial Notes are registered in the name of any person
other than the person signing this Letter, or if a transfer tax is payable for
any reason other than the transfer of Initial Notes to the Company or its order
pursuant to the Exchange Offer, the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with this Letter, the Company may refuse to register
such Exchange Notes or Initial Notes in the name of any person other than the
registered holder of the Initial Notes tendered and bill the tendering holder
directly for the amount of the transfer taxes.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Initial Notes specified in this Letter.
7. WAIVER OF CONDITIONS.
The Company reserves the absolute right to amend, waive or modify, in
whole or in part, any or all conditions to the Exchange Offer. All conditions to
the Exchange Offer must be satisfied or waived before the Expiration Date. If
the Company waives any condition to the Exchange Offer, the waiver will be
applied equally to all holders of Initial Notes. The Company also reserves the
right to extend or terminate the Exchange Offer.
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders of Initial Notes, by execution of this Letter,
shall waive any right to receive notice of the acceptance of their Initial Notes
for exchange.
Neither the Company, the Exchange Agent nor any other person is under
any duty to give notification of any defects or irregularities with respect to
any tender of Initial Notes.
13
Neither the Company, the Exchange Agent nor any other person will incur any
liability for any failure to give notification of these defects or
irregularities.
9. MUTILATED, LOST, STOLEN OR DESTROYED INITIAL NOTES.
Any holder whose Initial Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions. This Letter and related documents cannot be processed
until the Initial Notes have been replaced. The replacement of mutilated, lost,
stolen or destroyed Initial Notes may require an indemnity undertaking and may
take considerable time to complete. The Company may refuse to accept tenders of
any mutilated, lost, stolen or destroyed Initial Notes that are not replaced to
the Company's satisfaction prior to the expiration of the Exchange Offer.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests
for additional copies of the Prospectus, this Letter and the Notice of
Guaranteed Delivery, may be directed to the Exchange Agent, at the address and
telephone number indicated above.
11. INCORPORATION OF LETTER OF TRANSMITTAL.
This Letter shall be deemed to be incorporated in and acknowledged and
accepted by any tender through the Book-Entry Transfer Facility's ATOP
procedures by any participant on behalf of itself and the beneficial owners of
any Initial Notes so tendered.
12. WITHDRAWALS.
Tenders of Initial Notes may be withdrawn only pursuant to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer-Withdrawal of Tenders."
14
TO BE COMPLETED BY ALL TENDERING HOLDERS THAT ARE U.S. PERSONS
(INCLUDING U.S. RESIDENT ALIENS)
(SEE INSTRUCTION 5)
PLEASE CAREFULLY READ THE IMPORTANT TAX INFORMATION BELOW
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SUBSTITUTE PART I -- PLEASE PROVIDE YOUR TAXPAYER
IDENTIFICATION NUMBER IN THE BOX AT RIGHT ___________________________________
FORM W-9 AND CERTIFY BY SIGNING AND DATING BELOW. Social Security Number(s)
DEPARTMENT OF THE TREASURY See the enclosed "Guidelines for
INTERNAL REVENUE SERVICE Certification of Taxpayer Identification OR
Number on Substitute Form W-9" for
PAYER'S REQUEST FOR TAXPAYER instructions. ___________________________________
IDENTIFICATION NUMBER (TIN) Employer Identification Number(s)
(If awaiting TIN, write "Applied For")
- ------------------------------------------------------------------------------------------------------------------------------------
PART II -- Check this box if you are a U.S. payee exempt from backup withholding (see
PLEASE FILL IN YOUR enclosed Guidelines) [_]
NAME AND ADDRESS BELOW
PART III --CERTIFICATION
NAME:
UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct taxpayer identification number (or I
______________________________________ am waiting for a number to be issued to me), and
ADDRESS (NUMBER AND STREET) (2) I am not subject to backup withholding either because (a) I am exempt from backup
withholding, (b) I have not been notified by the Internal Revenue Service ("IRS")
______________________________________ that I am subject to backup withholding as a result of a failure to report all
CITY, STATE AND ZIP CODE interest or dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding, and
(3) I am a U.S. person (including a U.S. resident alien).
-------------------------------------------------------------------------------------------
______________________________________
STATUS (INDIVIDUAL, CORPORATION,
PARTNERSHIP, OTHER) Signature: _______________________________ Date:____________________________
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CERTIFICATION GUIDELINES--You must cross out item (2) of the above certification if you have been notified by the IRS that you are
subject to backup withholding because of under reporting of interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are
no longer subject to backup withholding, do not cross out item (2).
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- ------------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have
mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center
or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number to the payer, the Specified Rate of all payments made to me on account of the
Exchange Notes shall be retained until I provide a taxpayer identification number to the payer and that, if I do not provide my
taxpayer identification number within sixty (60) days, such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and the Specified Rate of all reportable payments made to me thereafter will be withheld and remitted to the
Internal Revenue Service until I provide a taxpayer identification number.
Signature:_______________________________ Date:________________________
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NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF THE SPECIFIED RATE OF ANY PAYMENTS MADE TO
YOU UNDER THE EXCHANGE NOTES. PLEASE REVIEW THE ENCLOSED "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
15
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. Social Security numbers have nine
digits separated by two hyphens: I.E. 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen: I.E., 00-0000000. The table below will help determine the number to give the payer. All
"Section" references are to the Internal Revenue Code of 1986, as amended (the "Code"). "IRS" is the Internal
Revenue Service.
- -------------------------------------------------------------------------------------------------------------------------------
FOR THIS TYPE OF ACCOUNT: GIVE THE FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL SECURITY NUMBER OF -- EMPLOYER IDENTIFICATION
NUMBER OF --
- -------------------------------------------------------------------- ---------------------------------------------------------
1. An individual's account The individual 7. Corporate account or LLC The corporation
electing corporate
status on Form 8832
- -------------------------------------------------------------------- ---------------------------------------------------------
2. Two or more individuals (joint The actual owner of the 8. Association, club, The organization
account) account or, if combined religious, charitable,
funds, the first individual educational, or other
on the account(1) tax-exempt organization
account
- -------------------------------------------------------------------- ---------------------------------------------------------
3. Custodian account of a minor The minor(2) 9. Partnership account or The partnership
(Uniform Gift to Minors Act) multi-member LLC
- -------------------------------------------------------------------- ---------------------------------------------------------
4. a. The usual revocable The grantor-trustee(1) 10. A broker or registered The broker or nominee
savings trust account (grantor nominee
is also trustee)
b. So-called trust account The actual owner(1)
that is not a legal or valid
trust under State law
- -------------------------------------------------------------------- ---------------------------------------------------------
5. Sole proprietorship account or The owner(3) 11. Account with the The public entity
single-owner LLC Department of
Agriculture in the name
of a public entity (such
as a State or local
government, school
district, or prison)
that receives
agricultural program
payments
- -------------------------------------------------------------------- ---------------------------------------------------------
6. A valid trust, estate, or The legal entity(4)
pension trust
- -------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------
1 List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
2 Circle the minor's name and furnish the minor's social security number.
3 You must show your individual name. You may also enter your business name.
You may use either your Social Security number or your Employer
Identification number.
4 List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the taxpayer identification number of the personal
representative or trustee unless the legal entity itself is not designated
in the account title.)
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME LISTED, THE NUMBER
WILL BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
16
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), Form SS-4, Application for Employer Identification Number, at the
local office of the Social Security Administration or the Internal Revenue
Service (the "IRS") and apply for a number. U.S. resident aliens who cannot
obtain a Social Security number must apply for an ITIN (Individual Taxpayer
Identification Number) on Form W-7.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
o An organization exempt from tax under Section 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), or an individual retirement
plan or a custodial account under Section 403(b)(7) of the Code, if the
account satisfies the requirements of Section 401(f)(2) of the Code.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
o An international organization or any agency or instrumentality thereof.
Other payees that MAY BE EXEMPT from backup withholding include the following:
o A corporation.
o A financial institution.
o A dealer in securities or commodities required to register in the U.S., the
District of Columbia or a possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under Section 584(a) of the Code.
o A trust exempt from tax under Section 664 of the Code or a trust
described in Section 4947 of the Code.
o An entity registered at all times during the tax year under the Investment
Company Act of 1940.
o A foreign central bank of issue.
o A futures commission merchant registered with the Commodity Futures Trading
Commission.
o A middleman known in the investment community as a nominee or custodian.
PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
Payment of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to withholding under Section 1441 of
the Code.
o Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident alien partner.
o Payments of patronage dividends where the amount received is not paid in
money.
o Payments made by certain foreign organizations.
o Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
o Payment of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the payer.
o Payment of tax-exempt interest (including exempt interest dividends under
Section 852 of the Code).
o Payment described in Section 6049(b)(5) to nonresident aliens.
o Payments on tax-free covenant bonds under Section 1451 of the Code.
o Payments made by certain foreign organizations.
o Mortgage or student loan interest paid to you.
Exempt payees described above that are U.S. persons (including a U.S. resident
alien individual) should file Form W-9 to avoid possible erroneous backup
withholding. ENTER YOUR NAME, ADDRESS, STATUS AND TAXPAYER IDENTIFICATION
NUMBER, WRITE "EXEMPT" ON THE FACE OF PART II OF THE FORM, SIGN AND DATE THE
FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN
ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH THE PAYER A COMPLETED
INTERNAL REVENUE FORM W-8BEN, W-8ECI, W-8IMY or W-8EXP, AS APPLICABLE .
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, and
6050A and 6050N of the Code and the regulations promulgated thereunder.
PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividends,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes and to help verify the accuracy of your tax return.
Payers must be given the numbers whether or not recipients are required to file
tax returns. Payers must generally withhold 28% of taxable interest, dividends,
and certain other payments to a payee who does not furnish a taxpayer
identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
(4) MISUSE OF TINS. IF THE REQUESTER DISCLOSES OR USES TINS IN VIOLATION OF
FEDERAL LAW, THE REGISTER MAY BE SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
18
EXHIBIT 99.2
------------
NOTICE OF GUARANTEED DELIVERY
CARNIVAL CORPORATION
OFFER TO EXCHANGE
$550,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 3 3/4% SENIOR NOTES DUE 2007,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR
A LIKE AGGREGATE PRINCIPAL AMOUNT OF ITS 3 3/4% SENIOR NOTES DUE 2007
This form or one substantially equivalent hereto must be used to accept
the Exchange Offer of Carnival Corporation (the "Company") made pursuant to the
prospectus, dated [ ], 2004 (the "Prospectus"), if any certificates for the
outstanding $550,000,000 aggregate principal amount of its 3 3/4% Senior Notes
due 2007 (the "Initial Notes") are not immediately available or if the procedure
for book-entry transfer cannot be completed on a timely basis or time will not
permit all required documents to reach the Exchange Agent prior to 5:00 p.m.,
New York City time, on the Expiration Date of the Exchange Offer. Such form may
be delivered or transmitted by facsimile transmission, mail or hand delivery to
U.S. Bank National Association (the "Exchange Agent") as set forth below. In
addition, in order to utilize the guaranteed delivery procedure to tender the
Initial Notes pursuant to the Exchange Offer, a completed, signed and dated
letter of transmittal (the "Letter of Transmittal") (or facsimile thereof), must
also be received by the Exchange Agent prior to 5:00 p.m., New York City time,
on the Expiration Date. Certificates for all tendered Initial Notes in proper
form for transfer or a book-entry confirmation, as the case may be, and all
other documents required by the Letter of Transmittal must be received by the
Exchange Agent within three New York Stock Exchange trading days after the
Expiration Date. Capitalized terms not defined herein are defined in the Letter
of Transmittal.
DELIVERY TO:
U.S. BANK NATIONAL ASSOCIATION
EXCHANGE AGENT
BY REGISTERED OR CERTIFIED MAIL: BY FACSIMILE:
U.S. Bank National Association (for eligible institutions only)
EP-MN-WS2N (651) 495-8158
60 Livingston Avenue
St. Paul, MN 55107 CONFIRM BY TELEPHONE:
Attention: Specialized Finance Department (800) 934-6802
BY OVERNIGHT COURIER OR HAND:
U.S. Bank National Association
EP-MN-WS2N
60 Livingston Avenue
St. Paul, MN 55107
Attention: Specialized Finance Department
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
2
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the principal amount of Initial Notes set forth below, pursuant to the
guaranteed delivery procedure described in "The Exchange Offer--Procedures for
Tendering Initial Notes" section of the Prospectus.
Principal Amount of Initial Notes
Tendered (1)
$_____________________________________
Certificate Nos. (if available):
______________________________________
If Initial Notes will be delivered
Total Principal Amount Represented by by book-entry transfer to The
Initial Notes Certificate(s): Depository Trust Company, provide
account number.
$_____________________________________ Account Number____________________
- --------------------------------------------------------------------------------
ANY AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE DEATH
OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED
HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
AND ASSIGNS OF THE UNDERSIGNED.
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
X________________________________________________ __________________________
X________________________________________________ __________________________
Signature(s) of Owner(s) or Authorized Signatory Date
Area Code and Telephone Number:_______________________
Must be signed by the holder(s) of Initial Notes as their name(s)
appear(s) on certificate(s) for Initial Notes or on a security position listing,
or by person(s) authorized to become registered holder(s) by endorsement and
documents transmitted with this Notice of Guaranteed Delivery. If signature is
by a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
set forth his or her full title below.
- -------------------
(1) Must be in denominations of principal amount of $1,000 and any integral
multiple thereof.
3
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s): ____________________________________________________________________
____________________________________________________________________
Capacity: ____________________________________________________________________
____________________________________________________________________
Address(es):____________________________________________________________________
____________________________________________________________________
4
GUARANTEE
The undersigned, a member of a registered national securities exchange,
or a member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the United
States, hereby guarantees that the certificates representing the principal
amount of Initial Notes tendered hereby in proper form for transfer, or timely
confirmation of the book-entry transfer of such Initial Notes into the Exchange
Agent's account at The Depository Trust Company pursuant to the procedures set
forth in "The Exchange Offer--Procedures for Tendering Initial Notes" section of
the Prospectus, together with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) with any required signature
guarantee and any other documents required by the Letter of Transmittal, will be
received by the Exchange Agent at the address set forth above, no later than
three New York Stock Exchange trading days after the date of execution hereof.
____________________________________________ _________________________________
Name of Firm Authorized Signature
____________________________________________ _________________________________
Address Title
____________________________________________ Name:____________________________
Zip Code (Please Type or Print)
Area Code and Tel. No.______________________ Dated:___________________________
NOTE: DO NOT SEND CERTIFICATES FOR INITIAL NOTES WITH THIS FORM. CERTIFICATES
FOR INITIAL NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.