As filed with the Securities and
Exchange Commission on March 23, 2009
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION STATEMENT
UNDERTHE SECURITIES ACT OF
1933
ROYAL CARIBBEAN CRUISES
LTD.
(Exact Name of Registrant as
Specified in Its Charter)
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Republic of Liberia
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98-0081645
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer Identification
Number)
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1050
Caribbean Way
Miami, Florida 33132
(305) 539-6000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Bradley H.
Stein, Esq.
Senior Vice President, General
Counsel and Secretary
Royal Caribbean Cruises
Ltd.
1050 Caribbean Way
Miami, Florida 33132
(305) 539-6000
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
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Joseph A. Hall, Esq.
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Valerie Ford Jacob, Esq.
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Davis Polk & Wardwell
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Fried, Frank, Harris, Shriver & Jacobson LLP
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450 Lexington Avenue
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One New York Plaza
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New York, New York 10017
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New York, New York 10004
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(212) 450-4000
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(212) 859-8000
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Approximate date of commencement of proposed sale to the
public
: From time to time after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
x
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.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) 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.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
x
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company (See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act).
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x
Large
accelerated filer
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Accelerated
filer
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Non-accelerated
filer (Do not check if a smaller reporting company)
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Smaller
reporting company
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Amount to Be
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Proposed Maximum
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Aggregate Offering
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Amount of
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Title of Each Class of Securities to Be Registered
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Registered(1)
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Offering Price per Unit(1)
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Price(1)
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Registration Fee(2)
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Common stock, par value $0.01 per share
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Preferred stock, par value $0.01 per share
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Debt securities
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(1)
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An indeterminate amount of
securities to be offered at indeterminate prices is being
registered pursuant to this registration statement.
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(2)
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On July 31, 2006, the
registrant filed an automatic shelf registration statement on
Form S-3
(File
No. 333-136186)
that carried forward $10,700 in unused filing fees. No
securities were offered or sold pursuant to such registration
statement. Pursuant to Rule 457(p), the $10,700 in unused
filing fees will be applied to registration fees which may
become payable pursuant to this registration statement. The
registrant is otherwise deferring payment of the filing fees
pursuant to Rule 456(b) and is omitting this information in
reliance on Rule 456(b) and Rule 457(r).
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Royal Caribbean Cruises
Ltd.
Common Stock
Preferred Stock
Debt Securities
From time to time with this prospectus, Royal Caribbean Cruises
Ltd. may offer common stock, preferred stock and debt
securities, and certain shareholders may offer common stock.
Specific terms of these securities and offerings will be
provided in supplements to this prospectus. You should read this
prospectus and any supplement carefully before you invest.
Investing in these securities involves risks. See
Item 1A. Risk Factors in our most recent Annual
Report on
Form 10-K
and our most recent Quarterly Report on
Form 10-Q
filed with the Securities and Exchange Commission.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved 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 March 23, 2009.
You should rely only on the information contained in or
incorporated by reference in this prospectus, in any
accompanying prospectus supplement or in any free writing
prospectus filed by us with the Securities and Exchange
Commission (the SEC). We have not authorized anyone
to provide you with different information. We are not making an
offer of these securities in any state where the offer is not
permitted. You should not assume that the information contained
in or incorporated by reference in this prospectus or any
prospectus supplement or in any such free writing prospectus is
accurate as of any date other than their respective dates.
TABLE OF
CONTENTS
THE
COMPANY
We are the worlds second largest cruise company operating
38 ships in the cruise vacation industry with approximately
78,650 berths as of December 31, 2008. We own five cruise
brands, Royal Caribbean International, Celebrity Cruises,
Pullmantur, Azamara Cruises, and CDF Croisières de France.
In addition, we have a 50% investment in a joint venture with
TUI AG which operates the brand TUI Cruises. Our cruise brands
primarily serve the contemporary, premium and deluxe segments of
the cruise vacation industry, which also includes the budget and
luxury segments. Our ships operate on a selection of worldwide
itineraries that call on approximately 425 destinations. We
compete principally on the basis of quality of ships, quality of
service, variety of itineraries and price.
Royal Caribbean International was founded in 1968. The current
parent corporation, Royal Caribbean Cruises Ltd., was
incorporated on July 23, 1985 in the Republic of Liberia
under the Business Corporation Act of Liberia. Our headquarters
are located at 1050 Caribbean Way, Miami, Florida 33132. Our
telephone number at that address is
(305) 539-6000.
We maintain internet websites at
www.royalcaribbean.com
,
www.celebrity.com
,
www.azamaracruises.com
,
www.cdfcroisieresdefrance.fr
and
www.pullmantur.es
. Information for our investors is
available at
www.rclinvestor.com
. The information on our
websites is not incorporated into this prospectus.
The terms we, our and similar terms used
in the descriptions of securities contained in this prospectus
refer to Royal Caribbean Cruises Ltd. only, and not to its
subsidiaries, unless the context requires otherwise.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC utilizing a shelf registration
process. Under this shelf process, we may sell any combination
of the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we sell
securities under this prospectus, we will provide a prospectus
supplement that
will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
ENFORCEABILITY
OF CIVIL LIABILITIES
We are a Liberian corporation. Certain of our directors and
controlling persons are residents of jurisdictions other than
the United States, and all or a substantial portion of their
assets and a significant portion of our assets are located
outside the United States. As a result, it may be difficult for
investors to serve process within the United States upon us or
those persons or to enforce against us or them judgments
obtained in United States courts based upon civil liability
provisions of the federal securities laws of the United States.
We have been advised by the law firm of Watson,
Farley & Williams (New York) LLP (as to Liberian law),
that, both in original actions and in actions for the
enforcement of judgments of United States courts, there is doubt
as to whether civil liabilities based solely upon the United
States federal securities laws are enforceable in Liberia.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
document that we file at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the Public Reference
Room by calling the SEC at
1-800-SEC-0330.
In addition, the SEC maintains an Internet site at
www.sec.gov
, from which interested persons can
electronically access our SEC filings, including the
registration statement and the exhibits and schedules thereto.
The SEC allows us to incorporate by reference the
information that we file with them. This allows us to disclose
important information to you by referring to those filed
documents. Any information referred to in this way is considered
part of this prospectus, and any information that we file with
the SEC after the date of this prospectus will automatically
update and supersede this information.
We are incorporating by reference the documents listed below,
and all documents that we file after the date of this prospectus
with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 prior to the termination
of the offering of securities covered by this prospectus:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2008;
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Our Definitive Proxy Statement on Schedule 14A filed with
the SEC on April 11, 2008 and
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Our Current Reports on
Form 8-K
filed with the SEC on February 3, 2009 and March 4,
2009.
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Unless we specifically state otherwise, none of the information
furnished under Item 2.02 or Item 7.01 in our Current
Reports on
Form 8-K
is, or will be, incorporated by reference in this prospectus.
We will provide to each person, including any beneficial owner,
to whom a prospectus has been delivered, free of charge, upon
oral or written request copies of any documents that we have
incorporated by reference into this prospectus. You can obtain
copies through our Investor Relations website at
www.rclinvestor.com
or by contacting our Investor
Relations department at 1050 Caribbean Way, Miami, Florida
33132; telephone
(305) 982-2625.
USE OF
PROCEEDS
Unless we specify otherwise in an accompanying prospectus
supplement, we will use the net proceeds from the sale of the
securities offered by this prospectus for capital expenditures,
the repayment of indebtedness, working capital and other general
corporate purposes.
We will not receive any of the proceeds of any sales of common
stock by the selling shareholders.
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RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges for each of the periods presented. In calculating this
ratio, we take earnings to consist of income before the
cumulative effect of a change in accounting principle, excluding
taxes and income (loss) from equity investees, 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 included actual interest charges for the
Brilliance of the Seas
operating lease and, for all other
rentals, we have assumed that one-third of rental expense is
representative of the interest factor.
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Year Ended December 31,
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed charges
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2.3
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2.4
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2.9
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3.1
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2.4x
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DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists of 500,000,000 shares
of common stock, par value $.01 per share, and
20,000,000 shares of preferred stock, par value $.01 per
share. The following summary description of the terms of our
capital stock is not complete and is qualified by reference to
our Restated Articles of Incorporation and By-Laws, copies of
which we have filed as exhibits to the registration statement of
which this prospectus is part, and the certificate of
designations which we will file with the SEC at the time of any
offering of our preferred stock.
Common
Stock
General
Our directors generally have the power to cause shares of any
authorized class of our common stock to be issued for any
corporate purpose.
Holders of our common stock are entitled to one vote per share
on all matters submitted to our shareholders, and unless the
Business Corporation Act of Liberia otherwise provides, the
presence in person or by proxy of the holders of a majority of
all of our outstanding common stock at any meeting of
shareholders will constitute a quorum for the transaction of
business at that meeting. We cannot subject the holders of our
common stock to further calls or assessments. Under our Restated
Articles of Incorporation, holders of our common stock will have
no preemptive, subscription or conversion rights.
Neither Liberian law nor our Restated Articles of Incorporation
nor any of our other organizational documents limit the right of
persons who are not citizens or residents of Liberia to hold or
vote our common stock. However, in May 2000, our Restated
Articles of Incorporation were amended to prohibit any person,
other than our two existing largest shareholders, from owning,
as determined for purposes of Section 883(c)(3) of the
United States Internal Revenue Code of 1986 as amended, and the
regulations promulgated thereunder, shares that give such person
in the aggregate more than 4.9% of the relevant class or classes
of our common stock.
Dividends
Holders of our common stock have an equal right to receive
dividends when declared by our board of directors out of funds
legally available for the distribution of dividends.
Sales
of Assets, Liquidation and Mergers
Under the Business Corporation Act of Liberia, the holders of
66% of the outstanding shares of our common stock need to
approve the sale of all or substantially all of our assets and
any decisions by us to liquidate or dissolve. However, holders
of only one-half of the outstanding shares of our common stock
may
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elect to institute judicial dissolution proceedings on our
behalf under the Business Corporation Act of Liberia. In the
event of our liquidation or dissolution, the holders of our
common stock will be entitled to share pro rata in the net
assets available for distribution to them, after we have paid
amounts owed to all creditors and we have paid holders of our
outstanding preferred stock the liquidation preferences they are
entitled to.
Under the Business Corporation Act of Liberia, the holders of a
majority of the outstanding shares of our common stock need to
approve a merger or consolidation involving us (other than a
merger or consolidation with any of our subsidiaries of which we
own at least 90%).
Call
of Meetings
Our By-Laws provide that special meetings of our shareholders
can be called at any time by either our board of directors, the
Chief Executive Officer, or by our shareholders holding at least
50% of our outstanding common stock. In addition, our
shareholders may call for meetings of shareholders if there has
been a failure to hold an annual meeting.
Election
of Directors
Our directors are elected, at either any annual meeting or any
special meeting, by a majority of the votes cast by shareholders
entitled to vote, and cumulative voting is not permitted.
Vacancies on our board of directors are filled by the vote of a
majority of the remaining board members for the unexpired term.
Our board of directors is divided into three classes:
Class I, Class II and Class III, with the
directors in each class to hold office for staggered terms of
three years each.
Amendments
to Our Charter and By-Laws
Any amendment to our Restated Articles of Incorporation or any
shareholder proposal to amend our By-Laws generally requires the
authorization by affirmative vote of the holders of not less
than two-thirds of all outstanding shares entitled to vote. This
requirement does not apply to (1) an amendment to change
our registered agent or registered address; (2) an
amendment to change the authorized number of shares of stock; or
(3) an amendment for establishing and designating the
shares of any class or of any series of any class. In the first
two cases, our Restated Articles of Incorporation can be amended
by the affirmative vote of the holders of a majority of all of
our outstanding shares entitled to vote. In the third case, our
board of directors has the power to establish and designate new
classes of preferred stock. In addition, our board of directors
has the power to adopt, amend or repeal our By-Laws.
Dissenters
Rights of Appraisal and Payment
Under Liberian law, our shareholders have the right to dissent
from various corporate actions, including any merger or sale of
all or substantially all of our assets not made in the usual
course of our business, and have the right to receive payment of
the fair value of their shares. If we amend our Restated
Articles of Incorporation in a way that alters certain rights of
any of our shareholders, those shareholders have the right to
dissent and receive payment for their shares. The dissenting
shareholders may not receive that payment unless they follow the
procedures set forth in the Business Corporation Act of Liberia.
Those procedures require that proceedings be instituted in the
circuit court in the judicial circuit in Liberia in which our
Liberian office is situated if we cannot agree with our
dissenting shareholders on a price for the shares. The value of
the shares of any dissenting shareholder is fixed by the court
after reference, if the court so elects, to the recommendations
of a court-appointed appraiser.
Shareholders
Actions
Under Liberian law, any of our shareholders may bring an action
in our name to procure a judgment in our favor, provided that
shareholder is a holder of our common stock both at the time the
action is commenced and at the time of the transaction to which
the action relates.
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Limitations
Under Indebtedness
Agreements governing certain of our indebtedness contain
covenants that impose restrictions (subject to some exceptions)
on us and our subsidiaries ability to take certain
corporate actions.
Certain
Corporate Actions
Our Restated Articles of Incorporation provide that during the
period that the Shareholders Agreement dated as of
February 1, 1993 between A. Wilhelmsen AS. and Cruise
Associates remains in effect, our board of directors may not
approve certain corporate actions unless those actions are
approved by one non-independent director nominated by A.
Wilhelmsen AS. and one non-independent director nominated by
Cruise Associates.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company.
Preferred
Stock
The material terms of any series of preferred stock that we
offer though a prospectus supplement will be described in that
prospectus supplement. Our board of directors is authorized to
provide for the issuance of preferred stock in one or more
series with designations as may be stated in the resolution or
resolutions providing for the issue of such preferred stock. At
the time that any series of our preferred stock is authorized,
our board of directors will fix the dividend rights, any
conversion rights, any voting rights, redemption provisions,
liquidation preferences and any other rights, preferences,
privileges and restrictions of that series, as well as the
number of shares constituting that series and their designation.
Our board of directors could, without shareholder approval,
cause us to issue preferred stock which has voting, conversion
and other rights that could adversely affect the holders of our
common stock or make it more difficult to effect a change in
control. Our preferred stock could be used to dilute the stock
ownership of persons seeking to obtain control of us and thereby
hinder a possible takeover attempt which, if our shareholders
were offered a premium over the market value of their shares,
might be viewed as being beneficial to our shareholders. In
addition, our preferred stock could be issued with voting,
conversion and other rights and preferences which would
adversely affect the voting power and other rights of holders of
our common stock.
Liability
of Directors and Officers
Our Restated Articles of Incorporation and By-Laws contain
provisions which eliminate the personal liability of our
directors and officers for monetary damages resulting from
breaches of their fiduciary duties other than liability for:
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breaches of the duty of loyalty;
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acts or omissions not in good faith;
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acts or omissions which involve intentional misconduct or a
knowing violation of law or
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any transactions in which the director derived an improper
personal benefit.
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We believe that these provisions are necessary to attract and
retain qualified persons as our directors and officers.
DESCRIPTION
OF DEBT SECURITIES
The following summarizes some of the general terms and
conditions of the debt securities that we may issue under this
prospectus. Each time we issue debt securities under this
prospectus, we will file a prospectus supplement with the SEC.
The prospectus supplement may contain additional terms of those
debt securities. The terms presented here, together with the
terms contained in the prospectus supplement, will be a
description of the material terms of the debt securities, but if
there is any inconsistency between the terms
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presented here and those in the prospectus supplement, those in
the prospectus supplement will apply and will replace those
presented here.
We will issue the debt securities under an indenture dated as of
July 31, 2006 between us and The Bank of New York
Trust Company, N.A., as trustee. We will issue each series
of debt securities under the terms of a supplemental indenture
or an officers certificate delivered under the authority
of resolutions adopted by our board of directors and the
indenture. The terms of any debt securities will include those
stated in the indenture and those made part of the indenture by
reference to the Trust Indenture Act of 1939. The debt
securities will be subject to all those terms, and we refer the
holders of debt securities to the indenture and the
Trust Indenture Act for a statement of those terms.
The following summaries of various provisions of the indenture
and the debt securities are not complete. Unless we indicate
otherwise, capitalized terms have the meanings given to them in
the indenture. All section references below are to sections of
the indenture.
General
The debt securities will be unsecured senior obligations and
will rank equally with all of our other unsecured and
unsubordinated debt. The indenture does not limit the aggregate
principal amount of debt securities that we may issue, and we
may issue debt securities periodically in series. In addition,
the indenture does not limit the ability of our subsidiaries to
incur debt other than secured debt. Any debt incurred by our
subsidiaries ranks structurally senior to any debt incurred by
us with respect to the assets of the subsidiary borrower (unless
that subsidiary issues a subsidiary guarantee). We do not have
to issue all the debt securities of one series at the same time
and, unless we otherwise specify in a prospectus supplement, we
may reopen a series to issue more debt securities of that series
without the consent of any holder of debt securities.
(Sections 301 and 303) The indenture provides that
more than one trustee may be appointed under the indenture to
act on behalf of the holders of the different series of debt
securities.
We refer you to the prospectus supplement relating to the debt
securities of any particular series for a description of the
terms of those debt securities, including, where applicable:
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the title of those debt securities;
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the aggregate principal amount of those debt securities and any
limit on the aggregate principal amount of those debt securities
and whether the debt securities are part of a series of
securities previously issued or represent a new series;
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the person to whom any interest (which includes any additional
amounts, see Tax Related
Considerations
Payment of Additional
Amounts
) on those debt securities will be payable, if
not the person in whose name a debt security is registered at
the close of business on the regular record date for that
interest;
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the date or dates on which the principal of those debt
securities is payable, or the method by which that date or those
dates will be determined;
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the interest rate or rates, which may be fixed or variable, of
those debt securities, if there is any interest, or the method
by which that rate or those rates will be determined;
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the date or dates from which interest will accrue and the dates
on which interest will be payable;
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the regular record date for any interest payable on any interest
payment date or the method by which that date will be determined;
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the basis upon which interest will be calculated if not based on
a
360-day
year of twelve
30-day
months;
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the place or places where the principal of and any premium and
interest on those debt securities will be payable;
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the times at which, prices at which, currency in which and the
other terms and conditions upon which those debt securities may
be redeemed, in whole or in part, at our option;
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any obligation we have to redeem, repay, or purchase those debt
securities according to any sinking fund or similar provisions
or at a holders option and the times at which, prices at
which, currency in which and the other terms and conditions upon
which those debt securities will be redeemed, repaid or
purchased;
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our right to defease those debt securities or various
restrictive covenants and events of default applicable to those
debt securities under limited circumstances (see
Defeasance
Defeasance and
Discharge
and Defeasance
Defeasance of Certain Covenants
)
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if not in United States dollars, the currency in which we are to
pay principal of and any premium and interest on those debt
securities and the equivalent of those amounts in United States
dollars;
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any index, formula or other method used to determine the amount
of the payments of principal of or any premium and interest on
those debt securities;
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if those debt securities are to be issued only in the form of a
global security as described under Book-Entry Debt
Securities, the depositary for those debt securities or
its nominee and the circumstances under which the global
security may be registered for transfer or exchange or
authenticated and delivered in the name of a person other than
the depositary or its nominee;
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if any payment, other than the principal of or any premium or
interest on those debt securities, may be payable, at our or a
holders election, in a currency that is not the currency
in which those debt securities are denominated or stated to be
payable, the terms and conditions upon which that election may
be made;
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if not the entire principal amount of those debt securities, the
portion of the principal amount of those debt securities which
will be payable upon declaration of acceleration or, if the debt
securities are convertible, the portion of the principal amount
of those debt securities that is convertible under the
provisions of the indenture;
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any provisions granting special rights to the holders of those
debt securities if specified events occur;
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any deletions from, modifications of or additions to, the events
of default or our covenants applicable to those debt securities,
whether or not those events of default or covenants are
consistent with the events of default or covenants described in
this prospectus;
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whether and under what circumstances we will not pay additional
amounts on those debt securities to a holder and whether or not
we may redeem those debt securities rather than pay those
additional amounts and the terms of that option to redeem;
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any obligation we have to convert those debt securities into
shares of our common stock or preferred stock and the initial
conversion price or rate, the conversion period, any adjustment
of the applicable conversion price, any requirements regarding
the reservation of shares of our capital stock for the
conversion and other terms and conditions of the
conversion and
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any other terms of those debt securities. (Section 301)
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The debt securities may provide that less than their entire
principal amount will be payable upon acceleration of their
maturity (original issue discount securities). We
will describe any special United States federal income tax,
accounting and other considerations that apply to original issue
discount securities in the applicable prospectus supplement.
7
Denominations,
Interest, Registration and Transfer
Unless we indicate otherwise in the applicable prospectus
supplement, we will issue the debt securities of any series in
denominations of $1,000 and integral multiples of $1,000.
(Section 302)
Unless we otherwise specify in the applicable prospectus
supplement, we will pay the principal of and any premium and
interest on any series of debt securities at the corporate trust
office of the trustee, currently located at 10161 Centurion
Parkway, Jacksonville, FL 32256. However, we may pay interest by
check mailed to the address in the security register of the
person entitled to that interest or by wire transfer of funds to
that persons United States bank account.
(Sections 307 and 1002)
Any interest on a debt security that we do not punctually pay or
provide for on an interest payment date will after that date not
be payable to the holder on the related regular record date.
Instead, that interest may either be paid to the person in whose
name that debt security is registered at the close of business
on a special record date designated by the trustee or be paid at
any time in any other lawful manner as described in the
indenture. If the trustee establishes a special record date, it
will notify the holder of that date not less than 10 days
prior to that date. (Section 307)
Subject to some limitations imposed on debt securities issued in
book-entry form, a holder may exchange debt securities of any
series for other debt securities of that series as long as the
newly issued debt securities are issued in the same aggregate
principal amount as the debt securities being exchanged and in
an authorized denomination. The holder must surrender the debt
securities to be exchanged at the corporate trust office of the
trustee. In addition, subject to some limitations imposed on
debt securities issued in book-entry form, a holder may
surrender for conversion, if convertible, or register for
transfer the debt securities of any series at the corporate
trust office of the trustee. Every debt security surrendered for
conversion or registration of transfer or exchange must be
endorsed or accompanied by a written instrument of transfer. We
will not impose a service charge for any registration of
transfer or exchange of any debt securities, but we may require
payment of an amount that will cover any tax or other
governmental charge payable as a result of the transfer or
exchange. (Section 305) If we designate a transfer
agent for any series of debt securities, we may rescind that
designation at any time. We may also approve a new location for
that transfer agent to act, provided that we maintain a transfer
agent in each place of payment for that series of debt
securities. We may at any time designate additional transfer
agents for any series of debt securities. (Section 1002)
In the event of any redemption of any series of debt securities
in part, neither we nor the trustee will be required to:
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issue, register the transfer of or exchange debt securities of
that series during the period beginning at the opening of
business 15 days before the mailing of the redemption
notice for those debt securities and ending at the close of
business on the mailing date of the redemption notice or
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register the transfer of or exchange any debt security or any
portion of a debt security called for redemption, except the
unredeemed portion of any debt security being redeemed in part.
(Section 305)
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Covenants
We will describe any particular covenants relating to a series
of debt securities in the prospectus supplement relating to that
series. We will also state in that prospectus supplement whether
the covenant defeasance provisions described below
will apply to those covenants.
Restrictions
on Consolidation, Merger and Certain Sales of Assets
Without the consent of the holders, we may consolidate with or
merge with or into, or convey, transfer or lease our properties
and assets substantially as an entirety to, any person and may
permit any person to merge with or into, or convey, transfer or
lease its properties and assets substantially as an entirety to
us if:
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immediately after giving effect to that transaction, and
treating any indebtedness that becomes our obligation as a
result of the transaction as having been incurred by us at the
time of the transaction, no
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event of default and no event which after notice or lapse of
time or both would become an event of default shall have
occurred and be continuing and
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the successor person assumes all our obligations under the
indenture;
provided
that the successor person is a
corporation, trust or partnership organized under the laws of
the United States, any state of the United States, the District
of Columbia, the Republic of Liberia or any country recognized
by the United States. (Section 801)
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Events of
Default
Except as we may otherwise provide in a prospectus supplement
for any particular series of debt securities, the following
events are events of default for any series of debt
securities:
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our failure to pay interest or any additional amounts on those
debt securities for 30 days after that interest or those
additional amounts become due;
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our failure to pay the principal or any premium on those debt
securities when due at maturity;
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our failure to deposit any sinking fund payment for those debt
securities when due;
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our failure to perform any other covenants in the indenture for
60 days after written notice has been given as provided in
the indenture;
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our failure to pay when due any payment on, or the acceleration
of, any of our indebtedness for money borrowed that exceeds
$50 million in the aggregate under any mortgages,
indentures (including the indenture for the debt securities) or
instruments under which we may have issued, or which there may
have been secured or evidenced, any of our indebtedness for
money borrowed, if that indebtedness is not discharged or the
acceleration is not annulled within 30 days after written
notice has been given as provided in the indenture;
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the occurrence of certain events of bankruptcy, insolvency or
reorganization or
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the occurrence of any other event of default that we provide for
debt securities of that series. (Section 501)
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If an event of default affecting any series of debt securities
occurs and continues, either the trustee or the holders of at
least 25% of the aggregate principal amount of the debt
securities of that series then outstanding may declare the
principal amount (or, if the debt securities of that series are
original issue discount securities or indexed securities, the
portion of the principal amount specified in the terms of that
series) of all of the debt securities of that series to be
immediately due and payable. At any time after a declaration of
acceleration affecting debt securities of any series has been
made, but before a judgment or decree based on acceleration has
been obtained, the holders of a majority in principal amount of
the debt securities outstanding of that series may, under
limited circumstances, rescind and annul that acceleration.
(Section 502)
The indenture requires that we file annually with the trustee a
certificate of our principal executive, financial or accounting
officer as to his or her knowledge of our compliance with all
conditions and covenants of the indenture. (Section 1005)
We refer you to the prospectus supplement relating to each
series of debt securities that are original issue discount
securities for the particular provisions regarding acceleration
of the maturity of a portion of the principal amount of those
original issue discount securities if an event of default occurs
and continues.
Subject to the provisions of the indenture relating to the
trustees duties, if an event of default occurs and
continues, the indenture provides that the trustee is not
required to exercise any of its rights or powers under the
indenture at the request, order or direction of holders unless
those holders have offered to the trustee reasonable indemnity.
(Section 603) Subject to those provisions regarding
indemnification and rights of the trustee, the indenture
provides that the holders of a majority in principal amount of
the debt securities then outstanding have the right 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. (Section 512)
9
Defeasance
The obligations that we have under the indenture will not apply
to the debt securities of a series (except for our obligations
to register any transfer or exchange of those debt securities
and provide for additional amounts) when all those debt
securities:
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have been delivered to the trustee for cancellation;
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have become due and payable or
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will upon their stated maturity or redemption within one year
become due and payable,
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and we have irrevocably deposited with the trustee as trust
funds for that purpose an amount sufficient to pay and discharge
the entire indebtedness on those debt securities.
(Section 401)
The prospectus supplement relating to the debt securities of any
series will state if any additional defeasance provisions will
apply to those debt securities.
Defeasance
and Discharge
The indenture allows us to elect to defease and be discharged
from all of our obligations with respect to any series of debt
securities then outstanding (except for those obligations to pay
additional amounts, register the transfer or exchange of the
debt securities, replace stolen, lost or mutilated debt
securities, maintain paying agencies and hold moneys for payment
in trust) provided the following conditions have been satisfied:
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We have deposited in trust with the trustee (a) funds in
the currency in which the debt securities are payable, or
(b) if the debt securities are denominated in United States
dollars, (A) United States Government Obligations or
(B) a combination of United States dollars and United
States Government Obligations in each case, in an amount
sufficient to pay and discharge the principal, interest, premium
and any mandatory sinking fund payments on the outstanding debt
securities of the series and
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We have delivered to the trustee an opinion of counsel that
states that the discharge will not be considered, or result in,
a taxable event to the holders of the debt securities of the
series. (Section 403)
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Defeasance
of Certain Covenants
The indenture states that if the debt securities of a series so
provide, we need not comply with some restrictive covenants
applicable to those debt securities (except for our obligation
to pay additional amounts) and that our failure to comply with
those covenants will not be considered events of default under
the indenture and those debt securities if the following
conditions have been satisfied:
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We have deposited in trust with the trustee (a) funds in
the currency in which the debt securities are payable, or
(b) if those debt securities are denominated in United
States dollars, (A) United States Government Obligations or
(B) a combination of United States dollars and United
States Government Obligations in each case, in an amount
sufficient to pay and discharge the principal, interest, premium
and any mandatory sinking fund payments on the outstanding debt
securities of the series and
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We have delivered to the trustee an opinion of counsel that
states that the discharge will not be considered, or result in,
a taxable event to the holders of the debt securities of the
series. (Section 1004)
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Modification
of the Indenture
We and the trustee may modify or amend the indenture if we
obtain the consent of the holders of a majority in aggregate
principal amount of the outstanding debt securities of each
series affected by the modification or amendment. However, the
indenture may not be modified or amended to:
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change the stated maturity of the principal of, or any
installment of principal of or any interest on, any debt
security;
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reduce the principal amount of any debt security;
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reduce the rate of interest on any debt security;
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reduce any additional amounts payable on any debt security;
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reduce any premium payable upon the redemption of any debt
security;
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reduce the amount of the principal of an original issue discount
security that would be due and payable upon a declaration of
acceleration of its maturity under the terms of the indenture;
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change any place of payment where, or the currency in which any
debt security or any premium or interest on that debt security
is payable;
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impair the right to institute suit for the enforcement of any
payment of principal of or premium or any interest on any debt
security on or after its stated maturity, or, in the case of
redemption, on or after the redemption date;
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reduce the percentage in principal amount of the outstanding
debt securities of any series, the consent of whose holders is
required for the supplemental indenture;
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reduce the percentage in principal amount of the outstanding
debt securities of any series, the consent of whose holders is
required for any waiver of compliance with certain provisions of
the indenture or certain defaults under the indenture and their
consequences or
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modify any of the provisions relating to supplemental
indentures, waiver of past defaults or waiver of certain
covenants, except to increase the percentage in principal amount
of the outstanding debt securities of a series required for the
consent of holders to approve a supplemental indenture or a
waiver of a past default or compliance with certain covenants or
to provide that certain other provisions of the indenture cannot
be modified or waived without the consent of the holder of each
outstanding debt security that would be affected by such a
modification or waiver,
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without the consent of the holders of each of the debt
securities affected by that modification or amendment. (Section
902)
We and the trustee may amend the indenture without notice to or
the consent of any holder of debt securities for any of the
following purposes:
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to evidence that another person is our successor and that that
person has assumed our covenants in the indenture and in the
debt securities as obligor;
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to add to our covenants for the benefit of the holders of all or
any series of debt securities;
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to surrender any right or power conferred upon us in the
indenture;
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to add additional events of default;
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to add or change any provisions of the indenture to the extent
necessary to permit or facilitate issuing debt securities in
bearer form, whether registrable or not as to principal, and
with or without interest coupons;
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to permit or facilitate the issuance of debt securities in
uncertificated form;
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to add to, change or eliminate any of the provisions of the
indenture affecting one or more series of debt securities,
provided that the addition, change or elimination
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shall not (X) apply to debt securities of any series
created before the execution of the supplemental indenture and
entitled to the benefit of that provision or (Y) modify the
rights of any holder of those outstanding debt securities with
respect to such provision or
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shall become effective only when there are no such debt
securities of that series outstanding;
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to establish the form or terms of debt securities of any series
as permitted by the indenture, including any provisions and
procedures relating to debt securities convertible into our
common stock or preferred stock;
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to evidence and provide for the acceptance of appointment of a
successor trustee for the debt securities of one or more series
and to add to or change any of the provisions of the indenture
necessary to provide for or facilitate the administration of the
trusts under the indenture by more than one trustee;
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to secure the debt securities;
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to supplement any of the provisions of the indenture to the
extent necessary to permit or facilitate the defeasance and
discharge of any series of debt securities under the indenture
if doing so does not adversely affect the interests of the
holders of debt securities of that series or any other series in
any material way;
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to cure any ambiguity, to correct or supplement any provision in
the indenture which may be inconsistent with any other provision
in the indenture if doing so does not adversely affect the
interests of the holders of debt securities of that series or
any other series in any material way or
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to make any other provisions regarding matters or questions
arising under the indenture if doing so does not adversely
affect the interests of the holders of debt securities of that
series or any other series in any material way.
(Section 901)
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Conversion
Rights
We will describe any terms and conditions upon which the debt
securities are convertible into our common stock or preferred
stock in the applicable prospectus supplement. Those terms will
include:
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whether those debt securities are convertible into our common
stock or preferred stock;
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the conversion price or manner of calculating the conversion
price;
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the conversion period;
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provisions as to whether conversion will be at our option or the
option of the holders;
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the events requiring an adjustment of the conversion
price and
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provisions affecting conversion in the event of the redemption
of those debt securities. (Section 301)
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Book-Entry
Debt Securities
We may issue the debt securities of a series, in whole or in
part, in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary. We will identify
the depositary in the applicable prospectus supplement relating
to that series. If we issue one or more global securities, we
will issue them in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of the
outstanding debt securities of the series to be represented by
that global security or those global securities. We may issue
global securities in either registered or bearer form and in
either temporary or permanent form. We will describe the
specific terms of the depositary arrangement for a series of
debt securities in the applicable prospectus supplement relating
to that series. (Sections 301, 304 and 305)
Tax
Related Considerations
Payment
of Additional Amounts
Any amounts that we pay with respect to any series of debt
securities will be paid without deduction or withholding for any
and all present or future tax, duty, levy, impost, assessment or
other governmental charges imposed or levied by or on behalf of
the Liberian government or the government of the jurisdiction of
our successor or any authority or agency in that government
having power to tax (Taxes), unless we are required
to withhold or deduct Taxes by law or by the interpretation or
administration of that law. If we are so required
12
to deduct or withhold any amount for Taxes from any payment made
with respect to any series of debt securities, we will pay any
additional amounts necessary so that the net payment
received by each holder, including additional amounts, after the
withholding or deduction, will not be less than the amount the
holder would have received if those Taxes had not been withheld
or deducted. However, we will pay no additional amounts with
respect to a payment made to a holder which is subject to those
Taxes because that holder is subject to the jurisdiction of the
government of our jurisdiction of organization or any territory
of that jurisdiction other than by merely holding the debt
securities or receiving payments under the debt securities (an
excluded holder). We will also pay no additional
amounts with respect to a payment made to a holder, if we would
not be required to withhold or deduct any amount for Taxes from
any payment made to that holder, if that holder filed a form
with the relevant government with no other consequence to that
holder. We will also deduct or withhold and remit the full
amount deducted or withheld to the relevant authority according
to applicable law. We will furnish the holders, within
30 days after the date the payment of any Taxes is due
under applicable law, certified copies of tax receipts
evidencing our payment. We will indemnify and hold harmless each
holder and upon written request reimburse each holder for the
amount of any:
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Taxes levied or imposed on and paid by that holder as a result
of payments with respect to the debt securities (other than for
an excluded holder);
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liability, including penalties, interest and expense, arising
from those Taxes and
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Taxes imposed as a result of any reimbursement we make under
this covenant. (Section 1007)
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Redemption
or Assumption of Debt Securities under Certain
Circumstances
If we determine, based upon an opinion of counsel, that we would
be required to pay an additional amount, because of any change
in or amendment to:
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the laws and related regulations of Liberia or any political
subdivision or taxing authority of Liberia; or
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the laws and related regulations of any jurisdiction in which we
are organized or any political subdivision or taxing authority
of that jurisdiction or
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any official position regarding the application or
interpretation of the above laws or regulations,
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which is announced or becomes effective after the date of the
indenture, then we may, at our option, on giving not less than
30 days nor more than 60 days notice,
redeem the debt securities in whole, but not in part, at any
time at a redemption price equal to 100% of the principal amount
of the debt securities plus accrued interest to the redemption
date or, in the case of securities issued at a discount, at a
redemption price equal to the offering price plus accrued
original issue discount to the redemption date. Any notice of
redemption we give will be irrevocable, and we may not give any
notice of redemption more than 90 days before the earliest
date on which we would be obligated to pay additional amounts.
At the time we give notice of redemption, the obligation to pay
additional amounts remains in effect. (Section 1108)
13
SELLING
SHAREHOLDERS
The following table sets forth information regarding the
beneficial ownership of our common stock as of February 12,
2009 by certain of our shareholders. To the extent indicated in
the accompanying prospectus supplement, one or both of our
selling shareholders may from time to time offer shares of our
common stock for sale.
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Shares Owned Beneficially
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Name
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Number
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Percent(1)
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A. Wilhelmsen AS.(2)
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42,966,472
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20.1
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%
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Cruise Associates(3)
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33,281,900
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15.6
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%
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(1)
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Based on 213,676,131 shares of common stock issued and
outstanding as of February 12, 2009.
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(2)
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A. Wilhelmsen AS. is a Norwegian corporation, the indirect
beneficial owners of which are members of the Wilhelmsen family
of Norway.
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(3)
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Cruise Associates is a Bahamian general partnership, the
indirect beneficial owners of which are various trusts primarily
for the benefit of certain members of the Pritzker family and a
trust primarily for the benefit of certain members of the Ofer
family.
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PLAN OF
DISTRIBUTION
We and any selling shareholders may sell the securities offered
under this prospectus through agents; through underwriters or
dealers; directly to one or more purchasers; or through a
combination of any of these methods of sale. For each offering
of securities under this prospectus, we will identify the
specific plan of distribution, including any underwriters,
dealers, agents or direct purchasers, and their compensation, in
the related prospectus supplement.
VALIDITY
OF SECURITIES
Davis Polk & Wardwell, New York, New York, will pass
upon the validity of any debt securities sold under this
prospectus. Watson, Farley & Williams (New York) LLP,
New York, New York, will pass upon the validity of any common
stock or preferred stock sold under this prospectus. Fried,
Frank, Harris, Shriver & Jacobson LLP, New York, New
York, will pass upon certain legal matters for any underwriters
or agents. Davis Polk & Wardwell and Fried, Frank,
Harris, Shriver & Jacobson LLP will rely upon Watson,
Farley & Williams (New York) LLP regarding matters of
Liberian law.
EXPERTS
The consolidated financial statements and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control Over Financial Reporting)
incorporated in this prospectus by reference to the Annual
Report on
Form 10-K
for the year ended December 31, 2008, have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered certified public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
14
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the estimated costs and expenses
payable by us, other than underwriting discounts and
commissions, in connection with the sale of the securities being
registered hereby.
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Amount to be
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Paid
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SEC registration fee
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$ 10,700*
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Printing and engraving expenses
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**
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Legal fees and expenses
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**
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Trustees fees and expenses
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**
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Accounting fees and expenses
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**
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Transfer agent and registrar
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**
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Miscellaneous
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**
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TOTAL
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**
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*
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As noted on the facing page of this registration statement, this
amount is being carried forward from our automatic shelf
registration statement on
Form S-3
(File
No. 333-136186),
filed with the SEC on July 31, 2006. Any remaining
registration fee is being deferred pursuant to Rule 456(b).
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**
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Not presently known.
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Item 15.
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Indemnification
of Directors and Officers
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Our Restated Articles of Incorporation provide that the purpose
of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the Business
Corporation Act of the Republic of Liberia, as amended (the
Business Corporation Act).
Section 6.13 of the Business Corporation Act provides as
follows:
1.
Actions not by or in right of the corporation.
A corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director or officer of the
corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys 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 the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of no contest, or
its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
2.
Actions by or in right of the corporation
.
A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure judgment in its favor by
reason of the fact that he is or was a director or officer of
the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys fees) actually and
reasonably incurred by him or in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable for
II-1
negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
3.
When director or officer successful
. To the
extent that a director or officer of a corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in paragraphs 1 or 2, or in
the defense of a claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him in connection therewith.
4.
Payment of expenses in advance
. Expenses
incurred in defending a civil or criminal action, suit or
proceeding may be paid in advance of the final disposition of
such action, suit or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by
or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
5.
Insurance
. A corporation shall have the
power to purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation or is or
was serving at the request of the corporation as a director or
officer against any liability asserted against him and incurred
by him in such capacity whether or not the corporation would
have the power to indemnify him against such liability under the
provisions of this section.
6.
Other rights of indemnification unaffected
.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in such persons official
capacity and as to action in another capacity while holding such
office.
7.
Continuation of indemnification
. The
indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and
administration of such persons.
Article VII of our By-Laws contains provisions to implement
Section 6.13 of the Business Corporation Act.
We maintain director and officer liability insurance.
Reference is made to the proposed forms of underwriting
agreements (filed as Exhibits 1.1 and 1.2 to this
registration statement) which provide for indemnification of our
directors, our officers who sign the registration statement and
our controlling persons and ourselves against certain
liabilities, including those arising under the Securities Act of
1933, as amended in certain instances by the underwriters.
(a) The following exhibits are filed as part of this
Registration Statement:
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Exhibit No.
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Document
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1
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.1
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Form of Underwriting Agreement (for debt securities)
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1
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.2
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Form of Underwriting Agreement (for equity securities)
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3
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.1
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Restated Articles of Incorporation, as amended (composite)
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3
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.2
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By-Laws, as amended and restated
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4
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.1
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Indenture dated as of July 31, 2006 between Royal Caribbean
Cruises Ltd. and The Bank of New York Trust Company, N.A.,
as Trustee
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4
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.2
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Form of Note (included in Exhibit 4.1)
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II-2
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Exhibit No.
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Document
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5
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.1
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Opinion of Watson, Farley & Williams (New York) LLP
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5
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.2
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Opinion of Davis Polk & Wardwell
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12
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.1
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Statement regarding computation of ratio of earnings to fixed
charges (incorporated by reference to Exhibit 12.1 to our
Annual Report on
Form 10-K
for the year ended December 31, 2008)
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23
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.1
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Consent of Watson, Farley & Williams (New York) LLP
(included in Exhibit 5.1)
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23
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.2
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Consent of Davis Polk & Wardwell (included in
Exhibit 5.2)
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23
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.3
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Consent of PricewaterhouseCoopers LLP, independent registered
certified public accounting firm
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24
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.1
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Power of Attorney (included on the signature page of this
registration statement)
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25
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.1
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Statement of Eligibility on
Form T-1
of The Bank of New York Trust Company, N.A.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (i), (ii) and
(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule
II-3
415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial
bona fide
offering
thereof.
Provided, however
, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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 registrant
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 Act and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and 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 March 23, 2009.
ROYAL CARIBBEAN CRUISES LTD.
Brian J. Rice
Executive Vice President & Chief Financial Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Fain and Brian
J. Rice, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and any additional registration
statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and
perform each and every act in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either
of them or their or his or her substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
RICHARD
D. FAIN
Richard
D. Fain
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Director, Chairman and Chief Executive Officer
(Principal Executive Officer)
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March 23, 2009
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/s/
BRIAN
J. RICE
Brian
J. Rice
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
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March 23, 2009
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/s/
HENRY
L. PUJOL
Henry
L. Pujol
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Vice President and Corporate Controller
(Principal Accounting Officer)
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March 23, 2009
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/s/
MORTEN
ARNTZEN
Morten
Arntzen
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Director
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March 23, 2009
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/s/
BERNARD
W. ARONSON
Bernard
W. Aronson
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Director
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March 23, 2009
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/s/
WILLIAM
L. KIMSEY
William
L. Kimsey
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Director
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March 23, 2009
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/s/
LAURA
D. B. LAVIADA
Laura
D. B. Laviada
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Director
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March 23, 2009
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II-5
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Signature
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Title
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Date
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/s/
GERT
W. MUNTHE
Gert
W. Munthe
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Director
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March 23, 2009
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/s/
EYAL
M. OFER
Eyal
M. Ofer
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Director
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March 18, 2009
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/s/
THOMAS
J. PRITZKER
Thomas
J. Pritzker
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Director
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March 23, 2009
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/s/
WILLIAM
K. REILLY
William
K. Reilly
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Director
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March 19, 2009
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Bernt
Reitan
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Director
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March , 2009
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/s/
ARNE
ALEXANDER WILHELMSEN
Arne
Alexander Wilhelmsen
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Director
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March 18, 2009
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/s/
RICHARD
D. FAIN
Richard
D. Fain
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Authorized Representative in the United States
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March 23, 2009
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II-6
EXHIBIT INDEX
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Exhibit No.
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Document
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1
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.1
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Form of Underwriting Agreement (for debt securities)
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|
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1
|
.2
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Form of Underwriting Agreement (for equity securities)
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3
|
.1
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Restated Articles of Incorporation, as amended (composite)
|
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3
|
.2
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By-Laws, as amended and restated
|
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4
|
.1
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Indenture dated as of July 31, 2006 between Royal Caribbean
Cruises Ltd. and The Bank of New York Trust Company, N.A.,
as Trustee
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4
|
.2
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Form of Note (included in Exhibit 4.1)
|
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5
|
.1
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Opinion of Watson, Farley & Williams (New York) LLP
|
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5
|
.2
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Opinion of Davis Polk & Wardwell
|
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|
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12
|
.1
|
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Statement regarding computation of ratio of earnings to fixed
charges (incorporated by reference to Exhibit 12.1 to our
Annual Report on
Form 10-K
for the year ended December 31, 2008)
|
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|
|
|
|
|
23
|
.1
|
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Consent of Watson, Farley & Williams (New York) LLP
(included in Exhibit 5.1)
|
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|
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23
|
.2
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Consent of Davis Polk & Wardwell (included in
Exhibit 5.2)
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23
|
.3
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Consent of PricewaterhouseCoopers LLP, independent registered
certified public accounting firm
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24
|
.1
|
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Power of Attorney (included on the signature page of this
registration statement)
|
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|
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25
|
.1
|
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Statement of Eligibility on
Form T-1
of The Bank of New York Trust Company, N.A.
|
II-7
Exhibit 1.1
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian corporation)
Debt or Convertible Debt Securities
FORM OF UNDERWRITING AGREEMENT
[DATE]
To the Underwriter or
Underwriters named in the
applicable Terms Agreement
hereinafter described
Ladies and Gentlemen:
From time to time Royal Caribbean Cruises Ltd., a Liberian corporation (the Company),
proposes to enter into one or more Terms Agreements (each a Terms Agreement) in the form of
Exhibit A hereto, with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell to the firm or
firms named in the applicable Terms Agreement (such firm or firms, whether one or more,
constituting the Underwriters with respect to such Terms Agreement and the securities specified
therein) certain of its debt securities and convertible debt securities (the Securities)
specified in such Terms Agreement (such Securities, with respect to such Terms Agreement, the
Underwritten Securities).
The terms and rights of any particular issuance of Securities shall be as specified in the
Terms Agreement relating thereto and in or pursuant to the indenture (the Indenture) identified
in such Terms Agreement. Each series of Securities may vary, as applicable, as to aggregate
principal amount, maturity date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, conversion provisions, sinking fund requirements, if any, and
any other variable terms which the Indenture contemplates may be set forth in the Securities as
issued from time to time.
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Terms Agreement relating thereto will act as representatives (the Representatives). The
term Representatives also refers to a single firm acting as sole representative of the
Underwriters and to the Underwriters (either one or more) who act without any firm being designated
as their representative. As used herein, you and your, unless the context otherwise requires,
shall mean the Representatives together with the other parties, if any, identified in the
applicable Terms Agreement as additional co-managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto. The obligations of the Underwriters under this
Agreement and each Terms Agreement shall be several and not joint.
The obligation of the Company to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be evidenced by
1
the Terms Agreement with respect to the Underwritten Securities designated therein. The Terms
Agreement relating to the offering of Underwritten Securities shall specify the principal amount of
Underwritten Securities to be initially issued (the Initial Underwritten Securities), the names
of the Underwriters participating in such offering (subject to substitution as provided in Section
11 hereof), the principal amount of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of the Representatives in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, if any, of the Initial Underwritten Securities, the
time and place of delivery and payment, any delayed delivery arrangements and any other variable
terms of the Initial Underwritten Securities (including, but not limited to, current ratings,
designations, denominations, interest rates or formulas, interest payment dates, maturity dates,
conversion provisions, redemption or repayment provisions and sinking fund requirements applicable
to the Initial Underwritten Securities). In addition, each Terms Agreement shall specify whether
the Company has agreed to grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the aggregate principal amount of Underwritten
Securities subject to such option (the Option Securities). As used herein, the term Underwritten
Securities shall include the Initial Underwritten Securities and any Option Securities. The Terms
Agreement may take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Underwritten Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement.
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) an automatic shelf registration statement as defined under the Securities Act of
1933, as amended (the 1933 Act) on Form S-3 (File No. 333- ) in respect of the Securities (and
shares of Common Stock issuable upon conversion thereof, if any) not earlier than three years prior
to the date hereof; such registration statement, and any post-effective amendment thereto, became
effective on filing, and the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the 1939 Act); and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for that purpose has been initiated
or threatened by the Securities and Exchange Commission (the Commission), and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company; and
the Company has filed such amendments thereto as may have been required prior to the execution of
the applicable Terms Agreement. The base prospectus filed as part of such registration statement,
in the form in which it has most recently been filed with the Commission on or prior to the date of
this Agreement, is hereinafter called the Basic Prospectus ; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the 1933
Act is hereinafter called a Preliminary Prospectus; the various parts of the registration
statement, including all exhibits thereto and including any prospectus supplement relating to the
Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such
registration statement, each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the Registration Statement; the Basic Prospectus,
as amended and supplemented immediately prior to the Applicable Time (as defined below), is
hereinafter called the Pricing Prospectus; the form of the final prospectus relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with this
Agreement is hereinafter called the Prospectus; any reference herein to the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus
-2-
shall be deemed to refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, as of the date of such prospectus; and any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the
1934 Act), and incorporated therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; any issuer
free writing prospectus as defined in Rule 433 under the 1933 Act relating to the Securities is
hereinafter called an Issuer Free Writing Prospectus; all references in this Agreement to
financial statements and schedules and other information which is contained, included or
stated in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be.
Section 1.
Representations and Warranties
. (a) The Company represents and warrants to
you and to each other Underwriter named in the applicable Terms Agreement, as of the date thereof,
as follows:
(i) At (i) the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the
1933 Act) with respect to the Underwritten Securities and (ii) the time of execution of this
Agreement, the Company was not and is not an ineligible issuer as defined in Rule 405 under the
1933 Act.
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and
the 1939 Act, and the rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through any manager of an offering of Underwritten
Securities expressly for use therein.
(iii) For the purposes of this Agreement and the Terms Agreement, the Applicable Time shall
be such time as specified in the applicable Terms Agreement; the Pricing Prospectus as supplemented
by the final term sheet prepared and filed pursuant to Section 3(a) hereof, taken together
(collectively, the Pricing Disclosure Package) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made,
-3-
not misleading; and each Issuer Free Writing Prospectus listed in the applicable Terms Agreement
does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and
taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this paragraph shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through any manager of an offering of Underwritten Securities expressly for use
therein.
(iv) The Registration Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
to the requirements of the 1933 Act and the 1939 Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to each part
of the Registration Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and warranty shall
not apply to (A) any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of Underwritten Securities
through the Representatives expressly for use in the Prospectus as amended or supplemented relating
to such Securities or (B) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act, of the Trustee (as defined in the
Indenture).
(v) The documents incorporated by reference in the Pricing Prospectus and Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder; and any further documents so filed and incorporated by reference in the
Pricing Prospectus, the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
(vi) The independent public accountants of the Company (the Company Accountants) who are
reporting upon the audited consolidated financial statements and schedules included in the
Registration Statement, and have audited the Companys internal control over financial reporting
and managements assessment thereof, are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(vii) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as hereinafter defined), if any, and this Agreement, the applicable Terms
Agreement and the Delayed
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Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company.
(viii) (A) The consolidated financial statements and the related schedules and notes of the
Company included or incorporated by reference in the Registration Statement, the Pricing Prospectus
and the
Prospectus present fairly the consolidated financial position of the Company and its Subsidiaries
(as hereinafter defined), considered as one enterprise, as of the dates indicated and the
consolidated statements of operations, balance sheets and cash flows of the Company and its
Subsidiaries, considered as one enterprise for the periods specified; (B) such financial statements
and related schedules and notes have been prepared in conformity with United States generally
accepted accounting principles (GAAP) applied on a consistent basis throughout the periods
involved except as indicated in footnotes or otherwise therein; (C) the selected financial data
included in the Pricing Prospectus and the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited consolidated financial
statements included in the Registration Statement; (D) the financial statement schedules, if any,
included in the Registration Statement present fairly in accordance with GAAP the information
required to be stated therein; and (E) the pro forma financial statements and other pro forma
financial information included in the Pricing Prospectus and the Prospectus, if any, have been
prepared in all material respects in accordance with the Commissions rules and guidelines with
respect to pro forma financial statements, have been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(ix) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the Republic of Liberia, has corporate power and authority to own its
property and to conduct its business as described in the Pricing Prospectus and the Prospectus and
is duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing would not, individually or
in the aggregate, have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its Subsidiaries, considered as
one enterprise.
(x) Of the Companys direct and indirect subsidiaries as of the date hereof (collectively, the
Subsidiaries), those that are set forth on Schedule A hereto and as of the date of the applicable
Terms Agreement those that are set forth on a schedule to the applicable Terms Agreement constitute
Significant Subsidiaries as defined under Regulation S-X promulgated under the 1933 Act (the
Significant Subsidiaries). Such Significant Subsidiaries are incorporated under the laws of
Liberia, except for Celebrity Cruise Lines Inc. Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not, individually or
-5-
in the aggregate, have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its Subsidiaries, considered as
one enterprise.
(xi) All of the issued and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or similar rights of any
shareholder
of the Company arising by operation of law, under the charter or by-laws of the Company or under
any agreement to which the Company or any of its Subsidiaries is a party.
(xii) Except as described in the Pricing Prospectus or the Prospectus, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and
are validly issued, fully paid and non-assessable, and are 100% owned by the Company, directly or
through one or more Significant Subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, mortgage or encumbrance of any kind.
(xiii) The Company had at the respective dates indicated in the Pricing Prospectus and the
Prospectus, a duly authorized and outstanding capitalization as set forth in the Pricing Prospectus
and the Prospectus, as the case may be, in the column entitled Actual under the caption
Capitalization.
(xiv) The Underwritten Securities have been duly authorized for issuance and sale pursuant to
this Agreement and, when issued, authenticated and delivered pursuant to the provisions of the
Indenture relating thereto, against payment of the consideration therefor specified in the
applicable Terms Agreement or any applicable Delayed Delivery Contract, the Underwritten Securities
will constitute valid and binding obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting enforcement of creditors rights generally or by
general equity principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); the Underwritten Securities conform in all material respects to the descriptions
thereof contained in the Pricing Prospectus and the Prospectus.
(xv) If applicable, the shares of common stock of the Company (the Common Stock) or shares
of preferred stock of the Company (the Preferred Stock) or any shares of the same issuable upon
conversion of any of the Underwritten Securities which are convertible (the Convertible
Securities) have been duly and validly authorized and reserved for issuance upon such conversion
by all necessary corporate action and such shares, when issued upon such conversion, will be duly
and validly issued and will be fully paid and non-assessable, and the issuance of such shares upon
such conversion will not be subject to preemptive or other similar rights of any shareholder of the
Company arising by operation of law, under the charter or by-laws of the Company or under any
agreement to which the Company or any of its Subsidiaries is a party; and the shares of Common
Stock or Preferred Stock, as the case may be, so issuable conform in all material respects to the
descriptions thereof contained in the Pricing Prospectus and the Prospectus.
-6-
(xvi) The Company has all of the requisite corporate power and authority to execute, deliver
and perform its obligations under the Indenture; the Indenture has been duly authorized by the
Company, and, when duly executed and delivered by the Company and the Trustee, will constitute a
valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors rights generally or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at law); the
Indenture conforms in all material respects to the descriptions thereof contained in the Pricing
Prospectus and the Prospectus; and the Indenture has been duly qualified under the 1939 Act.
(xvii) Since the respective dates as of which information is given in the Registration
Statement, the Pricing Prospectus and the Prospectus, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of
business, (B) any transaction entered into by the Company or any Subsidiary, other than in the
ordinary course of business, that is material to the Company and its Subsidiaries, considered as
one enterprise or (C) any dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xviii) The execution and delivery of this Agreement, the applicable Terms Agreement, the
Delayed Delivery Contracts, if any, and the Indenture by the Company, the issuance, sale and
delivery of the Underwritten Securities, the consummation by the Company of the transactions
contemplated herein and therein and in the Registration Statement and compliance by the Company
with the terms hereunder and thereunder have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in any violation of the charter or
by-laws of the Company or any Significant Subsidiary, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien or encumbrance upon any property or assets of the Company
or any Significant Subsidiary under (A) any indenture, mortgage, or loan agreement, note, lease or
other agreement or instrument to which the Company or any Significant Subsidiary is a party or by
which the Company or any Significant Subsidiary is bound or to which any of their respective
properties are subject, or (B) any existing applicable law (except that no representation is made
with respect to any state securities or blue-sky laws), rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of their respective properties,
except as disclosed in the Pricing Prospectus or the Prospectus.
(xix) The Company and its Subsidiaries are conducting their business in compliance with, and
each such entity has not received any notice of any outstanding violation of, all applicable local,
state, federal and foreign laws, ordinances, rules and regulations in the jurisdictions in which
they are conducting business except as disclosed in the Pricing Prospectus or the Prospectus and
except to the extent that such failure to comply would not have, individually or in the aggregate,
a material adverse effect on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one enterprise.
-7-
(xx) No authorization, approval, consent or order of, or qualification with, any governmental
body or agency, or of any other person or entity, domestic or foreign, is required for the due
authorization, execution, delivery and performance by the Company of this Agreement, the applicable
Terms Agreement, the Delayed Delivery Contracts, if any, or the Indenture and the valid
authorization, issuance, sale and delivery of the Underwritten Securities, except such as may be
required under the 1939 Act, 1933 Act and the 1933 Act Regulations (which have been obtained) or
state securities or blue sky laws or under the regulations of the Oslo Stock Exchange or except
such as shall be obtained by the Company prior to issuance.
(xxi) Except as disclosed in the Pricing Prospectus or the Prospectus, there is no action,
suit, investigation or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of their respective properties that is
required to be disclosed in
the Registration Statement, the Pricing Prospectus or Prospectus or which might materially and
adversely affect the consummation of the transactions contemplated in this Agreement, the
applicable Terms Agreement, the Delayed Delivery Contracts, if any, the Indenture or the
Registration Statement.
(xxii) There is no tax, levy, impost, deduction, charge or withholding imposed by the Republic
of Liberia or any political subdivision or taxing authority thereof or any other governmental
entity either (A) on or by virtue of the execution, delivery or performance of this Agreement, the
applicable Terms Agreement, the Delayed Delivery Contracts, if any, the Indenture or any other
document to be furnished hereunder or thereunder, (B) on the issuance of the Underwritten
Securities or (C) on any payment to be made by the Company pursuant to this Agreement, the
applicable Terms Agreement or the Delayed Delivery Contracts, if any, except for any tax, levy,
impost, deduction, charge or withholding imposed on payments made to holders of Underwritten
Securities who reside in, maintain an office in or engage in business in the Republic of Liberia.
(xxiii) To the extent requested by the applicable underwriters prior to the date hereof, the
Underwritten Securities or any shares of Common Stock or Preferred Stock issuable upon conversion
of any Convertible Securities have been approved for listing on (1) the New York Stock Exchange or
any other applicable securities exchange, subject only to official notice of issuance thereof and
(2) the Oslo Stock Exchange.
(xxiv) The Company is not, and is not directly or indirectly controlled by, or acting on
behalf of any person that is, an investment company within the meaning of the Investment Company
Act of 1940, as amended.
(xxv) (i) At the time of filing the Registration Statement and (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company was a well-known
seasoned issuer as defined in Rule 405 under the 1933 Act.
-8-
(xxvi) The Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the 1934 Act) that complies with the requirements of the
1934 Act and has been designed by the Companys principal executive officer and principal financial
officer, or under their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. Except as disclosed in the Pricing Prospectus or the
Prospectus, the Companys internal control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over financial reporting.
(xxvii) Except as disclosed in the Pricing Prospectus, since the date of the latest audited
financial statements incorporated by reference in the Pricing Prospectus or the Prospectus, there
has been no change in the Companys internal control over financial reporting that has materially
adversely affected, or is reasonably likely to materially adversely affect, the Companys internal
control over financial reporting.
(b) Any certificate signed by any officer of the Company or any Subsidiary and delivered to
you or counsel for the Underwriters in connection with the offering of Underwritten Securities
pursuant to this
Agreement or the applicable Terms Agreement or the transactions contemplated hereby or thereby
shall be deemed a representation and warranty by the Company to each Underwriter participating in
such offering as to the matters covered thereby on the date of such certificate.
Section 2.
Sale and Delivery to the Underwriters; Closings
. (a) The several
commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the
Underwriters named in any such Terms Agreement, severally and not jointly, to purchase up to the
aggregate principal amount of Option Securities set forth therein at the same price per Option
Security as is applicable to the Initial Underwritten Securities. Such option, if granted, will
expire 30 days or such lesser number of days as may be specified in the applicable Terms Agreement
after the date of the Terms Agreement relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the aggregate principal amount of Option
Securities as to which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date of payment and
delivery (a Second Time of Delivery) shall be determined by you, but shall not be later than
seven full business days and not be earlier than two full business days after the exercise of said
option, unless otherwise agreed upon by you and the Company. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total aggregate principal amount of Option Securities
then being purchased which the aggregate principal amount of Initial Underwritten Securities each
such Underwriter
-9-
has agreed to purchase as set forth in the applicable Terms Agreement bears to the total aggregate
principal amount of Initial Underwritten Securities, subject to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of the Underwritten Securities shall be
made at the time and place specified in the applicable Terms Agreement, or at such other place as
shall be agreed upon by the Company and you (such date and time of payment and delivery being
herein called the First Time of Delivery, and each of the First Time of Delivery and the Second
Time of Delivery being herein called a Time of Delivery). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the time and place
specified in the applicable Terms Agreement, on the Second Time of Delivery as specified in the
notice from you to the Company. Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company by certified or official bank check or checks or by wire
transfer in immediately available (same day) funds payable to the order of the Company against
delivery to you for the respective accounts of the several Underwriters of the Underwritten
Securities to be purchased by them.
(d) The Underwritten Securities to be purchased by the Underwriters shall be in such
denominations and registered in such names as you may request in writing at least two full business
days before the
First Time of Delivery or the Second Time of Delivery, as the case may be. The Underwritten
Securities will be made available in New York City for examination and packaging by you not later
than 10:00 A.M. on the business day prior to the First Time of Delivery or the Second Time of
Delivery, as the case may be. If specified in the applicable Terms Agreement, the Underwritten
Securities shall be in book-entry form only.
(e) It is understood that each Underwriter has authorized you, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities.
You, individually and not as Representatives, may (but shall not be obligated to) make payment of
the purchase price for the Underwritten Securities to be purchased by any Underwriter whose wire
transfer or check or checks shall not have been received by the First Time of Delivery or the
Second Time of Delivery, as the case may be.
(f) If authorized by the applicable Terms Agreement, the Underwriters named therein may
solicit offers to purchase Underwritten Securities from the Company pursuant to delayed delivery
contracts (Delayed Delivery Contracts) substantially in the form of Exhibit B hereto with such
changes therein as the Company may approve. As compensation for arranging Delayed Delivery
Contracts, the Company will pay to you at the applicable Time of Delivery, for the respective
accounts of the Underwriters, a fee equal to that percentage of the principal amount of
Underwritten Securities for which Delayed Delivery Contracts are made at the applicable Time of
Delivery as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to
be with institutional investors of the types described in the Prospectus. At the applicable Time of
Delivery, the Company will enter into Delayed Delivery Contracts (for not less than the minimum
principal amount of Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal amount of
Underwritten Securities in excess of that specified in the applicable Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance of any Delayed
Delivery Contracts.
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You shall submit to the Company, at least three business days prior to the applicable Time of
Delivery, the names of any institutional investors with which it is proposed that the Company will
enter into Delayed Delivery Contracts and the principal amount of Underwritten Securities to be
purchased by each of them, and the Company will advise you, at least two business days prior to the
applicable Time of Delivery, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be purchased by the several
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the principal amount of
Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth
in a written notice delivered by you to the Company; provided, however, that the total principal
amount of Underwritten Securities to be purchased by all Underwriters shall be the total principal
amount of Underwritten Securities covered by the applicable Terms Agreement, less the principal
amount of Underwritten Securities covered by Delayed Delivery Contracts.
Section 3.
Certain Covenants of the Company
. The Company covenants with each
Underwriter of Underwritten Securities as follows:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable
Underwritten Securities in a form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the 1933 Act not later than the Commissions close of business on the
second business day following the execution and delivery of the Terms Agreement relating to the
applicable Underwritten Securities; to make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented,
after the date of the Terms Agreement relating to such Underwritten Securities and prior to the
Time of Delivery for such Underwritten Securities to which the Representatives reasonably object
promptly after reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the Representatives with copies
thereof; to prepare a final term sheet, containing solely a description of the Underwritten
Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule
433(d) under the 1933 Act within the time required by such Rule; to file promptly all other
material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the
1933 Act; to file promptly all reports and any other information required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in
connection with the offering or sale of such Underwritten Securities; to advise the
Representatives, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission and to furnish the Representatives with
copies thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten
Securities, including, in the case of Convertible Securities, the shares of stock issuable upon
conversion of the Convertible Securities, of any notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock
for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for
-11-
any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of any
Preliminary Prospectus or other prospectus relating to such Underwritten Securities or stock or
suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; and
in the event of any such issuance of a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a new registration statement, at
its own expense, as may be necessary to permit offers and sales of the Underwritten Securities by
the Underwriters (references herein to the Registration Statement shall include any such amendment
or new registration statement).
(b) If required by Rule 430B(h) under the 1933 Act, to prepare a form of prospectus, to give
the Representatives notice thereof and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall reasonably be disapproved by the
Representatives promptly after reasonable notice thereof.
(c) The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New
York City time, on the New York Business Day (as defined herein) next succeeding the date of this
Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and
the Prospectus as
amended or supplemented in New York City in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the 1933 Act) is required at any time in connection with the
offering or sale of the Underwritten Securities, including in the case of Convertible Securities,
the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible
Securities and if at such time any event shall have occurred as a result of which the Pricing
Disclosure Package or the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made when such Pricing
Disclosure Package or Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the 1933 Act) is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Pricing Dislcosure Package or the Prospectus or
to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package
or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the
respective rules thereunder, and upon their reasonable request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as the Representatives may from time to time reasonably request of an amended
Pricing Disclosure Package or Prospectus or a supplement to the Pricing Disclosure Package or the
Prospectus which will correct such statement or omission or effect such compliance. For purposes of
this Agreement, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify
the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon
conversion of the Convertible Securities, if any, for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as you may designate
and to maintain such qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary
shall be obligated to file any general consent to service of
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process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the Underwritten Securities
and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible
Securities, if any, have been qualified as above provided.
(e) The Company will make generally available to its security holders and will deliver to the
Representatives an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at
the option of the Company, Rule 158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best
efforts to effect and maintain the listing of any shares of Common Stock or Preferred Stock
issuable upon conversion of any Convertible Securities or to the extent requested by the applicable
Underwriters prior to the date hereof, any Convertible Securities, if applicable, on the New York
Stock Exchange.
(g) To the extent provided in the Terms Agreement, the Company will not, between the date of
the applicable Terms Agreement and a date agreed to by the Representatives and the Company in the
Terms Agreement, without the Representatives prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any debt securities of the Company
(other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or
if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock,
any Common Stock or any security convertible into Common Stock (except for Common Stock issued
pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option
plans, existing employment agreements or existing shareholder option plans), or if such Terms
Agreement relates to Convertible Securities that are convertible into Preferred Stock, any
Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued
pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock
option plans, existing employment agreements or existing shareholder option plans), except, in each
case, as may otherwise be provided in the applicable Terms Agreement.
(h) If applicable, the Company will reserve and keep available at all times, free of
preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be,
for the purpose of enabling the Company to satisfy any obligation to issue such shares upon
conversion of any Convertible Securities.
(i) For a period of five years after the applicable Time of Delivery, the Company will furnish
to you and to each Underwriter that so requests copies of all annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, as the case may be, or such
other similar forms as may be designated by the Commission, and such other documents, reports and
information relating to the Companys business or finances as shall be furnished by the Company to
its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the
1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) in
connection with sales of the Underwritten Securities, will file all documents required to be filed
with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
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(k) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r)
under the Act.
Section 4. (a)(i) The Company represents and agrees that, other than the final term sheet
prepared and filed pursuant to Section 3(a) hereof, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the Underwritten
Securities that would constitute a free writing prospectus as defined in Rule 405 under the Act,
other than a free writing prospectus which is not required to be filed with the Commission on or
prior to the date of first use;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, other than one or more term sheets relating to the Underwritten Securities
containing customary information and conveyed to purchasers of Underwritten Securities, it has not
made and will not make any offer relating to the Underwritten Securities that would constitute a
free writing prospectus, provided that in no case shall any Underwriter make or use any free
writing prospectus that the Company
would be obligated to file with the Commission unless the Company shall have consented thereto in
writing; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and the Representatives (including the final term sheet prepared and filed pursuant to Section 3(a)
hereof) is listed in the Terms Agreement;
(b) The Company has complied and will comply with the requirements of Rule 433 under the 1933
Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission
or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus relating to an offering of Underwritten Securities after the pricing thereof and prior
to the First Time of Delivery with respect thereto, any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to
the Representatives and, if requested by the Representatives, will prepare and furnish without
charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct
such statement or omission; provided, however, that the Company shall have no obligation to correct
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter expressly for use
therein.
Section 5.
Payment of Expenses
. (a) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the applicable Terms Agreement including
(i) the printing and filing of the Registration Statement (including financial statements,
schedules and exhibits), as originally filed and as amended, any Preliminary Prospectus, the
Pricing Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the
copying or printing, as applicable, and distribution of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, the certificates for the Underwritten
Securities and a survey of state securities or blue sky laws (the Blue Sky
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Survey), (iii) the preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Companys counsel and accountants, (v) the
qualification of the Underwritten Securities and the shares of Common Stock or Preferred Stock
issuable upon conversion of the Convertible Securities, if any, under the applicable securities
laws in accordance with Section 3(c) and any filing for review of the offering with the National
Association of Securities Dealers, Inc., including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in connection with the
Blue Sky Survey, (vi) the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee, in connection with the Indenture and the Underwritten Securities, (vii)
any fees payable in connection with the rating of the Underwritten Securities, (viii) the fees and
expenses, if any, incurred with respect to the listing of the Underwritten Securities, and the
shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities,
if any, on any national securities exchange and (ix) the printing and delivery to the Underwriters
of copies of the Indenture.
(b) If the applicable Terms Agreement is terminated by you in accordance with the provisions
of Sections 6, 11(b)(i) or 13, the Company shall reimburse the Underwriters named in such Terms
Agreement through you for all their reasonable out-of-pocket expenses reasonably incurred,
including the reasonable fees and disbursements of counsel for the Underwriters.
Section 6.
Conditions of Underwriters Obligations
. The obligations of the several
Underwriters to purchase and pay for the Underwritten Securities pursuant to the applicable Terms
Agreement are subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any Subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder,
and to the following further conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable Underwritten
Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the 1933 Act and in
accordance with Section 3(a) hereof; the final term sheet contemplated by Section 3(a) hereof, and
any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act
shall have been filed with the Commission within the applicable time period prescribed for such
filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceedings for that purpose shall have been
instituted or be pending or have been threatened by the Commission under the 1933 Act and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop
order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the Representatives
reasonable satisfaction.
(b) At the First Time of Delivery, you shall have received signed opinions of Davis Polk &
Wardwell and Watson, Farley & Williams (New York) LLP as outside counsel for the Company,
reasonably acceptable to the Representatives, dated as of the First Time of Delivery, together with
reproduced copies of such opinions for each of the other Underwriters, substantially in the forms
attached hereto as Annexes I and II respectively, and reasonably satisfactory to counsel for the
Underwriters.
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(c) At the First Time of Delivery, you shall have received a signed opinion of Bradley Stein,
the Companys Acting General Counsel, reasonably acceptable to the Representatives, dated as of the
First Time of Delivery, together with reproduced copies of such opinions for each of the other
Underwriters, substantially in the form attached hereto as Annex IV, and reasonably satisfactory to
counsel for the Underwriters.
(d) At the First Time of Delivery, you shall have received the favorable opinion of counsel
for the Underwriters, dated as of the First Time of Delivery, together with reproduced copies of
such opinion for each of the other Underwriters, to the effect that the opinions delivered pursuant
to Sections 6(b) and 6(c) appear on their faces to be appropriately responsive to the requirements
of this Agreement and the applicable Terms Agreement except, specifying the same, to the extent
waived by you, and with respect to the legal existence of the Company, the Underwritten Securities,
this Agreement, the applicable Terms Agreement, the Registration Statement, the Pricing Disclosure
Package, the Prospectus and such other related matters as you may require. In giving such opinion
such counsel may rely, (A) as to matters governed by the laws of the Republic of Liberia, upon the
opinion of special counsel as to matters of
Liberian law reasonably acceptable to the Representatives and (B) as to all matters governed by the
laws of jurisdictions other than the federal law of the United States and the laws of the State of
New York, upon the opinions of counsel reasonably satisfactory to you. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its Subsidiaries and certificates of
public officials.
(e) At the First Time of Delivery, (i) the Registration Statement, the Pricing Disclosure
Package and the Prospectus, as they may then be amended or supplemented, shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act Regulations, the
Registration Statement, as it may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements in the Registration Statement not misleading, the Pricing
Disclosure Package, as it may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements in the Pricing Disclosure Package not misleading and the
Prospectus shall not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements in the Prospectus, in light
of the circumstances under which they were made, not misleading, (ii) there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Pricing Disclosure Package or the Prospectus, any material adverse
change, or any development involving a prospective material adverse change, in the condition
(financial or otherwise), earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of
business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary that would be required
to be set forth in the Pricing Disclosure Package and the Prospectus other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary before or by any federal, state or other commission, board or
administrative agency that could reasonably be expected to materially and adversely affect the
condition (financial or otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise, other than as set forth in the Pricing
Disclosure Package and the Prospectus, (iv) the Company shall have complied with all agreements and
satisfied all conditions on its part
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to be performed or satisfied at or prior to the First Time of Delivery and (v) the other
representations and warranties of the Company set forth in Section 1(a) shall be accurate as though
expressly made at and as of the First Time of Delivery. At the First Time of Delivery, you shall
have received a certificate of the Chairman of the Board, President or Vice President and the
Treasurer or Controller of the Company, dated as of the First Time of Delivery, to such effect. As
used in Section 6(e)(ii) and (iii), the term Prospectus means the Prospectus in the form first
used to confirm sales of the Underwritten Securities.
(f) On the date of the Terms Agreement for such Underwritten Securities and at the First Time
of Delivery for such Underwritten Securities, the Company Accountants who have certified the
financial statements of the Company and its Subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a letter, dated the date of
the Terms Agreement or the date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration Statement, if the date of
such report is later than such date, and a letter dated as of the First Time of Delivery,
respectively, as to such other matters as the
Representatives may reasonably request and in form and substance reasonably satisfactory to the
Representatives.
(g) At the First Time of Delivery, you shall have received from the Company certificates in
form reasonably satisfactory to you with respect to the ownership, registration and mortgages with
respect to each of the Companys vessels.
(h) At the First Time of Delivery, you shall have received from the Company lock-up agreements
as set forth in the Terms Agreement.
(i) At the First Time of Delivery, counsel for the Underwriters shall have been furnished with
all such documents, certificates and opinions as they may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities as contemplated in
this Agreement and the matters referred to in Section 6(e) and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company, at or prior to the First Time of
Delivery in connection with the authorization, issuance and sale of the Underwritten Securities as
contemplated in this Agreement shall be reasonably satisfactory in form and substance to you and to
counsel for the Underwriters.
(j) To the extent requested by the applicable Underwriters prior to the date hereof, the
Underwritten Securities and the Common Stock or Preferred Stock issuable upon conversion of the
Convertible Securities, if any, shall have been duly authorized for listing by (1) the New York
Stock Exchange or any other applicable securities exchange, subject only to official notice of
issuance thereof and (2) the Oslo Stock Exchange.
(k) At the First Time of Delivery the Underwriters shall have received a copy of an opinion,
in form reasonably satisfactory to counsel for the Underwriters, rendered to the Underwriters by
Company special tax counsel reasonably acceptable to the Representatives with respect to tax
matters and as to the matters set forth in Annex III.
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(l) The Company shall have complied with the provisions of Section 3(b) hereof with respect to
the furnishing of Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
required by this Agreement or the applicable Terms Agreement to be fulfilled, the applicable Terms
Agreement may be terminated by you upon notice to the Company at any time at or prior to the First
Time of Delivery, and such termination shall be without liability of any party to any other party
except as provided in Section 5 herein. Notwithstanding any such termination, the provisions of
Sections 8, 9, 10, 16 and 17 herein shall remain in effect.
Section 7.
Conditions to Purchase of Option Securities
. In the event that the
Underwriters exercise their option provided in a Terms Agreement as set forth in Section 2(b)
hereof to purchase all or any of the Option Securities and the Second Time of Delivery determined
by you pursuant to Section 2(b) is later than the First Time of Delivery, the obligations of the
several Underwriters to purchase and pay for the Option Securities that they shall have
respectively agreed to purchase pursuant to the applicable Terms
Agreement are subject to the accuracy of the representations and warranties of the Company herein
contained, to the performance of the Company of its obligations hereunder and to the following
further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall have been threatened by the
Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the Commission; and any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters.
(b) At the Second Time of Delivery, the provisions of Section 6(e) shall have been complied
with at and as of the Second Time of Delivery and, at the Second Time of Delivery, you shall have
received a certificate of the Chairman of the Board, President or Vice President and the Treasurer
or Controller of the Company with respect to the provisions of Section 5(e), dated as of the Second
Time of Delivery, to such effect.
(c) At the Second Time of Delivery, you shall have received the favorable opinions of Davis
Polk & Wardwell and Watson, Farley & Williams (New York) LLP, each outside counsel for the Company
reasonably acceptable to the Representatives, together with reproduced copies of such opinions for
each of the other Underwriters in form reasonably satisfactory to counsel for the Underwriters,
dated as of the Second Time of Delivery, relating to the Option Securities and otherwise to the
same effect as the opinion required by Section 6(b).
(d) At the Second Time of Delivery, you should have received the favorable opinion of the
Companys General Counsel reasonably acceptable to the Representatives, together with reproduced
copies of such opinion for each of the other Underwriters in form reasonably satisfactory to
counsel for the Underwriters, dated as of the Second Time of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by Section 6(c).
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(e) At the Second Time of Delivery, you shall have received the favorable opinion of counsel
for the Underwriters, dated as of the Second Time of Delivery, relating to the Option Securities
and otherwise to the same effect as the opinion required by Section 6(d).
(f) At the Second Time of Delivery, you shall have received a letter from the Accountants, in
form and substance reasonably satisfactory to you and dated as of the Second Time of Delivery, to
the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(f),
except that the specified date referred to shall be a date not more than five days prior to the
Second Time of Delivery.
(g) At the Second Time of Delivery, counsel for the Underwriters shall have been furnished
with all such documents, certificates and opinions as they may reasonably request for the purpose
of enabling them to pass upon the issuance and sale of the Option Securities as contemplated in
this Agreement and the matters referred to in Section 7(e) and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by
the Company, at or prior to the Second Time of Delivery in connection with the authorization,
issuance and sale of the Option Securities as contemplated in this Agreement shall be reasonably
satisfactory in form and substance to you and to counsel for the Underwriters.
(h) At the Second Time of Delivery, you shall have received the favorable opinion of special
tax counsel for the Company reasonably acceptable to the Representatives, together with reproduced
copies of such opinion for each of the Underwriters in form and substance reasonably satisfactory
to counsel for the Underwriters, dated the Second Time of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by Section 6(k) and addressed
to the Underwriters.
Section 8.
Indemnification
. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or alleged untrue statement
of a material fact included in any Preliminary Prospectus, the Pricing Prospectus, the Prospectus,
or any amendment or supplement thereto, any Issuer Free Writing Prospectus, the Pricing Disclosure
Package or any issuer information filed or required to be filed pursuant to Rule 433(d) under the
1933 Act, or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
and
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(iii) against any and all expense whatsoever, as incurred (including, subject to the last
sentence of Section 8(c), fees and disbursements of counsel chosen by you to represent the
Underwriters), reasonably incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity does not apply to any loss, liability, claim, damage or
expense to the extent arising out of an untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished or confirmed in writing
to the Company by or on behalf of any Underwriter through you expressly for use in the Registration
Statement (or in any amendment thereto), any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or the
Pricing Disclosure Package.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the indemnity contained
in Section 8(a), as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any amendment thereto), any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished or confirmed in writing to
the Company by or on behalf of such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto), any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto.
(c) Each indemnified party shall give prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. If any such action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the right to employ counsel
to represent jointly the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this Section 8 if, in the
reasonable judgment of the Representatives, it is advisable for the Representatives and those
Underwriters and controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the Company.
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(d) No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such proceeding. No indemnifying
party shall be liable for any settlement of any action or claim for monetary damages which an
indemnified party may effect without the written consent of the indemnifying party, which written
consent shall not be unreasonably withheld.
Section 9.
Contribution
. If the indemnification provided for in Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or (b) in
respect of any loss, liability, claim, damage or expense (or actions in respect thereof) referred
to therein, then each indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of
such loss, liability, claim, damage or expense (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters of the Underwritten Securities on the other from the offering of the Underwritten
Securities to which such loss, liability, claim, damage or expense (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
Section 8(c) above, then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the Underwriters of
Underwritten Securities on the other in connection with the statements or omissions which resulted
in such loss, liability, claim, damage or expense (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other in connection with the offering of the Underwritten
Securities shall be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the loss, liability, claim, damage or expense (or
actions in respect thereof) referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Underwritten Securities in
this
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Section 9 to contribute are several in proportion to their respective underwriting obligations with
respect to such Underwritten Securities and not joint.
Section 10.
Representations, Warranties and Agreements to Survive Delivery
. The
representations, warranties, indemnities, agreements and other statements of the Company, its
officers set forth in or made pursuant to this Agreement or the applicable Terms Agreement and any
Delayed Delivery Contract and the indemnities of the Underwriters set forth in this Agreement will
remain operative and in full force and effect regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of the Company, or any
Underwriter or controlling person and will survive delivery of and payment for the Underwritten
Securities.
Section 11.
Termination of Agreement
. (a) This Agreement (excluding the applicable
Terms Agreement) may be terminated for any reason at any time by the Company or by you upon the
giving of 30 days written notice of such termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to the Company at any
time at or prior to the Time of Delivery (i) if there has been, since the date of such Terms
Agreement or since the
respective dates as of which information is given in the Pricing Prospectus or the Prospectus, any
material adverse change in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company or its Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any material adverse change
in the financial markets in the United States or internationally or any outbreak or escalation of
hostilities or other calamity or crisis, if the effect of any such event or events is such as to
make it, in your judgment, impracticable or inadvisable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities on the terms and in the manner
contemplated in the Prospectus, (iii) if trading in any securities of the Company has been
suspended or materially limited, or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been required, by such
exchange or by order of the Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, (iv) if a banking moratorium has been declared by either federal or
New York authorities or there has occurred a material disruption in commercial banking or
securities settlement or clearance services in the United States or (v) if the rating assigned by
any nationally recognized statistical rating organization as such term is defined for purposes of
Rule 436(g)(2) under the 1933 Act to any long term debt securities of the Company as of the date of
the applicable Terms Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any long term debt securities of the
Company on what is commonly termed a watch list for possible downgrading. As used in this Section
11(b), the term Prospectus means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so long as any
Underwriter owns any such Underwritten Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(d) hereof, the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 10, 16, 17 and 18 hereof shall remain in effect.
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Section 12.
Default by One or More of the Underwriters
. If one or more of the
Underwriters shall fail at the applicable Time of Delivery to purchase the Underwritten Securities
that it or they are obligated to purchase under the applicable Terms Agreement (the Defaulted
Securities), then you shall have the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
set forth in this Agreement; if, however, you have not completed such arrangements within such
24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the
aggregate principal amount of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their respective underwriting obligation
proportions hereunder bear to the underwriting obligation proportions of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of Underwritten Securities to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate without liability on the part of any non-defaulting
Underwriters.
No action taken pursuant to this Section 12 shall relieve any defaulting Underwriter from
liability in respect of its default under this Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in a termination of the applicable Terms
Agreement, either you or the Company shall have the right to postpone the applicable Time of
Delivery for a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the
term Underwriter includes any person substituted for an Underwriter under this Section 12.
Section 13.
Default by the Company
. If the Company shall fail at the applicable Time
of Delivery to sell and deliver the principal amount of Underwritten Securities that it is
obligated to sell, then the applicable Terms Agreement shall terminate without any liability on the
part of any non-defaulting party except to the extent provided in Section 5 and except that the
provisions of Sections 3(d), 5, 8, 9, 10 16, 17 and 18 shall remain in effect. No action taken
pursuant to this Section shall relieve the Company from liability, if any, in respect of such
default.
Section 14.
Notices
. All notices and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if delivered, mailed or transmitted by
any standard form of telecommunication (notices transmitted by telecopier to be promptly confirmed
in writing). Notices to you or the Underwriters shall be directed to the address of the
Representatives as set forth in the Terms Agreement; notices to the Company shall be directed to
the Company at 1050 Caribbean Way, Miami, Florida 33132, attention of Richard D. Fain, Chairman of
the Board, with a copy to the General Counsel of the Company at 1050 Caribbean Way, Miami, Florida
33132.
Section 15.
Parties
. This Agreement and the applicable Terms Agreement are made solely
for the benefit of you, the Company and any Underwriter who becomes a party to
-23-
such Terms Agreement and, to the extent expressed, any person controlling the Company or any of the
Underwriters, and the directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and assigns and, subject to
the provisions of Section 11, no other person shall acquire or have any right under or by virtue of
this Agreement and the applicable Terms Agreement. The term successors and assigns shall not
include any purchaser, as such purchaser, from any of the several Underwriters of the Underwritten
Securities. All of the obligations of the Underwriters hereunder are several and not joint.
SECTION 16.
GOVERNING LAW AND TIME
. THIS AGREEMENT AND THE APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF THE DAY REFER TO NEW
YORK CITY TIME.
Section 17.
Consent to Jurisdiction and Service of Process
. The Company agrees that
any legal suit, action or proceeding brought by any party to enforce any rights under or with
respect to this Agreement, the applicable Terms Agreement or the transactions contemplated hereby
or thereby may be instituted in any state or federal court in The City of New York, State of New
York, and waives to the fullest extent permitted by law any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding and irrevocably submits to the
non-exclusive jurisdiction of any such court in any such suit, action or proceeding. The Company
hereby irrevocably designates and appoints the
Companys General Counsel as the Companys authorized agent to receive and forward on its behalf
service of any and all process which may be served in any such suit, action or proceeding in any
such court and agrees that service of process upon the Companys General Counsel at his office at
the Company, 1050 Caribbean Way, Miami, Florida 33132 and written notice of said service to the
Company, mailed or delivered to the Companys General Counsel, 1050 Caribbean Way, Miami, Florida
33132 shall be deemed in every respect effective service of process upon the Company in any such
suit, action or proceeding and shall be taken and held to be valid personal service upon the
Company. Said designation and appointment shall be irrevocable. Nothing in this Section 16 shall
affect the right of the Underwriters, their affiliates or any indemnified party to serve process in
any manner permitted by law or limit the right of the Underwriters, their affiliates or any
indemnified party to bring proceedings against the Company in the courts of any jurisdiction or
jurisdictions. The Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to continue such
designation and appointment of the Companys General Counsel in full force and effect so long as
this Agreement or the applicable Terms Agreement shall be outstanding. To the extent that the
Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of its obligations under this Agreement and the
applicable Terms Agreement, to the extent permitted by law.
Section 18.
Judgment Currency
. The Company agrees to indemnify the Underwriters
against any loss incurred by the Underwriters as a result of any judgment or order being given or
made for any amount due hereunder and such judgment or order being expressed and paid in a currency
(the Judgment Currency) other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or
-24-
order, and (ii) the spot rate or exchange at which the Underwriters are able to purchase United
States dollars with the amount of the Judgment Currency actually received by the Underwriters. The
foregoing indemnity shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term
spot rate of exchange shall include any premiums and costs of exchange payable in connection with
the purchase of, or conversion into, United States currency.
Section 19.
Counterparts
. This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
Section 20.
Trial by Jury
. The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceedings arising out of or relating to this Agreement or the transactions contemplated
hereby.
Section 21.
No Fiduciary Relationship
. The Company acknowledges and agrees that (i)
the purchase and sale of the Underwritten Securities pursuant to this Agreement is an arms-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other, (ii) in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no
Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company with respect to offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwiter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
Section 22.
Tax Disclosure
. Notwithstanding anything herein to the contrary, the
Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax
opiniosn and other tax analyses) provided to the Company relating to that treatment and structure,
without the Underwriters imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, tax structure is limited to facts that may be relevant to that treatment.
-25-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument will become a binding
agreement among the Company and the several Underwriters in accordance with its terms.
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Very truly yours,
ROYAL CARIBBEAN CRUISES LTD.
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By:
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/s/
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Name:
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Title:
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Accepted as of the date hereof:
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By:
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/s/
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[NAME]
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By:
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/s/
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Name:
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Title:
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On behalf of each of the Underwriters
-26-
Exhibit A
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian corporation)
[TITLE OF DESIGNATED SECURITIES]
TERMS AGREEMENT
Dated: [DATE]
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To:
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Royal Caribbean Cruises, Ltd.
1050 Caribbean Way
Miami, Florida 33132
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Attention:
Ladies and Gentlemen:
We (the Representatives) understand that Royal Caribbean Cruises Ltd., a Liberian
corporation (the Company), proposes to issue and sell
$___ aggregate principal amount of its
Senior Notes due ___ (the Underwritten Securities). Subject to the terms and conditions set
forth or incorporated by reference herein, the underwriters named below (the Underwriters) offer
to purchase, severally and not jointly, the respective amounts of Underwritten Securities set forth
below opposite their respective names, to the extent any are purchased, at the purchase price set
forth below.
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Principal Amount
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Of
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Underwriter
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Underwritten Securities
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[NAME]
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$
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Total
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$
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A-1
The Underwritten Securities shall have the following terms:
Title of Securities:
Currency:
Principal amount to be issued:
Issuers Current ratings:
Interest rate or formula:
Interest payment dates:
Record Dates:
Stated maturity date:
Redemption or repayment provisions:
Sinking fund requirements:
Principal Amount of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts:
Initial public offering price:
Purchase price:
Conversion provisions:
Defeasance provisions:
Other terms:
Applicable Time:
Closing Time and location:
Closing Time and location for Option Securities, if applicable:
Lock-up period:
Exchange Listing:
Issuer Free Writing Prospectus (referred to in Section 1(a)(iii) of the Underwriting Agreement):
Free Writing Prospectus (other than the final term sheet):
All the provisions contained in the document attached as Annex A hereto entitled Royal Caribbean
Cruises Ltd. -
Debt-Underwriting Agreement are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein, provided that each reference therein to (1)
Prospectus shall be to the Prospectus Supplement, dated
, together with the Prospectus,
dated
, (2) Preliminary Prospectus shall be to the Preliminary Prospectus Supplement,
dated
, together with the Prospectus, dated
, (3) Pricing Prospectus shall be to
the Prospectus, dated
and the Preliminary Prospectus Supplement, dated
, as amended and supplemented
immediately prior to the Applicable Time, and (4) Issuer Free
Writing Prospectus shall be to any Issuer Free Writing Prospectus specifically referred to in this Terms Agreement. Terms
defined in such document are used herein as therein defined. All of the Companys direct and
indirect Significant Subsidiaries are set forth on Schedule A hereto.
A-2
The Securities will be issued only in book-entry form through the facilities of The Depository
Trust Company (the Depository). Delivery of the Securities will be made through the book-entry
facilities of the Depository.
A-3
Please accept this offer by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
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Very truly yours,
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[NAME]
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By:
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[NAME]
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Title:
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Name:
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Acting on behalf of itself and the other named
Underwriters
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Accepted:
ROYAL CARIBBEAN CRUISES LTD.
A-4
Exhibit B
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian Corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
[DATE]
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Royal Caribbean Cruises Ltd. (the Company),
and the Company agrees to sell to the undersigned on
, 20
(the Delivery Date), principal
amount of the Companys [insert title of security] (the Securities), offered by the Companys
Prospectus dated
, 20
, as supplemented by its Prospectus Supplement dated
, 20
,
receipt of which is hereby acknowledged at a purchase price of [
% of the principal amount
thereof, plus accrued interest from
, 20
,] to the Delivery Date, and on the further terms
and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on the Delivery Date
shall be made to the Company or its order by certified or official bank check or wire transfer in
immediately available (same day) Clearing House funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the Securities to be purchased by
the undersigned in definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to the Company not less
than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Securities on the
Delivery Date shall be subject only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or before
,
20
, shall have sold to the Underwriters of the Securities (the Underwriters) such principal
amount of the Securities as is to be sold to them pursuant to the Terms Agreement dated
, 20
among the Company and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
B-1
failure of any purchaser to take delivery of and make payments for Securities pursuant to other
contracts similar to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the Company that all
necessary corporate action for the due execution and delivery of this contract and the payment for
and purchase of the Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement to the undersigned in
accordance with its terms.
The contract will inure to the benefit of and binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts for an aggregate
principal amount of Securities in excess of $
and that the acceptance of any Delayed
Delivery Contract is in the Companys sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such copy is so mailed or delivered.
B-2
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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Yours very truly,
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/s/
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(Name of Purchaser)
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By:
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/s/
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(Title)
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(Address)
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Accepted as of the date first above written.
ROYAL CARIBBEAN CRUISES LTD.
PURCHASERPLEASE COMPLETE AT THE TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with whom details of
delivery on the Delivery Date may be discussed are as follows: (Please print.)
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Name
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Telephone No.
(including Area
Code)
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B-3
SCHEDULE A
Significant Subsidiaries:
Celebrity Cruises Holdings Inc.
Celebrity Cruises Inc.
Cruise Mar Investments Inc.
Celebrity Cruise Lines Inc.
Cruise Mar Shipping Holdings Ltd.
-1-
ANNEX I
Pursuant to Section 6(b) of this Agreement, Davis Polk & Wardwell, outside counsel to the
Company, shall furnish an opinion to the Underwriters to the effect that:
(i) The statements set forth in the Registration Statement, the Pricing Prospectus and the
Prospectus under the captions Description of Senior Notes and Description of Debt Securities
insofar as such statements purport to constitute summaries of the terms of the Underwritten
Securities, constitute accurate and fair summaries thereof.
(ii) Each of this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, has been duly authorized, executed and delivered by the Company.
(iii) The Indenture and the Underwritten Securities constitute valid and binding agreements of
the Company, enforceable in accordance with their terms except as limited by bankruptcy,
insolvency, or other similar laws affecting creditors rights generally and by equitable principles
of general applicability. The Indenture conforms in all material respects to the description
thereof contained in the Pricing Prospectus and the Prospectus.
(iv) The Indenture complies in all material respects with the 1939 Act and has been duly
qualified under the 1939 Act.
(v) No authorization, approval, consent or order of, or qualification with, any governmental
body or agency is required for the due authorization, execution, delivery and performance by the
Company of this Agreement, the applicable Terms Agreement, the Delayed Delivery Contracts, if any,
or the Indenture, and the consummation of the transactions contemplated thereby, except (A) such as
may be required by the securities or blue sky laws of the various states in connection with the
offer and sale of the Underwritten Securities and (B) for such consents that are required and have
been received and are in full force and effect at the applicable Time of Delivery (including such
consents required by the New York Stock Exchange and the Oslo Stock Exchange).
(vi) The execution and delivery of this Agreement, the applicable Terms Agreement, the Delayed
Delivery Contracts, if any, and the Indenture by the Company, the issuance, sale and delivery of
the Underwritten Securities and the consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with the terms hereunder and thereunder do not and
will not result in any violation of, or constitute a default under, or result in the creation or
imposition of any lien or encumbrance upon any property or assets of the Company or of the
Subsidiaries listed in Schedule A to this Agreement under (A) any indenture, mortgage, loan
agreement, or any other agreement or instrument filed as an exhibit to or incorporated by reference
into the Registration Statement (except for such conflicts, breaches, defaults, liens, charges or
encumbrances that would not have a material adverse effect on the condition (financial or
otherwise), properties, assets, business, results of operations or business prospects of the
Company and its Subsidiaries,
-1-
considered as one enterprise), (B) any existing applicable law, rule or regulation (other than the
securities or blue sky laws of the various states as to which such counsel need express no
opinion), or (C) any judgment, order, writ, injunction or decree known to such counsel of any
government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the Company, its
Subsidiaries or any of their respective properties or operations.
(vii) The Registration Statement is effective under the 1933 Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); the final term sheet and any other material required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act has been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; to such counsels
knowledge, no stop order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for that
purpose have been instituted or are pending or have been threatened by the Commission under the
1933 Act and no notice of objection of the Commission to the use of the Registration Statement or
any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been
received; to such counsels knowledge, no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the
Commission.
(viii) To such counsels knowledge, there are no statutes, regulations, contracts or other
documents or legal or governmental actions, suits or proceedings pending or threatened to which the
Company or any of the Subsidiaries is a party or to which any of their respective properties is
subject against the Company or any of its Subsidiaries that are required to be described in the
Prospectus that are not described as required.
(ix) The Company is not, and after giving effect to the Offering and the sale of the
Underwritten Securities and application of the proceeds thereof as described in the Prospectus will
not be required to register as, an investment company as such term is defined in the Investment
Company Act of 1940, as amended.
In addition, such opinion shall state that such counsel has generally reviewed and discussed
with certain officers and employees of the Company, its independent public accountants and its
representatives the information furnished with respect to other matters in the Registration
Statement, the Pricing Prospectus or Prospectus, whether or not subject to the check and
verification of such counsel. On the basis of such consideration, review and discussion, but
without independent check or verification, except as stated in paragraph (i) above, nothing has
come to such counsels attention that causes such counsel to believe that (i) the Registration
Statement, the Pricing Prospectus or the Prospectus (except for the financial statements and
financial schedules and other financial data included therein, as to which such counsel need not
express any belief) do not comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement (except for the financial statements and financial schedules and
other financial data included therein, as to which such counsel need not express any belief and
except for the part of the Registration Statement that constitutes the Form T-1) at the time such
part became effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
-2-
statements therein not misleading, (iii) the Pricing Disclosure Package (except for the financial
statements and financial schedules and other financial data included therein, as to which such
counsel need not express any belief), as of the Applicable Time, contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iv) the
Prospectus (except for the financial statements and financial schedules and other financial data
included therein, as to which such counsel need not express any belief) as of its date or as of the
date hereof contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Such opinion shall be to such further effect with respect to other legal matters relating to
the Indenture, this Agreement, the applicable Terms Agreement or the Delayed Delivery Contracts, if
any, and the sale of the Underwritten Securities pursuant to this Agreement or the applicable Terms
Agreement as counsel to the Underwriters may reasonably request. In giving such opinion, such
counsel may rely (A) as to all matters governed by laws of jurisdictions other than the federal law
of the United States or the laws of the State of New York, upon opinions of other local counsel in
such jurisdictions, who shall be counsel satisfactory to counsel for the Underwriters, (B) as to
matters of maritime or admiralty law and Liberian law, upon the opinion of, special maritime and
admiralty and Liberian counsel satisfactory to counsel for the Underwriters and (C) as to all tax
matters, upon the opinion of special tax counsel for the Company satisfactory to counsel for the
Underwriters; provided that in each case the opinion shall state that such counsel is entitled to
so rely. Such counsel may also state that, insofar as such opinions involve factual matters, they
have relied, to the extent such counsel deems proper, upon certificates of officers of the Company
and its Subsidiaries and certificates of public officials.
-3-
ANNEX II
Pursuant to Section 6(b) of this Agreement, Watson, Farley & Williams (New York) LLP, outside
counsel to the Company, shall furnish an opinion to the Underwriters to the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the Republic of Liberia, and has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus.
(ii) Each Subsidiary which is organized under the laws of the Republic of Liberia and that is
set forth on Exhibit 1 to such counsels opinion (collectively, the Liberian Subsidiaries) has
been duly incorporated, is validly existing as a corporation in good standing under the laws of the
Republic of Liberia and has the corporate power and authority to own its property and to conduct
its business as described in the Pricing Prospectus and the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company as set forth in the
Prospectus as amended or supplemented in the documents incorporated by reference have been duly
authorized and validly issued and, assuming issuance against payment therefor, are fully paid and
non-assessable. Except as described in the Pricing Prospectus or the Prospectus, as amended or
supplemented, to such counsels knowledge, all of the issued and outstanding shares of capital
stock of each Liberian Subsidiary are owned by the Company or a wholly owned Liberian Subsidiary
free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind, except as described in the Pricing Prospectus or the Prospectus.
(iv) Insofar as any matter of Liberian law or U.S. maritime law is addressed therein the
statements made in the Prospectus as amended or supplemented (including any incorporated by
reference into the Prospectus from the Companys Report on Form 10-K for the fiscal year ended
December 31, 2005) under Enforceability of Civil Liabilities, Taxation of the company, Risk
Factors We are controlled by principal shareholders that have the power to determine our
policies, management and actions requiring shareholder approval, Exchange Controls,
Dividends,Risk Factors We are not a United States corporation and our shareholders may be
subject to the uncertainties of a foreign legal system in protecting their interests and
Description of Debt Securities, if any, to the extent that they constitute matters of law
or legal conclusions, are accurate in all material respects and fairly present the information
disclosed therein.
(v) There is no tax, levy, impost, deduction, charge or withholding imposed by the Republic of
Liberia or any political subdivision or taxing authority thereof or therein either (A) on or by
virtue of the execution or delivery or performance or continued validity of this Agreement, the
applicable Terms Agreement, any Delayed Delivery Contract, the Indenture, or any other document
referred to in this Agreement to be furnished hereunder or thereunder (including, without
limitation, the Underwritten Securities), (B) the issuance of the Underwritten Securities or (C) on
any payment to be made by the Company or any Liberian Subsidiary pursuant to this Agreement, the
applicable Terms Agreement, the Delayed Delivery Contracts, if any, the Indenture
-1-
(including the payment of principal and interest) or in connection with the issuance or sale of the
Underwritten Securities. The opinions stated in the preceding sentence may be based on the
assumption that (1) the Company is and intends to maintain its status as a non-resident domestic
corporation under the Business Corporation Act of Liberia; (2) the Companys vessels are not now
engaged, and are not in the future expected to engage in voyages exclusively within the territorial
waters of the Republic of Liberia; (3) the Underwritten Securities and all related documentation
will be executed outside of the Republic of Liberia; and (4) the holders of the Underwritten
Securities will neither reside in, maintain an office in nor engage in business in the Republic of
Liberia. All filing, registration and recording fees required under the laws of the Republic of
Liberia in connection with this Agreement, the applicable Terms Agreement, the Delayed Delivery
Contracts, if any, the Indenture and the Underwritten Securities to such counsels knowledge have
been paid.
(vi) None of the Company, any Liberian Subsidiary or any of their respective properties has
any immunity from the jurisdiction of any court or from any legal process (whether through service
of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise)
under the laws of the Republic of Liberia.
(vii) Under the laws of the Republic of Liberia, the Company and the Liberian Subsidiaries may
validly and effectively agree that the validity, construction and performance of this Agreement,
the applicable Terms Agreement, the Delayed Delivery Contracts, if any, and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York. Such choice of law
is a valid choice of law respecting this Agreement, the applicable Terms Agreement, the Delayed
Delivery Contracts, if any, and the Indenture and the submission by the Company and the Liberian
Subsidiaries to the jurisdiction of any New York State or federal court sitting in New York City
and any appellate court from any thereof, in connection with all transactions arising out of this
Agreement, the applicable Terms Agreement, the Delayed Delivery Contracts, if any, and the
Indenture is a valid submission to the jurisdiction of such courts. In the event a judgment of such
courts against the Company or any of the Liberian Subsidiaries were obtained after service of
process in the manner specified in this Agreement the same would be enforced by the courts of the
Republic of Liberia without a further review on the merits unless: (A) the judgment was obtained by
fraud; (B) the judgment was given in a manner contrary to natural justice, or the judgment was
given in a manner contrary to the public policy of the Republic of Liberia; (C) the judgment was in
a case in which the defendant did not appear or in which an authorized person did not appear in
such defendants behalf; (D) the judgment was not for a specific, ascertained sum of money; or (E)
the judgment was not final and conclusive in accordance with the laws of the jurisdiction in which
the judgment was obtained.
(viii) The execution and delivery of this Agreement, the applicable Terms Agreement, the
Delayed Delivery Contracts, if any, and the Indenture by the Company, the issuance and delivery of
the Underwritten Securities, the consummation by the Company of the transactions contemplated
hereby and thereby and compliance by the Company with the terms hereunder and thereunder will not
result in any violation of the charter or by-laws of the Company or any of the Liberian
Subsidiaries and will not conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance
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upon any property or assets of the Company or any of the Liberian Subsidiaries under any existing
applicable Liberian law, rule or regulation.
(ix) The Underwritten Securities have been duly authorized, executed, issued and delivered by
the Company.
(x) The shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible
Securities, if any, have been duly authorized and reserved for issuance upon such conversion or
redemption, and such shares, when issued upon such conversion or redemption, will be validly
issued, fully paid and non-assessable. The issuance of such shares will not be subject to the
preemptive or other similar rights of any shareholder of the Company arising by operation of law,
under the charter or by-laws of the Company or under any agreement to which the Company or any of
the Liberian Subsidiaries is a party.
(xi) Assuming that the Underwritten Securities have been duly executed and authenticated by
the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement and the applicable Terms Agreement or
by institutional investors in accordance with the terms of the Delayed Delivery Contracts, such
Underwritten Securities will constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture and enforceable in accordance with their terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting
creditors; right generally, and (b) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general applicability.
(xii) Each of this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, has been duly authorized, executed and delivered by the Company.
(xiii) The Indenture has been duly and validly authorized, executed and delivered by the
Company.
Such opinion shall be to such further effect with respect to other legal matters relating to
the Indenture, this Agreement, the applicable Terms Agreement or the Delayed Delivery Contracts, if
any, and the sale of the Underwritten Securities pursuant to this Agreement or the applicable Terms
Agreement as counsel to the Underwriters may reasonably request. In giving such opinion, such
counsel may rely as to all matters governed by laws of jurisdictions other than the federal law of
the United States (including maritime law and admiralty law), the laws of the State of New York, or
Liberian law, upon opinions of other local counsel in such jurisdictions, who shall be counsel
satisfactory to counsel for the Underwriters. Such counsel may also state that, insofar as such
opinions involve factual matters, they have relied, to the extent such counsel deems proper, upon
certificates of officers of the Company and its Subsidiaries and certificates of public officials.
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ANNEX III
Pursuant to Section 6(k) of this Agreement, Drinker, Biddle & Reath LLP, special tax counsel
to the Company shall furnish an opinion to the Underwriters to the effect that:
(i) The statements contained in Form 10-K for the year ended ___under the caption
BusinessTaxation of the company and in the Prospectus Supplement under the caption Risk
Factors A change in our tax status under the United States Internal Revenue Code may have
adverse effects on our income insofar as such statements purport to summarize matters of United
States federal income tax law or legal conclusions with respect thereto, fairly and accurately
summarize the matters set forth therein; and the opinion of such firm set forth therein is
confirmed.
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ANNEX IV
Pursuant to Section 6(c) of this Agreement, Bradley Stein, Acting General Counsel to the
Company, shall furnish an opinion to the Underwriters to the effect that:
(i) The issuance of the Underwritten Securities, including any Common Stock or Preferred Stock
issuable upon conversion of the Convertible Securities, if any, will not be subject to the
preemptive or other similar rights of any shareholder of the Company nor will there be any
restriction upon the voting or transfer of any such shares arising by operation of law, under the
Articles of Incorporation or Bylaws of the Company or under any agreement to which the Company or
any of its Subsidiaries is a party which is known to such counsel.
(ii) Except as disclosed in or specifically contemplated by the Pricing Prospectus or the
Prospectus as amended or supplemented and except for the amendment to and restatement of the
Companys 2000 Stock Option Plan effected in December 2005, to such counsels knowledge, there are
no outstanding options, warrants or other rights calling for the issuance of, and no commitments,
obligations, plans or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the Company.
(iii) To such counsels knowledge, neither the Company nor any of its Significant Subsidiaries
is in violation of its Articles of Incorporation or By-laws and there is no existing default by the
Company or any of its Subsidiaries in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage or loan agreement, or any other
agreement or instrument to which the Company or any of its Subsidiaries is a party and that is
described or referred to in the Registration Statement, the Pricing Prospectus or the Prospectus
(except for such defaults that would not have a material adverse effect on the condition (financial
or otherwise), properties, assets, business, results of operation or business prospects of the
Company and its Subsidiaries considered as one enterprise).
(iv) The execution and delivery of this Agreement, the applicable Terms Agreement, the Delayed
Delivery Contracts, if any, and the Indenture by the Company, the issuance, sale and delivery of
the Underwritten Securities, the consummation by the Company of the transactions contemplated
herein and therein and in the Pricing Prospectus and the Prospectus and compliance by the Company
with the terms hereunder and thereunder have been duly authorized by all necessary corporate action
on the part of the
Company and do not and will not result in any violation of the Articles of Incorporation or By-laws
of the Company or any of its Significant Subsidiaries, and do not and will not conflict with, or
constitute a breach of any of the terms and provisions of, or constitute a default under, or result
in the creation or imposition of any lien or encumbrance upon any property or assets of the Company
or its Subsidiaries under (A) any indenture, mortgage, loan agreement or any other agreement or
instrument in each case known to such counsel to which the Company or its Subsidiaries is a party
or by which they may be bound or to which any of their respective properties may be subject (except
for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), properties, assets, business,
results of operations or
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business prospects of the Company and its Subsidiaries, considered as one enterprise), (B) any
existing applicable law, rule or regulation of the State of Florida (excluding the securities or
blue sky laws of the various states as to which such counsel need express no opinion), or (C) any
judgment, order, writ, injunction or decree known to such counsel of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the Company, its
Subsidiaries or any of their respective properties or operations.
(v) To such counsels knowledge, except as disclosed in the Registration Statement, the
Pricing Prospectus or the Prospectus, no holders of the Companys securities have rights to the
registration of securities as a result of the offering contemplated by this Agreement. Except for
rights granted to parties under the Registration Rights Agreement, dated as of February 1, 1993, as
amended, among the Company, A. Wilhelmsen AS., Cruise Associates, Monument Capital Corporation,
Archinav Holdings, Ltd. and Overseas Cruiseship, Inc., no holders of the Companys securities have
rights to the registration of securities as the result of any registration statement filed by the
Company or the right to require the Company to file a registration statement under the 1933 Act
with respect to any securities of the Company owned or to be owned by such person.
(vi) To such counsels knowledge, except as described or referred to in the Registration
Statement, the Pricing Prospectus or the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or any of its Subsidiaries is a
party, or to which the property of the Company or any of its Subsidiaries is subject, before or
brought by any court or governmental agency or body, which is required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus and is not so described therein or
which might reasonably be expected to result in any material adverse change in condition (financial
or otherwise), earnings, business affairs or business prospects, of the Company and its
Subsidiaries, considered as one enterprise, or which might adversely affect the consummation of the
transactions contemplated by the Pricing Prospectus and Prospectus.
(vii) The documents incorporated by reference in the Registration Statement, the Pricing
Prospectus or Prospectus (excluding the financial statements, supporting schedules and other
statistical and financial data as to which such counsel need express no opinion), at the time they
were filed with the Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents (excluding the financial statements, supporting
schedules and other statistical and financial data as to which such counsel need express no
opinion), when they were so filed, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not misleading.
In addition, such opinion shall state that such counsel has participated to a limited extent
in the preparation of the Registration Statement, the Pricing Prospectus and the Prospectus and in
conferences with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and your
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representatives and your counsel at which the contents of the Registration Statement, the Pricing
Prospectus, the Prospectus and related matters were discussed and, although such counsel need not
pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Pricing Prospectus or the Prospectus, and has not made
any independent check or verification thereof, no facts have come to the attention of such counsel
to lead such counsel to believe that (A) (excluding the financial statements, schedules or other
statistical or financial data as to which such counsel need express no opinion), the Registration
Statement or any amendment thereto as of the date the Registration Statement or any such amendment
became effective, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, (B)
(excluding financial statements, schedules and other statistical and financial data as to which
such counsel need express no opinion), the Pricing Disclosure Package, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading or (C) (excluding financial statements, schedules and other statistical and
financial data as to which such counsel need express no opinion), the Prospectus or any amendment
or supplement thereto as of the date of the Prospectus and at the applicable Time of Delivery,
contained or contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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Exhibit 1.2
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian corporation)
Common Stock, Preferred Stock
FORM OF UNDERWRITING AGREEMENT
[DATE]
To the Underwriter or
Underwriters named in the
applicable Terms Agreement
hereinafter described
Ladies and Gentlemen:
From time to time Royal Caribbean Cruises Ltd., a Liberian corporation (the Company),
proposes to enter into one or more Terms Agreements (each a Terms Agreement) in the form of
Exhibit A hereto, with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell to the firm or
firms named in the applicable Terms Agreement (such firm or firms, whether one or more,
constituting the Underwriters with respect to such Terms Agreement and the securities specified
therein) shares of Common Stock, $.01 par value per share (the Common Stock), or shares of
Preferred Stock, $.01 par value per share (the Preferred Stock). In addition, the selling
shareholders named in Schedule I hereto (each a Selling Shareholder) may from time to time
propose to sell to the Underwriters named in the applicable Terms Agreement shares of Common Stock.
Each series of Preferred Stock may vary as to the specific number of shares, title, stated
value, liquidation preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund requirements, any conversion
provisions and any other variable terms as set forth in the applicable certificate of designations
(each, a Certificate of Designations) relating to such Preferred Stock. As used herein, the term
Securities shall mean the Common Stock and/or the Preferred Stock specified in the Terms
Agreement.
Particular sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters of such Securities
in the Terms Agreement relating thereto will act as representatives (the Representatives). The
term Representatives also refers to a single firm acting as sole representative of the
Underwriters and to the Underwriters (either one or more) who act without any firm being designated
as their representative. As used herein, you and your, unless the context otherwise requires,
shall mean the Representatives together with the other parties, if any, identified in the
applicable Terms Agreement as additional co-managers with respect to the Shares (as hereinafter
defined) purchased pursuant thereto. The obligations of the Underwriters, the Company and any
Selling Shareholders under this Agreement and each Terms Agreement shall be several and not joint.
The obligation of the Company to issue and sell and the obligation of the Selling Shareholders
to sell any of the Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Terms Agreement with respect to the Shares designated therein.
The Terms Agreement relating to the offering of Shares (as defined below) shall specify the number
of Shares to be initially issued or sold (the Firm Shares), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section 11 hereof), the
number of Firm Shares which each such Underwriter severally agrees to purchase, the names of the
Representatives in connection with such offering, the respective numbers of Shares to be sold for
the account of the Company and the Selling Shareholders, the price at which the Firm Shares are to
be purchased by the Underwriters from the Company and the Selling Shareholders, the initial public
offering price, if any, of the Firm Shares, the time and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Firm Shares (including, but not limited
to, current ratings and in the case of Preferred Stock only, designations, liquidation preferences,
conversion provisions, redemption provisions and sinking fund requirements). In addition, each
Terms Agreement shall specify whether the Company has agreed to grant to the Underwriters an option
to purchase additional Shares to cover over-allotments, if any, and the aggregate number of Shares
subject to such option (the Option Shares). As used herein, the term Shares means all of the
Securities to be sold pursuant to the applicable Terms Agreement, and shall include the Firm Shares
and any Option Shares. The Terms Agreement may take the form of an exchange of any standard form of
written telecommunication between you, the Company and any Selling Shareholder. Each offering of
Shares will be governed by this Agreement, as supplemented by the applicable Terms Agreement.
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission) an automatic shelf registration statement as defined under the Securities Act of
1933, as amended (the 1933 Act) on Form S-3 (File No. 333- ) in respect of the Shares not earlier
than three years prior to the date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order suspending the effectiveness of
such registration statement or any part thereof has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission, and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company; and the Company has filed such amendments
thereto as may have been required prior to the execution of the applicable Terms Agreement. The
base prospectus filed as part of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter
called the Basic Prospectus ; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission under the 1933 Act is hereinafter called a Preliminary
Prospectus; the various parts of the registration statement, including all exhibits thereto and
including any prospectus supplement relating to the Shares that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the
time such part of the registration statement became effective, are hereinafter collectively called
the Registration Statement; the Basic Prospectus, as amended and supplemented immediately prior
to the Applicable Time (as defined below), is hereinafter called the Pricing Prospectus; the form
of the final prospectus relating to the Shares filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with this Agreement is hereinafter called the Prospectus; any
reference herein to the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus shall be deemed to refer to and include the
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documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as
of the date of such prospectus; and any reference to any amendment or supplement to the Basic
Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the Shares filed
with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the 1934 Act), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
1934 Act after the effective date of the Registration Statement that is incorporated by reference
in the Registration Statement; any issuer free writing prospectus as defined in Rule 433 under
the 1933 Act relating to the Shares is hereinafter called an Issuer Free Writing Prospectus; all
references in this Agreement to financial statements and schedules and other information which is
contained, included or stated in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the
case may be.
Section 1.
Representations and Warranties
. (a) The Company represents and warrants to
you and to each other Underwriter named in the applicable Terms Agreement, as of the date thereof,
as follows:
(i) At (i) the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the
1933 Act) with respect to the Shares and (ii) the time of execution of this Agreement, the Company
was not and is not an ineligible issuer as defined in Rule 405 under the 1933 Act.
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements of the 1933 Act
rules and regulations of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through any manager of an offering of Shares expressly for
use therein.
(iii) For the purposes of this Agreement and the Terms Agreement, the Applicable Time shall
be such time as specified in the applicable Terms Agreement; the Pricing Prospectus as supplemented
by the final term sheet prepared and filed pursuant to Section 3(a) hereof, taken together
(collectively, the Pricing Disclosure Package) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed in the applicable Terms
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Agreement does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided, however,
that this paragraph shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through any
manager of an offering of Shares expressly for use therein.
(iv) The Registration Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
to the requirements of the 1933 Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to each part of the Registration
Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Shares through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities.
(v) The documents incorporated by reference in the Pricing Prospectus and Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder; and any further documents so filed and incorporated by reference in the
Pricing Prospectus, the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
(vi) The independent public accountants of the Company (the Company Accountants) who are
reporting upon the audited consolidated financial statements and schedules included in the
Registration Statement, and have audited the Companys internal control over financial reporting
and managements assessment thereof, are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(vii) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as hereinafter defined), if any, and this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, have been duly authorized, executed and
delivered by the Company.
(viii) (A) The consolidated financial statements and the related schedules and notes of the
Company included or incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus present fairly the
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consolidated financial position of the Company and its Subsidiaries (as hereinafter defined),
considered as one enterprise, as of the dates indicated and the consolidated statements of
operations, balance sheets and cash flows of the Company and its Subsidiaries, considered as one
enterprise for the periods specified; (B) such financial statements and related schedules and notes
have been prepared in conformity with United States generally accepted accounting principles
(GAAP) applied on a consistent basis throughout the periods involved except as indicated in
footnotes or otherwise therein; (C) the selected financial data included in the Pricing Prospectus
and the Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements included in
the Registration Statement; (D) the financial statement schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the information required to be stated
therein; and (E) the pro forma financial statements and other pro forma financial information
included in the Pricing Prospectus and the Prospectus, if any, have been prepared in all material
respects in accordance with the Commissions rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro forma bases described therein, and, in
the opinion of the Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or circumstances
referred to therein.
(ix) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the Republic of Liberia, has corporate power and authority to own its
property and to conduct its business as described in the Pricing Prospectus and the Prospectus and
is duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing would not, individually or
in the aggregate, have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its Subsidiaries, considered as
one enterprise.
(x) Of the Companys direct and indirect subsidiaries as of the date hereof (collectively, the
Subsidiaries), those that are set forth on Schedule A hereto and as of the date of the applicable
Terms Agreement those that are set forth on a schedule to the applicable Terms Agreement constitute
Significant Subsidiaries as defined under Regulation S-X promulgated under the 1933 Act (the
Significant Subsidiaries). Such Significant Subsidiaries are incorporated under the laws of
Liberia, except for Celebrity Cruise Lines Inc. Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise.
(xi) All of the issued and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-
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assessable; none of the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or similar rights of any shareholder of the Company arising by operation of law,
under the charter or by-laws of the Company or under any agreement to which the Company or any of
its Subsidiaries is a party.
(xii) Except as described in the Pricing Prospectus or the Prospectus, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and
are validly issued, fully paid and non-assessable, and are 100% owned by the Company, directly or
through one or more Significant Subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, mortgage or encumbrance of any kind.
(xiii) The Company had at the respective dates indicated in the Pricing Prospectus and the
Prospectus, a duly authorized and outstanding capitalization as set forth in the Pricing Prospectus
and the Prospectus, as the case may be, in the column entitled Actual under the caption
Capitalization.
(xiv) The Shares being sold by the Company pursuant to the applicable Terms Agreement have
been duly authorized for issuance and sale pursuant to this Agreement and the applicable Terms
Agreement or any applicable Delayed Delivery Contract and such Shares, when issued and delivered by
the Company pursuant to this Agreement, against payment of the consideration set forth in the
applicable Terms Agreement or any applicable Delayed Delivery Contract, will be duly and validly
issued, fully paid and non-assessable; the Preferred Stock, if applicable, conforms to the
provisions of the Certificate of Designations; the Shares being sold pursuant to the applicable
Terms Agreement conform in all material respects to the descriptions thereof contained in the
Pricing Prospectus and the Prospectus; and the issuance of the Shares is not subject to preemptive
or other similar rights of any shareholder of the Company arising by operation of law, under the
charter or by-laws of the Company or under any agreement to which the Company or any of its
Subsidiaries is a party.
(xv) If applicable, the shares of Common Stock issuable upon conversion of any of the shares
of Preferred Stock have been duly and validly authorized and reserved for issuance upon such
conversion by all necessary corporate action and such shares of Common Stock, when issued upon such
conversion, will be duly and validly issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be subject to preemptive or other similar
rights of any shareholder of the Company arising by operation of law, under the charter or by-laws
of the Company or under any agreement to which the Company or any of its Subsidiaries is a party;
and the shares of Common Stock issuable upon conversion of any of the shares of Preferred Stock
conform in all material respects to the descriptions thereof contained in the Pricing Prospectus
and the Prospectus.
(xvi) Since the respective dates as of which information is given in the Registration
Statement, the Pricing Prospectus and the Prospectus, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of
business, (B) any transaction entered into by the Company or any Subsidiary, other than in the
ordinary course of business,
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that is material to the Company and its Subsidiaries, considered as one enterprise or (C) any
dividend or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(xvii) The execution and delivery of this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, by the Company, the issuance, sale and delivery of the Shares,
the consummation by the Company of the transactions contemplated herein and therein and in the
Registration Statement and compliance by the Company with the terms hereunder and thereunder have
been duly authorized by all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company or any Significant
Subsidiary, and do not and will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien
or encumbrance upon any property or assets of the Company or any Significant Subsidiary under (A)
any indenture, mortgage, or loan agreement, note, lease or other agreement or instrument to which
the Company or any Significant Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of their respective properties
are subject, or (B) any existing applicable law (except that no representation is made with respect to any state
securities or blue-sky laws), rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or
any Significant Subsidiary or any of their respective properties, except as disclosed in the
Pricing Prospectus or the Prospectus.
(xviii) The Company and its Subsidiaries are conducting their business in compliance with, and
each such entity has not received any notice of any outstanding violation of, all applicable local,
state, federal and foreign laws, ordinances, rules and regulations in the jurisdictions in which
they are conducting business except as disclosed in the Pricing Prospectus or the Prospectus and
except to the extent that such failure to comply would not have, individually or in the aggregate,
a material adverse effect on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one enterprise.
(xix) No authorization, approval, consent or order of, or qualification with, any governmental
body or agency, or of any other person or entity, domestic or foreign, is required for the due
authorization, execution, delivery and performance by the Company of this Agreement, the applicable
Terms Agreement, or the Delayed Delivery Contracts, if any, and the valid authorization, issuance,
sale and delivery of the Shares, except such as may be required under the 1933 Act and the 1933 Act
Regulations (which have been obtained) or state securities or blue sky laws or under the
regulations of the Oslo Stock Exchange or except such as shall be obtained by the Company prior to
issuance of the Shares.
(xx) Except as disclosed in the Pricing Prospectus or the Prospectus, there is no action,
suit, investigation or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of their respective properties that is
required to be disclosed in the Registration Statement, the Pricing Prospectus or Prospectus or
which might materially and adversely affect the consummation of the transactions contemplated in
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this Agreement, the applicable Terms Agreement, the Delayed Delivery Contracts, if any, or the
Registration Statement.
(xxi) There is no tax, levy, impost, deduction, charge or withholding imposed by the Republic
of Liberia or any political subdivision or taxing authority thereof or any other governmental
entity either (A) on or by virtue of the execution, delivery or performance of this Agreement, the
applicable Terms Agreement, the Delayed Delivery Contracts, if any, or any other document to be
furnished hereunder or thereunder, (B) on the issuance of the Shares or (C) on any payment to be
made by the Company pursuant to this Agreement, the applicable Terms Agreement or the Delayed
Delivery Contracts, if any, except for any tax, levy, impost, deduction, charge or withholding
imposed on payments made to holders of Shares who reside in, maintain an office in or engage in
business in the Republic of Liberia.
(xxii) To the extent requested by the applicable underwriters prior to the date hereof, the
Underwritten Securities or any shares of Common Stock or Preferred Stock issuable upon conversion
of any Convertible Securities have been approved for listing on (1) the New York Stock Exchange or
any other applicable securities exchange, subject only to official notice of issuance thereof and
(2) the Osle Stock Exchange. The Company is not, and is not directly or indirectly controlled by, or acting on behalf of any
person that is, an investment company within the meaning of the Investment Company Act of 1940,
as amended.
(xxiii) (i) At the time of filing the Registration Statement and (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company was a well-known
seasoned issuer as defined in Rule 405 under the 1933 Act.
(xxiv) The Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the 1934 Act) that complies with the requirements of the
1934 Act and has been designed by the Companys principal executive officer and principal financial
officer, or under their supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. Except as disclosed in the Pricing Prospectus or the
Prospectus, the Companys internal control over financial reporting is effective and the Company is
not aware of any material weaknesses in its internal control over financial reporting.
(xxv) Except as disclosed in the Pricing Prospectus, since the date of the latest audited
financial statements incorporated by reference in the Pricing Prospectus or the Prospectus, there
has been no change in the Companys internal control over financial reporting that has materially
adversely affected, or is reasonably likely to materially adversely affect, the Companys internal
control over financial reporting.
(b) Each Selling Shareholder named in the applicable Terms Agreement represents and warrants
to, and agrees with, each of the Underwriters named in the applicable Terms Agreement and the
Company, as follows:
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(i) The Selling Shareholder has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation.
(ii) No authorization, approval, consent or order of, or qualification with any governmental
body or agency, or of any other person or entity, domestic or foreign, is required for the due
authorization, execution and delivery by such Selling Shareholder of this Agreement, the applicable
Terms Agreement, the Power of Attorney and the Custody Agreement hereinafter referred to, and for
the sale and delivery of the Shares to be sold by the Selling Shareholder hereunder, except such as
may be required under the 1933 Act and the 1933 Act Regulations (which have been obtained), under
state securities or blue sky laws or under the regulations of the Oslo Stock Exchange or except
such as shall be obtained prior to issuance; and the Selling Shareholder has full right, power and
authority to enter into this Agreement, the applicable Terms Agreement, the Power of Attorney and
the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by the
Selling Shareholder hereunder.
(iii) This Agreement and the applicable Terms Agreement have been duly authorized, executed
and delivered by or on behalf of the Selling Shareholder.
(iv) The execution and delivery of this Agreement, the Power of Attorney or the applicable
Terms Agreement and the Custody Agreement by the Selling Shareholder, the sale and delivery of the
Shares to be sold by the Selling Shareholder, the consummation by the Selling Shareholder of the transactions
contemplated herein and in the Registration Statement and compliance by the Selling Shareholder
with the terms hereunder have been duly authorized by all necessary corporate action and will not
result in any violation of the charter, by-laws or other organizational documents of the Selling
Shareholder, and do not or will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien
or encumbrance upon any property or assets of the Selling Shareholder under (A) any indenture,
mortgage, or loan agreement, note, lease or other agreement or instrument to which the Selling
Shareholder is a party or by which the Selling Shareholder is bound or to which any of the Selling
Shareholders property or assets is subject, or (B) any existing applicable law (except that no
representation is made with respect to any state securities or blue-sky laws), rule, regulation,
judgment, order or decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Shareholder or any of its properties or assets,
except as disclosed in the Pricing Prospectus or the Prospectus.
(v) The Selling Shareholder has, and immediately prior to each Time of Delivery (as defined in
Section 2 hereof) the Selling Shareholder will have, good and valid title to the Shares to be sold
by the Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of such Shares and payment therefor pursuant hereto and thereto, good
and valid title to such Shares, free and clear of any pledge, lien, security interest, charge,
claim, mortgage or encumbrance of any kind will pass to the several Underwriters.
(vi) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, the Selling Shareholder agrees not to offer for sale,
sell, pledge or otherwise dispose of, any shares of Common Stock directly or indirectly, except as
provided hereunder, or as otherwise agreed upon between the parties hereto.
-9-
(vii) The Selling Shareholder has not taken and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(viii) To the extent that any statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written information furnished to the
Company by the Selling Shareholder expressly for use therein, such Preliminary Prospectus, Pricing
Prospectus and the Registration Statement did, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(ix) In order to document the Underwriters compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, the Selling Shareholder will deliver to you prior to or at the First Time of
Delivery (as hereinafter defined) a properly completed and executed United States Treasury
Department Form W-8 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(x) Certificates in negotiable form representing all of the Shares to be sold by the Selling
Shareholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore
furnished to you (the Custody Agreement), duly executed and delivered by the Selling Shareholder
to ChaseMellon Shareholder Services, L.L.C., as custodian (the Custodian), and the Selling
Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished
to you (the Power of Attorney), appointing the person indicated in Schedule I hereto, and each of
them, as the Selling Shareholders attorney-in-fact (the Attorney-in-Fact) with authority to
execute and deliver this Agreement, and the applicable Terms Agreement on behalf of the Selling
Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling
Shareholder as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by
the Selling Shareholder hereunder and otherwise to act on behalf of the Selling Shareholder in
connection with the transactions contemplated by this Agreement, the applicable Terms Agreement and
the Custody Agreement.
(xi) The Shares represented by the certificates held in custody for the Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters hereunder; the
arrangements made by the Selling Shareholder for such custody, and the appointment by the Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the
obligations of the Selling Shareholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or
trust, by the death or incapacity of any executor or trustee or the termination of such estate or
trust, or in the case of a partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if the Selling Shareholder or any such
executor or trustee should die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares
-10-
hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling
Shareholder in accordance with the terms and conditions of this Agreement, the applicable Terms
Agreement and of the Custody Agreement; and actions taken by the Attorney-in-Fact pursuant to the
Power of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian, the Attorney-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination, dissolution or other
event.
(c) Any certificate signed by any officer of the Company, any Subsidiary or any Selling
Shareholder and delivered to you or counsel for the Underwriters in connection with the offering of
Shares pursuant to this Agreement or the applicable Terms Agreement or the transactions
contemplated hereby or thereby shall be deemed a representation and warranty by the Company or the
Selling Shareholder, as the case may be, to each Underwriter participating in such offering as to
the matters covered thereby on the date of such certificate.
Section 2.
Sale and Delivery to the Underwriters; Closings
. (a) The several
commitments of the Underwriters to purchase the Shares pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement relating to the Firm Shares, an option to the Underwriters named in any
such Terms Agreement,
severally and not jointly, to purchase up to the aggregate number of Option Shares set forth
therein at the same price per Option Share as is applicable to the Firm Shares. Such option, if
granted, will expire 30 days or such lesser number of days as may be specified in the applicable
Terms Agreement after the date of the Terms Agreement relating to the Firm Shares, and may be
exercised in whole or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the Firm Shares upon notice
by you to the Company setting forth the aggregate number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and delivery for such
Option Shares. Any such time and date of payment and delivery (a Second Time of Delivery) shall
be determined by you, but shall not be later than seven full business days and not be earlier than
two full business days after the exercise of said option, unless otherwise agreed upon by you and
the Company. If the option is exercised as to all or any portion of the Option Shares, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of the total
aggregate number of Option Shares then being purchased which the aggregate number of Firm Shares
each such Underwriter has agreed to purchase as set forth in the applicable Terms Agreement bears
to the total aggregate number of Firm Shares, subject to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional Shares.
(c) Payment of the purchase price for, and delivery of the certificates for, Firm Shares shall
be made at the time and place specified in the applicable Terms Agreement, or at such other place
as shall be agreed upon by the Company and you (such date and time of payment and delivery being
herein called the First Time of Delivery, and each of the First Time of Delivery and the Second
Time of Delivery being herein called a Time of Delivery). In addition, in the event that any or
all of the Option Shares are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Shares shall be made at the time and place specified in
the applicable Terms Agreement, on the Second Time
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of Delivery as specified in the notice from you to the Company. Unless otherwise specified in the
applicable Terms Agreement, payment shall be made to the Company and, if applicable, the Selling
Shareholders by certified or official bank check or checks or by wire transfer in immediately
available (same day) funds payable to the order of the Company and, if applicable, the Selling
Shareholders against delivery to you for the respective accounts of the several Underwriters of
certificates for the Shares to be purchased by them.
(d) The certificates for the Shares to be purchased by the Underwriters shall be in such
denominations and registered in such names as you may request in writing at least two full business
days before the First Time of Delivery or the Second Time of Delivery, as the case may be. The
certificates for the Shares will be made available in New York City for examination and packaging
by you not later than 10:00 A.M. on the business day prior to the First Time of Delivery or the
Second Time of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized you, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Shares. You, individually
and not as Representatives, may (but shall not be obligated to) make payment of the purchase price
for the Shares to be purchased by any Underwriter whose wire transfer or check or checks shall not
have been received by the First Time of Delivery or the Second Time of Delivery, as the case may
be.
(f) If authorized by the applicable Terms Agreement, the Underwriters named therein may
solicit offers to purchase Shares from the Company pursuant to delayed delivery contracts (Delayed
Delivery Contracts) substantially in the form of Exhibit B hereto with such changes therein as the
Company may
approve. As compensation for arranging Delayed Delivery Contracts, the Company will pay to you at
the applicable Time of Delivery, for the respective accounts of the Underwriters, a fee equal to
that percentage of the number of Shares for which Delayed Delivery Contracts are made at the
applicable Time of Delivery as is specified in the applicable Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types described in the Prospectus. At the
applicable Time of Delivery, the Company will enter into Delayed Delivery Contracts (for not less
than the minimum number of Shares per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate number of Shares in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or
performance of any Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior to the applicable Time of
Delivery, the names of any institutional investors with which it is proposed that the Company will
enter into Delayed Delivery Contracts and the number of Shares to be purchased by each of them, and
the Company will advise you, at least two business days prior to the applicable Time of Delivery,
of the names of the institutions with which the making of Delayed Delivery Contracts is approved by
the Company and the number of Shares to be covered by each such Delayed Delivery Contract.
The number of Shares agreed to be purchased by the several Underwriters pursuant to the
applicable Terms Agreement shall be reduced by the number of Shares covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by you to the Company;
provided, however, that the total number of Shares to be purchased by all Underwriters shall be the
total number of Shares covered by the applicable Terms Agreement, less the number of Shares covered
by Delayed Delivery Contracts.
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Section 3.
Certain Covenants of the Company
. The Company covenants with each
Underwriter of Shares as follows:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable Shares
in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under
the 1933 Act not later than the Commissions close of business on the second business day following
the execution and delivery of the Terms Agreement relating to the applicable Shares; to make no
further amendment or any supplement to the Registration Statement, the Basic Prospectus or the
Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such
Shares and prior to the Time of Delivery for such Shares to which the Representatives reasonably
object promptly after reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the Representatives with copies
thereof; to prepare a final term sheet, containing solely a description of the Shares, in a form
approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933
Act within the time required by such Rule; to file promptly all other material required to be filed
by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all
reports and any other information required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the 1933 Act) is required in connection with the offering or sale of such
Shares; to advise the Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective or any supplement
to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the
Representatives with copies thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Shares, including, in the
case of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable
upon conversion of such shares of Preferred Stock, of any notice of objection of the Commission to
the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the 1933 Act, of the suspension of the qualification of such Shares or stock for
offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of any
Preliminary Prospectus or other prospectus relating to such Shares or stock or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal; and in the event of any
such issuance of a notice of objection, promptly to take such steps including, without limitation,
amending the Registration Statement or filing a new registration statement, at its own expense, as
may be necessary to permit offers and sales of the Shares by the Underwriters (references herein to
the Registration Statement shall include any such amendment or new registration statement).
(b) If required by Rule 430B(h) under the 1933 Act, to prepare a form of prospectus, to give
the Representatives notice thereof and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus which shall reasonably be disapproved by the
Representatives promptly after reasonable notice thereof.
(c) The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New
York City time, on the New York Business Day (as defined herein) next
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succeeding the date of this Agreement and from time to time, with written and electronic copies of
the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may from time to time reasonably request, and, if the delivery of
a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is
required at any time in connection with the offering or sale of the Shares, including in the case
of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable upon
conversion of such shares of Preferred Stock and if at such time any event shall have occurred as a
result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the 1933 Act) is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the Pricing Dislcosure Package or
the Prospectus or to file under the 1934 Act any document incorporated by reference in the Pricing
Disclosure Package or the Prospectus in order to comply with the 1933 Act or the 1934 Act or the
respective rules thereunder, and upon their reasonable request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as the Representatives may from time to time reasonably request of an amended
Pricing Disclosure Package or Prospectus or a supplement to the Pricing Disclosure Package or the
Prospectus which will correct such statement or omission or effect such compliance. For purposes of
this Agreement, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify
the Shares and the shares of Common Stock issuable upon conversion of shares of Preferred Stock, if
any, for offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as you may designate and to maintain such qualifications in
effect for a period of not less than one year from the effective date of the Registration
Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company
will file such statements and reports as may be required by the laws of each jurisdiction in which
the Shares, including the shares of Common Stock issuable upon conversion of shares of Preferred
Stock, if any, have been qualified as above provided.
(e) The Company will make generally available to its security holders and will deliver to the
Representatives an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at
the option of the Company, Rule 158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best
efforts to effect and maintain the listing of the Shares, including shares of Common Stock issuable
upon conversion of any shares of Preferred Stock, any Convertible Securities, if applicable, on the
New York Stock Exchange.
(g) To the extent provided in the Terms Agreement, the Company will not, between the date of
the applicable Terms Agreement and a date agreed to by the Representatives and the Company in the
Terms Agreement, without the Representatives prior
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written consent, offer or sell, grant any option for the sale of, or enter into any agreement to
sell, any securities of the same class or series or ranking on parity with such Shares (other than
the Shares which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement
relates to Shares that are convertible into or exchangeable or exercisable for Common Stock, any
Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant
to employee benefit plans, dividend reinvestment plans, employee and director stock option plans,
existing employment agreements or existing shareholder option plans), except, in each case, as may
otherwise be provided in the applicable Terms Agreement.
(h) If applicable, the Company will reserve and keep available at all times, free of
preemptive or other similar rights, shares of Common Stock for the purpose of enabling the Company
to satisfy any obligation to issue such shares upon conversion of any shares of Preferred Stock.
(i) For a period of five years after the applicable Time of Delivery, the Company will furnish
to you and to each Underwriter that so requests copies of all annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, as the case may be, or such
other similar forms as may be designated by the Commission, and such other documents, reports and
information relating to the Companys business or finances as shall be furnished by the Company to
its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the
1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) in
connection with sales of the Shares, will file all documents required to be filed with the
Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r)
under the Act.
Section 4. (a)(i) The Company represents and agrees that, other than the final term sheet
prepared and filed pursuant to Section 3(a) hereof, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus as defined in Rule 405 under the Act, other than a free
writing prospectus which is not required to be filed with the Commission on or prior to the date of
first use;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, other than one or more term sheets relating to the Shares containing customary
information and conveyed to purchasers of Shares, it has not made and will not make any offer
relating to the Shares that would constitute a free writing prospectus, provided that in no case
shall any Underwriter make or use any free writing prospectus that the Company would be obligated
to file with the Commission unless the Company shall have consented thereto in writing; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and the Representatives (including the final term
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sheet prepared and filed pursuant to Section 3(a) hereof) is listed in the Terms Agreement;
(b) The Company has complied and will comply with the requirements of Rule 433 under the 1933
Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission
or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus relating to an offering of Shares after the pricing thereof and prior to the First Time
of Delivery with respect thereto, any event occurred or occurs as a result of which such Issuer
Free Writing Prospectus would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such statement
or omission; provided, however, that the Company shall have no obligation to correct any statements
or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter expressly for use therein.
Section 5.
Payment of Expenses
. (a) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the applicable Terms Agreement including
(i) the printing and filing of the Registration Statement (including financial statements,
schedules and exhibits), as originally filed and as amended, any Preliminary Prospectus, the
Pricing Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Underwriters, (ii) the copying or printing, as applicable, and distribution
of this Agreement, the applicable Terms Agreement and the Delayed Delivery Contracts, if any, the
certificates for the Shares and a survey of state securities or blue sky laws (the Blue Sky
Survey), (iii) the preparation, issuance and delivery of the Shares to the Underwriters, including
any capital duties, stamp duties and stock or other transfer taxes payable upon the sale of the
Shares to the Underwriters, (iv) the fees and disbursements of the Companys counsel and
accountants, (v) the qualification of the Shares, including shares of Common Stock issuable upon
conversion of shares of Preferred Stock, if any, under the applicable securities laws in accordance
with Section 3(c) and any filing for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the Blue Sky Survey, (vi) the
fees and expenses any transfer agent or registrar of the Shares, including shares of Common Stock
issuable upon the conversion of shares of Preferred Stock, if any, (vii) any fees payable in
connection with the rating of the Shares and (viii) the fees and expenses, if any, incurred with
respect to the listing of the Shares, including shares of Common Stock issuable upon conversion of
shares of Preferred Stock, if any, on any national securities exchange. This paragraph (a) is
without prejudice to any agreement by a Selling Shareholder to reimburse the Company for any of the
foregoing expenses.
(b) The Company and each Selling Shareholder agree that with respect to any underwriting
discounts or commissions payable to the Underwriters pursuant to any Terms Agreement, the Company
and each Selling Shareholder shall be responsible for their respective pro rata portions of such
discounts or commissions based on the number of Shares sold by the Company and each Selling
Shareholder.
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(c) If the applicable Terms Agreement is terminated by you in accordance with the provisions
of Sections 6, 11(b)(i) or 13, the Company shall reimburse the Underwriters named in such Terms
Agreement through you for all their reasonable out-of-pocket expenses reasonably incurred,
including the reasonable fees and disbursements of counsel for the Underwriters.
Section 6.
Conditions of Underwriters Obligations
. The obligations of the several
Underwriters to purchase and pay for the Shares pursuant to the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company and of the Selling
Shareholders contained herein or in certificates of any officer of the Company or any Subsidiary
delivered pursuant to the provisions hereof, to the performance by the Company and the Selling
Shareholders of their respective obligations hereunder, and to the following further conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable Shares shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the 1933 Act and in accordance with Section 3(a)
hereof; the final term sheet contemplated by Section 3(a) hereof, and any other material required
to be filed by the Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with
the Commission within the applicable time period prescribed for such filings by Rule 433; no stop
order suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceedings for that purpose shall have been instituted or be pending or have
been threatened by the Commission under the 1933 Act and no notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the Representatives reasonable satisfaction.
(b) At the First Time of Delivery, you shall have received signed opinions of Davis Polk &
Wardwell and Watson, Farley & Williams (New York) LLP as outside counsel for the Company,
reasonably acceptable to the Representatives, dated as of the First Time of Delivery, together with
reproduced copies of such opinions for each of the other Underwriters, substantially in the forms
attached hereto as Annexes I and II respectively, and reasonably satisfactory to counsel for the
Underwriters.
(c) At the First Time of Delivery, you shall have received a signed opinion of Bradley Stein,
the Companys Acting General Counsel, reasonably acceptable to the Representatives, dated as of the
First Time of Delivery, together with reproduced copies of such opinions for each of the other
Underwriters, substantially in the form attached hereto as Annex IV, and reasonably satisfactory to
counsel for the Underwriters.
(d) At the First Time of Delivery, you shall have received the favorable opinion of counsel
for the Underwriters, dated as of the First Time of Delivery, together with reproduced copies of
such opinion for each of the other Underwriters, to the effect that the opinions delivered pursuant
to Sections 6(b) and 6(c) appear on their faces to be appropriately responsive to the requirements
of this Agreement and the applicable Terms Agreement except, specifying the same, to the extent
waived by you, and with respect to the legal existence of the Company, the Shares, this Agreement,
the applicable Terms Agreement, the Registration Statement, the Pricing Disclosure Package, the
Prospectus and such other related matters as
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you may require. In giving such opinion such counsel may rely, (A) as to matters governed by the
laws of the Republic of Liberia, upon the opinion of special counsel as to matters of Liberian law
reasonably acceptable to the Representatives and (B) as to all matters governed by the laws of
jurisdictions other than the federal law of the United States and the laws of the State of New
York, upon the opinions of counsel reasonably satisfactory to you. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its Subsidiaries and certificates of
public officials.
(e) At the First Time of Delivery, (i) the Registration Statement, the Pricing Disclosure
Package and the Prospectus, as they may then be amended or supplemented, shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act Regulations, the
Registration Statement, as it may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements in the Registration Statement not misleading, the Pricing
Disclosure Package, as it may then be amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements in the Pricing Disclosure Package not misleading and the
Prospectus shall not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements in the Prospectus, in light
of the circumstances under which they were made, not misleading, (ii) there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Pricing Disclosure Package or the Prospectus, any material adverse
change, or any development involving a prospective material adverse change, in the condition
(financial or otherwise), earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of
business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary that would be required
to be set forth in the Pricing Disclosure Package and the Prospectus other than as set forth
therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary before or by any federal, state or other commission, board or
administrative agency that could reasonably be expected to materially and adversely affect the
condition (financial or otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise, other than as set forth in the Pricing
Disclosure Package and the Prospectus, (iv) the Company shall have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to the First Time of
Delivery and (v) the other representations and warranties of the Company set forth in Section 1(a)
shall be accurate as though expressly made at and as of the First Time of Delivery. At the First
Time of Delivery, you shall have received a certificate of the Chairman of the Board, President or
Vice President and the Treasurer or Controller of the Company, dated as of the First Time of
Delivery, to such effect. As used in Section 6(e)(ii) and (iii), the term Prospectus means the
Prospectus in the form first used to confirm sales of the Shares.
(f) On the date of the Terms Agreement for such Shares and at the First Time of Delivery for
such Shares, the Company Accountants who have certified the financial statements of the Company and
its Subsidiaries included or incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the date of the Terms Agreement or the date of the
most recent report filed with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if
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the date of such report is later than such date, and a letter dated as of the First Time of
Delivery, respectively, as to such other matters as the Representatives may reasonably request and
in form and substance reasonably satisfactory to the Representatives.
(g) At the First Time of Delivery, you shall have received from the Company certificates in
form reasonably satisfactory to you with respect to the ownership, registration and mortgages with
respect to each of the Companys vessels.
(h) At the First Time of Delivery, you shall have received from the Company lock-up agreements
as set forth in the Terms Agreement.
(i) At the First Time of Delivery, counsel for the Underwriters shall have been furnished with
all such documents, certificates and opinions as they may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the Shares as contemplated in this Agreement
and the matters referred to in Section 6(e) and in order to evidence the accuracy and completeness
of any of the representations, warranties or statements of the Company and the Selling
Shareholders, the performance of any of the covenants of the Company and the Selling Shareholders
or the fulfillment of any of the conditions herein contained; and all proceedings taken by the
Company and the Selling Shareholders, at or prior to the First Time of Delivery in connection with
the authorization, issuance and sale of the Shares as contemplated in this Agreement shall be
reasonably satisfactory in form and substance to you and to counsel for the Underwriters.
(j) If applicable, the Shares, including shares of Common Stock issuable upon conversion of
shares of Preferred Stock, if any, shall have been duly authorized for listing by (1) the New York
Stock Exchange or any other applicable securities exchange, subject only to official notice of issuance thereof and
(2) the Oslo Stock Exchange.
(k) At the First Time of Delivery the Underwriters shall have received a copy of an opinion,
in form reasonably satisfactory to counsel for the Underwriters, rendered to the Underwriters by
Company special tax counsel reasonably acceptable to the Representatives with respect to tax
matters and as to the matters set forth in Annex III.
(l) At the First Time of Delivery, you shall have received signed opinions of counsel to each
Selling Shareholder, in each case reasonably acceptable to the Representatives, dated as of such
Time of Delivery, together with reproduced copies of such opinions for each of the other
Underwriters, substantially in the form attached hereto as Annex IV, and reasonably satisfactory to
counsel for the Underwriters.
(m) The Company shall have complied with the provisions of Section 3(b) hereof with respect to
the furnishing of Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
required by this Agreement or the applicable Terms Agreement to be fulfilled, the applicable Terms
Agreement may be terminated by you upon notice to the Company at any time at or prior to the First
Time of Delivery, and such termination shall be without liability of any party to any other party
except as provided in Section 5 herein. Notwithstanding any such termination, the provisions of
Sections 8, 9, 10, 16 and 17 herein shall remain in effect.
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Section 7.
Conditions to Purchase of Option Shares
. In the event that the Underwriters
exercise their option provided in a Terms Agreement as set forth in Section 2(b) hereof to purchase
all or any of the Option Shares and the Second Time of Delivery determined by you pursuant to
Section 2(b) is later than the First Time of Delivery, the obligations of the several Underwriters
to purchase and pay for the Option Shares that they shall have respectively agreed to purchase
pursuant to the applicable Terms Agreement are subject to the accuracy of the representations and
warranties of the Company herein contained, to the performance of the Company of its obligations
hereunder and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall have been threatened by the
Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the Commission; and any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters.
(b) At the Second Time of Delivery, the provisions of Section 6(e) shall have been complied
with at and as of the Second Time of Delivery and, at the Second Time of Delivery, you shall have
received a certificate of the Chairman of the Board, President or Vice President and the Treasurer
or Controller of the Company with respect to the provisions of Section 5(e), dated as of the Second
Time of Delivery, to such effect.
(c) At the Second Time of Delivery, you shall have received the favorable opinions of Davis
Polk & Wardwell and Watson, Farley & Williams (New York) LLP, each outside counsel for the Company
reasonably acceptable to the Representatives, together with reproduced copies of such opinions for
each of the other Underwriters in form reasonably satisfactory to counsel for the Underwriters,
dated as of the Second Time of Delivery, relating to the Option Shares and otherwise to the same
effect as the opinion required by Section 6(b).
(d) At the Second Time of Delivery, you should have received the favorable opinion of the
Companys General Counsel reasonably acceptable to the Representatives, together with reproduced
copies of such opinion for each of the other Underwriters in form reasonably satisfactory to
counsel for the Underwriters, dated as of the Second Time of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by Section 6(c).
(e) At the Second Time of Delivery, you shall have received the favorable opinion of counsel
for the Underwriters, dated as of the Second Time of Delivery, relating to the Option Shares and
otherwise to the same effect as the opinion required by Section 6(d).
(f) At the Second Time of Delivery, you shall have received a letter from the Accountants, in
form and substance reasonably satisfactory to you and dated as of the Second Time of Delivery, to
the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(f),
except that the specified date referred to shall be a date not more than five days prior to the
Second Time of Delivery.
(g) At the Second Time of Delivery, counsel for the Underwriters shall have been furnished
with all such documents, certificates and opinions as they may reasonably request for the purpose
of enabling them to pass upon the issuance and sale of the Option
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Shares as contemplated in this Agreement and the matters referred to in Section 7(e) and in order
to evidence the accuracy and completeness of any of the representations, warranties or statements
of the Company, the performance of any of the covenants of the Company, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company, at or prior to the
Second Time of Delivery in connection with the authorization, issuance and sale of the Option
Shares as contemplated in this Agreement shall be reasonably satisfactory in form and substance to
you and to counsel for the Underwriters.
(h) At the Second Time of Delivery, you shall have received the favorable opinion of special
tax counsel for the Company reasonably acceptable to the Representatives, together with reproduced
copies of such opinion for each of the Underwriters in form and substance reasonably satisfactory
to counsel for the Underwriters, dated the Second Time of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section 6(k) and addressed to the
Underwriters.
Section 8.
Indemnification
. (a) The Company and each Selling Shareholder jointly and
severally agree to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement
(or any amendment thereto), if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein not
misleading or arising out of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or any
issuer information filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or
the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
and
(iii) against any and all expense whatsoever, as incurred (including, subject to the last
sentence of Section 8(c), fees and disbursements of counsel chosen by you to represent the
Underwriters), reasonably incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity does not apply to any loss, liability, claim, damage or
expense to the extent arising out of an untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished or
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confirmed in writing to the Company by or on behalf of any Underwriter through you expressly for
use in the Registration Statement (or in any amendment thereto), any Preliminary Prospectus, the
Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or the Pricing Disclosure Package; and provided further, that the indemnity of each
Selling Shareholder shall apply to the extent and only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Registration Statement (or
in any amendment thereto) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or
any amendment or supplement thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure
Package in reliance upon and in conformity with written information furnished to the Company by
such Selling Shareholder expressly for use therein.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each Selling Shareholder against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 8(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with
information furnished or confirmed in writing to the Company by or on behalf of such Underwriter
through you expressly for use in the Registration Statement (or any amendment thereto), any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement
thereto.
(c) Each indemnified party shall give prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. If any such action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the right to employ counsel
to represent jointly the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this Section 8 if, in the
reasonable judgment of the Representatives, it is advisable for the Representatives and those
Underwriters and controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the Company.
(d) No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
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proceeding. No indemnifying party shall be liable for any settlement of any action or claim for
monetary damages which an indemnified party may effect without the written consent of the
indemnifying party, which written consent shall not be unreasonably withheld.
Section 9.
Contribution
. If the indemnification provided for in Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or (b) in
respect of any loss, liability, claim, damage or expense (or actions in respect thereof) referred
to therein, then each indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of
such loss, liability, claim, damage or expense (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company or any Selling
Shareholder on the one hand and the Underwriters of the Shares on the other from the offering of
the Shares to which such loss, liability, claim, damage or expense (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the notice required under
Section 8(c) above, then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company or any Selling Shareholder on the one hand and
the Underwriters of the Shares on the other in connection with the statements or omissions which
resulted in such loss, liability, claim, damage or expense (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received by the Company or
any Selling Shareholde on the one hand and such Underwriters on the other in connection with the
offering of the Shares shall be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company or any Selling Shareholder bear
to the total underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or any Selling Shareholder on the one hand or
such Underwriters on the other and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9. The amount paid or
payable by an indemnified party as a result of the loss, liability, claim, damage or expense (or
actions in respect thereof) referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Section
9, no Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 9, the Selling Shareholders shall not be
required to contribute under this Section 9 except to the extent and under such circumstances as
the each Selling Shareholder would have been liable pursuant to Section 8 hereof had
indemnification been enforceable under applicable law. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Shares in this Section 9 to
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contribute are several in proportion to their respective underwriting obligations with respect to
such Shares and not joint.
Section 10.
Representations, Warranties and Agreements to Survive Delivery
. The
representations, warranties, indemnities, agreements and other statements of the Company, its
officers set forth in or made pursuant to this Agreement or the applicable Terms Agreement and any
Delayed Delivery Contract and the indemnities of the Underwriters set forth in this Agreement will
remain operative and in full force and effect regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of the Company, or any
Underwriter or controlling person and will survive delivery of and payment for the Shares.
Section 11.
Termination of Agreement
. (a) This Agreement (excluding the applicable
Terms Agreement) may be terminated for any reason at any time by the Company or by you upon the
giving of 30 days written notice of such termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to the Company at any
time at or prior to the Time of Delivery (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the Pricing Prospectus
or the Prospectus, any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company or its Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred
any material adverse change in the financial markets in the United States or internationally or any
outbreak or escalation of hostilities or other calamity or crisis, if the effect of any such event
or events is such as to make it, in your judgment, impracticable or inadvisable to market the
Shares or enforce contracts for the sale of the Offered Shares, (iii) if trading in any securities
of the
Company has been suspended or materially limited, or if trading generally on the New York Stock
Exchange or in the over-the-counter market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, (iv) if a banking moratorium has been declared
by either federal or New York authorities or there has occurred a material disruption in commercial
banking or securities settlement or clearance services in the United States or (v) if Preferred
Stock is being offered and the rating assigned by any nationally recognized statistical rating
organization as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act to any
preferred stock of the Company as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly announced that it
has placed any preferred stock of the Company on what is commonly termed a watch list for
possible downgrading. As used in this Section 11(b), the term Prospectus means the Prospectus in
the form first used to confirm sales of the Offered Shares.
(c) In the event of any such termination, (x) the covenants set forth in Section 3 with
respect to any offering of Shares shall remain in effect so long as any Underwriter owns any such
Shares purchased from the Company pursuant to the applicable Terms Agreement and (y) the covenant
set forth in Section 3(d) hereof, the provisions of Section 5 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections 10,
16, 17 and 18 hereof shall remain in effect.
Section 12.
Default by One or More of the Underwriters
. If one or more of the
Underwriters shall fail at the applicable Time of Delivery to purchase the Shares that it or they
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are obligated to purchase under the applicable Terms Agreement (the Defaulted Securities), then
you shall have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the terms set forth in this
Agreement; if, however, you have not completed such arrangements within such 24-hour period, then:
(a) if the aggregate number of Defaulted Securities does not exceed 10% of the aggregate
number of Shares to be purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligation proportions hereunder bear to the
underwriting obligation proportions of all non-defaulting Underwriters, or
(b) if the aggregate number of Defaulted Securities exceeds 10% of the aggregate number of
Shares to be purchased pursuant to such Terms Agreement, the applicable Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 12 shall relieve any defaulting Underwriter from
liability in respect of its default under this Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in a termination of the applicable Terms
Agreement, either you or the Company shall have the right to postpone the applicable Time of
Delivery for a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term Underwriter includes any person
substituted for an Underwriter under this Section 12.
Section 13.
Default by the Company or any Selling Shareholder
. If the Company or any
Selling Shareholder shall fail at the applicable Time of Delivery to sell and deliver the number of
Shares that it is obligated to sell, then the applicable Terms Agreement shall terminate without
any liability on the part of any non-defaulting party except to the extent provided in Section 5
and except that the provisions of Sections 3(d), 5, 8, 9, 10 16, 17 and 18 shall remain in effect.
No action taken pursuant to this Section shall relieve the Company or any Selling Shareholder from
liability, if any, in respect of such default.
Section 14.
Notices
. All notices and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given if delivered, mailed or transmitted by
any standard form of telecommunication (notices transmitted by telecopier to be promptly confirmed
in writing). Notices to you or the Underwriters shall be directed to the address of the
Representatives as set forth in the Terms Agreement; notices to the Company shall be directed to
the Company at 1050 Caribbean Way, Miami, Florida 33132, attention of Richard D. Fain, Chairman of
the Board, with a copy to the General Counsel of the Company at 1050 Caribbean Way, Miami, Florida
33132; and notices to the Selling Shareholders shall be directed to the address or addresses
specified in the applicable Terms Agreement, or if no address is specified, then to the Selling
Shareholders in care of the Company.
Section 15.
Parties
. This Agreement and the applicable Terms Agreement are made solely
for the benefit of you, the Company, the Selling Shareholders, any Underwriter who becomes a party
to such Terms Agreement and, to the extent expressed, any person
-25-
controlling the Company or any of the Underwriters, and the directors of the Company, its officers
who have signed the Registration Statement, and their respective executors, administrators,
successors and assigns and, subject to the provisions of Section 11, no other person shall acquire
or have any right under or by virtue of this Agreement and the applicable Terms Agreement. The term
successors and assigns shall not include any purchaser, as such purchaser, from any of the
several Underwriters of the Shares. All of the obligations of the Underwriters hereunder are
several and not joint.
SECTION 16.
GOVERNING LAW AND TIME
. THIS AGREEMENT AND THE APPLICABLE TERMS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF THE DAY REFER TO NEW
YORK CITY TIME.
Section 17.
Consent to Jurisdiction and Service of Process
. The Company and each
Selling Shareholder agree that any legal suit, action or proceeding brought by any party to enforce
any rights under or with respect to this Agreement, the applicable Terms Agreement or the
transactions contemplated hereby or thereby may be instituted in any state or federal court in The
City of New York, State of New York, and waive to the fullest extent permitted by law any objection
which they may now or hereafter have to the laying of venue of any such suit, action or proceeding
and irrevocably submit to the non-exclusive jurisdiction of any such court in any such suit, action
or proceeding. Each of the Company and each Selling Shareholder hereby irrevocably designates and
appoints the Companys General Counsel as the its authorized agent to receive and forward on its
behalf service of any and all process which may be served in any such suit, action or proceeding in
any such court and agrees that service of process upon the Companys General Counsel at his office
at the Company, 1050 Caribbean Way, Miami, Florida 33132 and written
notice of said service to the Company, mailed or delivered to the Companys General Counsel, 1050
Caribbean Way, Miami, Florida 33132 shall be deemed in every respect effective service of process
upon the Company and each Selling Shareholder in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Company and each Selling Shareholder. Said
designation and appointment shall be irrevocable. Nothing in this Section 16 shall affect the right
of the Underwriters, their affiliates or any indemnified party to serve process in any manner
permitted by law or limit the right of the Underwriters, their affiliates or any indemnified party
to bring proceedings against the Company and each Selling Shareholder in the courts of any
jurisdiction or jurisdictions. Each of the Company and the Selling Shareholders further agrees to
take any and all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of the Companys
General Counsel in full force and effect so long as this Agreement or the applicable Terms
Agreement shall be outstanding. To the extent that the Company and any Selling Shareholder has or
hereafter may acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company and the Selling
Shareholders each hereby irrevocably waives such immunity in respect of its obligations under this
Agreement and the applicable Terms Agreement, to the extent permitted by law.
Section 18.
Judgment Currency
. The Company and each Selling Shareholder agree to
indemnify the Underwriters against any loss incurred by the Underwriters as a result of any
judgment or order being given or made for any amount due hereunder and such judgment or order being
expressed and paid in a currency (the Judgment Currency) other than United States dollars and as
a result of any variation as between (i) the rate of exchange at which the
-26-
United States dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the spot rate or exchange at which the Underwriters are able to
purchase United States dollars with the amount of the Judgment Currency actually received by the
Underwriters. The foregoing indemnity shall constitute a separate and independent obligation of the
Company and each Selling Shareholder and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term spot rate of exchange shall include any
premiums and costs of exchange payable in connection with the purchase of, or conversion into,
United States currency.
Section 19.
Counterparts
. This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
Section 20.
Trial by Jury
. The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceedings arising out of or relating to this Agreement or the transactions contemplated
hereby.
Section 21.
No Fiduciary Relationship
. The Company and each Selling Shareholder
acknowledge and agree that (i) the purchase and sale of the Shares pursuant to this Agreement is an
arms-length commercial transaction between the Company and Selling Shareholders, on the one hand,
and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company or any Selling Shareholder, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company or any Selling Shareholder with respect to
offering contemplated hereby or the process leading thereto (irrespective of whether such Underwiter has advised or is currently advising the Company or such
Selling Shareholder on other matters) or any other obligation to the Company or any Selling
Shareholder except the obligations expressly set forth in this Agreement and (iv) the Company and
each Selling Shareholder has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company and each Selling Shareholder agree that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any Selling Shareholder, in connection with such
transaction or the process leading thereto.
Section 22.
Tax Disclosure
. Notwithstanding anything herein to the contrary, the
Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax
opiniosn and other tax analyses) provided to the Company relating to that treatment and structure,
without the Underwriters imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, tax structure is limited to facts that may be relevant to that treatment.
-27-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument will become a binding
agreement among the Company and the several Underwriters in accordance with its terms.
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Very truly yours,
ROYAL CARIBBEAN CRUISES LTD.
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By:
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/s/
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Name:
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Title:
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[NAME]
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By:
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/s/
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Name:
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Title:
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As Attorney-in-fact acting on behalf of the
Selling Shareholders
named in Schedule I to this Agreement
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Accepted as of the date hereof:
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By: [NAME]
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By:
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/s/
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Name:
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Title:
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On behalf of each of the Underwriters
-28-
SCHEDULE I
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Total Number
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Total Number
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of
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of
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Firm Shares
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Option Shares
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to be Sold
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to be Sold
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The Company
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The Selling Shareholders:
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[NAME]
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Total
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Exhibit A-1
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian corporation)
[TITLE OF DESIGNATED SECURITIES]
TERMS AGREEMENT
Dated: [DATE]
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To:
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Royal Caribbean Cruises, Ltd.
1050 Caribbean Way
Miami, Florida 33132
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Attention:
Ladies and Gentlemen:
We (the Representative) understand that Royal Caribbean Cruises Ltd., a Liberian corporation
(the Company), proposes to issue and sell [and the Selling Shareholder proposes to sell] the
number of shares of the Companys [Common Stock, $.01 par value per share (the Common Stock)]
[Preferred Stock, $.01 par value (the Preferred Stock)] (such [Common Stock] [Preferred Stock]
being [collectively] hereinafter also referred to as the Shares). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters named below (the
Underwriters) offer to purchase, severally and not jointly, the respective numbers of Firm Shares
(as defined in the Underwriting Agreement referred to below) (to be adjusted by the Representative
so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by the Company [and the Selling Shareholder as set forth opposite their respective names
in Schedule II hereto] by a fraction, the numerator of which is the aggregate number of Firm Shares
to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all
of the Underwriters from the Company [and the Selling Shareholder] hereunder, set forth below
opposite their respective names, and a proportionate share of Option Shares (as defined in the
Underwriting Agreement) to the extent any are purchased, at the purchase price set forth below.
A-1
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Underwriter
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Number of Firm Shares
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[NAME]
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$
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Total
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$
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The Shares shall have the following terms:
Title of Securities:
Number of Firm Shares:
Number of Option Shares, if any, that may be purchased by the Underwriters:
Time of Delivery and location for Firm Shares:
Time of Delivery and location for Option Shares, if applicable:
Public Offering Price per Share:
Underwriting Discounts or Commissions:
Aggregate Proceeds to the Company and the Selling Shareholder (Firm Shares only):
Method of Payment:
Name of Transfer Agent and Registrar: ChaseMellon Shareholder Services, L.L.C.
Lock-up period: 90 days from the date of this Agreement
Issuer Free Writing Prospectus (referred to in Section 1(a)(iii) of the Underwriting Agreement):
Free Writing Prospectus (other than the final term sheet):
All the provisions contained in the document attached as Annex A hereto entitled Royal
Caribbean Cruises Ltd.-Common Stock, Preferred Stock-Underwriting Agreement are hereby
incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms
Agreement to the same extent as if such provisions had been set forth in full herein, provided that
each reference therein to (1) Prospectus shall be to the Prospectus Supplement, dated
,
together with the Prospectus, dated
, (2) Preliminary Prospectus shall be to the
Preliminary Prospectus Supplement, dated
, together with the Prospectus, dated
,
(3) Pricing Prospectus shall be to the Prospectus, dated
and the Preliminary Prospectus
Supplement, dated
, as amended and supplemented immediately prior to the Applicable Time,
and (4) Issuer Free Writing Prospectus shall be to any Issuer Free Writing Prospectus specifically
referred to in this Terms Agreement. Terms defined in such document are used herein as therein
defined. All of the Companys direct and indirect Significant Subsidiaries are set forth on
Schedule A hereto.
A-2
Please accept this offer by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
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Very truly yours,
[NAME]
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By:
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[NAME]
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By:
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/s/
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Name:
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Title:
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Acting on behalf of itself and the other named
Underwriters
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Accepted:
ROYAL CARIBBEAN CRUISES LTD.
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By:
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/s/
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Name:
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Title:
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[NAME]
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By:
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/s/
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Name:
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Title:
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As Attorney-in-fact acting on behalf of the Selling
Shareholder named in Schedule II to this Agreement.
A-3
SCHEDULE I
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Number of
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Option
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Total Number
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Shares to be
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of
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Purchased if
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Firm Shares
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Maximum
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to be
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Option
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Underwriter
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Purchased
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Exercised
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[NAME]
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Total
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A-4
SCHEDULE II
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Total Number
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Total Number
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of
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of
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Firm Shares
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Option Shares
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to be Sold
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to be Sold
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The Company
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The Selling Shareholders:
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[NAME]
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Total
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A-5
Exhibit B
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian Corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
[DATE]
Royal Caribbean Cruises Ltd.
1050 Caribbean Way
Miami, Florida 33132
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Royal Caribbean Cruises Ltd. (the Company),
and the Company agrees to sell to the undersigned on
, 20
(the Delivery Date), of the
Companys [insert title of security] (the Securities), offered by the Companys Prospectus dated
, 20
, as supplemented by its Prospectus Supplement dated
, 20
, receipt of which
is hereby acknowledged at a purchase price of [$
, to the Delivery Date, and on the further
terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on the Delivery Date
shall be made to the Company or its order by certified or official bank check or wire transfer in
immediately available (same day) Clearing House funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the Securities to be purchased by
the undersigned in definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to the Company not less
than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Securities on the
Delivery Date shall be subject only to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or before
,
20
, shall have sold to the Underwriters of the Securities (the Underwriters) such amount of
Securities as is to be sold to them pursuant to the Terms Agreement dated
, 20
among the
Company and the Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to take delivery of
and make payments for Securities pursuant to other contracts similar to this
B-1
contract. The undersigned represents and warrants to you that its investment in the Securities is
not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the Company that all
necessary corporate action for the due execution and delivery of this contract and the payment for
and purchase of the Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement to the undersigned in
accordance with its terms.
The contract will inure to the benefit of and binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts for a number of
Securities in excess of $
and that the acceptance of any Delayed Delivery Contract is in the
Companys sole discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance on a copy hereof and mail or deliver a signed copy hereof to the
undersigned at its address set forth below. This will become a binding contract between the Company
and the undersigned when such copy is so mailed or delivered.
B-2
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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Yours very truly,
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/s/
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(Name of Purchaser)
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By:
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/s/
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(Title)
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(Address)
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Accepted as of the date first above written.
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ROYAL CARIBBEAN CRUISES LTD.
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By:
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/s/
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(Title)
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PURCHASERPLEASE COMPLETE AT THE TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with whom details of
delivery on the Delivery Date may be discussed are as follows: (Please print.)
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Name
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Telephone No.
(including Area
Code)
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B-3
SCHEDULE A
Significant Subsidiaries:
Celebrity Cruises Holdings Inc.
Celebrity Cruises Inc.
Cruise Mar Investments Inc.
Celebrity Cruise Lines Inc.
Cruise Mar Shipping Holdings Ltd.
-1-
ANNEX I
Pursuant to Section 6(b) of this Agreement, Davis Polk & Wardwell, outside counsel to the
Company, shall furnish an opinion to the Underwriters to the effect that:
(i) Each of this Agreement, the applicable Terms Agreement and the Delayed Delivery Contracts,
if any, has been duly authorized, executed and delivered by the Company.
(ii) No authorization, approval, consent or order of, or qualification with, any governmental
body or agency is required for the due authorization, execution, delivery and performance by the
Company of this Agreement, the applicable Terms Agreement or the Delayed Delivery Contracts, if
any, and the consummation of the transactions contemplated thereby, except (A) such as may be
required by the securities or blue sky laws of the various states in connection with the offer and
sale of the Shares and (B) for such consents that are required and have been received and are in
full force and effect at the applicable Time of Delivery (including such consents required by the
New York Stock Exchange and the Oslo Stock Exchange).
(iii) The execution and delivery of this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, by the Company, the issuance, sale and delivery of the Shares
and the consummation by the Company of the transactions contemplated herein and therein and
compliance by the Company with the terms hereunder and thereunder do not and will not result in any
violation of, or constitute a default under, or result in the creation or imposition of any lien or
encumbrance upon any property or assets of the Company or of the Subsidiaries listed in Schedule A
to this Agreement under (A) any indenture, mortgage, loan agreement, or any other agreement or
instrument filed as an exhibit to or incorporated by reference into the Registration Statement
(except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have
a material adverse effect on the condition (financial or otherwise), properties, assets, business,
results of operations or business prospects of the Company and its Subsidiaries, considered as one
enterprise), (B) any existing applicable law, rule or regulation (other than the securities or blue
sky laws of the various states as to which such counsel need express no opinion), or (C) any
judgment, order, writ, injunction or decree known to such counsel of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the Company, its
Subsidiaries or any of their respective properties or operations.
(iv) The Registration Statement is effective under the 1933 Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); the final term sheet and any other material required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act has been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; to such counsels
knowledge, no stop order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for that
purpose have been instituted or are pending or have been threatened by the Commission under the
1933 Act and no notice of objection of the Commission to the use of the Registration Statement or
any post-effective amendment
-1-
thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; to such counsels
knowledge, no stop order suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the Commission.
(v) To such counsels knowledge, there are no statutes, regulations, contracts or other
documents or legal or governmental actions, suits or proceedings pending or threatened to which the
Company or any of the Subsidiaries is a party or to which any of their respective properties is
subject against the Company or any of its Subsidiaries that are required to be described in the
Prospectus that are not described as required.
(vi) The Company is not, and after giving effect to the Offering and the sale of the Shares
and application of the proceeds thereof as described in the Prospectus will not be required to
register as, an investment company as such term is defined in the Investment Company Act of 1940,
as amended.
In addition, such opinion shall state that such counsel has generally reviewed and discussed
with certain officers and employees of the Company, its independent public accountants and its
representatives the information furnished with respect to other matters in the Registration
Statement, the Pricing Prospectus or Prospectus, whether or not subject to the check and
verification of such counsel. On the basis of such consideration, review and discussion, but
without independent check or verification, except as stated in paragraph (i) above, nothing has
come to such counsels attention that causes such counsel to believe that (i) the Registration
Statement, the Pricing Prospectus or the Prospectus (except for the financial statements and
financial schedules and other financial data included therein, as to which such counsel need not
express any belief) do not comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement (except for the financial statements and financial schedules and
other financial data included therein, as to which such counsel need not express any belief) at the
time such part became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Pricing Disclosure Package (except for the financial statements and financial
schedules and other financial data included therein, as to which such counsel need not express any
belief), as of the Applicable Time, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iv) the Prospectus (except for the
financial statements and financial schedules and other financial data included therein, as to which
such counsel need not express any belief) as of its date or as of the date hereof contained or
contains any untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Such opinion shall be to such further effect with respect to other legal matters relating to
this Agreement, the applicable Terms Agreement or the Delayed Delivery Contracts, if any, and the
sale of the Shares pursuant to this Agreement or the applicable Terms Agreement as counsel to the
Underwriters may reasonably request. In giving such opinion, such counsel may rely (A) as to all
matters governed by laws of jurisdictions other than the federal law of the United States or the
laws of the State of New York, upon opinions of other local counsel in such jurisdictions, who
shall be counsel satisfactory to counsel for the Underwriters, (B) as to matters of maritime or
admiralty law and Liberian law, upon the opinion
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of, special maritime and admiralty and Liberian counsel satisfactory to counsel for the
Underwriters and (C) as to all tax matters, upon the opinion of special tax counsel for the Company
satisfactory to counsel for the Underwriters; provided that in each case the opinion shall state
that such counsel is entitled to so rely. Such counsel may also state that, insofar as such
opinions involve factual matters, they have relied, to the extent such counsel deems proper, upon
certificates of officers of the Company and its Subsidiaries and certificates of public officials.
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ANNEX II
Pursuant to Section 6(b) of this Agreement, Watson, Farley & Williams (New York) LLP, outside
counsel to the Company, shall furnish an opinion to the Underwriters to the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the Republic of Liberia, and has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus.
(ii) Each Subsidiary which is organized under the laws of the Republic of Liberia and that is
set forth on Exhibit 1 to such counsels opinion (collectively, the Liberian Subsidiaries) has
been duly incorporated, is validly existing as a corporation in good standing under the laws of the
Republic of Liberia and has the corporate power and authority to own its property and to conduct
its business as described in the Pricing Prospectus and the Prospectus.
(iii) All of the outstanding shares of capital stock of the Company as set forth in the
Prospectus as amended or supplemented in the documents incorporated by reference have been duly
authorized and validly issued and, assuming issuance against payment therefor, are fully paid and
non-assessable. Except as described in the Pricing Prospectus or the Prospectus, as amended or
supplemented, to such counsels knowledge, all of the issued and outstanding shares of capital
stock of each Liberian Subsidiary are owned by the Company or a wholly owned Liberian Subsidiary
free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind, except as described in the Pricing Prospectus or the Prospectus.
(iv) Insofar as any matter of Liberian law or U.S. maritime law is addressed therein the
statements made in the Prospectus as amended or supplemented (including any incorporated by
reference into the Prospectus from the Companys Report on Form 10-K for the fiscal year ended
December 31, 20___) under Enforceability of Civil Liabilities, Taxation of the company, Risk
Factors We are controlled by principal shareholders that have the power to determine our
policies, management and actions requiring shareholder approval, Exchange Controls,
Dividends,Risk Factors We are not a United States corporation and our shareholders may be
subject to the uncertainties of a foreign legal system in protecting their interests and
Description of Debt Securities, if any, to the extent that they constitute matters of law or
legal conclusions, are accurate in all material respects and fairly present the information
disclosed therein.
(v) There is no tax, levy, impost, deduction, charge or withholding imposed by the Republic of
Liberia or any political subdivision or taxing authority thereof or therein either (A) on or by
virtue of the execution or delivery or performance or continued validity of this Agreement, the
applicable Terms Agreement, any Delayed Delivery Contract, or any other document referred to in
this Agreement to be furnished hereunder or thereunder (including, without limitation, the Shares),
(B) the issuance of the Shares or (C) on any payment to be made by the Company or any Liberian
Subsidiary pursuant to this Agreement, the applicable Terms Agreement, the Delayed Delivery
Contracts, if any, or in connection with the issuance or sale of the Shares. The
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opinions stated in the preceding sentence may be based on the assumption that (1) the Company is
and intends to maintain its status as a non-resident domestic corporation under the Business
Corporation Act of Liberia; (2) the Companys vessels are not now engaged, and are not in the
future expected to engage in voyages exclusively within the territorial waters of the Republic of
Liberia; (3) the Shares and all related documentation will be executed outside of the Republic of
Liberia; and (4) the holders of the Shares will neither reside in, maintain an office in nor engage
in business in the Republic of Liberia. All filing, registration and recording fees required under
the laws of the Republic of Liberia in connection with this Agreement, the applicable Terms
Agreement, the Delayed Delivery Contracts, if any, and the Shares to such counsels knowledge have
been paid.
(vi) None of the Company, any Liberian Subsidiary or any of their respective properties has
any immunity from the jurisdiction of any court or from any legal process (whether through service
of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise)
under the laws of the Republic of Liberia.
(vii) Under the laws of the Republic of Liberia, the Company and the Liberian Subsidiaries may
validly and effectively agree that the validity, construction and performance of this Agreement,
the applicable Terms Agreement and the Delayed Delivery Contracts, if any shall be governed by and
construed in accordance with the laws of the State of New York. Such choice of law is a valid
choice of law respecting this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, and the submission by the Company and the Liberian Subsidiaries to the
jurisdiction of any New York State or federal court sitting in New York City and any appellate
court from any thereof, in connection with all transactions arising out of this Agreement, the
applicable Terms Agreement and the Delayed Delivery Contracts, if any, is a valid submission to the
jurisdiction of such courts. In the event a judgment of such courts against the Company or any of
the Liberian Subsidiaries were obtained after service of process in the manner specified in this
Agreement the same would be enforced by the courts of the Republic of Liberia without a further
review on the merits unless: (A) the judgment was obtained by fraud; (B) the judgment was given in
a manner contrary to natural justice, or the judgment was given in a manner contrary to the public
policy of the Republic of Liberia; (C) the judgment was in a case in which the defendant did not
appear or in which an authorized person did not appear in such defendants behalf; (D) the judgment
was not for a specific, ascertained sum of money; or (E) the judgment was not final and conclusive
in accordance with the laws of the jurisdiction in which the judgment was obtained.
(viii) The execution and delivery of this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, by the Company, the issuance and delivery of the Shares, the
consummation by the Company of the transactions contemplated hereby and thereby and compliance by
the Company with the terms hereunder and thereunder will not result in any violation of the charter
or by-laws of the Company or any of the Liberian Subsidiaries and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Liberian Subsidiaries under any existing applicable Liberian law, rule or
regulation.
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(ix) The Shares have been duly authorized, executed, issued and delivered by the Company.
(x) The shares of Common Stock issuable upon conversion of shares of Preferred Stock, if any,
have been duly authorized and reserved for issuance upon such conversion or redemption, and such
shares, when issued upon such conversion or redemption, will be validly issued, fully paid and
non-assessable. The issuance of such shares will not be subject to the preemptive or other similar
rights of any shareholder of the Company arising by operation of law, under the charter or bylaws of the Company or under any
agreement to which the Company or any of the Liberian Subsidiaries is a party.
(xi) The forms of certificates used to evidence the Shares are in due and proper form and
comply with all applicable statutory requirements.
(xii) Each of this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, has been duly authorized, executed and delivered by the Company.
Such opinion shall be to such further effect with respect to other legal matters relating to
this Agreement, the applicable Terms Agreement or the Delayed Delivery Contracts, if any, and the
sale of the Shares pursuant to this Agreement or the applicable Terms Agreement as counsel to the
Underwriters may reasonably request. In giving such opinion, such counsel may rely as to all
matters governed by laws of jurisdictions other than the federal law of the United States
(including maritime law and admiralty law), the laws of the State of New York, or Liberian law,
upon opinions of other local counsel in such jurisdictions, who shall be counsel satisfactory to
counsel for the Underwriters. Such counsel may also state that, insofar as such opinions involve
factual matters, they have relied, to the extent such counsel deems proper, upon certificates of
officers of the Company and its Subsidiaries and certificates of public officials.
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ANNEX III
Pursuant to Section 6(k) of this Agreement, Drinker, Biddle & Reath LLP, special tax counsel
to the Company shall furnish an opinion to the Underwriters to the effect that:
(i) The
statements contained in Form 10-K for the year ended ____________ under the caption
BusinessTaxation of the company and in the Prospectus Supplement under the caption Risk
Factors A change in our tax status under the United States Internal Revenue Code may have
adverse effects on our income insofar as such statements purport to summarize matters of United
States federal income tax law or legal conclusions with respect thereto, fairly and accurately
summarize the matters set forth therein; and the opinion of such firm set forth therein is
confirmed.
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ANNEX IV
Pursuant to Section 6(c) of this Agreement, Bradley Stein, Acting General Counsel to the
Company, shall furnish an opinion to the Underwriters to the effect that:
(i) The issuance of the Shares, including any Common Stock issuable upon conversion of shares
of Preferred Stock, if any, will not be subject to the preemptive or other similar rights of any
shareholder of the Company nor will there be any restriction upon the voting or transfer of any
such shares arising by operation of law, under the Articles of Incorporation or By-laws of the
Company or under any agreement to which the Company or any of its Subsidiaries is a party which is
known to such counsel.
(ii) Except as disclosed in or specifically contemplated by the Pricing Prospectus or the
Prospectus as amended or supplemented and except for the amendment to and restatement of the
Companys 2000 Stock Option Plan effected in December 2005, to such counsels knowledge, there are
no outstanding options, warrants or other rights calling for the issuance of, and no commitments,
obligations, plans or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the Company.
(iii) To such counsels knowledge, neither the Company nor any of its Significant Subsidiaries
is in violation of its Articles of Incorporation or By-laws and there is no existing default by the
Company or any of its Subsidiaries in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage or loan agreement, or any other
agreement or instrument to which the Company or any of its Subsidiaries is a party and that is
described or referred to in the Registration Statement, the Pricing Prospectus or the Prospectus
(except for such defaults that would not have a material adverse effect on the condition (financial
or otherwise), properties, assets, business, results of operation or business prospects of the
Company and its Subsidiaries considered as one enterprise).
(iv) The execution and delivery of this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, by the Company, the issuance, sale and delivery of the Shares,
the consummation by the Company of the transactions contemplated herein and therein and in the
Pricing Prospectus and the Prospectus and compliance by the Company with the terms hereunder and
thereunder have been duly authorized by all necessary corporate action on the part of the Company
and do not and will not result in any violation of the Articles of Incorporation or By-laws of the
Company or any of its Significant Subsidiaries, and do not and will not conflict with, or
constitute a breach of any of the terms and provisions of, or constitute a default under, or result
in the creation or imposition of any lien or encumbrance upon any property or assets of the Company
or its Subsidiaries under (A) any indenture, mortgage, loan agreement or any other agreement or
instrument in each case known to such counsel to which the Company or its Subsidiaries is a party
or by which they may be bound or to which any of their respective properties may be subject (except
for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), properties, assets, business,
results of operations or business prospects of the Company and its
-1-
Subsidiaries, considered as one enterprise), (B) any existing applicable law, rule or regulation of
the State of Florida (excluding the securities or blue sky laws of the various states as to which
such counsel need express no opinion), or (C) any judgment, order, writ, injunction or decree known
to such counsel of any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company, its Subsidiaries or any of their respective properties or
operations.
(v) To such counsels knowledge, except as disclosed in the Registration Statement, the
Pricing Prospectus or the Prospectus, no holders of the Companys securities have rights to the
registration of securities as a result of the offering contemplated by this Agreement. Except for
rights granted to parties under the Registration Rights Agreement, dated as of February 1, 1993, as
amended, among the Company, A. Wilhelmsen AS., Cruise Associates, Monument Capital Corporation,
Archinav Holdings, Ltd. and Overseas Cruiseship, Inc., no holders of the Companys securities have
rights to the registration of securities as the result of any registration statement filed by the
Company or the right to require the Company to file a registration statement under the 1933 Act
with respect to any securities of the Company owned or to be owned by such person.
(vi) To such counsels knowledge, except as described or referred to in the Registration
Statement, the Pricing Prospectus or the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or any of its Subsidiaries is a
party, or to which the property of the Company or any of its Subsidiaries is subject, before or
brought by any court or governmental agency or body, which is required to be described in the
Registration Statement, the Pricing Prospectus or the Prospectus and is not so described therein or
which might reasonably be expected to result in any material adverse change in condition (financial
or otherwise), earnings, business affairs or business prospects, of the Company and its
Subsidiaries, considered as one enterprise, or which might adversely affect the consummation of the
transactions contemplated by the Pricing Prospectus and Prospectus.
(vii) The documents incorporated by reference in the Registration Statement, the Pricing
Prospectus or Prospectus (excluding the financial statements, supporting schedules and other
statistical and financial data as to which such counsel need express no opinion), at the time they
were filed with the Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents (excluding the financial statements, supporting
schedules and other statistical and financial data as to which such counsel need express no
opinion), when they were so filed, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not misleading.
In addition, such opinion shall state that such counsel has participated to a limited extent
in the preparation of the Registration Statement, the Pricing Prospectus and the Prospectus and in
conferences with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and your representatives and your counsel at which
the contents of the Registration Statement, the
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Pricing Prospectus, the Prospectus and related matters were discussed and, although such counsel
need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Pricing Prospectus or the Prospectus, and
has not made any independent check or verification thereof, no facts have come to the attention of
such counsel to lead such counsel to believe that (A) (excluding the financial statements,
schedules or other statistical or financial data as to which such counsel need express no opinion),
the Registration Statement or any amendment thereto as of the date the Registration Statement or
any such amendment became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading, (B) (excluding financial statements, schedules and other statistical and financial
data as to which such counsel need express no opinion), the Pricing Disclosure Package, as of the
Applicable Time, contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (C) (excluding financial statements, schedules and other
statistical and financial data as to which such counsel need express no opinion), the Prospectus or
any amendment or supplement thereto as of the date of the Prospectus and at the applicable Time of
Delivery, contained or contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
-3-
ANNEX V
Pursuant to Section 6(l) of this Agreement, the General Counsel to the Selling Shareholder,
shall furnish an opinion to the Underwriters to the effect that:
(i) [NAME] is incorporated, validly existing and in good standing under the laws of
[JURISDICTION].
(ii) [NAME] has corporate power to enter into, execute, deliver and perform its obligations
under this Agreement, the International Underwriting Agreement, the applicable Terms Agreement, the
Power of Attorney and Custody Agreement.
(iii) Each of this Agreement, the applicable Terms Agreement, the Power of Attorney and
Custody Agreement has been duly authorized, executed and delivered and constitutes the legal, valid
and binding obligation of [NAME], enforceable in accordance with its terms; and the sale of the
Shares to be sold by [NAME] and the compliance by [NAME] with all of the provisions of this
Agreement, the applicable Terms Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will not conflict with or result
in a breach or violation of any terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreements or instruments known to such
counsel to which [NAME] is a party or is bound, or to which any of the property or assets of [NAME]
is subject. The sale of the Shares to be sold by [NAME] and the compliance by [NAME] with the terms
of this Agreement, the applicable Terms Agreement, the Power of Attorney and Custody Agreement will
not result in any violation of the Certificate of Incorporation or By-laws of [NAME] or any order,
rule or regulation of any authority having jurisdiction over [NAME].
(iv) No consent, approval, authorization or order of any court or governmental agency or body
is required for the consummation of the transactions contemplated by this Agreement, applicable
Terms Agreement, the Power of Attorney and Custody Agreement.
(v) Immediately prior to the First Time of Delivery, [NAME] had good and valid title to the
Shares to be sold at the First Time of Delivery by [NAME] under this Agreement and the applicable
Terms Agreement, free and clear of all liens, encumbrances, equities or claims and full right,
power and authority to sell, assign, transfer and deliver the Shares to be sold by [NAME].
In rendering the opinion in subparagraph (iv) such counsel may rely upon a certificate of
[NAME] in respect of matters of fact as to ownership of, and liens, encumbrances, equities or
claims on the Shares sold by [NAME], provided that such counsel shall state that they believe that
both the Representatives and such counsel are justified in relying upon such certificate.
On the basis of the foregoing, and subject to the limitations set forth hereinafter, we are of
the opinion and advise you that, upon payment for the Shares as provided in the Underwriting
Agreements, registration of the transfer of the Shares to, and registration of the Shares in the
name of, Cede & Co. (Cede) or such other
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nominee as may be designated by the Depository Trust Company (DTC) and crediting of the Shares on
the books of DTC to securities accounts (the Securities Accounts) of the various Underwriters
(assuming that each of the Underwriters, DTC and Cede (or such other nominee as may be designated
by DTC) lacks notice of any adverse claim (as defined in Section 8-102 of the Uniform Commercial
Code as in effect in the State of New York (the UCC)) to the Shares), (A) the Underwriters will
acquire valid securities entitlements in respect of the Shares within the meaning of Section
8-102 of the UCC and (B) no action based on any adverse claim (within the meaning of Section
8-102 of the UCC) to the Shares may be asserted against the Underwriters with respect to such
security entitlements. We have assumed for purposes of this opinion that (i) the registration of
the transfer of the Shares to, and the registration of the Shares in the name of, Cede or another
nominee designated by DTC, in each case on the Companys share registry, have been effected in
accordance with the Companys Articles of Incorporation and By-laws and with Liberian law, (ii) DTC
is registered as a clearing corporation within the meaning of Section 8-102 of the UCC and (iii)
DTCs securities intermediarys jurisdiction (within the meaning of Section 8-110(e) of the UCC)
with respect to the Securities Accounts and any security entitlements in respect of financial
assets credited thereto is the State of New York.
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EXHIBIT
3.2
BY-LAWS
OF
ROYAL CARIBBEAN CRUISES LTD.
(a Liberian Corporation)
ARTICLE I
Offices
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SECTION 1.01.
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Registered Address
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The registered address of the Corporation shall be at 80 Broad Street, Monrovia, Liberia and its
registered agent at such address shall be The International Trust Company of Liberia.
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SECTION 1.02.
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Other Offices
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The Corporation may also have and maintain an office or offices at such other places within or
without the Republic of Liberia as the Board of Directors may from time to time determine or the
business of the Corporation requires.
ARTICLE II
Meetings of Shareholders
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SECTION 2.01.
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Place of Meeting
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All meetings of the Shareholders of the Corporation shall be held at such place or places within or
outside the Republic of Liberia as shall be designated by the Board of Directors in the notice of
such meeting.
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SECTION 2.02.
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Annual Meeting
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The Board of Directors may fix the date and time of the Annual Meeting of the Shareholders but if
no such date and time is fixed by the Board of Directors, the meeting for any calendar year shall
be held on the first Thursday in May in such year, if not a legal holiday, and if a legal holiday
then on the next succeeding business day, at 11:00 a.m. and at such meeting the Shareholders then
entitled to vote shall elect directors and shall transact such other business as may properly be
brought before the meeting.
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SECTION 2.03.
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Special Meetings
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Special Meetings of the Shareholders of the Corporation for any purpose or purposes for which
meetings may lawfully be called, may be called at any time for any purposes by the resolution of
the Board of Directors or by the Chief Executive Officer and shall be called by the Secretary at
the request of the Shareholders owning shares having at least 50 per cent of the votes entitled to
be cast at meetings of the Shareholders. At any time, upon written request of any of the foregoing
persons who have duly called a Special Meeting, which written request shall state the purpose or
purposes of the meeting, it shall be the duty of the Secretary to fix a date and time for such
meeting to be held being not less than fifteen (15) nor more than sixty (60) days after the receipt
of the request unless otherwise provided by statute, and also the place of the meeting and to give
due notice thereof. If the Secretary shall neglect or refuse to fix the time, date or place of such
meeting and give notice thereof, the person or persons calling the meeting may do so in accordance
with the provisions of Section 2.04 hereof. Special Meetings in default of the annual meeting may
be called as provided by statute.
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SECTION 2.04.
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Notice of Meetings
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Written notice of all meetings of the Shareholders stating the purpose or purposes for which the
meeting is called, the name of the person or persons at whose direction the notice is being given,
the date and time when and the place where it is to be held, shall be given at least fifteen (15)
but not more than sixty (60) days before such meeting, to
each Shareholder of record entitled to vote at such meeting and to each member of the Board of
Directors. Notice of a
meeting need not be given to any such person who submits a signed waiver of notice, whether before
or after the meeting, or who attends the meeting without protesting prior to the conclusion thereof
of the lack of notice to him.
1
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SECTION 2.05.
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Quorum, Manner of Acting and Adjournment
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The presence in person or by proxy at any meeting of the Shareholder or Shareholders holding
between them shares having a majority of the votes entitled to be cast shall constitute a quorum
for the transaction of business at such meeting except as otherwise required by statute, the
Articles of Incorporation or these By-Laws. If a quorum shall not be present or represented at any
meeting of the Shareholders within one hour of the time appointed for the meeting, the meeting
shall be adjourned (the First Adjournment). The Secretary of the Corporation shall then issue a
notice of the adjourned meeting stating the time and place that the adjourned meeting shall be
reconvened. The notice shall be issued within two (2) days of the First Adjournment and no fewer
than five (5) days prior to the reconvening of the adjourned meeting and shall be given to each
Shareholder of record entitled to vote at such meeting in the same manner as is provided for in
these By-Laws for giving notice of the original meeting. The notice shall state that the only
business which may be transacted is that which might have been transacted on the original date of
the meeting.
If a quorum shall not be present or represented at the reconvened meeting of the Shareholders
within one hour of the time appointed for the reconvened meeting, the meeting shall be adjourned
(the Second Adjournment). The Secretary of the Corporation shall then issue a notice of the
adjourned meeting stating the time and place that the adjourned meeting shall be reconvened. The
notice shall be issued within two (2) days of the Second Adjournment and no fewer than five (5)
days prior to the reconvening of the adjourned meeting and shall be given to each Shareholder of
record entitled to vote at such meeting in the same manner as is provided for in these By-Laws for
giving notice of the original meeting. The notice shall state that the only business which may be
transacted is that which might have been transacted on the original date of the meeting. At such
reconvened meeting, if a quorum comprising Shareholders holding shares having one third of the
votes entitled to be cast at such meeting is not or has not been present within one hour of the
time for the commencement of the adjourned meeting, the meeting shall be dissolved.
When a quorum for the transaction of business is present at any meeting, a majority of the votes
cast by the holders of shares present in person or represented by proxy and entitled to vote on
such question shall decide such question brought before such meeting, unless the question is one
upon which, by express provision of any applicable statute or of the Articles of Incorporation, a
different vote or result is required in which case such express provision shall govern and control
the decision of such question. The Shareholders present in person or by proxy at a duly convened
meeting can continue to transact business until adjournment, notwithstanding withdrawal of
Shareholders so as to leave fewer than a quorum present.
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SECTION 2.06.
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Organization
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At every meeting of the Shareholders, the Chairman of the Board, if there be one, or in the case of
vacancy in the office or absence of the Chairman of the Board, one of the following persons present
in the order stated: the vice chairman of the Board, if there be one or in their order of rank or
seniority if there be more than one, the Chief Executive Officer, the President, the vice
presidents in their order of rank or seniority, a chairman designated by those members of the Board
of Directors present at the meeting or a chairman chosen by the Shareholders in the manner provided
in Section 2.05 of this Article; shall act as chairman, and the Secretary, or in his absence, an
assistant secretary, or in the absence of the Secretary and assistant secretaries, a person
appointed by the Chairman, shall act as secretary.
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SECTION 2.07
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Voting by Proxy
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Each Shareholder entitled to vote at a meeting of the Shareholders may authorize any person to act
for him by proxy. To be valid, a proxy must comply in form and substance with all applicable
provisions of Liberian law, including, without limiting the generality of the foregoing, the
following provisions. No proxy shall be valid after 11 months from its date, unless the proxy
provides otherwise. Every proxy shall be signed by the Shareholder or by his attorney-in-fact and
filed (together, in the case of any proxy executed by an attorney-in-fact, with a copy of such
power of attorney) with the Secretary of the Corporation. A proxy, unless expressly stated to be
irrevocable as provided in this Section, shall be revocable at the pleasure of the Shareholder, but
the revocation of a proxy shall not be effective until
2
notice thereof has been given to the Secretary of the Corporation. A duly executed proxy shall be
irrevocable if it is entitled irrevocable proxy and states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient to support an irrevocable power,
including any of the circumstances set forth in Section 7.6(6) of the Business Corporation Act, and
shall cease to be irrevocable upon the circumstance set forth in Section 7.6(7) and (8) of the
Business Corporation Act. The giving of a proxy by any Shareholder to any other person shall not
exempt such Shareholder from compliance with any requirement of any applicable statute, the
Articles of Incorporation or these By-Laws relating to the conditions under which such shares may
be voted.
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SECTION 2.08.
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Action by Shareholders without a Meeting
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Any action which is required to be or which may be taken at any Annual or Special Meeting of
Shareholders of the Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be signed by all the
Shareholders entitled to vote with respect to the subject matter thereof.
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SECTION 2.09.
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Voting Lists
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A list of Shareholders of record who are entitled to vote on each item of business to be
transacted, together with the number of votes which they are entitled to vote certified by the
Secretary shall be produced at any meeting of Shareholders upon request of any Shareholder at the
meeting or prior thereto. If the right to vote, or the number of votes which may be cast is
challenged, the inspector or inspectors of election, or person presiding thereat, shall require the
list of Shareholders to be produced as evidence of the right of the persons challenged to vote and
all persons who appear from the list to be Shareholders entitled to vote may vote on such item at
such meeting, and may cast the number of votes which the list shows that such person may cast.
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SECTION 2.10.
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Inspectors of Election
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In advance of any meeting of Shareholders, the Board of Directors may appoint inspectors of
election, who need not be Shareholders, to act at such meeting or any adjournment thereof. If
inspectors of election are not so appointed, the person presiding at any such meeting may, and on
the request of any Shareholder entitled to vote at the meeting and before voting begins shall,
appoint inspectors of election. The number of inspectors shall be either one or three, as
determined, in the case of inspectors appointed upon demand of a Shareholder, by the Shareholders
in the manner provided in Section 2.05 hereof, and otherwise by the Board of Directors or the
person presiding at the meeting, as the case may be. In case any person appointed fails to appear
or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the
meeting, or at the meeting by the person presiding at the meeting. Each inspector, before entering
upon the discharge of his duties, shall take an oath faithfully to execute the duties of inspector
at such meeting.
If inspectors of election are appointed as aforesaid, they shall determine from the lists referred
to in Section 2.09 hereof the number of shares outstanding, the shares represented at the meeting,
the existence of a quorum, and the voting power of shares represented at the meeting, determine the
authenticity, validity and effect of proxies, receive votes or ballots, hear and determine all
challenges and questions in any way arising in connection with the right to
vote or the number of votes which may be cast, count and tabulate all votes or ballots, determine
the results, and do such acts as are proper to conduct the election or vote with fairness to all
Shareholders entitled to vote thereat. If there be three inspectors of election, the decision, act
or certificate of a majority shall be effective in all respects as the decision, act or certificate
of all.
Unless waived by vote of the Shareholders conducted in the manner provided in Section 2.05 hereof,
the inspectors shall make a report in writing of any challenge or question or matter determined by
them, and execute a sworn certificate of any fact found by them.
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SECTION 2.11
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Election of Directors
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Elections of directors need not be by written ballot. Cumulative voting for directors shall not be
permitted.
3
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SECTION 2.12.
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Submission of Proposals by Shareholders
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In order for a Shareholder to properly place any matter, other than procedural matters relating to
the conduct of the meeting, before any Annual Meeting of Shareholders, such Shareholder must
provide the Secretary of the Corporation with written notice of such matter (a) no later than one
hundred and twenty days prior to the first anniversary of the Corporations last Annual Meeting of
Shareholders or (b) if no annual meeting was held in the prior year or the date of the annual
meeting has changed by more than 30 days from the previous years meeting date, no later than the
later of the one hundred and twentieth day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made by the Corporation.
In the event that such matter is the nomination of a person for election as a director of the
Corporation, such notice must include the name of such person, information concerning such persons
business experience and background and such persons written consent to serving as a director if
elected. In the event that such matter is any other proposal, such notice must include a
description of the proposal and an explanation of the reason for the proposal. In either case, the
notice must include the identity of the Shareholder making the proposal, the number of shares owned
by such Shareholder and the nature of such holdings. No Shareholder shall be eligible to make a
proposal at any Annual Meeting of Shareholders, other than procedural matters relating to the
conduct of such meeting, unless proper notice of such proposal has been given to the Secretary of
the Corporation in a timely manner as set forth above.
In order for a Shareholder to properly place any matter, other than procedural matters relating to
the conduct of the meeting, before any Special Meeting of Shareholders, such Shareholder must
comply with the terms of Section 2.03 of these By-Laws, provided that with respect to any Special
Meeting of Shareholders called for the election of directors, a Shareholder may nominate a person
for election as a director if a written notice complying with the requirements set forth in the
preceding paragraph is received by the Secretary of the Corporation no later than seven (7) days
following the date on which notice of such meeting is first given to the Shareholders.
ARTICLE III
Board of Directors
All powers of the Corporation, except those specifically reserved or granted to the Shareholders by
statute, the Articles of Incorporation or these By-Laws, are hereby granted to and vested in the
Board of Directors; all such powers shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed by, the Board of Directors.
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SECTION 3.02.
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Number and Term of Office
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The Board of Directors shall consist of eleven directors. The Board of Directors shall be divided
into three classes, as nearly equal in number as the then total number of directors constituting
the entire Board permits, with the term of office of one class expiring each year. The initial
Class I directors elected by the shareholders of the Corporation shall hold office for a term
expiring at the 2000 annual meeting of shareholders and until their successors shall have been
elected and qualified; the initial Class II directors elected by the shareholders of the
Corporation shall hold office for a term expiring at the 2001 annual meeting of shareholders and
until their successors shall have been elected and qualified; and the initial Class III directors
elected by the shareholders of the Corporation shall hold office for a term expiring at the 2002
annual meeting of shareholders and until their successors have been elected and qualified. At each
such annual meeting of shareholders and at each annual meeting thereafter, successors to the class
of directors whose term expires at that meeting shall be elected for a term expiring at the third
annual meeting of shareholders following their election and until their successors have been
elected and qualified.
In the event of any change in the number of directors, the Board of Directors shall apportion any
newly created directorships among, or reduce the number of directorships in, such class or classes
as shall equalize, as nearly as possible, the number of directors in each class.
4
Vacancies on the Board of Directors shall be filled by a majority of the directors then in office,
even though less than a quorum. Directors chosen to fill vacancies shall hold office for the
unexpired terms of their respective predecessors and until their successors are duly elected and
shall qualify.
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SECTION 3.04.
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Resignation of Directors
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Any director of the Corporation may resign at any time by giving written notice to the Secretary.
Such resignation shall take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
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SECTION 3.05.
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Organization
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At every meeting of the Board of Directors, the Chairman of the Board, if there be one, or, in the
case of a vacancy in the office or absence of the Chairman of the Board, one of the following
officers present in the order stated: the vice chairman of the Board, if there be one or in their
order of rank and seniority if more than one, the Chief Executive Officer, the President, the vice
presidents in their order of rank and seniority, or a chairman chosen by a majority of the
directors present, shall preside, and the Secretary, or, in his absence, an assistant secretary, or
in the absence of the Secretary and the assistant secretaries, any person appointed by the chairman
of the meeting shall act as secretary.
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SECTION 3.06.
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Place of Meeting
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The Board of Directors may hold its meetings, both regular and special, at such place or places
within or outside the Republic of Liberia as the Board of Directors may from time to time appoint,
or as may be designated in the notice calling the meeting.
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SECTION 3.07.
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Regular Meetings
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Regular meetings of the Board of Directors may be held without notice at such time and place as
shall be designated from time to time by resolution of the Board of Directors. At such meetings,
the directors may transact such business as may properly be brought before the meeting.
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SECTION 3.08.
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Special Meetings
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Special Meetings of the Board of Directors shall be held whenever called by the Chief Executive
Officer or by two or more of the directors. Notice of each such meeting shall be given to each
director by telephone or in writing at least 24 hours (in the case of notice by telephone) or 48
hours (in the case of notice by telegraph, cablegram, telex, facsimile or teleprinter) or 10 days
(in the case of notice by mail) before the time at which the meeting is to be held. Each such
notice shall state the time and place of the meeting to be so held, and shall also state the
purpose or purposes of the meeting.
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SECTION 3.09.
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Voting by Proxy
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Each director may authorize another director to act for him by proxy at meetings of the Board of
Directors, at meetings of committees of the Board of which he is a member and giving a written
consent in lieu of meetings of the Board of Directors and such committees on behalf of his
appointor. A proxy to a director shall be given in an instrument in writing including a telegram,
cable, telex, teleprinter, facsimile or similar communication equipment and shall be produced to
the first meeting at which it is used or otherwise delivered to the Secretary of the Corporation. A
proxy shall be conclusive evidence of its validity until notice of revocation of such proxy in
writing including a telegraph, cable, telex, teleprinter or similar communications equipment has
been delivered to the Secretary of the Corporation.
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SECTION 3.10.
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Quorum, Manner of Acting, Adjournment and Action without Meeting
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At all meetings of the Board of Directors the presence, in person or by proxy, of a simple majority
of the total number of directors shall constitute a quorum for the transaction of business except
as may be otherwise specifically provided by the Business Corporation Act, by Article SEVENTH of,
or otherwise by, the Articles of Incorporation or by these By-Laws. The act of a simple majority of
the directors present in person or by proxy at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided by the Business
Corporation Act, by Article SEVENTH of, or otherwise by, the Articles of Incorporation or by these
By-Laws. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
5
Any person who is himself a director and acting as a proxy for any other director shall be entitled
to have one vote for each capacity in which he so acts (in addition to any vote he may have as a
director).
Any action required or permitted to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting, if all of the members of the Board of Directors
or committee (or other proxies) consent thereto in writing, and the writings are filed with the
minutes of proceedings of the Board of Directors or committee.
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SECTION 3.11.
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Conference Telephone Meetings
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One or more directors may participate in a meeting of the Board of Directors, or of a committee of
the Board, by means of conference telephone or similar communications equipment by means of which
all persons can hear each other. Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
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SECTION 3.12.
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Executive and Other Committees of the Board
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The Board of Directors may, by resolutions adopted by a majority vote of the entire Board of
Directors, designate from among its members an executive committee and one or more other committees
(having such name or names as may be determined from time to time by resolution adopted by the
Board of Directors), each committee to consist of two or more directors. The Board of Directors
shall designate the chairman of each such committee, and may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
The executive committee and any other committee designated by the Board of Directors shall have and
may exercise such powers and authorities as shall be provided in the resolution of the Board of
Directors establishing such committee; but no committee of the Board of Directors shall have the
power or authority in reference to the submission to Shareholders of any action that requires
Shareholders authorization under the Business Corporation Act or the Articles of Incorporation,
the filling of vacancies in the Board of Directors or in a committee, the fixing of the
compensation of the directors for serving on the Board of Directors or on any committee, the
amendment or repeal of the By-Laws or the adoption of new By-Laws, or the amendment or repeal of
any resolution of the Board of Directors other than one which is by its terms so amendable or
repealable.
Meetings of committees shall be called in the manner provided in the resolution of the Board of
Directors establishing such committee or as otherwise determined by such committee. Unless
otherwise so provided, meetings of any committee may be called by the chairman of such committee,
or by the secretary of such committee on the request of any two (2) members of such committee, on
the same notice to each member as is required by Section 3.08 hereof. Unless otherwise provided in
the resolution of the Board of Directors establishing a committee, two-thirds of the directors in
the office designated to any committee (but in all events not less than two (2) such directors)
shall be present at each meeting to constitute a quorum for the transaction of business, and the
acts of such committee. Each committee so formed shall fix its own rules of proceeding, appoint its
own secretary, keep regular minutes of its meetings and report the same to the Board of Directors
when required.
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SECTION 3.13.
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Compensation of Directors
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The Board of Directors shall have the authority to fix the compensation of directors. The directors
may be paid a fixed annual fee as director, in addition to or in lieu of a fixed sum for attendance
at each meeting of the Board of Directors. Directors may also be remunerated separately for
specific projects undertaken or services rendered on behalf of the Corporation at the request of
the Board of Directors, and shall be reimbursed for their expenses incurred in performing their
duties as directors, including attendance at meetings and specific projects undertaken or services
rendered on behalf of the Corporation. No such payment shall preclude any directors from serving
the Corporation in any other capacity and receiving compensation and reimbursement of expenses
thereof.
6
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SECTION 3.14.
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Preferred Directors
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Notwithstanding anything else contained herein, whenever the holders of one or more classes or
series of preferred stock shall have the right, voting separately as a class or series, to elect
directors, the election, term of office, filling of vacancies, removal and other features of such
directorships shall be governed by the terms of the resolutions applicable thereto adopted by the
Board of Directors pursuant to the Articles of Incorporation.
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SECTION 3.15.
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Specific and General Powers of Directors
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Subject to any regulations from time to time made by the Shareholders, the Board of Directors shall
have the management of the affairs, business and property of the Corporation and may do all such
acts as are not prohibited by law, by the Articles of Incorporation, or by these By-Laws, and as
are not reserved to the Shareholders.
ARTICLE IV
Officers
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SECTION 4.01.
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Number, Qualifications and Designation
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The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chief
Executive Officer, a President, one or more vice presidents, a Secretary, a Treasurer, and such
other officers as may be elected or appointed in accordance with the provisions of Section 4.03.
Officers may be of any nationality and need not be
residents or citizens of the Republic of Liberia. One person may hold more than one office.
Officers may be, but need not be, directors or Shareholders of the Corporation.
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SECTION 4.02.
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Election and Term of Office
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The officers of the Corporation, except those appointed by delegated authority pursuant to Section
4.03, shall be elected annually by the Board of Directors, and each such officer shall hold his
office until his successor shall have been elected or appointed and qualified, or until his earlier
death, resignation or removal. Any officer may resign at any time upon written notice to the
Corporation. Any officer elected by the Board of Directors or appointed by delegated authority may
be removed by the Board of Directors or by the appointing authority with or without cause. The
removal of an officer without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract rights.
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SECTION 4.03.
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Other Officers, Subordinate Officers, Non-Board Committees and Agents
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The Board of Directors may from time to time elect such other officers and appoint such employees
or other agents, or such committees (not constituting committees of the Board of Directors), as it
deems necessary, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as are provided in these By-Laws, or as the Board of Directors may from time to
time determine. The Board of Directors may delegate to any officer or committee of the Board
referred to in Section 3.12 the power to appoint subordinate officers and to retain or appoint
employees or other agents, or committees (not constituting committees of the Board of Directors)
and to prescribe the authority, duties and compensation of such subordinate officers, committees,
employees or other agents.
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SECTION 4.04.
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The Chairman of the Board
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The Chairman of the Board shall preside at all meetings of the Shareholders and of the Board of
Directors, and shall perform such other duties as may from time to time be assigned to him by the
Board of Directors. The Chairman may also be the Chief Executive Officer and/or the President of
the Corporation.
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SECTION 4.05.
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The Chief Executive Officer
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The Chief Executive Officer shall have general supervision over the affairs of the Corporation. The
Chief Executive Officer shall have the power to sign, execute and acknowledge, in the name of the
Corporation, deeds, mortgages, bonds, contracts or other instruments, shall make reports to the
Board of Directors and the Shareholders, shall have like powers to those of the President, and, in
general, shall perform all duties incident to the office of Chief Executive Officer.
7
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SECTION 4.06.
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The President
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The President shall have the power to sign, execute and acknowledge, in the name of the
Corporation, deeds, mortgages, bonds, contracts or other instruments, as authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors, or by these By-Laws or by statute, to some other officer or agent of the
Corporation and, in general, shall perform such other duties as from time to time may be assigned
to him by the Board of Directors.
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SECTION 4.07.
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The Vice Presidents
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The vice presidents shall perform such duties as may from time to time be assigned to them by the
Board of Directors, the Chief Executive Officer or the President.
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SECTION 4.08.
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The Secretary
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The Secretary, or an assistant secretary, shall attend all meetings of the Shareholders and of the
Board of Directors and shall record the proceedings of the Shareholders and of the directors in a
book or books to be kept for that purpose; see that notices are given and records and reports are
properly kept and filed by the Corporation as required by law, the Articles of Incorporation or
these By-Laws; be the custodian of the seal of the Corporation; and, in general, perform all duties
incident to the office of Secretary, and such other duties as may from time to time be assigned to
him by the Board of Directors, the Chief Executive Officer or the President. Except as otherwise
required by law, the Secretarys signature shall not be required to bind the Corporation.
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SECTION 4.09.
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The Treasurer
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The Treasurer or assistant treasurer shall have or provide for the custody of the funds or other
property of the Corporation and shall keep a separate book of account of the same to his credit as
Treasurer; collect and receive or provide for the collection and receipt of moneys earned by or in
any manner due to or received by the Corporation; deposit all funds in his custody as Treasurer in
such banks or other places of deposit as the Board of Directors may from time to time designate;
whenever so required by the Board of Directors, render an account showing his transactions as
Treasurer and the financial condition of the Corporation; and, in general, discharge such other
duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive
Officer or the President.
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SECTION 4.10.
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Officers Bonds
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No officer of the Corporation need provide a bond to guarantee the faithful discharge of his duties
unless the Board of Directors shall by resolution so require, in which event such officer shall
give the Corporation a bond (which shall be renewed if and as required) in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office.
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SECTION 4.11.
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Salaries of Elected Officers
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The salaries of the officers of the Corporation elected by the Board of Directors shall be fixed
from time to time by the Board of Directors or pursuant to authority conferred by the Board of
Directors.
ARTICLE V
Certificates of Stock, Transfer, Etc.
Each Shareholder shall be entitled to a certificate or certificates for shares of the Corporation
owned by him upon his request thereof. All share certificates of the Corporation shall be numbered
and registered in the share ledger and transfer books of the Corporation as they are issued. They
shall be signed by the President or a vice president and by the Secretary or an assistant secretary
or the Treasurer or an assistant treasurer, and may bear the corporate seal, which may be a
facsimile. The signatures of the officers upon such certificate may be facsimiles, if the
certificate is countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employees. In case any officer who has signed, or whose facsimile
signature has been placed upon, any share certificate shall have ceased to be such officer before
the certificate is issued it may be issued or delivered with the same effect as if he were such
officer at the date of its issue or delivery. The Corporation shall keep a record containing the
names and addresses of all registered Shareholders, the number and class of shares held by each and the date
when they respectively became the owners of record thereof.
8
Transfer of shares issued in the name of a holder of record shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted and
upon surrender of and cancellation of the certificate therefor. Every transfer of shares by holders
of record shall be entered on the stock book of the Corporation. Upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate for registered shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Transfer of shares of the Corporation that are subject to the restrictions contained in the
Shareholders Agreement dated as of February 1, 1993 between A. Wilhelmsen AS. and Cruise Associates
(the Shareholders Agreement), a copy of which is on file with the Secretary of the Corporation,
shall only be made in accordance with the terms of the Shareholders Agreement. The Corporation
shall be entitled to rely upon a written certificate of the Shareholder concerning the compliance
with such conditions. The Secretary of the Corporation shall not register the transfer of shares
that are subject to the restrictions of the Shareholders Agreement if either A. Wilhelmsen AS. or
Cruise Associates notifies the Secretary that such transfer would violate the terms of the
Shareholders Agreement.
Any applicant to transfer shares shall pay to the Corporation any stamp or other duties or taxes
payable in respect of the transfer, together with any charges imposed by the Corporation in respect
of such transfer, all prior to and as a condition precedent to the issuance of any new certificates
to such applicant.
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SECTION 5.03.
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Share Certificates
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Share certificates of the Corporation shall be in such form as is provided by statute and approved
by the Board of Directors. Shares that are subject to the restrictions of the Shareholders
Agreement shall bear the legend required by Section 18 of the Shareholders Agreement. The holders
of shares bearing the legend required by Section 18 of the Shareholders Agreement may obtain share
certificates without legends in connection with a transfer of the shares represented by such
certificates by providing a written certification to the Corporation to the effect that the
transfer is being made in compliance with the terms of the Shareholders Agreement to a person who
is not a party to, and who is not becoming a party to, the Shareholders Agreement. The share record
books and the blank share certificates shall be kept by the Secretary or by any agency designated
by the Board of Directors for that purpose.
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SECTION 5.04.
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Lost, Stolen, Destroyed or Mutilated Certificates
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The Board of Directors may direct a new certificate or new certificates to be issued in place of
any certificate or certificates previously issued by the Corporation and alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed. When authorizing such issue of a new certificate or
new certificates, the Board of Directors may, in its discretion and as a condition precedent to the
issue thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or
his legal representative, to advertise the same in such manner as the Board of Directors shall
require and to give the Corporation a bond in such sum as the Board of Directors may direct as
indemnity against any claims that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
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SECTION 5.05.
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Record Holder of Shares
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The Corporation shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of registered shares to receive dividends, to vote and to exercise any other
rights in respect of the shares held as the owner thereof. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in any registered share or shares on the part
of any person other than a person registered on its books as the owner of such registered share or
shares whether or not it shall have express or other notice thereof.
9
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SECTION 5.06.
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Determination of Shareholders of Record
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In order that the Corporation may determine the holders of registered shares entitled to notice of
meeting of Shareholders, or entitled to express consent to or dissent from any proposed corporate
action without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights in respect of any change, conversion or exchange of shares or for the
purposes of any other action, the Board of Directors may fix, in advance, a record date, which
shall not be more than 60 nor less than 15 days before the date of such meeting, nor more than 60
days prior to any other action. A determination of registered Shareholders of record entitled to
notice of or to vote at a meeting of Shareholders shall apply to any adjournment of the meeting;
except that the Board of Directors may fix a new record date for an adjourned meeting.
ARTICLE VI
Notices
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SECTION 6.01.
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Notice Provisions
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Whenever, under the provisions of the statutes of the Republic of Liberia or the Articles of
Incorporation or these By-Laws, any notice, request, demand or other communication is required to
be or may be given or made to any officer, director, or registered Shareholder, it shall not be
construed to mean that such notice, request, demand or other communication must be given or made in
person but the same may be given or made in person, by mail, telegraph, cablegram, telex, facsimile
or teleprinter to such officer, director or registered Shareholder and shall be considered to have
been properly given or made, in the case of mail, telegraph or cable, when deposited in the mail or
delivered to the appropriate office for telegraph or cable transmission, and in other cases when
transmitted by the party giving or making the same, directed to the officer or director or to a
registered Shareholder at his address as it appears on the records of the Corporation, or, if the
Shareholder shall have filed with the secretary of the Corporation a written request that notice to
him be mailed to some other address, then directed to the Shareholder at such other address. Notice
to directors may also be given in accordance with Section 3.08. Any notice dispatched by mail shall
be sent by first class air mail or other fast postal service and shall be properly stamped prior to
deposit in the mail.
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SECTION 6.02.
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Notice to Corporation
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Whenever, under the provisions of the statutes of the Republic of Liberia or the Articles of
Incorporation or these By-Laws, any notice, request, demand or other communication is required to
be or may be given or made to the Corporation, it shall also not be construed to mean that such
notice, request, demand or other communication must be given or made in person, but the same may be
given or made to the Corporation by mail, telegraph, cablegram, telex, facsimile or teleprinter.
Any such notice, request, demand or other communication shall be considered to have been properly
given or made, in the case of mail, telegram or cable, when deposited in the mail or delivered to
the appropriate office for telegraph or cable transmission, and in other cases when transmitted by
the party giving or making the same, directed to the Corporation at its then registered address,
provided that a copy of the same is sent by like medium of communication to the attention of the
secretary at the Corporations then principal place of business.
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SECTION 6.03.
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|
Waiver of Notice
|
Whenever any written notice is required to be given under the provision of the Articles of
Incorporation, these By-Laws or by statute, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Shareholders, directors, or members of a committee of
directors need be specified in any written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting, without protesting prior to
the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of
notice of such meeting.
10
ARTICLE VII
Indemnification
The Corporation shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (as
hereinafter defined) as provided in this Article VII and to the fullest extent permitted by
applicable law.
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SECTION 7.02.
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|
Proceedings Other Than Proceedings by or in the Right of the Corporation
|
Indemnitee shall be entitled to the rights of indemnification provided in this Section 7.02 if, by
reason of his Corporate Status (as hereinafter defined), he was or is, or is threatened to be made,
a party to any threatened, pending, or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Corporation to procure a judgment in its favor. Pursuant to
this Section 7.02, Indemnitee shall be indemnified against Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him or on his behalf in
connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.
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SECTION 7.03.
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|
Proceedings by or in the Right of the Corporation
|
Indemnitee shall be entitled to the rights of indemnification provided in this Section 7.03 if, by
reason of his Corporate Status, he was or is, or is threatened to be made, a party to any
threatened, pending or completed Proceeding brought by or in the right of the Corporation to
procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against
Expenses actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation. Notwithstanding the foregoing, no indemnification against
such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which
Indemnitee shall have been adjudged to be liable to the Corporation for negligence or misconduct in
the performance of his duty to the Corporation if applicable law prohibits such indemnification;
provided, however, that, if applicable law so permits, indemnification against Expenses shall
nevertheless be made by the Corporation in such event if and only to the extent that the Court of
competent jurisdiction in which such Proceeding shall have been brought or is pending, shall
determine.
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SECTION 7.04.
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|
Indemnification for Expenses of a Party Who is Wholly or Partly Successful
|
Notwithstanding any other provision of this Article VII, to the extent that Indemnitee is, by
reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than all claims, issues
or matters in such Proceeding, the Corporation shall indemnify Indemnitee against all Expenses
actually and reasonably incurred by him or on his behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 7.04 and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal or voluntary action,
with or without prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
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SECTION 7.05.
|
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Indemnification for Expenses of a Witness
|
Notwithstanding any other provision of this Article VII, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding in which he is not a party, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
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SECTION 7.06.
|
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Advancement of Expenses
|
The Corporation shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in
connection with any Proceeding within twenty (20) days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified
against such Expenses.
11
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SECTION 7.07.
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|
Procedure for Determination of Entitlement to Indemnification
|
(a) To obtain indemnification under this Article VII, Indemnitee shall submit to the Corporation a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Corporation shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 7.07(a) hereof, a determination, if required by applicable law, with respect to
Indemnitees entitlement thereto shall be made in the specific case: (i) if a Change in Control (as
hereinafter defined) shall have occurred, by Independent Counsel (as hereinafter defined) (unless
Indemnitee shall request that such determination be made by the Board of Directors, in which case
by the person or persons or in the manner provided for in clauses (ii) or (iii) of this Section
7.07(b)) in a written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined) or (B) if
such quorum is not obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board of Directors, a copy of which
shall be delivered to Indemnitee; or (iii) as provided in Section 7.08(b) of this Article; and, if
it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be
made within ten (10) days after such determination. Indemnitee shall cooperate with the person,
persons or entity making such determination with respect to Indemnitees entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys fees and disbursements) incurred by
Indemnitee in so cooperating with the person, persons or entity making such determination shall be
borne by the Corporation (irrespective of the determination as to Indemnitees entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 7.07(b) of this Article VII, the Independent Counsel shall be selected
as provided in this Section 7.07(c). If a Change of Control shall not have occurred, the
Independent Counsel shall be selected by the Board of Directors, and the Corporation shall give
written notice to Indemnitee advising him of the identity of the Independent Counsel so selected.
If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board of Directors, in which
event the preceding sentence shall apply), and Indemnitee shall give written notice to the
Corporation advising it of the identity of the
Independent Counsel so selected. In either event, Indemnitee or the Corporation, as the case may
be, may, within seven (7) days after such written notice of selection shall have been given,
deliver to the Corporation or to Indemnitee, as the case may be, a written objection to such
selection. Such objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of Independent Counsel as defined in Section 7.13 of this
Article VII, and the objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a Court has determined that such objection is without merit.
If, within twenty (20) days after submission by Indemnitee of a written request for indemnification
pursuant to Section 7.07(a) hereof, no Independent Counsel shall have been selected and not
objected to, either the Corporation or Indemnitee may petition any Court of competent jurisdiction
for resolution of any objection which shall have been made by the Corporation or Indemnitee to the
others selection of Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the Court or by such other person as the Court shall designate, and the person
with respect to whom an objection is so resolved or the person so appointed shall act as
Independent Counsel under Section 7.07(b) hereof. The Corporation shall pay any and all reasonable
fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 7.07(b) hereof, and the Corporation shall pay all reasonable fees and
expenses incident
to the procedures of this Section 7.07(c), regardless of the manner in which such Independent
Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 7.09(a)(iii) of this Article VII, Independent Counsel shall be
discharged and relieved of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
12
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SECTION 7.08.
|
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Presumptions and Effect of Certain Proceedings
|
(a) If a Change of Control shall have occurred, in making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making such determination
shall presume that Indemnitee is entitled to indemnification under this Article if Indemnitee has
submitted a request for indemnification in accordance with Section 7.07(a) of this Article, and the
Corporation shall have the burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination contrary to that presumption.
(b) If the person, persons or entity empowered or selected under Section 7.07 of this Article VII
to determine whether Indemnitee is entitled to indemnification shall not have made such
determination within sixty (60) days after receipt by the Corporation of the request therefore, the
requisite determination of entitlement to indemnification shall be deemed to have been made in
favor of Indemnitee and Indemnitee shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make
Indemnitees statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under applicable law;
provided
,
however
, that such sixty (60) day period may be extended for a reasonable
time, not to exceed an additional thirty (30) days, if the person, persons or entity making the
determination with respect to entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluation of documentation and/or information relating thereto; and
provided
,
further
, that the foregoing provisions of this Section 7.08(b) shall not
apply if the determination of entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 7.07(b) of this Article VII.
(c) The termination of any Proceeding or of any claim, issue or matter therein by judgment, order,
settlement, conviction, or upon a plea of
nolo contendere
or its equivalent, shall not
(except as otherwise expressly provided in this Article VII) of itself adversely affect the right
of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith
and in a manner in which he reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause
to believe that his conduct was unlawful.
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SECTION 7.09.
|
|
Remedies of Indemnitee
|
(a) In the event that (i) a determination is made pursuant to Section 7.07 of this Article VII that
Indemnitee is not entitled to indemnification under this Article VII, (ii) advancement of Expenses
is not timely made pursuant to Section 7.06 of this Article VII, (iii) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to Section 7.07(b) of
this Article VII and such determination shall not have been made and delivered in a written opinion
within ninety (90) days after receipt by the Corporation of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 7.05 of this Article VII within ten (10)
days after receipt by the Corporation of a written request therefore, or (v) payment of
indemnification is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to have been made
pursuant to Section 7.08 of this Article VII, Indemnitee shall be entitled to an adjudication in
any Court of competent jurisdiction, of his entitlement to such indemnification or advancement of
Expenses. Alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within
one hundred eighty (180) days following the date on which Indemnitee first has the right to
commence such proceeding pursuant to this Section 7.09(a). The Corporation shall not oppose
Indemnitees right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 7.07 of this Article
VII that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 7.09 shall
13
be conducted in all respects as a
de novo
trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control
shall have occurred, in any judicial proceeding or arbitration commencing pursuant to this Section
7.09 the Corporation shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have been made pursuant to Section 7.07 or
7.08 of this Article VII that Indemnitee is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding or arbitration commenced pursuant to this
Section 7.09, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitees statement not materially misleading, or (ii) a
prohibition of such indemnification under applicable law.
(d) The Corporation shall be precluded from asserting in any judicial proceeding or arbitration
commenced pursuant to this Section 7.09 that the procedure and presumptions of this Article VII are
not valid, binding and enforceable and shall stipulate in any such Court or before any such
arbitrator that the Corporation is bound by all the provisions of this Article VII unless
prohibited by law.
(e) In the event that Indemnitee, pursuant to this Section 7.09, seeks a judicial adjudication of
or an award in arbitration to enforce his rights under or to recover damages for breach of, this
Article VII, Indemnitee shall be entitled to recover from the Corporation, and shall be indemnified
by the Corporation against, any and all expenses (of the types described in the definition of
Expenses in Section 7.13 of this Article VII) actually and reasonably incurred by him in such
judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in
said judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all
of the indemnification or advancement of expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately prorated.
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SECTION 7.10.
|
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Non-Exclusivity; Survival of Rights; Insurance; Subrogation
|
(a) The rights of indemnification and to receive advancement of Expenses as provided by this
Article VII shall not be deemed exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, the Articles of Incorporation (including, but not limited to,
Article Ninth thereof, which provides a separate right of indemnification), the By-Laws, any
agreement, a vote of Shareholders or a resolution of directors or otherwise. No amendment,
alteration or repeal of this Article VII or of any provision hereof shall be effective as to any
Indemnitee with respect to any action taken or omitted by such Indemnitee in his Corporate Status
prior to such amendment, alteration or repeal. The provisions of this Article VII shall continue as
to an Indemnitee whose Corporate Status has ceased and shall inure to the benefit of his heirs,
executors and administrators.
(b) The Corporation may purchase and maintain insurance on behalf of any person specified in
Section 6.13 of the Business Corporation Act, or any person specified in this Article VII, against
liability asserted against him and incurred by him, whether or not the Corporation would have power
to indemnify him against such liability under the provisions of the aforesaid Section 6.13.
To the extent that the Corporation maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, agents or fiduciaries of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Corporation, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy or policies.
(c) In the event of any payment under this Article VII, the Corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Corporation to bring suit to enforce such rights.
14
(d) The Corporation shall not be liable under this Article VII to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
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SECTION 7.11.
|
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Severability
|
If any provision or provisions of this Article VII shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article VII (including without limitation, each portion of any Section
of this Article VII containing any such provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this Article VII (including,
without limitation, each portion of any Section of this Article VII containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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SECTION 7.12.
|
|
Certain Persons Not Entitled to Indemnification or Advancement of Expenses
|
Notwithstanding any other provision of this Article VII, no person shall be entitled to
indemnification or advancement of Expenses under this Article VII with respect to any Proceeding,
or any claim therein, brought or made by him against the Company except as provided in Section
7.09.
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SECTION 7.13.
|
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Definitions
|
For purposes of this Article VII:
(a) Change in Control means a change in control of the Corporation occurring after the Effective
Date of a nature that would be required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934 (the Act), whether or not the Corporation is then
subject to such reporting requirement; provided, however, that, without limitation, such a Change
in Control shall be deemed to have occurred if after the Effective Date (i) any person (as such
term is used in Sections 13(d) and 14(d) of the Act) is or becomes the beneficial owner (as
defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Corporation
representing twenty five percent (25%) or more of the combined voting power of the Corporations
then outstanding securities without the prior approval of at least two-thirds of the members of the
Board of Directors in office immediately prior to such person attaining such percentage interest;
(ii) the Corporation is a party to a merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a majority of the Board of
Directors thereafter; or (iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (including for this purpose any new
director whose election or nomination for election by the Corporations stockholders was approved
by a vote of at least two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority of the Board of
Directors.
(b) Corporate Status describes the status of a person who is or was a director or officer of the
Corporation or any direct or indirect subsidiary thereof or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such person is or was serving
at the request of the Corporation.
(c) Disinterested Director means a director of the Corporation who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) Effective Date means April 22, 1993.
(e) Expenses shall include all reasonable attorneys costs and fees, investigative costs and
fees, accountants costs and fees, expert witnesses costs and fees, retainers, court costs,
transcript costs, costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to
be a witness in a Proceeding.
15
(f) Indemnitee includes any person who is, or is threatened to be made, a witness in or a party
to any Proceeding as described in Sections 7.02, 7.03, 7.04 or 7.05 of this Article VII by reason
of his Corporate Status and the heirs, executors and administrators of any such person.
(g) Independent Counsel means a law firm, or a member of a law firm, that is experienced in
matters of corporate law and neither presently is, nor in the past five years has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material to either such party, or (ii)
any other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term Independent Counsel shall not include any person who,
under the applicable standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Corporation or Indemnitee in an action to determine
Indemnitees rights under this Article VII.
(h) Proceeding includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative.
Any notice, request or other communication required or permitted to be given to the Corporation
under this Article VII shall be in writing and either delivered in person or sent by telex,
telegram or certified or registered mail, postage prepaid, return receipt requested, to the
Secretary of the Corporation and shall be effective only upon receipt by the Secretary.
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SECTION 7.15.
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Miscellaneous
|
Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where
appropriate.
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SECTION 7.16.
|
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Indemnification of Additional Parties.
|
In addition to the foregoing, the Corporation may, but shall not be required to, indemnify, and
advance Expenses to, any person who is, or is threatened to be made, a witness in or party to any
Proceeding as described in Sections 7.02, 7.03, 7.04 or 7.05 of this Article VII by reason of the
status of such person as an employee, agent or fiduciary of the Corporation or any direct or
indirect subsidiary thereof or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person is or was serving at the request of the
Corporation, provided, however, that no such person shall be entitled to indemnification by virtue
of this Section 7.16 unless such indemnification is authorized by action of the Board of Directors.
ARTICLE VIII
General Provisions
Dividends upon the capital stock of the Corporation, subject to the provisions of the Articles of
Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock of
the Corporation, subject to the provisions of the Articles of Incorporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purposes as the Board of Directors
shall think conducive to the interests of the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
The Corporation or other person paying any dividend or issuing any right on behalf of the
Corporation shall be entitled to withhold therefrom any taxes required to be withheld by the laws
and regulations of any taxing authority having jurisdiction in the circumstances.
16
Except as otherwise provided in these By-Laws, the Board of Directors may authorize any officer or
officers or any agent or agents, to enter into any contract or to execute or deliver any instrument
on behalf of the Corporation and such authority may be general or confined to specific instances.
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SECTION 8.03.
|
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Cheques and Deposits
|
All funds of the Corporation shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies, or other depositories as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon cheques signed by such one or more
officers, employees or agents of the Corporation as the Board of Directors shall from time to time
determine. All notes, bills of exchange or other orders in writing shall be signed by such person
or persons as the Board of Directors may from time to time designate.
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SECTION 8.04.
|
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Corporate Seal
|
The corporate seal shall have inscribed thereon the name of the Corporation, the year of its
organization and the words Corporate Seal, Liberia. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise reproduced.
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SECTION 8.05.
|
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Corporate Records
|
Every Shareholder shall, upon written demand stating the purpose thereof, have a right to inspect,
in person or by agent or attorney, during the usual hours of business, for a purpose reasonably
related to his interests as a Shareholder, the share register, books of account, and minutes of all
proceedings, and make copies or extracts therefrom.
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SECTION 8.06.
|
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Amendment of By-Laws
|
These By-Laws may be altered, amended or repealed and new By-Laws may be adopted, by the Board of
Directors as provided in these By-Laws and the Articles of Incorporation, including Article SEVENTH
thereof.
|
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SECTION 8.07.
|
|
Effective Date
|
Any amendment to or any amendment and restatement of these By-Laws shall govern the affairs of the
Corporation from and after the date stated in the resolution adopting the same.
END
17
Exhibit 4.1
ROYAL CARIBBEAN CRUISES LTD., as Issuer
and
THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
INDENTURE
Dated as of July 31, 2006
Senior Securities
ROYAL CARIBBEAN CRUISES LTD.
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
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|
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|
|
|
|
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Trust Indenture Act Section
|
|
Indenture Section
|
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§310(a)
|
(1)
|
|
|
609
|
|
(a)
|
(2)
|
|
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609
|
|
(a)
|
(3)
|
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Not Applicable
|
(a)
|
(4)
|
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Not Applicable
|
(a)
|
(5)
|
|
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609
|
|
(b)
|
|
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608, 610
|
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§311(a)
|
|
|
|
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610, 613
|
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(b)
|
|
|
|
|
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613
|
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(c)
|
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|
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|
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Not Applicable
|
§312(a)
|
|
|
|
|
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701, 702(a)
|
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(b)
|
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702(b)
|
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(c)
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702(c)
|
|
§313(a)
|
|
|
|
|
|
703(a)
|
|
(b)
|
|
|
|
|
|
703(a)
|
|
(c)
|
|
|
|
|
|
703(a), 602
|
|
(d)
|
|
|
|
|
|
703(b)
|
|
§314(a)
|
|
|
|
|
|
704
|
|
(a)
|
(4)
|
|
|
101,1005
|
|
(b)
|
|
|
|
|
|
Not Applicable
|
(c)
|
(1)
|
|
|
102
|
|
(c)
|
(2)
|
|
|
102
|
|
(c)
|
(3)
|
|
|
Not Applicable
|
(d)
|
|
|
|
|
|
Not Applicable
|
(e)
|
|
|
|
|
|
102
|
|
§315(a)
|
|
|
|
|
|
601
|
|
(b)
|
|
|
|
|
|
602
|
|
(c)
|
|
|
|
|
|
601
|
|
(d)
|
|
|
|
|
|
601, 603
|
|
(e)
|
|
|
|
|
|
514
|
|
§ 316(a)
|
(last sentence)
|
|
101
|
|
(a)
|
(1))(A)
|
|
|
502, 512
|
|
(a)
|
(1)(B)
|
|
|
513
|
|
(a)
|
(2)
|
|
|
Not Applicable
|
|
|
|
|
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
(b)
|
|
|
|
|
|
508
|
|
(c)
|
|
|
|
|
|
104(c)
|
|
§317(a)(1)
|
|
|
|
|
|
503
|
|
(a)(2)
|
|
|
|
|
|
504
|
|
(b)
|
|
|
|
|
|
1003
|
|
§318(a)
|
|
|
|
|
|
107
|
|
|
|
|
Note:
|
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
PARTIES
|
|
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1
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|
|
|
|
|
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|
|
|
|
RECITALS OF THE COMPANY
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
ARTICLE ONE
|
|
|
|
|
Definitions and Other Provisions of General Application
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 101. Definitions:
|
|
|
|
|
|
Act
|
|
|
2
|
|
|
|
Additional Amounts
|
|
|
2
|
|
|
|
Affiliate
|
|
|
2
|
|
|
|
Authenticating Agent
|
|
|
2
|
|
|
|
Board of Directors
|
|
|
2
|
|
|
|
Board Resolution
|
|
|
2
|
|
|
|
Book-Entry Security
|
|
|
2
|
|
|
|
Business Day
|
|
|
3
|
|
|
|
Commission
|
|
|
3
|
|
|
|
Common Stock
|
|
|
3
|
|
|
|
Company
|
|
|
3
|
|
|
|
Company Request or Company Order
|
|
|
3
|
|
|
|
Corporate Trust Office
|
|
|
3
|
|
|
|
Corporation
|
|
|
3
|
|
|
|
Defaulted Interest
|
|
|
3
|
|
|
|
Depositary
|
|
|
3
|
|
|
|
Event of Default
|
|
|
4
|
|
|
|
Exchange Act
|
|
|
4
|
|
|
|
Holder
|
|
|
4
|
|
|
|
Indenture
|
|
|
4
|
|
|
|
Indexed Security
|
|
|
4
|
|
|
|
Interest
|
|
|
4
|
|
|
|
Interest Payment Date
|
|
|
4
|
|
|
|
Maturity
|
|
|
4
|
|
|
|
Officer
|
|
|
5
|
|
|
|
Officers Certificate
|
|
|
5
|
|
|
|
Opinion of Counsel
|
|
|
5
|
|
|
|
Original Issue Discount Security
|
|
|
5
|
|
|
|
Outstanding
|
|
|
5
|
|
|
|
Paying Agent
|
|
|
6
|
|
|
|
Person
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Place of Payment
|
|
|
6
|
|
|
|
Predecessor Security
|
|
|
7
|
|
|
|
Preferred Stock
|
|
|
7
|
|
|
|
Redemption Date
|
|
|
7
|
|
|
|
Redemption Price
|
|
|
7
|
|
|
|
Regular Record Date
|
|
|
7
|
|
|
|
Responsible Officer
|
|
|
7
|
|
|
|
Security
|
|
|
7
|
|
|
|
Security Register and Security Registrar
|
|
|
8
|
|
|
|
Special Record Date
|
|
|
8
|
|
|
|
Stated Maturity
|
|
|
8
|
|
|
|
Subsidiary
|
|
|
8
|
|
|
|
Trustee
|
|
|
8
|
|
|
|
Trust Indenture Act
|
|
|
8
|
|
|
|
U.S. Government Obligations
|
|
|
8
|
|
Section 102.
|
|
Compliance Certificates and Opinions
|
|
|
9
|
|
Section 103.
|
|
Form of Documents Delivered to Trustee
|
|
|
9
|
|
Section 104.
|
|
Acts of Holders; Record Dates
|
|
|
10
|
|
Section 105.
|
|
Notices, Etc., to Trustee and Company
|
|
|
11
|
|
Section 106.
|
|
Notice to Holders; Waiver
|
|
|
12
|
|
Section 107.
|
|
Conflict with Trust Indenture Act
|
|
|
12
|
|
Section 108.
|
|
Effect of Headings and Table of Contents
|
|
|
13
|
|
Section 109.
|
|
Successors and Assigns
|
|
|
13
|
|
Section 110.
|
|
Separability Clause
|
|
|
13
|
|
Section 111.
|
|
Benefits of Indenture
|
|
|
13
|
|
Section 112.
|
|
Governing Law
|
|
|
13
|
|
Section 113.
|
|
|
|
Legal Holidays
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TWO
|
|
|
|
|
Security Forms
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 201.
|
|
Forms of Securities
|
|
|
14
|
|
Section 202.
|
|
Form of Legend for Book-Entry Securities
|
|
|
14
|
|
Section 203.
|
|
Form of Trustees Certificate of Authentication
|
|
|
15
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
|
ARTICLE THREE
|
|
|
|
|
The Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 301.
|
|
Amount Unlimited; Issuable in Series
|
|
|
15
|
|
Section 302.
|
|
Denominations
|
|
|
18
|
|
Section 303.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
19
|
|
Section 304.
|
|
Temporary Securities
|
|
|
21
|
|
Section 305.
|
|
Registration, Registration of Transfer and Exchange
|
|
|
21
|
|
Section 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
23
|
|
Section 307.
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
24
|
|
Section 308.
|
|
Persons Deemed Owners
|
|
|
25
|
|
Section 309.
|
|
Cancellation
|
|
|
26
|
|
Section 310.
|
|
Computation of Interest
|
|
|
26
|
|
|
|
|
|
|
|
|
|
|
ARTICLE FOUR
|
|
|
|
|
Satisfaction and Discharge
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
26
|
|
Section 402.
|
|
Application of Trust Money
|
|
|
28
|
|
Section 403.
|
|
Defeasance and Discharge of Securities of Any Series
|
|
|
29
|
|
|
|
|
|
|
|
|
|
|
ARTICLE FIVE
|
|
|
|
|
Remedies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 501.
|
|
Events of Default
|
|
|
31
|
|
Section 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
33
|
|
Section 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
34
|
|
Section 504.
|
|
Trustee May File Proofs of Claim
|
|
|
35
|
|
Section 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
36
|
|
Section 506.
|
|
Application of Money Collected
|
|
|
36
|
|
Section 507.
|
|
Limitation on Suits
|
|
|
36
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
Section 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
37
|
|
Section 509.
|
|
Restoration of Rights and Remedies
|
|
|
38
|
|
Section 510.
|
|
Rights and Remedies Cumulative
|
|
|
38
|
|
Section 511.
|
|
Delay or Omission Not Waiver
|
|
|
38
|
|
Section 512.
|
|
Control by Holders
|
|
|
38
|
|
Section 513.
|
|
Waiver of Past Defaults
|
|
|
39
|
|
Section 514.
|
|
Undertaking for Costs
|
|
|
39
|
|
Section 515.
|
|
Waiver of Stay or Extension Laws
|
|
|
40
|
|
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
|
|
|
|
The Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 601.
|
|
Certain Duties and Responsibilities
|
|
|
40
|
|
Section 602.
|
|
Notice of Defaults
|
|
|
40
|
|
Section 603.
|
|
Certain Rights of Trustee
|
|
|
41
|
|
Section 604.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
43
|
|
Section 605.
|
|
May Hold Securities
|
|
|
43
|
|
Section 606.
|
|
Money Held in Trust
|
|
|
43
|
|
Section 607.
|
|
Compensation and Reimbursement
|
|
|
44
|
|
Section 608.
|
|
Disqualification; Conflicting Interests
|
|
|
45
|
|
Section 609.
|
|
Corporate Trustee Required; Eligibility
|
|
|
45
|
|
Section 610.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
45
|
|
Section 611.
|
|
Acceptance of Appointment by Successor
|
|
|
47
|
|
Section 612.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
48
|
|
Section 613.
|
|
Preferential Collection of Claims Against Company
|
|
|
49
|
|
Section 614.
|
|
Appointment of Authenticating Agent
|
|
|
49
|
|
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
|
|
|
Holders Lists and Reports by Trustee and Company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
51
|
|
Section 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
51
|
|
Section 703.
|
|
Reports by Trustee
|
|
|
52
|
|
Section 704.
|
|
Reports by Company
|
|
|
52
|
|
iv
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
|
|
|
|
Consolidation, Merger, Conveyance, Transfer or Lease
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
52
|
|
Section 802.
|
|
Rights and Duties of Successor Corporation
|
|
|
53
|
|
Section 803.
|
|
Officers Certificate and Opinion of Counsel
|
|
|
53
|
|
|
|
|
|
|
|
|
|
|
ARTICLE NINE
|
|
|
|
|
Supplemental Indentures
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
54
|
|
Section 902.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
55
|
|
Section 903.
|
|
Execution of Supplemental Indentures
|
|
|
56
|
|
Section 904.
|
|
Effect of Supplemental Indentures
|
|
|
57
|
|
Section 905.
|
|
Conformity with Trust Indenture Act
|
|
|
57
|
|
Section 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
57
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
Covenants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 1001.
|
|
Payment of Principal, Premium and Interest
|
|
|
57
|
|
Section 1002.
|
|
Maintenance of Office or Agency
|
|
|
58
|
|
Section 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
58
|
|
Section 1004.
|
|
Defeasance of Certain Obligations
|
|
|
60
|
|
Section 1005.
|
|
Statement as to Compliance
|
|
|
61
|
|
Section 1006.
|
|
Waiver of Certain Covenants
|
|
|
62
|
|
Section 1007.
|
|
Additional Amounts
|
|
|
62
|
|
v
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
|
|
|
|
Redemption of Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 1101.
|
|
Applicability of Article
|
|
|
64
|
|
Section 1102.
|
|
Election to Redeem; Notice to Trustee
|
|
|
64
|
|
Section 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
64
|
|
Section 1104.
|
|
Notice of Redemption
|
|
|
65
|
|
Section 1105.
|
|
Deposit of Redemption Price
|
|
|
66
|
|
Section 1106.
|
|
Securities Payable on Redemption Date
|
|
|
66
|
|
Section 1107.
|
|
Securities Redeemed in Part
|
|
|
67
|
|
Section 1108.
|
|
Right of Redemption
|
|
|
67
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
|
|
|
|
Sinking Funds
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 1201.
|
|
Applicability of Article
|
|
|
68
|
|
Section 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
68
|
|
Section 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
69
|
|
|
|
|
|
|
|
|
|
|
TESTIMONIUM
|
|
|
69
|
|
SIGNATURES AND SEALS
|
|
|
70
|
|
ACKNOWLEDGMENTS
|
|
|
|
|
vi
INDENTURE, dated as of July 31, 2006, between ROYAL CARIBBEAN CRUISES LTD., a Liberian
corporation (the Company), having its principal office at 1050 Caribbean Way, Miami, Florida
33132, and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee hereunder (the Trustee) having
its Corporate Trust Office at 10161 Centurion Parkway, Jacksonville, FL 32256.
RECITALS OF THE COMPANY
The Company deems it advisable to issue from time to time for its lawful purposes senior
Securities (hereinafter called the Securities) evidencing its unsecured and unsubordinated
indebtedness in one or more series as in this Indenture provided, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or formulas, to mature
at such times and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.
Definitions
.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have, when capitalized, the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and except as otherwise herein expressly
provided, the term generally accepted accounting principles with respect to any computation
required or permitted hereunder shall mean such accounting principles as are generally accepted at
the date of the Indenture;
(d) the words herein, hereof and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(e) all references to dollars, $, U.S. dollars or United States dollars shall refer to the
lawful currency of the United States of America.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Additional Amounts has the meaning specified in Section 1007.
Affiliate means, with respect to any specified Person, (i) any other Person which, directly
or indirectly, is in control of, is controlled by or is under common control with such specified
Person or (ii) any other Person who is a director or officer (A) of such specified Person or (B) of
any subsidiary of such specified Person. For the purposes of this definition, control when used
with respect to any specified Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person, whether by contract or otherwise; and the
terms controlling and controlled have meanings correlative to the foregoing.
Authenticating Agent means any authenticating agent appointed by the Trustee pursuant to
Section 614.
Board of Directors means either the board of directors of the Company or any duly authorized
committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Book-Entry Security means a Security bearing the legend specified in Section 202 evidencing
all or part of a series of Securities, authenticated and delivered to the
2
Depositary for such series or its nominee, and registered in the name of such Depositary or
nominee.
Business Day when used with respect to any Place of Payment means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or if at any time after the execution of the Indenture such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Common Stock means with respect to any Person, capital stock issued by such Person other
than Preferred Stock.
Company means the Person named as the Company in the first paragraph of this Indenture
until a successor corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor corporation.
Company Request or Company Order means a written request or order signed in the name of
the Company by any one of its chief executive officer, its president, its chief financial officer
or any of its vice presidents (regardless of vice presidential designation).
Corporate Trust Office means the office of the Trustee which, at any particular time, this
Indenture shall be administered, which office as of the date of this Indenture is the address of
the Trustee set forth in Section 105.
Corporation means a corporation, association, limited liability company, joint-stock company
or business trust.
Defaulted Interest has the meaning specified in Section 307.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Book-Entry Securities, the Person designated as Depositary by
the Company pursuant to Section 301 which must be a clearing agency registered under the Exchange
Act, and if at any time there is more than one such Person, Depositary shall mean the Depositary
with respect to the Securities of that series.
3
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and
any statute successor thereto.
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301;
provided
,
however
, that, if at any time
more than one Person is acting as Trustee under this instrument,
Indenture
shall mean,
with respect to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
Indexed Security means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.
Interest shall include Additional Amounts payable pursuant to Section 1007 and, when used
with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity.
Interest Payment Date, when used with respect to any Security means the Stated Maturity of
an installment of such Securities.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, notice of redemption or
otherwise.
4
Officer means, with respect to the Company, its chief executive officer, its president, its
chief financial officer, any of its vice presidents (regardless of vice presidential designation),
its treasurer, any of its assistant treasurers, its secretary or any of its assistant secretaries.
Officers Certificate means a certificate delivered to the Trustee and signed by (i) any one
of the Companys chief executive officer, its president, its chief financial officer or any of its
vice presidents (regardless of vice presidential designation) and (ii) any other Officer of the
Company.
Opinion of Counsel means a written opinion of counsel, who may be an employee of or counsel
for the Company or the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
Outstanding when used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or portions thereof, 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 reasonably satisfactory to the Trustee has been made; and Securities, except to the extent
provided in Section 403, with respect to which the Company has effected defeasance as therein
provided;
(iii) Securities which have been paid pursuant to Section 306 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
reasonably satisfactory to it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company; and
5
(iv) Securities converted into Common Stock or Preferred Stock pursuant to or in accordance
with this Indenture if the terms of such Securities provide for convertibility pursuant to Section
301;
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, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a Security of any series
denominated in one or more foreign currencies, currency units or composite currencies that shall be
deemed Outstanding shall be the U.S. dollar equivalent, determined in the manner established as
contemplated by Section 301 with respect to the Securities of such series on the date of original
issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, (iii) the principal amount of any
Indexed Security of any series that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise established as contemplated by Section
301 with respect to such Security, and (iv) 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 pledgees 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 means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as established as contemplated by Section 301.
6
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
Preferred Stock means, with respect to any Person, capital stock issued by such Person that
is entitled to a preference or priority over any other capital stock issued by such Person upon any
distribution of such Persons assets, whether by dividend or upon liquidation.
Redemption Date, when used with respect to any Security to be redeemed, in whole or in part,
means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities
of any series means the date for that purpose established as contemplated by Section 301.
Responsible Officer, when used with respect to the Trustee, means any officer within the
Corporate Trust Department (or any successor department) including, without limitation, any vice
president (whether or not designated by a number or a word or words added before or after the title
vice president), any trust officer, any assistant secretary, the controller or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officers knowledge of and familiarity with
the particular subject.
Security has the meaning stated in the first recital of this Indenture and, more
particularly, means any Security or Securities authenticated and delivered under this Indenture;
provided
,
however
, that, if at any time there is more than one Person acting as
Trustee under this Indenture, Securities with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
7
Security Register and Security Registrar have the respective meanings specified in Section
305.
Special Record Date for the payment of any Defaulted Interest on the Securities of any
series means a date fixed by the Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries of the Company,
or by the Company and one or more other Subsidiaries of the Company. For the purposes of this
definition, voting stock means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided
,
however
, that in the event the Trust
Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
U.S. Government Obligations means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt;
provided
that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in respect of the
8
U.S. Government Obligation or the specific payment of interest on or principal of the
U.S.
Government Obligation evidenced by such depository receipt.
Section 102.
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an
Officers Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 103.
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
9
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104.
Acts of Holders; Record Dates
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the Act of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
10
(c) The Company may, but shall not be obligated to, in the circumstances permitted by the
Trust Indenture Act, fix any date not more than 60 days nor less than 5 days prior to the date of
any of the following actions as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first solicitation or vote, as the
case may be. With regard to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105.
Notices, Etc., to Trustee and Company
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing, including by facsimile transmission at
(904) 645-1921 or by e-mail at ckaye@bankofny.com (in each case provided the original document is
received subsequently), to or with the Trustee at its Corporate Trust Office, The Bank of New York
Trust Company, N.A., 10161 Centurion Parkway, Jacksonville, FL 32256, Attention: Corporate Trust
Department, or
11
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in
writing, including by facsimile transmission at (305) 539-6400 (provided that the original document
is received subsequently), to or with the Company at 1050 Caribbean Way, Miami, FL 33132, to the
Attention of the Treasurer with a copy to the Companys General Counsel or at any other address
previously furnished in writing to the Trustee by the Company.
The Company or the Trustee by written notice to the other may designate additional or
different addresses for subsequent notices or communications.
Section 106.
Notice to Holders; Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case it shall be impracticable for any reason to give notice as contemplated herein, then
such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 107.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the Trust Indenture
Act provision shall control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may be.
12
Section 108.
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109.
Successors and Assigns
.
All agreements in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors.
Section 110.
Separability Clause
.
In case any provision in this Indenture or in the Securities 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.
Section 111.
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112.
Governing Law
.
This Indenture and the Securities shall be governed by and construed in accordance with the
laws of the State of New York.
Section 113.
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment for such Security, then
notwithstanding any other provision of this Indenture or of the Security (other than a provision of
the Security established as contemplated by Section 301 and which specifically states that such
provision shall apply in lieu of this Section 113), payment of interest or principal (and premium,
if any) need not be made at such Place of
Payment on such date, but may be made on the next
succeeding Business Day at such Place of
13
Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, and no interest shall accrue on such payment for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
Section 201.
Forms of Securities
.
The Securities of each series shall be in substantially the forms as shall be established by
or pursuant to Board Resolution or indentures supplemental hereto, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Securities may be listed, or to conform to
usage.
Section 202.
Form of Legend for Book-Entry Securities
.
Any Book-Entry Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Book-Entry Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a Depositary or a
successor depository. This Security is not exchangeable for Securities registered in the name of a
Person other than the Depositary or its nominee except in the limited circumstances described in
the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in the limited
circumstances described in the Indenture.
14
Section 203.
Form of Trustees Certificate of Authentication
.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK
TRUST COMPANY, N.A., as Trustee
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By:
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Authorized Officer
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ARTICLE THREE
THE SECURITIES
Section 301.
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to Board Resolution or indentures supplemental hereto, prior to the issuance of Securities of any
series (except as provided in the last paragraph of this Section 301),
(1) the title of the Securities of the series (which shall distinguish the Securities of the
series from Securities of any other series);
(2) the aggregate principal amount of the Securities and any limit upon the aggregate
principal amount of the Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder), which limit, unless otherwise expressly
established, may be changed from time to time by or pursuant
15
to Board Resolution or indentures supplemental hereto without the consent of any Holders;
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates, or the method by which such date or dates will be determined, on which
the principal of the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable) at which the Securities of the series
shall bear interest, if any, or the method or methods by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or method by which such date or
dates shall be determined, the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date, if any, for any interest payable on any Interest Payment Date, or the
method by which such date shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(6) the place or places where the principal of and any premium and interest on Securities of
the series shall be payable;
(7) the period or periods within which, the price or prices at which, the currency or
currencies, currency unit or composite currency in which, and the other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which, the currency or currencies,
currency unit or composite currency in which, and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations
in which Securities of the series shall be issuable;
(10) the application, if any, of Section 403 to the Securities of the series;
(11) the application, if any, of Section 1004 to the Securities of the series;
16
(12) the currency or currencies, currency unit or composite currency in which payment of the
principal of and any premium and interest on any Securities of the series shall be payable or
denominated if other than the currency of the United States of America and the manner of
determining the U.S. dollar equivalent thereof for purposes of the definition of Outstanding in
Section 101;
(13) if the amount of payments of principal of or any premium or interest on any Securities of
the series may be determined with reference to an index, formula or other method (which index,
formula or method may be based, without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other indices), the manner in which such
amounts shall be determined;
(14) whether the Securities of the series shall be issued in whole or in part in the form of
one or more Book-Entry Securities and, in such case, the Depositary with respect to such Book-Entry
Security or Securities and the circumstances under which any such Book-Entry Security may be
registered for transfer or exchange, or authenticated and delivered, in the name of a Person other
than such Depositary or its nominee, if other than as set forth in Section 305;
(15) if other than the principal of or any premium or interest on any Securities of the series
is to be payable, at the election of the Company or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies other than that in which such Securities
are denominated or stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(16) if other than the entire principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the provisions of this Indenture,
or the method by which such portion shall be determined;
(17) provisions, if any, granting special rights to the Holders of Securities of the series
upon the occurrence of such events as may be specified;
17
(18) any deletions from, modifications of or additions to the Events of Default or covenants
of the Company with respect to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth herein;
(19) whether and under what circumstances, if any, the Company will not pay Additional Amounts
as contemplated by Section 1007 on the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether and under what circumstances, if any, the
Company will not have the option to redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
(20) the obligation, if any, of the Company to permit the conversion of the Securities of the
series into the Companys Common Stock or Preferred Stock, as the case may be, and the terms and
conditions upon which such conversion shall be effected (including, without limitation, the initial
conversion price or rate, the conversion period, any adjustment of the applicable conversion price
and any requirements relative to the reservation of such shares for purposes of conversion); and
(21) any other terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be established as contemplated by this Section 301 in respect of such
Securities. The Securities of any series need not be issued at the same time but may be issued from
time to time and the terms of any Security may be established prior to the issuance thereof but
after the issuance of other Securities of the same series.
Section 302.
Denominations
.
The Securities of each series shall be issuable in registered form without coupons in such
denominations as shall be established as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
18
Section 303.
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by any one of its chief executive
officer, its president, its chief financial officer or any of its vice presidents (regardless of
vice presidential designation), and its corporate seal shall be reproduced thereon. The signature
of any of these individuals on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any of the individuals listed above
who was at any time a proper officer of the Company shall bind the Company, notwithstanding that
such individual has ceased to hold such office prior to the authentication and delivery of such
Securities or did not hold such office at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If all the Securities of any series are not to be issued at one time and if the
terms of such Securities established as contemplated by Section 301 so permit, such Company Order
may set forth procedures acceptable to the Trustee for the completion and authentication of such
Securities from time to time. In authenticating Securities of any series, and accepting the
additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon,
(i) the Board Resolution and each indenture supplemental hereto by or pursuant to which the
forms and terms of such Securities are established as contemplated by Sections 201 and 301;
(ii) an Officers Certificate detailing the actions, if any, taken pursuant to the Board
Resolution or indentures supplemental hereto referred to in clause (i) above to establish the forms
or terms of such Securities and stating that all conditions precedent provided for in this
Indenture relating to the Trustees authentication of such Securities have been complied with; and
(iii) an Opinion of Counsel to the effect that
(a) the forms and the terms of such Securities have been established in conformity with the
provisions of this Indenture,
19
(b) all conditions precedent provided for in this Indenture relating to the Trustees
authentication of such Securities have been complied with, and
(c) such Securities, when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors rights and to general equity
principles and to such other matters as such counsel may specify.
The Trustee shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Company Order, Board Resolution, indentures supplemental hereto, Officers Certificate
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such documents (with such modifications
as may be appropriate) are delivered at or prior to the authentication upon original issuance of
the first Security of such series to be issued and reasonably contemplate such authentication of
each such Security.
Each Security shall be dated the date of its authentication, unless otherwise established
therefor as contemplated by Section 301.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
20
Section 304.
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities of such Series.
Temporary Securities of any series shall be substantially in the form of definitive Securities of
such series but with such appropriate insertions, omissions, substitutions and other variations as
the officer executing such
Securities may determine, as evidenced by such officers execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global form.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute, and the Trustee shall authenticate and deliver in exchange therefor, one or
more definitive Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and tenor.
Section 305.
Registration, Registration of Transfer and Exchange
.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
Security Registrar for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for Securities of that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
21
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange or
redemption shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
Neither the Company nor the Trustee shall be required (i) to issue, register the transfer of
or exchange Securities of any series, if such Security may be among those selected for redemption,
during a period beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
Notwithstanding the foregoing, no Book-Entry Security shall be registered for transfer or
exchange, or authenticated and delivered, whether pursuant to this Section, Sections 304, 306, 906
or 1107 or otherwise, in the name of a Person other than the Depositary for such Book-Entry
Security or its nominee until (i) the Depositary with respect to a Book-Entry Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Book-Entry Security or
the Depositary ceases to be a clearing agency registered under the Exchange Act and the Company
fails within 90 days thereafter to appoint a successor, (ii) the Company executes and delivers to
the Trustee a Company Order that such Book-Entry Security shall be so transferable and exchangeable
22
or (iii) there shall have occurred and be continuing an Event of Default with respect to the
Securities of such series. Upon the occurrence in respect of any Book-Entry Security of any series
of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding
sentence or such other conditions as may be established as contemplated by Section 301 for
Securities of such series, such Book-Entry Security may be registered for transfer or exchange for
Securities registered in the names of, or authenticated and delivered to, such Persons as the
Depositary with respect to such series shall direct.
Except as provided in the preceding paragraph, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Book-Entry Security, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall also be a Book-Entry
Security and bear the legend specified in Section 202.
Section 306.
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding. The Company may charge
such Holder for its expenses and the expenses of the Trustee (including without limitation
attorneys fees and expenses) in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and
any other expenses (including, without limitation, the fees and expenses of the Trustee and its
attorneys fees and expenses) connected therewith.
23
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 307.
Payment of Interest; Interest Rights Preserved
.
Except as otherwise established as contemplated by Section 301 with respect to Securities of
any series, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for such purpose pursuant to
Section 1002;
provided
,
however
, that each installment of interest on any Security
may at the Companys option be paid by (i) mailing a check for such interest, payable to or upon
the written order of the Person entitled thereto pursuant to Section 308, to the address of such
Person as it appears on the Security Register or (ii) wire transfer to an account maintained by the
payee located inside the United States.
Except as otherwise established as contemplated by Section 301 with respect to Securities of
any series, any interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called Defaulted Interest) shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities (or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an
24
amount of money in the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities are payable (except as otherwise established as contemplated by
Section 301 in respect of such Securities) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest
which shall not be more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Securities at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may pay any Defaulted Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 308.
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such
25
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 309.
Cancellation
.
All Securities surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
Section 310.
Computation of Interest
.
Except as otherwise established as contemplated by Section 301 in respect of Securities of any
series, interest on the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401.
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of any series specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for and any right to
receive Additional Amounts not then known as provided in Section 1007), and the Trustee, upon
receipt of Company Order, and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series, when
26
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i)
Securities of such series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if, redeemable at the option of the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in the case of (i), (ii)
or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose (x) an amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities are payable, or (y) with respect to
Securities of any series denominated only in United States dollars, U.S. Government Obligations
which through the payment of interest and principal in respect thereof in accordance with their
terms will provide not later than the opening of business on the due date of any payment referred
to in clause (i), (ii) or (iii) of subparagraph (B) money in an amount, or (z) a combination
thereof with respect to Securities of any series denominated only in United States dollars,
sufficient, without consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each installment of principal (and premium, if any) and interest (and any
Additional Amounts then known with respect thereto) on such
27
Outstanding Securities of that series on each applicable Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company
in respect of such Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such Securities have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of
any series pursuant to this Section 401, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003,
in each case with respect to such Securities, shall survive.
Section 402.
Application of Trust Money
.
(a) Subject to the provisions of the last paragraph of Section 1003, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 401, 403 or 1004 and all
money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Section 401, 403 or 1004, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with or received by the Trustee or to make mandatory sinking
fund payments or analogous payments as contemplated by Section 403 or 1004.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401, 403
or 1004 or the interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
28
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 401, 403 or 1004 which, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which such money or U.S.
Government Obligations were deposited or received.
Section 403.
Defeasance and Discharge of Securities of Any Series
.
If this Section 403 is established, as contemplated by Section 301 to be applicable to
Securities of any series, then notwithstanding Section 401, (a) the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities of that series other
than the obligation to pay Additional Amounts in excess of amounts deposited pursuant to Section
401 of this Indenture, (b) the provisions of this Indenture as it relates to such Outstanding
Securities (except as to the rights of Holders of Securities to receive, from the trust funds
described in subparagraph (1) below, payment of the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest and Additional Amounts, if any, then
known on such Securities on each Stated Maturity of such principal or installment of principal or
interest or any mandatory sinking fund payments or analogous payments applicable to the Securities
of that series on the day on which such payments are due and payable in accordance with the terms
of the Indenture and of such Securities, the Companys obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003 and the rights, powers, trusts, duties and immunities of the
Trustee hereunder) shall no longer be in effect, and (c) the Trustee, at the expense of the
Company, shall upon Company Request, execute proper instruments acknowledging the same,
provided
that the following conditions shall have been satisfied:
(1) the Company shall have deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 609), irrevocably (irrespective of whether the
conditions in subparagraphs (2), (3), (4), (5) and (6) below have been satisfied, but subject to
the provisions of Section 402(c) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the
Securities of that series, with reference to this Section 403, (A) an amount in the currency or
currencies, currency unit or units or composite currency or currencies in which such Securities are
payable, or (B) with respect to Securities of any series denominated only in United States dollars,
U.S. Government Obligations which through the payment of interest and principal in respect thereof
in accordance with
29
their terms will provide not later than the opening of business on the due date of any payment
referred to in clause (i) or (ii) of this subparagraph (1) money in an amount, or (C) a combination
thereof with respect to Securities of any series denominated only in United States dollars,
sufficient, without consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each installment of principal (and premium, if any) and interest on such
Outstanding Securities of that series on each applicable Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities;
(2) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which the Company is a party or by
which it is bound;
(3) no Event of Default or event which with the giving of notice or lapse of time, or both,
would become an Event of Default with respect to the Securities of that series shall have occurred
and be continuing on the date of such deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which with the giving of notice or lapse of time or both, would become an
Event of Default under Section 501(6) or Section 501(7) shall have occurred and be continuing on
the 121st day after such date;
(4) the Company shall have delivered to the Trustee either (A) an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date first set forth hereinabove, there has been a change in the
applicable United States federal income tax law or the judicial interpretation thereof, in either
case (x) or (y) to the effect that, and based
thereon such opinion shall confirm that Holders of the Securities of that series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred, or (B) a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect as the aforementioned Opinion of Counsel;
(5) the Company shall have delivered to the Trustee an Opinion of Liberian Counsel to the
effect that Holders of the Outstanding Securities of that
30
series will not recognize income, gain or loss for Liberian income tax or other tax purposes as a
result of such defeasance and will be subject to Liberian income tax and other tax on the same
amount, in the same manner and at the same times as would have been the case if such defeasance had
not occurred; and
(6) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance and
discharge of the entire indebtedness on all Outstanding Securities of any such series as
contemplated by this Section have been complied with.
Notwithstanding any other provisions of this Section, such defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations which may be
established as contemplated by Section 301 in respect of the Securities of that series. Opinions
required to be delivered under this Section may have qualifications customary for opinions of the
type required.
ARTICLE FIVE
REMEDIES
Section 501.
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any series, means 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 upon or any Additional Amounts payable in respect
of any Security of that series when such interest or Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that
series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
31
(4) default in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than any such default or breach which is elsewhere in this Section specifically
dealt with or which is expressly not applicable to Securities of that series), 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 Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that series 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) failure to pay when due any payment of principal or interest on, or the acceleration of,
indebtedness for money borrowed by the Company aggregating in excess of $50 million under any
mortgages, indentures (including this Indenture) or instruments under which the Company may have
issued, or which there may have been secured or evidenced, any indebtedness for money borrowed by
the Company, if such indebtedness is not discharged or such acceleration is not annulled within 30
days after there has 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 principal amount of the Securities
of that series, a written notice specifying such default and stating that such notice is a Notice
of Default hereunder;
(6) the entry by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, 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;
(7) the commencement by the Company of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief
32
under any applicable law, or the consent by it 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 or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default established as contemplated by Section 301 with respect to
Securities of that series.
Section 502.
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case, except for any series of Securities the principal of
which shall have already become due and payable, the Trustee or the Holders of not less than 25% in
principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the terms thereof) of all
of the Securities of that series to be immediately due and payable by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
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 Securities of that series, 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 in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise established as contemplated by Section 301 in
respect of Securities of that series);
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due
otherwise than by such
33
declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and
(D) all amounts owing the Trustee pursuant to Section 607 in respect of Securities of that series;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal and premium, if any, of Securities of that series which have become
due solely by such declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503.
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if
(1) default is made in the payment of any interest on or Additional Amounts payable in respect
of any Security when such interest or Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the amounts due the Trustee pursuant to Section 607 in
respect of such Securities.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company
34
or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504.
Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount, or such lesser amount as may be provided
for in the Securities of any series, of principal, and premium, if any, and interest owing and
unpaid in respect of such Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee pursuant to Section 607 and of the Holders
allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequentrator (or other similar
official), in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it pursuant to Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
35
arrangement, adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 505.
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the amounts due the Trustee pursuant to Section 607, be for the
ratable benefit of the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506.
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and
interest and any Additional Amounts payable on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal and any premium and
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any other person lawfully
entitled thereto.
Section 507.
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
36
(1) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508.
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) any interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
37
Section 509.
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510.
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511.
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512.
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right 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 Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
38
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 513.
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Security of any series by his
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee in respect of the Securities
of such series, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Company, the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of such series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after
the Redemption Date).
39
Section 515.
Waiver of Stay or Extension Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any portion of the principal
of, premium, if any, or interest or Additional Amounts with respect to the Securities contemplated
herein or in the Securities or which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601.
Certain Duties and Responsibilities
.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act
and this Indenture. Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602.
Notice of Defaults
.
Within 60 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit to all Holders of Securities of such series, in the manner
and to the extent provided in Trust Indenture Act Section 313(c), notice of such default hereunder,
unless such default shall have been cured or waived;
provided
,
however
, that,
except in the case of a default in the payment of the principal of
40
(or premium, if any) or interest on any Security of such series, or in the payment of any sinking
fund installment with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive committee or a
committee of Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interests of the Holders of the Securities of such series. For the purpose of
this Section, the term default means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities of such series. Subject to Trust
Indenture Act Section 315(b), the Trustee shall not be deemed to have, or be required to take,
notice of (a) any default or Event of Default (other than a default described in paragraph (1),
(2), or (3) of Section 501) or (b) the Companys obligation to pay any Additional Amounts
to any Holders except upon (A) written notification from the Company or (B) written notification
from a Holder and, in the absence of such notice, the Trustee may conclusively presume that there
is no default or Event of Default except as aforesaid and that no Additional Amounts are to be
paid. Subject to Section 601 of this Indenture, such notification shall not be deemed to include
receipt of information obtained in any report or other documents furnished under Section 704 of
this Indenture, which reports and documents the Trustee shall have no duty to examine.
Section 603.
Certain Rights of Trustee
.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in
41
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by
this Indenture other than any liabilities arising out of the negligence of the Trustee;
(i) no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers;
(j) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and certificates of opinions furnished to it and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture;
(k) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
42
(l) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such series; and
(m) no provision of this Indenture shall require the Trustee to determine the maximum interest
rate permissible under applicable law.
Section 604.
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities or any
prospectus prepared in connection with the offering of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by it in a Statement
of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate subject
to the qualifications set forth therein. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606.
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
43
Section 607.
Compensation and Reimbursement
.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its agents and counsel
and the reasonable fees of in-house counsel in the regular employ of the Trustee which are
allocable to this trust and the expenses and disbursements of such counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee and the officers, directors,
employees and agents of the Trustee or any such predecessor Trustee (the Trustee, each predecessor
Trustee and such officers, directors, employees and agents being hereinafter referred to in this
Section collectively as the Indemnified Parties and individually as an Indemnified Party) for,
and to hold each Indemnified Party harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder;
provided
that any Indemnified Party shall promptly notify the
Company of the commencement of any action, or proceeding for which it intends to seek indemnity
hereunder. The Indemnified Party shall permit the Company to conduct the defense of any action or
proceeding for which it seeks indemnity hereunder on behalf of the Indemnified Party; provided, in
the event the Indemnified Party is advised by legal counsel (which shall be reasonably acceptable
to the Company) that such Indemnified Party has interests or defenses that are in conflict with
those of the Company in connection with any action or proceeding, the Indemnified Party shall be
entitled to retain its own legal counsel and conduct its own defense in connection with such action
or proceeding and the Company shall pay all of the costs and expenses associated therewith
(including, without limitation, reasonable legal fees and expenses). Anything herein to the
contrary notwithstanding, the
44
Indemnified Party shall not compromise or settle any action, suit or proceeding for which it
intends to seek indemnity hereunder without the prior approval of the Company.
The Companys payment obligations pursuant to this Section 607 shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of an Event of Default
specified in Section 501(6) or (7), the expenses are intended to constitute expenses of
administration under any bankruptcy law.
Section 608.
Disqualification; Conflicting Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609.
Corporate Trustee Required; Eligibility
.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610.
Resignation and Removal; Appointment of Successor
.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been
45
delivered to the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after
written request therefor by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or pursuant to Board
Resolution may remove the Trustee with respect to all Securities or the Securities of any series,
or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of any
series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or Trustees with respect
thereto.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Company Request or Company Order, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring
46
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice of such appointment shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office. Notices of
resignation, removal and appointment may be combined into a single notice.
Section 611.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment of such successor
47
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraphs (a) and (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article.
Section 612.
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver
48
the Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613.
Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
Section 614.
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an
49
Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
for such series and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to the Securities of one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in addition to the Trustees
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK TRUST
COMPANY, N.A., As Trustee
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By:
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As Authenticating Agent
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50
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701.
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record Date for Securities of
each series at the time Outstanding, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date (or a date to be established
as contemplated by Section 301 for Original Issue Discount Securities) and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702.
Preservation of Information; Communications to Holders
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under the Trust Indenture Act.
51
Section 703.
Reports by Trustee
.
(a) Within 60 days after each May 15, beginning with May 15, 2007, the Trustee shall transmit
to the Holders such reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to Trust Indenture Act Section 313(a) in the manner provided pursuant thereto,
and such other reports as may be required under such Act in the manner and at the times provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to the Holders, be
filed by the Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section 704.
Reports by Company
.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company may consolidate with or merge with or into, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, and may permit any Person to
consolidate with or merge with or into, or convey, transfer or lease its properties and assets
substantially as an entirety, provided that (1) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the Company as a result thereof as
having been incurred by the Company at the time of such transaction, no Event of Default, and no
event which, after notice or the lapse of time, or both, would become an Event of Default, shall
have occurred and be
52
continuing and (2) either the Company shall be the continuing corporation, or the successor Person
(if other than the Company) shall be a corporation, trust or partnership organized under the laws
of the United States, any state thereof, the District of Columbia, the Republic of Liberia or any
country recognized by the United States and such successor Person shall expressly assume the due
and punctual payment of the principal of and any premium and interest (including all Additional
Amounts, if any, payable pursuant to Section 1007) on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company by supplemental indenture, complying with Article
Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee by such Person.
Section 802.
Rights and Duties of Successor Corporation
.
In case of any such consolidation, merger, transfer, lease or conveyance and upon any such
assumption by the successor Person, such successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the party of the first part,
and the predecessor Person, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person, instead of the Company, and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have been signed and
delivered by an officer of the Company to the Trustee for authentication, and any Securities which
such successor Person thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such changes in
phraseology and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
Section 803.
Officers Certificate and Opinion of Counsel
.
Any consolidation, merger, conveyance, transfer or lease permitted under Section 801 is also
subject to the condition that the Trustee receive an Officers Certificate and an
53
Opinion of Counsel to the effect that any such consolidation, merger, conveyance, transfer or lease
and the assumption by any successor Person, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901.
Supplemental Indentures Without Consent of Holders
.
Without notice to or the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of the Securities of
all or any series (and if such covenants are to be for the benefit of the Securities of less than
all series, stating that such covenants are expressly being included solely for the benefit of the
Securities of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities,
provided
that any such addition, change or elimination (i)
shall neither (A) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the
54
benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect
to such provision or (ii) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the forms or terms of Securities of any series as contemplated by Sections
201 and 301, including the provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(8) to secure the Securities; or
(9) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of the Securities of any series pursuant to
this Indenture;
provided
that any such action shall not adversely affect the interests of
the Holders of Securities of such series or any other series of Securities in any material respect;
or
(10) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture,
provided
that such action pursuant to
this clause (10) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 902.
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner
the rights of the Holders of Securities of such series under this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
55
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon
or any Additional Amounts payable in respect thereof or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502,
or change any Place of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security 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 Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
adversely affect the conversion provisions, if any, applicable thereto, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the
consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section 1006, except to
increase any such percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding Security 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 the Securities of one or more
particular series, or which modifies the rights of the Holders of Securities of such 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.
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 903.
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of
56
such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which affects the Trustees
own rights, duties or immunities under this Indenture or otherwise.
It shall not be necessary under this Indenture that any supplemental indenture bear a seal of
a notary.
Section 904.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act, as then in effect at the time of execution thereof.
Section 906.
Reference in Securities to Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE TEN
COVENANTS
Section 1001.
Payment of Principal, Premium and Interest
.
57
The Company covenants and agrees for the benefit of the Securities of each series that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities of that series and this Indenture.
Section 1002.
Maintenance of Office or Agency
.
The Company will maintain in each Place of Payment for the Securities of any series of
Securities an office or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for conversion, if convertible,
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series 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.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
,
however
, that no
such designation or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 1003.
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to the Securities of
any series, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the principal and any
premium and interest so becoming due until
58
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the Securities of any series, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the preceding paragraph) sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for the Securities of any series, other than the
Trustee, to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will (i) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (ii) during
the continuance of any default by the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of that series, and upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be published once, in the New
York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified
59
therein, which shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004.
Defeasance of Certain Obligations
.
To the extent that this Section 1004 is established as contemplated by Section 301 to be
applicable to Securities of any series or any covenant applicable thereto (other than Section
1007), (i) the Company may omit to comply with any term, provision or condition of covenants
established as contemplated by Section 301 and to which this Section 1004 is so established as
applicable (other than Section 1007), and (ii) such omission shall be deemed not to be an Event of
Default pursuant to Section 501(4), in each case with respect to the Securities of that series,
provided
that the following conditions have been satisfied:
(1) the Company has deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4), (5), (6) and (7) below have been satisfied, but subject to the
provisions of Section 402(c) and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the
Securities of that series, with reference to this Section 1004, (A) an amount in such currency or
currencies, currency unit or units or composite currency or currencies in which such Securities are
then payable, or (B) with respect to Securities of any series denominated only in United States
dollars, U.S. Government Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than the opening of business on the
due date of any payment referred to in clause (i) or (ii) of this subparagraph (1) money in an
amount, or (C) a combination thereof with respect to Securities of any series denominated only in
United States dollars, sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal (and premium, if any) and each installment of principal (and premium,
if any) and interest on such Outstanding Securities on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities;
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(2) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which the Company is a party or by
which it is bound;
(3) no Event of Default or event which with the giving of notice or lapse of time, or both,
would become an Event of Default with respect to the Securities of that series shall have occurred
and be continuing on the date of such deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which with
the giving of notice or lapse of time, or both, would become an Event of Default under Section
501(6) or Section 501(7) shall have occurred and be continuing on the 121st day after such date;
(4) the Company shall have delivered to the Trustee an Opinion of Liberian Counsel to the
effect that Holders of the Outstanding Securities will not recognize income, gain or loss for
Liberian income tax or other tax purposes as a result of such defeasance or covenant defeasance, as
applicable, and will be subject to Liberian income tax and other tax on the same amount, in the
same manner and at the same times as would have been the case if such defeasance or covenant
defeasance, as applicable, had not occurred;
(5) the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders
of the Securities of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit and defeasance of certain obligations and will be
subject to United States federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit and defeasance had not occurred; and
(6) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance as
contemplated by this Section have been complied with.
Opinions required to be delivered under this Section may have qualifications customary for
opinions of the types required.
Section 1005.
Statement as to Compliance
.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in compliance
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with all conditions and covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder). Such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal accounting officer of the
Company as to his or her knowledge of the Companys compliance with all conditions and covenants
under this Indenture (without regard to any period of grace or requirement of notice provided
hereunder). Such Officers Certificate need not comply with Section 102 of this Indenture.
Section 1006.
Waiver of Certain Covenants
.
The Company may omit in any particular instance to comply with any term, provision or
condition of the covenants established as contemplated by Section 301 with respect to the
Securities of any series, except to the extent the terms of such Securities established as
contemplated by Section 301 make this Section 1006 inapplicable to any such term, provision or
condition of any such covenant if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
Section 1007.
Additional Amounts
.
This Section 1007 applies to the Securities of all series except to the extent, if any,
otherwise expressly established as contemplated by Section 301 with respect to the Securities of
any series.
All payments made by the Company with respect to the Securities will be made free and clear of
and without withholding or deduction for or on account of any present or future tax, duty, levy,
impost, assessment, or other governmental charge imposed or levied by or on behalf of the
government of the jurisdiction of organization of the Company or by any authority or agency therein
having power to tax (hereinafter Taxes), unless the Company is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. If the Company is so required to
withhold or deduct any amount from, for or on account of Taxes from any payment made under or with
respect to the Securities, the Company will pay such additional amounts (the Additional Amounts)
as may be necessary so that the net payment received by each
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holder of the Securities (including Additional Amounts) after such withholding or deduction will
not be less than the amount the holder of the Securities would have received if such Taxes had not
been withheld or deducted;
provided
, that no Additional Amounts will be payable with
respect to a payment made to a holder of the Securities which is subject to such Taxes by reason of
its being connected with the government of the jurisdiction of organization of the Company or
territory thereof otherwise than by the mere holding of the Securities or the receipt of payments
thereunder (referred to herein as an Excluded Holder);
provided
,
further
, that no
Additional Amounts will be payable with respect to a payment made to a Holder of Securities, if the
Company would not be required to withhold or deduct any amount from or on account of taxes from any
payment made to such Holder, if such Holder filed a form with the relevant government with no other
consequence to such Holder. The Company 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. The Company will furnish the Holders of the Securities, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing
such payment by the Company. The Company will indemnify and hold harmless each Holder of the
Securities and upon written request reimburse each Holder for the amount of any (i) Taxes levied or
imposed and paid by such Holder of the Securities as a result of payments made with respect to the
Securities (other than an Excluded Holder), (ii) liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, and (iii) Taxes imposed with respect to any
reimbursement pursuant to this covenant.
At least 30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company will be obligated to pay Additional Amounts with
respect to such payments, the Company will deliver to the Trustee an Officers Certificate stating
the fact that such Additional Amounts will be payable, the amounts so payable and will set forth
such other information necessary to enable the Trustee to pay such Additional Amounts to Holders of
the Securities on the payment date. Notwithstanding anything to the contrary contained in this
Indenture, the Company will pay all Additional Amounts as such Additional Amounts become known to
the Company.
Whenever in the Indenture or any Security there is mentioned, in any context, the payment of
the principal, premium, if any, or interest in respect of such Security or overdue principal or
overdue interest, such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this Section and express
mention thereof in any provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made (if applicable).
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The obligations of the Company under this Section 1007 shall survive the termination of the
Indenture and the payment of all amounts under or with respect to the Securities.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101.
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms established as contemplated by Section 301 and (except as otherwise
expressly established as contemplated by Section 301 in respect of Securities of such series) in
accordance with this Article.
Section 1102.
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or by action taken pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at least 45 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers Certificate evidencing compliance with such restriction.
Section 1103.
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series and of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not less than 30 nor more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to
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the minimum authorized denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of the Securities of such
series and of a specified tenor are to be redeemed, the particular Securities to be redeemed shall
be selected not less than 30 nor more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104.
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal amounts) of
the particular Securities to be redeemed,
(4) in the case of a Security to be redeemed in part, the principal amount of such Security to
be redeemed and that after the Redemption Date upon surrender of such Security, new Security or
Securities in the aggregate principal amount equal to the unredeemed portion thereof will be
issued,
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(5) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(6) the place or places where such Securities are to be surrendered for payment of the
Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case, and
(8) the CUSIP number, if any, relating to the Securities.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company.
Section 1105.
Deposit of Redemption Price
.
On or before 10:00 a.m. New York City time on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
Section 1106.
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified in the
currency or currencies, currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series), and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date;
provided
,
however
, that, except as otherwise provided with
respect to Securities convertible into Common Stock or Preferred Stock and unless otherwise
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specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107.
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Section 1108.
Right of Redemption
.
This Section 1108 applies to the Securities of all series except to the extent, if any,
otherwise expressly established as contemplated by Section 301 with respect to the Securities of
any series.
If as a result of any change in, or amendment to, (i) the laws (including any regulations
promulgated thereunder) of Liberia (or any political subdivision or taxing authority thereof or
therein) or (ii) the laws (including any regulations promulgated thereunder) of any jurisdiction in
which the Company is organized (or any political subdivision or taxing authority thereof or
therein), it is determined by the Company based upon an Opinion of Counsel that as a result of any
change in, or amendment to, any official position regarding the application or interpretation of
such laws or regulations, which change or amendment is announced or becomes effective on or after
the date of this Indenture, the Company would be required to pay an Additional Amount in accordance
with Section 1007 hereof, then the Company may, at its option, on giving not less than 30 days nor
more than 60 days notice (which shall be irrevocable) redeem the Securities in whole, but not in
part, at any time at a redemption price equal to 100% of the principal amount
plus accrued interest to the date fixed for redemption provided that (a) no notice of redemption
may be given more than 90 days prior to the earliest date on
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which the Company would be obligated to pay Additional Amounts and (b) at the time such notice of
redemption is given, the obligation to pay Additional Amounts remains in effect.
ARTICLE TWELVE
SINKING FUNDS
Section 1201.
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 301 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 1202.
Satisfaction of Sinking Fund Payments with Securities
.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided
that such Securities have
not been previously so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 1203.
Redemption of Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202 and will also deliver
to the Trustee any Securities to be so delivered. Not less than 30 and not more than 60 days before
each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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ROYAL CARIBBEAN CRUISES LTD.
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By:
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/S/ THOMAS P. MARTIN
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Name:
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Thomas P. Martin
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Title:
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Senior Vice President and Treasurer
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THE BANK OF NEW YORK TRUST
COMPANY, N.A.
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By:
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/S/ PHILIP L. WATSON
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Name:
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Philip L. Watson
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Title:
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Vice President
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STATE OF GEORGIA
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)
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ss.:
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COUNTY OF FULTON
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On the 31st day of July, 2006, before me personally came Thomas P. Martin, to me known, who,
being by me duly sworn, did depose and say that he is Senior Vice President and Treasurer of ROYAL
CARIBBEAN CRUISES LTD., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
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/S/ MARGARET B. JEFFREY
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Name: Margaret B. Jeffrey
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Notary Public
State of Georgia
My Commission expires on April 4, 2010
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STATE OF GEORGIA
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ss.:
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COUNTY OF
DEKALB
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On the 31st day of July, 2006, before me personally came Philip L. Watson , to me known, who,
being by me duly sworn, did depose and say that he is Philip L. Watson of THE BANK OF NEW YORK
TRUST COMPANY, N.A., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
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/S/ MARGARET B. JEFFREY
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Name: Margaret B. Jeffrey
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Notary Public
State of Georgia
My Commission expires on April 4, 2010