As filed with the Securities and Exchange
Commission on September 26, 2016
Registration No. _________
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Höegh LNG Partners LP
(Exact name of registrant as specified in
its charter)
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Republic of the Marshall Islands
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98-1182326
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(State or other jurisdiction
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(I.R.S. Employer
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of incorporation or organization)
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Identification No.)
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Wessex House, 5th Floor,
45
Reid Street,
Hamilton, HM 12 Bermuda, +441-295-6815
(Address and telephone number of Registrant’s
principal executive offices)
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Watson Farley & Williams LLP
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Attention: Daniel C. Rodgers
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250 West 55
th
Street
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New York, NY 10019
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(212) 922-2200
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(Name, address, and telephone number of agent for service)
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Copies to
:
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Catherine S. Gallagher
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Adorys Velazquez
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Vinson & Elkins L.L.P.
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2200 Pennsylvania Avenue NW
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Suite 500 West
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Washington, DC 20037
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Tel (202) 639-6500
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Fax (202) 639-6604
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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 only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
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, check the
following box.
ý
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(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.
¨
If this Form is a registration statement pursuant
to General Instruction I.C. 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.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount to be
registered (1)
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Proposed maximum
aggregate price per
unit (2)
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Proposed maximum
aggregate offering
price (1)(2)(7)
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Amount of
registration fee
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Primary offering (1) (2):
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Common units representing limited partner interests
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—
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—
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—
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—
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Other classes of units representing limited partner interests
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—
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—
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—
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—
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Options
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Rights
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—
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—
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—
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—
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Debt securities (3)
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—
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—
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—
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—
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Total primary
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(1)
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(2)
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$
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600,000,000
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(4)
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$
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60,420
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(5)
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Secondary offering (7):
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Common units representing limited partner interests
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2,116,060
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(6)
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(7)
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$37,316,718
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(8)
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$
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3,758
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Total (primary and secondary)
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—
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—
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$
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637,316,718
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$
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64,178
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(1)
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There are being registered hereunder such presently indeterminate number of the securities of each identified class of Höegh
LNG Partners LP which may be offered and sold, on a primary basis, in such amount as shall result in an aggregate offering price
not to exceed $600 million. No separate consideration will be received for securities that are being registered that are issued
in exchange for, or upon conversion or exercise of, the debt securities, rights, warrants or other classes of units representing
limited partnership interests being registered hereunder.
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(2)
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With respect to the primary offering, the proposed maximum aggregate offering price for each class of securities to be registered
is not specified pursuant to General Instruction II.C. of Form F-3.
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(3)
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If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in
such amount as shall result in an aggregate initial offering price not to exceed $600 million, less the dollar amount of any registered
securities of Höegh LNG Partners LP previously issued.
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(4)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933
(the “Securities Act”). With respect to the primary offering, in no event will the aggregate initial offering price
of all securities offered from time to time pursuant to this registration statement exceed $600 million.
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(5)
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Calculated in accordance with Rule 457(o) under the Securities Act.
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(6)
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Pursuant to Rule 416(a) under the Securities Act, the number of common units being registered on behalf of the selling
unitholder shall be adjusted to include any additional common units that may become issuable as a result of any unit distribution,
split, combination or similar transaction.
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(7)
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With respect to the secondary offering, the proposed maximum offering price per common unit will be determined from time to
time in connection with, and at the time of, the sale by the selling unitholder.
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(8)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act
on the basis of the average of the high and low sale prices of the common units on September 19, 2016, as reported on the NYSE.
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The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment
which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant
to said section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
SEPTEMBER 26, 2016
PROSPECTUS
Höegh LNG Partners LP
Common Units Representing Limited Partnership Interests
Other Classes of Units Representing Limited Partnership Interests
Options
Warrants
Rights
Debt Securities
We may from time to time, in one or more offerings,
offer and sell common units and other units representing limited partner interests in Höegh LNG Partners LP, as well as options,
warrants or rights to purchase common units or other classes of units or any combination thereof, and the debt securities described
in this prospectus. We refer to the common units and other units representing limited partner interests in Höegh LNG Partners
LP, the options, warrants and rights to purchase common units or other classes of units and the debt securities collectively as
the “securities.” The aggregate initial offering price of all securities sold by us under this prospectus will not
exceed $600 million.
Höegh LNG Holdings Ltd., the selling
unitholder, may from time to time, in one or more offerings, offer and sell up to 2,116,060
common units. We will not receive
any proceeds from the sale of these common units by the selling unitholder. For a more detailed discussion of the selling unitholder,
please read “Selling Unitholder.”
We or the selling unitholder may offer and
sell these securities in amounts, at prices and on terms to be determined by market conditions and other factors at the time of
the offering. This prospectus describes only the general terms of these securities and the general manner in which we or the selling
unitholder will offer the securities. The specific terms of any securities we or the selling unitholder offer will be included
in a supplement to this prospectus. The prospectus supplement will describe the specific manner in which we or the selling unitholder
will offer the securities and also may add, update or change information contained in this prospectus. The names of any underwriters
and the specific terms of a plan of distribution will be stated in the prospectus supplement.
Our common units are traded on the New York
Stock Exchange (the “NYSE”), under the symbol “HMLP.” We will provide information in the related prospectus
supplement for the trading market, if any, for any securities that may be offered.
Investing in our securities involves risks.
You should carefully consider the risk factors described under “Risk Factors” on page 6 of this prospectus before
you make an investment in our securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2016.
TABLE OF CONTENTS
In making your investment decision, you
should rely only on the information contained in this prospectus, any prospectus supplement and the documents we have incorporated
by reference in this prospectus. Neither we nor the selling unitholder have authorized anyone else to give you different information.
Neither we nor the selling unitholder are offering these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the
front of those documents. We will disclose any material changes in our affairs in an amendment to this prospectus, a prospectus
supplement or a future filing with the Securities and Exchange Commission (the “SEC”), incorporated by reference in
this prospectus.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration
statement that we have filed with the SEC using a “shelf” registration process. Under this shelf registration process,
we may over time, in one or more offerings, offer and sell up to $600 million in total aggregate offering price of any combination
of the securities described in this prospectus. In addition, the selling unitholder may over time, in one or more offerings, offer
and sell up to 2,116,060 of our common units.
This prospectus provides you with a general
description of Höegh LNG Partners LP and the securities that are registered hereunder that may be offered by us or the selling
unitholder. Each time we or the selling unitholder sell any securities offered by this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that offering and the securities being offered. Because the
selling unitholder may be deemed to be “underwriter” under the Securities Act of 1933, as amended (or the Securities
Act), each time the selling unitholder sells any common units offered by this prospectus, the selling unitholder is required to
provide you with this prospectus and the related prospectus supplement containing specific information about the selling unitholder
and the terms of the common units being offered in the manner required by the Securities Act. Any prospectus supplement may also
add, update or change information contained in this prospectus. To the extent information in this prospectus is inconsistent with
the information contained in a prospectus supplement, you should rely on the information in the prospectus supplement.
The information in this prospectus is accurate
as of its date. Additional information, including our financial statements and the notes thereto, is incorporated in this prospectus
by reference to our reports filed with the SEC. Before you invest in our securities, you should carefully read this prospectus,
including the “Risk Factors,” any prospectus supplement, the information incorporated by reference in this prospectus
and any prospectus supplement (including the documents described under the heading “Where You Can Find More Information”
in both this prospectus and any prospectus supplement) and any additional information you may need to make your investment decision.
References in this prospectus to “Höegh
LNG Partners,” “we,” “our,” “us” and “the Partnership” or similar terms
refer to Höegh LNG Partners LP or any one or more of its subsidiaries, or to all such entities unless the context otherwise
indicates. Unless the context requires otherwise, references in this prospectus to our or the “joint ventures” refer
to the joint ventures that own two of the vessels in our fleet (the
GDF Suez Neptune
and the
GDF Suez Cape Ann
).
References in this prospectus to “our general partner” refer to Höegh LNG GP LLC, the general partner of Höegh
LNG Partners. References in this prospectus to “our operating company” refer to Höegh LNG Partners Operating
LLC, a wholly owned subsidiary of the Partnership. References in this prospectus to “Höegh Lampung” refer to
Hoegh LNG Lampung Pte Ltd., a wholly owned subsidiary of our operating company. References in this prospectus to “Höegh
LNG” refer, depending on the context, to Höegh LNG Holdings Ltd. and to any one or more of its direct and indirect
subsidiaries, other than us. References in this prospectus to “PT Hoegh” refer to PT Hoegh LNG Lampung, the owner
of the
PGN FSRU Lampung
. References in this prospectus to “Höegh FSRU III” refer to Hoegh LNG FSRU III
Ltd., a wholly owned subsidiary of our operating company. References in this prospectus to “Höegh Cyprus” refer
to Hoegh LNG Cyprus Limited including its wholly owned branch, Hoegh LNG Cyprus Limited Egypt Branch (“Egypt Branch”),
a wholly owned subsidiary of Höegh FSRU III and the owner of the
Höegh Gallant
.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration
statement on Form F-3 regarding the securities covered by this prospectus. This prospectus does not contain all of the information
found in the registration statement. For further information regarding us and the securities offered in this prospectus, you may
wish to review the full registration statement, including its exhibits. You may read and copy any materials we file with the SEC,
including the registration statement and exhibits, at the public reference facilities maintained by the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. Copies of this material can also be obtained upon written request from the Public Reference Section of
the SEC at that address, at prescribed rates, or from the SEC’s website at
www.sec.gov
free of charge. Please call
the SEC at 1-800-SEC-0330 for further information on public reference rooms. You may also obtain information about us at the offices
of the NYSE at 20 Broad Street, New York, NY, 10005, or on our website at
www.hoeghlngpartners.com
. Information on our website
or any other website is not incorporated by reference into this prospectus and does not constitute a part of this prospectus unless
specifically so designated and filed with the SEC.
We are subject to the information requirements
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and, in accordance therewith, we are required
to file with the SEC annual reports on Form 20-F within four months of our fiscal year-end and provide to the SEC other material
information on Form 6-K. These reports and other information may be inspected and copied at the public reference facilities maintained
by the SEC or obtained from the SEC’s website as provided above. Our website, also provided above, will make our annual reports
on Form 20-F and our periodic reports filed with the SEC available, free of charge, through our website as soon as reasonably practicable
after those reports are electronically filed with the SEC. Information on our website or any other website is not incorporated
by reference into this prospectus and does not constitute a part of this prospectus.
As a foreign private issuer, we are exempt
under the Exchange Act from, among other things, certain rules prescribing the furnishing and content of proxy statements, and
our executive officers, directors and principal unitholders are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and
financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange
Act, including the filing of quarterly reports or current reports on Form 8-K. However, we intend to make available quarterly reports
containing our unaudited interim financial information for the first three fiscal quarters of each fiscal year.
The SEC allows us to “incorporate by
reference” into this prospectus information that we file with the SEC. This means that we can disclose important information
to you without actually including the specific information in this prospectus by referring you to other documents filed separately
with the SEC. The information incorporated by reference is an important part of this prospectus. Information that we later provide
to the SEC, and which is deemed to be “filed” with the SEC, automatically will update information previously filed
with the SEC, and may replace information in this prospectus.
We incorporate by reference into this prospectus
the documents listed below:
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our annual report on Form 20-F for the fiscal year ended December 31, 2015, filed on April 28, 2016 (our “2015 Annual
Report”) ;
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our report
on Form 6-K for the quarterly period ended March 31, 2016 filed on May 31, 2016, report on Form 6-K for the quarterly period ended
June 30, 2016 filed on August 25, 2016 and report on Form 6-K filed on September 26, 2016;
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all our annual reports on Form 20-F, and all reports on Form 6-K that we expressly identify in such reports as being incorporated
by reference into the registration statement of which this prospectus is a part, that we file with or furnish to the SEC pursuant
to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to completion of this
offering;
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all our annual reports on Form 20-F, and all reports on Form 6-K that we expressly identify in such reports as being incorporated
by reference into the registration statement of which this prospectus is a part, that we file with or furnish to the SEC pursuant
to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of the initial registration statement of which this
prospectus is a part and prior to the effectiveness of the registration statement of which this prospectus is a part; and
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the description of our common units contained in our Registration Statement on Form 8-A filed on August 4, 2014, including
any subsequent amendments or reports filed for the purpose of updating such description.
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These reports contain important information
about us, our financial condition and our results of operations.
You may obtain any of the documents incorporated
by reference in this prospectus from the SEC through its public reference facilities or its website at the addresses provided above.
You also may request a copy of any document incorporated by reference in this prospectus (excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference in this document), at no cost, by visiting our website at
www.hoeghlngpartners.com
,
or by writing or calling us at the following address:
Höegh LNG Partners LP
Wessex House, 5th Floor
45 Reid Street
Hamilton, HM 12
Bermuda
+441-295-6815
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents we incorporate
by reference contain certain forward-looking statements concerning plans and objectives of management for future operations or
economic performance, or assumptions related thereto. In addition, we and our representatives may from time to time make other
oral or written statements that are also forward-looking statements. Such statements include, in particular, statements about our
plans, strategies, business prospects, changes and trends in our business and the markets in which we operate. In some cases, you
can identify the forward-looking statements by the use of words such as “may,” “could,” “should,”
“would,” “expect,” “plan,” “anticipate,” “intend,” “forecast,”
“believe,” “estimate,” “predict,” “propose,” “potential,” “continue,”
or the negative of these terms or other comparable terminology. These forward-looking statements reflect management’s current
views only as of the date of this prospectus and are not intended to give any assurance as to future results. As a result, unitholders
are cautioned not to rely on any forward-looking statements.
Forward-looking statements appear in a number
of places in this prospectus and include statements with respect to, among other things:
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statements about FSRU and LNG carrier market trends, including hire rates and factors affecting supply and demand;
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our anticipated growth strategies;
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our anticipated receipt of dividends and repayment of indebtedness from our subsidiaries and joint ventures;
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effects of volatility in global prices for crude oil and natural gas;
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the effect of the worldwide economic environment;
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turmoil in the global financial markets;
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fluctuations in currencies and interest rates;
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general market conditions, including fluctuations in hire rates and vessel values;
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changes in our operating expenses, including drydocking and insurance costs;
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our ability to make or increase cash distributions on our units and the amount of any such distributions;
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our ability to comply with financing agreements and the expected effect of restrictions and covenants in such agreements;
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the future financial condition of our existing or future customers;
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our ability to make additional borrowings and to access public equity and debt capital markets;
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planned capital expenditures and availability of capital resources to fund capital expenditures;
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the exercise of purchase options by our customers;
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our ability to maintain long-term relationships with our customers;
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our ability to leverage Höegh LNG’s relationships and reputation in the shipping industry;
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our ability to purchase vessels from Höegh LNG in the future; including the
Independence
, the
Höegh Grace
or Höegh LNG’s other newbuildings;
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our ability to integrate and realize the anticipated benefits from the acquisition of the
Höegh Gallant
;
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our continued ability to enter into long-term, fixed-rate charters;
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the operating performance of our vessels;
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our ability to maximize the use of our vessels, including the redeployment or disposition of vessels no longer under long-term
charters;
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expected pursuit of strategic opportunities, including the acquisition of vessels;
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our ability to compete successfully for future chartering and newbuilding opportunities;
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timely acceptance of our vessels by their charterers;
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termination dates and extensions of charters;
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the cost of, and our ability to comply with, governmental regulations and maritime self-regulatory organization standards,
as well as standard regulations imposed by our charterers applicable to our business;
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demand in the FSRU sector or the LNG shipping sector in general and the demand for our vessels in particular;
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availability of skilled labor, vessel crews and management;
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our incremental general and administrative expenses as a publicly traded limited partnership and our fees and expenses payable
under our ship management agreements, the technical information and services agreement and the administrative services agreements;
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the anticipated taxation of the Partnership and distributions to unitholders;
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estimated future maintenance and replacement capital expenditures;
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our ability to retain key employees;
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customers’ increasing emphasis on environmental and safety concerns;
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potential liability from any pending or future litigation;
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potential disruption of shipping routes due to accidents, political events, piracy or acts by terrorists;
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future sales of our common units in the public market;
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our business strategy and other plans and objectives for future operations
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our ability to successfully remediate any material weaknesses in our internal control over financial reporting and our disclosure
controls and procedures; and
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·
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other factors listed from time to time in the reports and other documents that we file with the SEC.
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Forward-looking statements in this prospectus
are made based upon management’s current plans, expectations, estimates, assumptions and beliefs concerning future events
impacting us and therefore involve a number of risks and uncertainties, including those risks discussed in “Risk Factors”
and those risks discussed in reports we file with the SEC. The risks, uncertainties and assumptions involve known and unknown risks
and are inherently subject to significant uncertainties and contingencies, many of which are beyond our control. We caution that
forward-looking statements are not guarantees and that actual results could differ materially from those expressed or implied in
the forward-looking statements.
We undertake no obligation to update any forward-looking
statement or statements to reflect events or circumstances after the date on which such statement is made or to reflect the occurrence
of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict all of these factors. Further,
we cannot assess the impact of each such factor on our business or the extent to which any factor, or combination of factors, may
cause actual results to be materially different from those contained in any forward-looking statement.
ABOUT
HÖEGH LNG PARTNERS LP
We were formed on April 28, 2014, as a growth-oriented
limited partnership by Höegh LNG Holdings Ltd. (Oslo Børs symbol: HLNG), a leading floating LNG service provider. Our
strategy is to own, operate and acquire floating storage and regasification units (“FSRUs”), LNG carriers and other
LNG infrastructure assets that are operating under long-term charters. Our current fleet consists of interests in four modern FSRUs.
On August 12, 2014, we completed our initial
public offering (our “IPO”). At the closing of the IPO, we sold 11,040,000 common units to the public for net proceeds,
after deduction of underwriters’ discount and offering expenses, of $203.5 million. We also issued 2,116,060 common units
and 13,156,060 subordinated units, representing approximately 58.0% of the limited partner interests in the Partnership, and 100%
of the incentive distribution rights (“IDRs”) to Höegh LNG. A wholly owned subsidiary of Höegh LNG owns a
non-economic general partner interest in us.
We were formed under the laws of the Marshall
Islands and maintain our principal place of business at Wessex House, 5th Floor, 45 Reid Street, Hamilton, HM 12, Bermuda. Our
telephone number at that address is +441-295-6815.
RISK
FACTORS
An investment in our securities involves a
significant degree of risk. You should carefully consider the risk factors and all of the other information included in this prospectus,
any prospectus supplement and the documents we have incorporated by reference into this prospectus and any prospectus supplement,
including those in “Item 3. Key Information—Risk Factors” in our 2015 Annual Report, as updated by annual, quarterly
and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein,
in evaluating an investment in the securities. If any of these risks were actually to occur, our business, financial condition
or results of operations could be materially adversely affected. When we offer and sell any securities pursuant to a prospectus
supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
USE
OF PROCEEDS
Except as otherwise provided in an applicable
prospectus supplement, we will use the net proceeds we receive from the sale of the securities covered by this prospectus for general
partnership purposes, including repayment of debt (including debt owed to Höegh LNG), acquisitions, capital expenditures and
additions to working capital.
The actual application of proceeds we receive
from any particular primary offering of securities using this prospectus will be described in the applicable prospectus supplement
relating to such offering.
We will not receive any of the proceeds from
the sale of common units by the selling unitholder.
CAPITALIZATION
The following table shows our historical cash
and capitalization as of June 30, 2016. This table is derived from our consolidated and combined carve-out financial statements,
including accompanying notes, incorporated by reference in this prospectus. You should read this table in conjunction with the
section entitled “Operating and Financial Review and Prospects” and our consolidated and combined carve-out financial
statements and the related notes thereto, which are incorporated by reference herein from our 2015 Annual Report and our Form 6-K
for the six months ended June 30, 2016.
|
|
|
As of
June 30, 2016
|
|
|
|
|
(In thousands)
|
|
|
Cash and cash equivalents
|
|
$
|
18,006
|
|
|
Restricted cash (1)
|
|
|
24,971
|
|
|
Total cash and cash equivalents and restricted cash
|
|
$
|
42,977
|
|
|
Debt:
|
|
|
|
|
|
Amounts, loans and promissory notes due to owners and affiliates (2)
|
|
|
9,569
|
|
|
Seller’s credit note (3)
|
|
|
47,000
|
|
|
Current portion of long-term debt
|
|
|
32,208
|
|
|
Long-term debt, excluding sellers’ credit note and current portion
|
|
|
315,573
|
|
|
Total debt
|
|
$
|
404,350
|
|
|
Equity:
|
|
|
|
|
|
Total partners’ capital
|
|
$
|
239,637
|
|
|
Accumulated other comprehensive income (loss)
|
|
|
(15,774
|
)
|
|
Total equity
|
|
$
|
223,863
|
|
|
Total capitalization
|
|
$
|
628,213
|
|
|
|
(1)
|
Consists of short-term and long-term portions, amounting to $10,331 and $14,640, respectively.
|
|
|
(2)
|
Amounts, loans and promissory notes due to owners and affiliates includes $6,625 for the working capital adjustment for the
acquisition of the subsidiary that indirectly owns the
Höegh Gallant
|
|
|
(3)
|
The seller’s credit note is subordinated to the obligations of the Partnership and the Borrower under the Gallant facility
and matures on January 1, 2020.
|
Each prospectus supplement will include updated
information on our capitalization.
RATIO
OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of
consolidated earnings to fixed charges for the periods presented:
|
|
|
Six Months Ended
June 30, 2016
|
|
|
Year Ended December 31,
|
|
|
|
|
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
Ratio of earnings to fixed charges(1)
|
|
|
2.29
|
x
|
|
|
2.70
|
x
|
|
|
1.51
|
x
|
|
|
0.93
|
x
|
|
|
(1)
|
For periods prior to our IPO, represents data for our predecessor in respect of the
PGN FSRU Lampung
and the joint ventures
that own the
GDF Suez Neptune
and the
GDF Suez Cape Ann
, which made up our fleet for periods prior to our IPO in
August 2014.
|
For purposes of calculating the ratio of
earnings to fixed charges:
|
|
·
|
“fixed charges” means the sum of the following: (a) interest expensed and capitalized and (b) amortized premiums,
discounts and capitalized expenses related to indebtedness.;
|
|
|
·
|
“earnings” is the amount resulting from (a) adding (i) pre-tax income adjusted for equity in earnings (losses)
of joint ventures, (ii) fixed charges, (iii) amortization of capitalized interest and (iv) distributions from equity investees
and (b) subtracting interest capitalized.
|
PRICE
RANGE OF COMMON UNITS AND DISTRIBUTIONS
As of September 23, 2016, the total number
of common units outstanding was 13,166,710 of which 2,116,060 common units were held by Höegh LNG. Our common units were first
offered on the NYSE on August 7, 2014 at an initial price of $20 per unit. Our common units are traded on the NYSE under the symbol
“HMLP”.
The following table sets forth, for the periods
indicated, the high and low sales prices for our common units, as reported on the NYSE, and quarterly cash distributions declared
per common unit. The last reported sale price of our common units on the NYSE on September 23, 2016 was $17.12 per unit.
|
|
|
High
|
|
|
Low
|
|
|
Cash Distributions
per Unit (6)
|
|
|
Year ended December 31, 2016 (1)
|
|
$
|
19.56
|
|
|
$
|
11.50
|
|
|
|
|
|
|
Year ended December 31, 2015
|
|
|
23.97
|
|
|
|
12.50
|
|
|
|
|
|
|
Year ended December 31, 2014 (2)
|
|
|
26.50
|
|
|
|
16.26
|
|
|
|
|
|
|
Third quarter 2016 (3)
|
|
|
19.36
|
|
|
|
17.08
|
|
|
|
|
|
|
Second quarter 2016
|
|
|
19.32
|
|
|
|
16.51
|
|
|
$
|
0.4125
|
|
|
First quarter 2016
|
|
|
18.45
|
|
|
|
11.50
|
|
|
|
0.4125
|
|
|
Fourth quarter 2015
|
|
|
18.82
|
|
|
|
12.50
|
|
|
|
0.4125
|
|
|
Third quarter 2015
|
|
|
21.80
|
|
|
|
15.70
|
|
|
|
0.3375
|
|
|
Second quarter 2015
|
|
|
23.46
|
|
|
|
19.01
|
|
|
|
0.3375
|
|
|
First quarter 2015
|
|
|
23.97
|
|
|
|
17.80
|
|
|
|
0.3375
|
|
|
Fourth quarter 2014
|
|
|
24.73
|
|
|
|
16.26
|
|
|
|
0.3375
|
|
|
Third quarter 2014 (4)
|
|
|
26.50
|
|
|
|
21.75
|
|
|
|
0.1834
|
(7)
|
|
Month ended September 30, 2016 (5)
|
|
|
19.00
|
|
|
|
17.08
|
|
|
|
|
|
|
Month ended August 31, 2016
|
|
|
19.36
|
|
|
|
18.03
|
|
|
|
|
|
|
Month ended July 31, 2016
|
|
|
19.56
|
|
|
|
17.55
|
|
|
|
|
|
|
Month ended June 30, 2016
|
|
|
18.64
|
|
|
|
17.00
|
|
|
|
|
|
|
Month ended May 31, 2016
|
|
|
18.25
|
|
|
|
16.67
|
|
|
|
|
|
|
Month ended April 30, 2016
|
|
|
19.32
|
|
|
|
16.51
|
|
|
|
|
|
|
Month ended March 31, 2016
|
|
|
17.50
|
|
|
|
15.28
|
|
|
|
|
|
|
|
(1)
|
For the period from January 1, 2016 through September 23, 2016.
|
|
|
(2)
|
For the period from August 7, 2014 through December 31, 2014.
|
|
|
(3)
|
For the period from July 1, 2016 through September 23, 2016.
|
|
|
(4)
|
For the period from August 7, 2014 through September 30, 2014.
|
|
|
(5)
|
For the period from September 1, 2016 through September 23, 2016.
|
|
|
(6)
|
Represents cash distributions paid in respect of the quarter.
|
|
|
(7)
|
For the period from August 12, 2014 to September 30, 2014 we paid a distribution of $0.1834 per unit. This distribution was
the prorated portion of the minimum quarterly distribution of $0.3375 per unit.
|
DESCRIPTION
OF THE COMMON UNITS
Our common units and subordinated units represent
limited partner interests in us. The holders of units are entitled to participate in partnership distributions and exercise the
rights and privileges available to limited partners under our partnership agreement. For a description of the relative rights and
privileges of holders of common units and subordinated units in and to partnership distributions, together with a description of
the circumstances under which subordinated units convert into common units, please read this section and “Our Cash Distribution
Policy and Restrictions on Distributions.”
Number of Units
We currently have 13,166,710 common units
outstanding of which 2,116,060 common units are held by Höegh LNG. We also have 13,156,060 subordinated units outstanding
for which there is no established trading market, all of which are held by Höegh LNG. The common units and the subordinated
units represent a 100% limited partner interest. Our general partner holds a non-economic general partner interest.
Transfer Agent and Registrar
Computershare Trust Company, N.A. serves as
registrar and transfer agent for the common units.
Transfer of Common Units
By transfer of common units in accordance
with our partnership agreement, each transferee of common units will be admitted as a limited partner with respect to the common
units transferred when such transfer and admission is reflected in our books and records. Each transferee:
|
|
·
|
represents that the transferee has the capacity, power and authority to become bound by our partnership agreement;
|
|
|
·
|
automatically agrees to be bound by the terms and conditions of, and is deemed to have executed, our partnership agreement;
and
|
|
|
·
|
gives the consents and approvals contained in our partnership agreement, such as the approval of all transactions and agreements
we entered into in connection with our formation and our IPO.
|
A transferee will become a substituted limited
partner of the Partnership for the transferred common units automatically upon the recording of the transfer on our books and records.
We will cause any transfers to be recorded on our books and records no less frequently than quarterly.
We may, at our discretion, treat the nominee
holder of a common unit as the absolute owner. In that case, the beneficial holder’s rights are limited solely to those that
it has against the nominee holder as a result of any agreement between the beneficial owner and the nominee holder.
Common units are securities and are transferable
according to the laws governing transfer of securities. In addition to other rights acquired upon transfer, the transferor gives
the transferee the right to become a limited partner in the Partnership for the transferred common units.
Until a common unit has been transferred on
our books, we and the transfer agent may treat the record holder of the unit as the absolute owner for all purposes, except as
otherwise required by law or stock exchange regulations.
Voting Rights
Unlike the holders of common stock in a corporation,
holders of common units have only limited voting rights on matters affecting our business. We will hold a meeting of the limited
partners every year to elect one or more members of our board of directors and to vote on any other matters that are properly brought
before the meeting. Common unitholders are entitled to elect only four of the seven members of our board of directors. The elected
directors are elected on a staggered basis and will serve for staggered terms. Our general partner in its sole discretion appoints
the remaining three directors and sets the terms for which those directors will serve. Our partnership agreement also contains
provisions limiting the ability of unitholders to call meetings or to acquire information about our operations, as well as other
provisions limiting the unitholders’ ability to influence the manner or direction of management. Unitholders will have no
right to elect our general partner, and our general partner may not be removed except by a vote of the holders of at least 75%
of the outstanding common and subordinated units, including any common and subordinated units owned by our general partner and
its affiliates, voting together as a single class.
Our partnership agreement further restricts
unitholders’ voting rights by providing that if any person or group owns beneficially more than 4.9% of any class of units
then outstanding, any such units owned by that person or group in excess of 4.9% may not be voted on any matter and will not be
considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes (except for purposes
of nominating a person for election to our board of directors), determining the presence of a quorum or for other similar purposes,
unless required by law. The voting rights of any such unitholders in excess of 4.9% will effectively be redistributed pro rata
among the other common unitholders holding less than 4.9% of the voting power of all classes of units entitled to vote. Our general
partner, its affiliates and persons who acquired common units with the prior approval of our board of directors will not be subject
to this 4.9% limitation except with respect to voting their common units in the election of the elected directors.
The following is a summary of the unitholder
vote required for the approval of the matters specified below. Matters that require the approval of a “unit majority”
require:
|
|
·
|
during the subordination period, the approval of a majority of the common units, excluding those common units held by our general
partner and its affiliates, voting as a single class and a majority of the subordinated units voting as a single class; and
|
|
|
·
|
after the subordination period, the approval of a majority of the common units voting as a single class.
|
In voting their common units and subordinated
units our general partner and its affiliates will have no fiduciary duty or obligation whatsoever to us or the limited partners,
including any duty to act in good faith or in the best interests of us or the limited partners.
|
Action
|
|
Unitholder Approval Required and Voting Rights
|
|
Issuance of additional units
|
|
No approval rights; general partner approval required for all issuances not reasonably expected to be accretive within 12 months of issuance or which would otherwise have a material adverse impact on our general partner or its interest in the Partnership.
|
|
|
|
|
|
Amendment of our partnership agreement
|
|
Certain amendments may be made by our board of directors without the approval of the unitholders. Other amendments generally require the approval of a unit majority.
|
|
|
|
|
|
Merger of the Partnership or the sale of all or substantially all of our assets
|
|
Unit majority and approval of our general partner and our board of directors.
|
|
|
|
|
|
Dissolution of the Partnership
|
|
Unit majority and approval of our general partner and our board of directors.
|
|
|
|
|
|
Reconstitution of the Partnership upon dissolution
|
|
Unit majority.
|
|
|
|
|
|
Election of four of the seven members of our board of directors
|
|
A plurality of the votes of the holders of the common units.
|
|
Action
|
|
Unitholder Approval Required and Voting Rights
|
|
Withdrawal of our general partner
|
|
Under most circumstances, the approval of a majority of the common units, excluding common units held by our general partner and its affiliates, is required for the withdrawal of our general partner prior to June 30, 2024 in a manner that would cause a dissolution of the Partnership.
|
|
|
|
|
|
Removal of our general partner
|
|
Not less than 75% of the outstanding units, including units held by our general partner and its affiliates, voting together as a single class.
|
|
|
|
|
|
Transfer of our general partner interest in us
|
|
Our general partner may transfer its general partner interest in us without a vote of our unitholders to an affiliate or another person in connection with its merger or consolidation with or into, or sale of all or substantially all of its assets to, such person. The approval of a majority of the common units, excluding common units held by our general partner and its affiliates, is required in other circumstances for a transfer of the general partner interest to a third party prior to June 30, 2024.
|
|
|
|
|
|
Transfer of incentive distribution rights
|
|
Except for transfers to an affiliate or another person as part of a merger or consolidation with or into, or sale of all or substantially all of the assets to, such person, the approval of a majority of the common units, excluding common units held by our general partner and its affiliates, voting separately as a class, is required in most circumstances for a transfer of the incentive distribution rights to a third party prior to June 30, 2019.
|
|
|
|
|
|
Transfer of ownership interests in our general partner
|
|
No approval required at any time.
|
Issuance of Additional Interests
Our partnership agreement authorizes us to
issue an unlimited amount of additional partnership interests and rights to buy partnership interests for the consideration and
on the terms and conditions determined by our board of directors without the approval of the unitholders. However, our general
partner will be required to approve all issuances of additional partnership interests that are not reasonably expected to be accretive
within 12 months of issuance or which would otherwise have a material adverse impact on our general partner or its interest in
us.
We intend to fund acquisitions through borrowings
and the issuance of additional common units or other equity securities and the issuance of debt securities. Holders of any additional
common units we issue will be entitled to share equally with the then-existing holders of common units in our distributions of
available cash. In addition, the issuance of additional common units or other equity securities may dilute the value of the interests
of the then-existing holders of common units in our net assets.
In accordance with Marshall Islands law and
the provisions of our partnership agreement, we may also issue additional partnership interests that, as determined by our board
of directors, have special voting rights to which the common units are not entitled.
Our general partner will have the right, which
it may from time to time assign in whole or in part to any of its affiliates, to purchase common units, subordinated units or other
equity securities whenever, and on the same terms that, we issue those securities to persons other than our general partner and
its affiliates, to the extent necessary to maintain its and its affiliates’ percentage interest, including its interest represented
by common units and subordinated units, that existed immediately prior to each issuance. Other holders of common units will not
have similar pre-emptive rights to acquire additional common units or other partnership interests.
Limited Call Right
If at any time our general partner and its affiliates hold more
than 80% of the then-issued and outstanding partnership interests of any class, our general partner will have the right, which
it may assign in whole or in part to any of its affiliates or to us, to acquire all, but not less than all, of the remaining partnership
interests of the class held by unaffiliated persons as of a record date to be selected by our general partner, on at least 10 but
not more than 60 days’ written notice at a price equal to the greater of (x) the average of the daily closing prices
of the partnership interests of such class over the 20 trading days preceding the date three days before the notice of exercise
of the call right is first mailed and (y) the highest price paid by our general partner or any of its affiliates for partnership
interests of such class during the 90-day period preceding the date such notice is first mailed. Our general partner is not obligated
to obtain a fairness opinion regarding the value of the common units to be repurchased by it upon the exercise of this limited
call right and has no fiduciary duty in determining whether to exercise this limited call right.
As a result of the general partner’s right to purchase
outstanding partnership interests, a holder of partnership interests may have the holder’s partnership interests purchased
at an undesirable time or price. The tax consequences to a unitholder of the exercise of this call right are the same as a sale
by that unitholder of common units in the market. Please read “Material U.S. Federal Income Tax Considerations—U.S.
Federal Income Taxation of U.S. Holders—Sale, Exchange or Other Disposition of Common Units” and “Material U.S.
Federal Income Tax Considerations—U.S. Federal Income Taxation of Non-U.S. Holders—Disposition of Units.”
Summary of our Partnership Agreement
A copy of our partnership agreement is filed
as an exhibit to the registration statement of which this prospectus is a part. A summary of the important provisions of our partnership
agreement and the rights and privileges of our unitholders is included in our registration statement on Form 8-A, filed with the
SEC on August 4, 2014, including any subsequent amendments or reports filed for the purpose of updating such description. Please
read “Where You Can Find More Information.”
OUR
CASH DISTRIBUTION POLICY AND RESTRICTIONS ON DISTRIBUTIONS
You should read the following discussion of
our cash distribution policy and restrictions on distributions in conjunction with specific assumptions included in this section.
In addition, you should read “Forward-Looking Statements” and “Risk Factors” for information regarding
statements that do not relate strictly to historical or current facts and certain risks inherent in our business.
General
Rationale for Our Cash Distribution
Policy
Our cash distribution policy reflects a judgment
that our unitholders will be better served by our distributing our available cash (after deducting expenses, including estimated
maintenance and replacement capital expenditures, and reserves) rather than retaining it. Because we believe we will generally
finance any expansion capital expenditures from external financing sources, we believe that our investors are best served by our
distributing all of our available cash. Our cash distribution policy is consistent with the terms of our partnership agreement,
which requires that we distribute all of our available cash quarterly (after deducting expenses, including estimated maintenance,
and replacement capital expenditures and reserves).
Limitations on Cash Distributions
and Our Ability to Change Our Cash Distribution Policy
There is no guarantee that unitholders will
receive quarterly distributions from us. Our distribution policy is subject to certain restrictions and may be changed at any time,
including:
|
|
·
|
Our unitholders have no contractual or other legal right to receive distributions other than the obligation under our partnership
agreement to distribute available cash on a quarterly basis, which is subject to the broad discretion of our board of directors
to establish reserves and other limitations.
|
|
|
·
|
We are subject to restrictions on distributions under our financing agreements. Our financing agreements contain material financial
tests and covenants that must be satisfied in order to pay distributions. If we are unable to satisfy the restrictions included
in any of our financing agreements or are otherwise in default under any of those agreements, as a result of our debt levels or
otherwise, we will not be able to make cash distributions to our unitholders, notwithstanding our stated cash distribution policy.
|
|
|
·
|
A substantial majority of our business is currently conducted through our joint ventures. Under the joint venture agreement
that governs our joint ventures that own the
GDF Suez Neptune
and the
GDF Suez Cape Ann
, our joint ventures are prohibited
from making distributions under certain circumstances, including when they have outstanding shareholder loans. In addition, we
are unable to cause our joint ventures to make distributions without the agreement of our joint venture partners. If our joint
ventures are unable to make distributions to us, it could have a material adverse effect on our ability to pay cash distributions
to unitholders in accordance with our stated cash distribution policy.
|
|
|
·
|
We are required to make substantial capital expenditures to maintain and replace our fleet. These expenditures may fluctuate
significantly over time, particularly as our vessels near the end of their useful lives. In order to minimize these fluctuations,
our partnership agreement requires us to deduct estimated, as opposed to actual, maintenance and replacement capital expenditures
from the amount of cash that we would otherwise have available for distribution to our unitholders. In years when estimated maintenance
and replacement capital expenditures are higher than actual maintenance and replacement capital expenditures, the amount of cash
available for distribution to unitholders will be lower than if actual maintenance and replacement capital expenditures were deducted.
|
|
|
·
|
Although our partnership agreement requires us to distribute all of our available cash, our partnership agreement, including
provisions contained therein requiring us to make cash distributions, may be amended. During the subordination period, with certain
exceptions, our partnership agreement may not be amended without the approval of non-affiliated common unitholders. After the subordination
period has ended, our partnership agreement can be amended with the approval of a majority of the outstanding common units.
|
|
|
·
|
Even if our cash distribution policy is not modified or revoked, the amount of distributions we pay under our cash distribution
policy and the decision to make any distribution is determined by our board of directors, taking into consideration the terms of
our partnership agreement.
|
|
|
·
|
Under Section 51 of the Marshall Islands Act, we may not make a distribution to our unitholders if the distribution would cause
our liabilities, other than liabilities to partners on account of their partnership interest and liabilities for which the recourse
of creditors is limited to specified property of ours, to exceed the fair value of our assets, except that the fair value of property
that is subject to a liability for which the recourse of creditors is limited shall be included in our assets only to the extent
that the fair value of that property exceeds that liability.
|
|
|
·
|
PT Hoegh is subject to restrictions on distributions under Indonesian laws due to its formation under the laws of Indonesia.
Under Article 71.3 of the Indonesian Company Law (Law No. 40 of 2007), dividend distributions may be made only if PT Hoegh has
positive retained earnings. Hoegh Lampung, our subsidiary holding the ownership interest in PT Hoegh, is subject to restrictions
under Singapore law due to its formation under Singapore law. Under Section 403(1) of the Companies Act (Cap. 50) of Singapore,
no dividends may be paid to the shareholders of any company except out of profits.
|
|
|
·
|
Under
Cayman Islands law, FSRU III may only pay dividends distributions out of profits or capital reserves if the entity is solvent
after the distribution. Dividends from Höegh Cyprus may only be distributed out of profits and not from the share capital
of the company.
|
|
|
·
|
Our joint ventures for the
GDF Suez Neptune
and the
GDF Suez Cape Ann
are subject to restrictions on distributions
under the laws of the Cayman Islands due to their formation under the laws of the Cayman Islands. Under such laws, a distribution
may be paid out of profits or, if profits are insufficient to make a distribution and subject to the joint venture being solvent
immediately following the date on which the distribution is made, out of share premium or distributable capital reserve resulting
from contributed surplus paid into the joint venture.
|
|
|
·
|
We may lack sufficient cash to pay distributions to our unitholders due to decreases in total operating revenues, decreases
in hire rates, the loss of a vessel, increases in operating or general and administrative expenses, principal and interest payments
on outstanding debt, taxes, working capital requirements, maintenance and replacement capital expenditures or anticipated cash
needs.
|
Distributions of Available Cash
General
Within 45 days after the end of each quarter,
we distribute all of our available cash (defined below) to unitholders of record on the applicable record date.
In determining “available cash”
and “operating surplus,” we proportionately consolidate our less than wholly owned subsidiaries, which for this purpose
includes joint ventures, provided that such entities were formed for the purpose of owning and operating specified assets and meet
certain other tests, and with respect to which we have at the time of determination at least a 20% beneficial interest and are
either consolidated by us for accounting purposes or accounted for by us on the equity method.
Definition of Available Cash
Available cash generally means, for each fiscal
quarter, all cash on hand at the end of the quarter (including our proportionate share of cash on hand of certain subsidiaries
we do not wholly own):
|
|
·
|
less
, the amount of cash reserves (including our proportionate share of cash reserves of our subsidiaries) established
by our board of directors and our subsidiaries to:
|
|
|
·
|
provide for the proper conduct of our business (including reserves for future capital expenditures and for our anticipated
credit needs);
|
|
|
·
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comply with applicable law, any of our debt instruments or other agreements; and/or
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provide funds for distributions to our unitholders and to our general partner for any one or more of the next four quarters;
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plus
, all cash on hand (including our proportionate share of cash on hand of our subsidiaries) on the date of determination
of available cash for the quarter resulting from (1) working capital borrowings made after the end of the quarter and (2) cash
distributions received after the end of the quarter from any equity interest in any person (other than a subsidiary of us), which
distributions are paid by such person in respect of operations conducted by such person during such quarter.
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Working capital borrowings are borrowings
that are made under a credit facility, commercial paper facility or similar financing arrangement and in all cases are used solely
for working capital purposes or to pay distributions to partners; provided that when such borrowing is incurred it is the intent
of the borrower to repay such borrowings within twelve months from sources other than additional working capital borrowings.
Minimum Quarterly Distribution
Common unitholders are entitled under our
partnership agreement to receive on a quarterly basis at least the minimum quarterly distribution of $0.3375 per unit, or $1.35
per unit per year, prior to any distribution on the subordinated units to the extent we have sufficient cash on hand to pay the
distribution after we establish cash reserves and pay fees and expenses.
There is no guarantee that we will pay the
minimum quarterly distribution on the common units and subordinated units in any quarter. Even if our cash distribution policy
is not modified or revoked, the amount of distributions paid under our policy and the decision to make any distribution is determined
by our board of directors, taking into consideration the terms of our partnership agreement. We will be prohibited from making
any distributions to unitholders if it would cause an event of default, or an event of default is then existing, under our financing
agreements.
Furthermore, our financing arrangements require
our subsidiaries and joint ventures to hold cash reserves that are, in certain cases, held for specifically designated uses, including
working capital, operations and maintenance and debt service reserves, and are generally subject to “waterfall” provisions
that allocate project revenues to specified priorities of use (such as operating expenses, scheduled debt service, targeted debt
service reserves and any other reserves) and the remaining cash is distributable to us only on certain dates and subject to satisfaction
of certain conditions.
Operating Surplus and Capital Surplus
General
All cash distributed to unitholders is characterized
as either “Operating Surplus” or “Capital Surplus.” We treat distributions of available cash from operating
surplus differently than distributions of available cash from capital surplus.
Definition of Operating Surplus
Operating surplus for any period generally
means:
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all of our cash receipts (including our proportionate share of cash receipts of our subsidiaries, provided, that cash receipts
from the termination of an interest rate, currency or commodity hedge contract prior to its specified termination date will be
included in operating surplus in equal quarterly installments over the remaining scheduled life of such hedge contract), excluding
cash from (1) borrowings, other than working capital borrowings, (2) sales of equity and debt securities, (3) sales or other dispositions
of assets outside the ordinary course of business, (4) capital contributions and (5) corporate reorganizations or restructurings;
plus
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·
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working capital borrowings (including our proportionate share of working capital borrowings for our subsidiaries) made after
the end of a quarter but before the date of determination of operating surplus for the quarter;
plus
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cash distributions paid on equity securities issued (including the amount of any incremental distributions made to the holders
of our incentive distribution rights and our proportionate share of such cash distributions paid by our subsidiaries), in each
case, to finance all or any portion of the construction, replacement or improvement of a capital asset (such as an FSRU or LNG
carrier) in respect of the period from such financing until the earlier to occur of the date the capital asset is put into service
or the date that it is abandoned or disposed of;
plus
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·
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cash distributions paid on equity securities issued (including the amount of any incremental distributions made to the holders
of our incentive distribution rights and our proportionate share of such cash distributions paid by our subsidiaries), in each
case, to pay the construction period interest on debt incurred (including periodic net payments under related interest rate swap
contracts), or to pay construction period distributions on equity issued, to finance the construction projects described in the
immediately preceding bullet point;
less
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all of our operating expenditures (which includes estimated maintenance and replacement capital expenditures and is further
described below) of us and our subsidiaries (including our proportionate share of operating expenditures by our subsidiaries);
less
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the amount of cash reserves (including our proportionate share of cash reserves for our subsidiaries) established by our board
of directors to provide funds for future operating expenditures;
less
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any cash loss realized on dispositions of assets acquired using investment capital expenditures;
less
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all working capital borrowings (including our proportionate share of working capital borrowings by our subsidiaries) not repaid
within the 12-month period after having been incurred.
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If a working capital borrowing, which increases
operating surplus, is not repaid during the 12-month period following the borrowing, it will be deemed repaid at the end of such
period, thus decreasing operating surplus at such time. When such working capital borrowing is in fact repaid, it will not be treated
as a reduction in operating surplus because operating surplus will have been previously reduced by the deemed repayment.
As described above, operating surplus includes
a provision that will enable us, if we choose, to distribute as operating surplus up to $25.0 million of cash we receive in the
future from non-operating sources, such as asset sales, issuances of securities and long-term borrowings, that would otherwise
be distributed as capital surplus. In addition, the effect of including, as described above, certain cash distributions on equity
securities or interest payments on debt in operating surplus would be to increase operating surplus by the amount of any such cash
distributions or interest payments. As a result, we may also distribute as operating surplus up to the amount of any such cash
distributions or interest payments we receive from non-operating sources.
Operating expenditures generally means all
of our cash expenditures, including but not limited to taxes, employee and director compensation, reimbursement of expenses to
our general partner, repayment of working capital borrowings, debt service payments and payments made under any interest rate,
currency or commodity hedge contracts (provided that payments made in connection with the termination of any hedge contract prior
to the expiration of its specified termination date be included in operating expenditures in equal quarterly installments over
the remaining scheduled life of such hedge contract), provided that operating expenditures will not include:
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deemed repayments of working capital borrowings deducted from operating surplus pursuant to the last bullet point of the definition
of operating surplus above when such repayment actually occurs;
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payments (including prepayments and payment penalties) of principal of and premium on indebtedness, other than working capital
borrowings;
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expansion capital expenditures, investment capital expenditures or actual maintenance and replacement capital expenditures
(which are discussed in further detail under “—Capital Expenditures” below);
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payment of transaction expenses (including taxes) relating to interim capital transactions;
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distributions to partners; or
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repurchases of partnership interests (other than repurchases we make to satisfy obligations under employee benefit plans).
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Capital Expenditures
For purposes of determining operating surplus,
maintenance and replacement capital expenditures are those capital expenditures required to maintain over the long term the operating
capacity and/or asset base of our capital assets, and expansion capital expenditures are those capital expenditures that increase
the operating capacity and/or asset base of our capital assets. In our partnership agreement, we refer to these maintenance and
replacement capital expenditures as “maintenance capital expenditures.” To the extent, however, that capital expenditures
associated with acquiring a new vessel or other LNG infrastructure asset or improving an existing asset increase the revenues or
the operating capacity of our fleet, those capital expenditures would be classified as expansion capital expenditures.
Investment capital expenditures are those
capital expenditures that are neither maintenance and replacement capital expenditures nor expansion capital expenditures. Investment
capital expenditures largely will consist of capital expenditures made for investment purposes. Examples of investment capital
expenditures include traditional capital expenditures for investment purposes, such as purchases of equity securities, as well
as other capital expenditures that might be made in lieu of such traditional investment capital expenditures, such as the acquisition
of a capital asset for investment purposes.
Capital expenditures that are made in part
for maintenance and replacement capital purposes, investment capital purposes and/or expansion capital purposes will be allocated
to maintenance and replacement capital expenditures, investment capital expenditures or expansion capital expenditures by our board
of directors.
Examples of maintenance and replacement capital
expenditures include capital expenditures associated with drydocking, modifying an existing vessel or acquiring a new vessel to
the extent such expenditures are incurred to maintain the operating capacity or asset base of our fleet. Maintenance and replacement
capital expenditures will also include interest (and related fees) on debt incurred and distributions on equity issued (including
the amount of any incremental distributions made to the holders of our incentive distribution rights) to finance the construction
of a replacement vessel and paid in respect of the construction period, which we define as the period beginning on the date that
we enter into a binding construction contract and ending on the earlier of the date that the replacement vessel commences commercial
service or the date that the replacement vessel is abandoned or disposed of. Debt incurred to pay or equity issued to fund construction
period interest payments, and distributions on such equity (including the amount of any incremental distributions made to the holders
of our incentive distribution rights), will also be considered maintenance and replacement capital expenditures.
Because our maintenance and replacement capital
expenditures can be very large and vary significantly in timing, the amount of our actual maintenance and replacement capital expenditures
may differ substantially from period to period, which could cause similar fluctuations in the amounts of operating surplus, adjusted
operating surplus and available cash for distribution to our unitholders than if we subtracted actual maintenance and replacement
capital expenditures from operating surplus each quarter. Accordingly, to eliminate the effect on operating surplus of these fluctuations,
our partnership agreement will require that an amount equal to an estimate of the average quarterly maintenance and replacement
capital expenditures necessary to maintain the operating capacity or asset base of our capital assets over the long term be subtracted
from operating surplus each quarter, as opposed to the actual amounts spent. In our partnership agreement, we refer to these estimated
maintenance and replacement capital expenditures to be subtracted from operating surplus as “estimated maintenance capital
expenditures.” The amount of estimated maintenance and replacement capital expenditures deducted from operating surplus is
subject to review and change by our board of directors at least once a year, provided that any change must be approved by our conflicts
committee. The estimate will be made at least annually and whenever an event occurs that is likely to result in a material adjustment
to the amount of our maintenance and replacement capital expenditures, such as a major acquisition or the introduction of new governmental
regulations that will affect our fleet. For purposes of calculating operating surplus, any adjustment to this estimate will be
prospective only.
The use of estimated maintenance and replacement
capital expenditures in calculating operating surplus will have the following effects:
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it will reduce the risk that actual maintenance and replacement capital expenditures in any one quarter will be large enough
to make operating surplus less than the minimum quarterly distribution to be paid on all the units for that quarter and subsequent
quarters;
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·
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it may reduce the need for us to borrow to pay distributions;
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it will be more difficult for us to raise our distribution above the minimum quarterly distribution and pay incentive distributions
to Höegh LNG; and
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it will reduce the likelihood that a large maintenance and replacement capital expenditure in a period will prevent Höegh
LNG from being able to convert some or all of its subordinated units into common units since the effect of an estimate is to spread
the expected expense over several periods, mitigating the effect of the actual payment of the expenditure on any single period.
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Definition of Capital Surplus
Capital surplus generally will be generated
only by:
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borrowings other than working capital borrowings;
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·
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sales of debt and equity securities; and
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·
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sales or other dispositions of assets for cash, other than inventory, accounts receivable and other current assets sold in
the ordinary course of business, or non-current assets sold as part of normal retirements or replacements of assets.
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Characterization of Cash Distributions
We will treat all available cash distributed
as coming from operating surplus until the sum of all available cash distributed since we began operations equals the operating
surplus as of the most recent date of determination of available cash. We will treat any amount distributed in excess of operating
surplus, regardless of its source, as capital surplus. As described above, operating surplus does not reflect actual cash on hand
that is available for distribution to our unitholders. For example, it includes a provision that will enable us, if we choose,
to distribute as operating surplus up to $25.0 million of cash we receive in the future from non-operating sources, such as asset
sales, issuances of securities and long-term borrowings, that would otherwise be distributed as capital surplus. We do not anticipate
that we will make any distributions from capital surplus.
Subordination Period
General
During the subordination period, which we
define below, the common units will have the right to receive distributions of available cash from operating surplus in an amount
equal to the minimum quarterly distribution of $0.3375 per unit, plus any arrearages in the payment of the minimum quarterly distribution
on the common units from prior quarters, before any distributions of available cash from operating surplus may be made on the subordinated
units. Distribution arrearages do not accrue on the subordinated units. The purpose of the subordinated units is to increase the
likelihood that during the subordination period there will be available cash from operating surplus to be distributed on the common
units.
Definition of Subordination Period
The subordination period will extend until
the second business day following the distribution of available cash from operating surplus in respect of any quarter, ending on
or after June 30, 2019, that each of the following tests are met:
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distributions of available cash from operating surplus on each of the outstanding common units and subordinated units and any
other units that are senior or equal in right of distribution to the subordinated units equaled or exceeded the annualized minimum
quarterly distribution for each of the three consecutive, non-overlapping four-quarter periods immediately preceding that date;
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the “adjusted operating surplus” (as defined below) generated during each of the three consecutive, non-overlapping
four-quarter periods immediately preceding that date equaled or exceeded the annualized minimum quarterly distribution on all of
the outstanding common units and subordinated units and any other units that are senior or equal in right of distribution to the
subordinated units during those periods on a fully diluted weighted average basis during those periods; and
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there are no outstanding arrearages in payment of the minimum quarterly distribution on the common units.
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If the unitholders remove our general partner
without cause, the subordination period may end before June 30, 2019.
For purposes of determining whether the tests
in the bullets above have been met, the three consecutive, non-overlapping four-quarter periods for which the determination is
being made may include one or more quarters with respect to which arrearages in the payment of the minimum quarterly distribution
on the common units have accrued, provided that all such arrearages have been repaid prior to the end of each such four-quarter
period.
When the subordination period ends, all subordinated
units will convert into common units on a one-for-one basis, and the common units will no longer be entitled to arrearages.
Definition of Adjusted Operating
Surplus
Adjusted operating surplus for any period
generally means:
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operating surplus generated with respect to that period (excluding any amounts attributable to the item in the first bullet
point under “—Operating Surplus and Capital Surplus—Definition of Operating Surplus” above);
less
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·
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the amount of any net increase in working capital borrowings (including our proportionate share of any changes in working capital
borrowings of our subsidiaries) with respect to that period;
less
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·
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the amount of any net reduction in cash reserves for operating expenditures (including our proportionate share of cash reserves
of our subsidiaries) over that period not relating to an operating expenditure made during that period;
plus
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the amount of any net decrease in working capital borrowings (including our proportionate share of any changes in working capital
borrowings of our subsidiaries) with respect to that period;
plus
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the amount of any net increase in cash reserves for operating expenditures (including our proportionate share of cash reserves
of our subsidiaries) over that period required by any debt instrument for the repayment of principal, interest or premium;
plus
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the amount of any net decrease made in subsequent periods to cash reserves for operating expenditures initially established
with respect to such period to the extent such decrease results in a reduction in adjusted operating surplus in subsequent periods.
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Adjusted operating surplus is intended to
reflect the cash generated from operations during a particular period and therefore excludes net increases in working capital borrowings
and net drawdowns of reserves of cash generated in prior periods.
Effect of Removal of Our General
Partner on the Subordination Period
If the unitholders remove our general partner
other than for cause and units held by our general partner and its affiliates are not voted in favor of such removal:
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the subordination period will end and each subordinated unit will immediately convert into one common unit and will then participate
pro rata with the other common units in distributions of available cash;
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any existing arrearages in payment of the minimum quarterly distribution on the common units will be extinguished; and
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the incentive distribution rights (initially owned by Höegh LNG) will be converted into cash or common units.
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Distributions of Available Cash From
Operating Surplus During the Subordination Period
We will make distributions of available cash
from operating surplus for any quarter during the subordination period in the following manner:
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first
, 100.0% to the common unitholders, pro rata, until we distribute for each outstanding common unit an amount equal
to the minimum quarterly distribution for that quarter;
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second
, 100.0% to the common unitholders, pro rata, until we distribute for each outstanding common unit an amount equal
to any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters during the subordination
period;
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third
, 100.0% to the subordinated unitholders, pro rata, until we distribute for each subordinated unit an amount equal
to the minimum quarterly distribution for that quarter; and
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thereafter
, in the manner described in “—Incentive Distribution Rights” below.
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The preceding paragraph is based on the assumption
that we do not issue additional classes of equity securities.
Distributions of Available Cash From
Operating Surplus After the Subordination Period
We will make distributions of available cash
from operating surplus for any quarter after the subordination period in the following manner:
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first
, 100.0% to all unitholders, pro rata, until we distribute for each outstanding unit an amount equal to the minimum
quarterly distribution for that quarter; and
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thereafter
, in the manner described in “—Incentive Distribution Rights” below.
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The preceding paragraph is based on the assumption
that we do not issue additional classes of equity securities.
General Partner Interest
Our general partner owns a non-economic general
partner interest in us, which does not entitle it to receive cash distributions. However, our general partner may in the future
own common units or other equity securities in us and will be entitled to receive distributions on any such interests.
Incentive Distribution Rights
Incentive distribution rights represent the
right to receive an increasing percentage of quarterly distributions of available cash from operating surplus after the minimum
quarterly distribution and the target distribution levels have been achieved. Höegh LNG currently holds the incentive distribution
rights. The incentive distribution rights may be transferred separately from any other interest, subject to restrictions in our
partnership agreement. Except for transfers of incentive distribution rights to an affiliate or another entity as part of a merger
or consolidation with or into, or sale of substantially all of the assets to, such entity, the approval of a majority of our common
units (excluding common units held by our general partner and its affiliates), voting separately as a class, generally is required
for a transfer of the incentive distribution rights to a third party prior to June 30, 2019. Please read “Our Partnership
Agreement—Transfer of Incentive Distribution Rights.” Any transfer by Höegh LNG of the incentive distribution
rights would not change the percentage allocations of quarterly distributions with respect to such rights.
If for any quarter:
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we have distributed available cash from operating surplus to the common and subordinated unitholders in an amount equal to
the minimum quarterly distribution; and
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we have distributed available cash from operating surplus on outstanding common units in an amount necessary to eliminate any
cumulative arrearages in payment of the minimum quarterly distribution;
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then, we will distribute any additional available cash from
operating surplus for that quarter among the unitholders in the following manner:
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first
, 100.0% to all unitholders, pro rata, until each unitholder receives a total of $0.388125 per unit for that quarter
(the “first target distribution”);
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second
, 85.0% to all unitholders, pro rata, and 15.0% to the holders of the incentive distribution rights, pro rata,
until each unitholder receives a total of $0.421875 per unit for that quarter (the “second target distribution”);
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third
, 75.0% to all unitholders, pro rata, and 25.0% to the holders of the incentive distribution rights, pro rata,
until each unitholder receives a total of $0.50625 per unit for that quarter (the “third target distribution”); and
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thereafter
, 50.0% to all unitholders, pro rata, and 50.0% to the holders of the incentive distribution rights, pro rata.
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In each case, the amount of the target distribution
set forth above is exclusive of any distributions to common unitholders to eliminate any cumulative arrearages in payment of the
minimum quarterly distribution. The percentage interests set forth above assume that we do not issue additional classes of equity
securities.
Percentage Allocations of Available Cash
From Operating Surplus
The following table illustrates the percentage
allocations of the additional available cash from operating surplus among the unitholders and the holders of the incentive distribution
rights up to the various target distribution levels. The amounts set forth under “Marginal Percentage Interest in Distributions”
are the percentage interests of the unitholders and the holders of the incentive distribution rights in any available cash from
operating surplus we distribute up to and including the corresponding amount in the column “Total Quarterly Distribution
Target Amount,” until available cash from operating surplus we distribute reaches the next target distribution level, if
any. The percentage interests shown for the unitholders and the holders of the incentive distribution rights for the minimum quarterly
distribution are also applicable to quarterly distribution amounts that are less than the minimum quarterly distribution.
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Marginal Percentage Interest
in Distributions
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Total Quarterly Distribution
Target Amount
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Unitholders
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Holders of Incentive
Distribution Rights
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Minimum Quarterly Distribution
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$0.3375
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100.0
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%
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0
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%
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First Target Distribution
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up to $0.388125
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100.0
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%
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0
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%
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above $0.388125
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Second Target Distribution
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up to $0.421875
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85.0
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%
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15.0
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%
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above $0.421875
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Third Target Distribution
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up to $0.50625
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75.0
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%
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25.0
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%
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Thereafter
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above $0.50625
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50.0
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%
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50.0
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%
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Höegh LNG’s Right to Reset
Incentive Distribution Levels
Höegh LNG, as the initial holder of our
incentive distribution rights, has the right under our partnership agreement to elect to relinquish the right of the holders of
our incentive distribution rights to receive incentive distribution payments based on the initial cash target distribution levels
and to reset, at higher levels, the minimum quarterly distribution amount and cash target distribution levels upon which the incentive
distribution payments to Höegh LNG would be set. Höegh LNG’s right to reset the minimum quarterly distribution
amount and the cash target distribution levels upon which the incentive distributions payable to Höegh LNG are based may be
exercised, without approval of our unitholders or the conflicts committee of our board of directors, at any time when there are
no subordinated units outstanding and we have made cash distributions to the holders of the incentive distribution rights at the
highest level of incentive distribution for each of the prior four consecutive fiscal quarters (and the amount of each such total
distribution did not exceed adjusted operating surplus for each such quarter). If at the time of any election to reset the minimum
quarterly distribution amount and the cash target distribution levels Höegh LNG and its affiliates are not the holders of
a majority of the incentive distribution rights, then any such election to reset shall be subject to the prior written concurrence
of our board of directors that the conditions described in the immediately preceding sentence have been satisfied. The reset minimum
quarterly distribution amount and cash target distribution levels will be higher than the minimum quarterly distribution amount
and the cash target distribution levels prior to the reset such that there will be no incentive distributions paid under the reset
cash target distribution levels until cash distribution per unit following this event increase as described below. We anticipate
that Höegh LNG would exercise this reset right in order to facilitate acquisitions or internal growth projects that would
otherwise not be sufficiently accretive to cash distributions per common unit, taking into account the existing levels of incentive
distribution payments being made to Höegh LNG.
In connection with the resetting of the minimum
quarterly distribution amount and the cash target distribution levels and the corresponding relinquishment by Höegh LNG of
incentive distribution payments based on the cash target distribution levels prior to the reset, Höegh LNG will be entitled
to receive a number of newly issued common units based on a predetermined formula described below that takes into account the “cash
parity” value of the average cash distributions related to the incentive distribution rights received by Höegh LNG for
the two quarters prior to the reset event as compared to the average cash distribution per common unit during this period.
The number of common units that Höegh
LNG would be entitled to receive from us in connection with a resetting of the minimum quarterly distribution amount and the cash
target distribution levels then in effect would be equal to (x) the average amount of cash distributions received by Höegh
LNG in respect of its incentive distribution rights during the two consecutive fiscal quarters ended immediately prior to the date
of such reset election divided by (y) the average of the amount of cash distributed per common unit during each of these two quarters.
The issuance of the additional common units will be conditioned upon approval of the listing or admission for trading of such common
units by the national securities exchange on which the common units are then listed or admitted for trading.
Following a reset election, the minimum quarterly
distribution amount will be reset to the reset minimum quarterly distribution amount and the cash target distribution levels will
be reset to be correspondingly higher such that we would distribute all of our available cash from operating surplus for each quarter
thereafter as follows:
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first
, 100.0% to all unitholders, pro rata, until each unitholder receives an amount equal to 115.0% of the reset minimum
quarterly distribution amount for that quarter;
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second
, 85.0% to all unitholders, pro rata, and 15.0% to the holders of the incentive distribution rights, pro rata,
until each unitholder receives an amount per unit equal to 125.0% of the reset minimum quarterly distribution amount for that quarter;
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third
, 75.0% to all unitholders, pro rata, and 25.0% to the holders of the incentive distribution rights, pro rata,
until each unitholder receives an amount per unit equal to 150.0% of the reset minimum quarterly distribution amount for that quarter;
and
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thereafter
, 50.0% to all unitholders, pro rata, and 50.0% to the holders of the incentive distribution rights, pro rata.
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Assuming that it continues to hold a majority
of our incentive distribution rights, Höegh LNG will be entitled to cause the minimum quarterly distribution amount and the
cash target distribution levels to be reset on more than one occasion, provided that it may not make a reset election except at
a time when the holders of the incentive distribution rights have received incentive distributions for the prior four consecutive
fiscal quarters based on the highest level of incentive distributions that the holders of incentive distribution rights are entitled
to receive under our partnership agreement.
Distributions From Capital Surplus
How Distributions From Capital
Surplus Will Be Made
We will make distributions of available
cash from capital surplus, if any, in the following manner:
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first
, 100.0% to all unitholders, pro rata, until the minimum quarterly distribution is reduced to zero, as described
below;
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·
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second
, 100.0% to the common unitholders, pro rata, until we distribute for each common unit an amount of available
cash from capital surplus equal to any unpaid arrearages in payment of the minimum quarterly distribution on the common units;
and
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thereafter
, we will make all distributions of available cash from capital surplus as if they were from operating surplus.
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The preceding paragraph is based on the assumption
that we do not issue additional classes of equity securities.
Effect of a Distribution from
Capital Surplus
Our partnership agreement treats a distribution
of capital surplus as the repayment of the consideration for the issuance of the units, which is a return of capital. Each time
a distribution of capital surplus is made, the minimum quarterly distribution and the cash target distribution levels will be reduced
in the same proportion as the distribution had to the fair market value of the common units prior to the announcement of the distribution.
Because distributions of capital surplus will reduce the minimum quarterly distribution, after any of these distributions are made,
it may be easier for Höegh LNG to receive incentive distributions and for the subordinated units to convert into common units.
However, any distribution of capital surplus before the minimum quarterly distribution is reduced to zero cannot be applied to
the payment of the minimum quarterly distribution or any arrearages.
Once we reduce the minimum quarterly distribution
and the cash target distribution levels to zero, we will then make all future distributions 50.0% to the holders of units and 50.0%
to the holders of the incentive distribution rights (initially, Höegh LNG).
Adjustment to the Minimum Quarterly Distribution
and Target Distribution Levels
In addition to adjusting the minimum quarterly
distribution and target distribution levels to reflect a distribution of capital surplus, if we combine our units into fewer units
or subdivide our units into a greater number of units, we will proportionately adjust:
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the minimum quarterly distribution;
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the cash target distribution levels;
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the initial unit price; and
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the arrearages per common unit in payment of the minimum quarterly distribution on the common units.
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For example, if a two-for-one split of the
common and subordinated units should occur, the minimum quarterly distribution, the cash target distribution levels and the initial
unit price would each be reduced to 50.0% of its initial level. If we combine our common units into a lesser number of units or
subdivide our common units into a greater number of units, we will combine our subordinated units or subdivide our subordinated
units, using the same ratio applied to the common units. We will not make any adjustment by reason of the issuance of additional
units for cash or property.
Distributions of Cash Upon Liquidation
If we dissolve in accordance with the partnership
agreement, we will sell or otherwise dispose of our assets in a process called liquidation. We will apply the proceeds of liquidation
in the manner set forth below.
If, as of the date three trading days prior
to the announcement of the proposed liquidation, the average closing price for our common units for the preceding 20 trading days
(the “current market price”) is greater than the sum of:
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any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters during the subordination
period;
plus
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the initial unit price (less any prior capital surplus distributions and any prior cash distributions made in connection with
a partial liquidation);
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then the proceeds of the liquidation will
be applied as follows:
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first
, 100.0% to the common unitholders, pro rata, until we distribute for each outstanding common unit an amount equal
to the current market price of our common units;
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second
, 100.0% to the subordinated unitholders, pro rata, until we distribute for each subordinated unit an amount equal
to the current market price of our common units; and
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thereafter
, 50.0% to all unitholders, pro rata, and 50.0% to holders of incentive distribution rights.
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If, as of the date three trading days prior
to the announcement of the proposed liquidation, the current market price of our common units is equal to or less than the sum
of:
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any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters during the subordination
period;
plus
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the initial unit price (less any prior capital surplus distributions and any prior cash distributions made in connection with
a partial liquidation);
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then the proceeds of the liquidation will
be applied as follows:
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first
, 100.0% to the common unitholders, pro rata, until we distribute for each outstanding common unit an amount equal
to the initial unit price (less any prior capital surplus distributions and any prior cash distributions made in connection with
a partial liquidation);
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second
, 100.0% to the common unitholders, pro rata, until we distribute for each outstanding common unit an amount equal
to any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters during the subordination
period;
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third
, 100.0% to the subordinated unitholders, pro rata, until we distribute for each outstanding subordinated unit
an amount equal to the initial unit price (less any prior capital surplus distributions and any prior cash distributions made in
connection with a partial liquidation); and
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thereafter
, 50.0% to all unitholders, pro rata, 50.0% to holders of incentive distribution rights.
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The immediately preceding paragraph is based
on the assumption that we do not issue additional classes of equity securities.
DESCRIPTION
OF THE OTHER CLASSES OF UNITS
Our partnership agreement authorizes us to
issue an unlimited number of additional partnership interests and other equity securities for the consideration and on the terms
and with the rights, preferences and privileges established by our board of directors without the approval of any of our unitholders.
As of September 23, 2016, no classes of limited partner interests were outstanding other than the common units and the subordinated
units.
Should we offer other classes of units under
this prospectus, a prospectus supplement relating to the particular class or series of units offered will include the specific
terms of those units, including, among other things, the following:
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the designation, stated value and liquidation preference of the units and the maximum number of units to constitute the class
or series;
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the number of units to be offered;
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the public offering price at which the units will be issued;
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any sinking fund provisions of the units;
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the voting rights, if any, of the units;
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the distribution rights of the units, if any;
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whether the units will be redeemable and, if so, the price and the terms and conditions on which the units may be redeemed,
including the time during which the units may be redeemed and any accumulated distributions thereof, if any, that the holders of
the units will be entitled to receive upon the redemption thereof;
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the terms and conditions, if any, on which the units will be convertible into, or exchangeable for, the units of any other
class or series of units representing limited partner interests, including the price or prices or the rate or rates of conversion
or exchange and the method, if any, of adjusting the same;
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a discussion of any additional material federal income tax considerations (other than as discussed in this prospectus) regarding
the units; and
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any additional rights, preferences, privileges, limitations and restrictions of the units.
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The particular terms of any class or series
of units will also be described in the amendment to the operating agreement relating to that class or series of units, which will
be filed as an exhibit to or incorporated by reference in this prospectus at or before the time of issuance of any such class or
series of units.
Such units will be fully paid and non-assessable
when issued upon full payment of the purchase price therefor. The transfer agent, registrar and distributions disbursement agent
for the units will be designated in the applicable prospectus supplement.
DESCRIPTION
OF THE OPTIONS
We may issue options for the purchase of common
units or other classes of units or any combination thereof. Our partnership agreement authorizes us to issue an unlimited number
of options to purchase common units or other classes of units for the consideration and with the rights, preferences, and privileges
established by our board of directors without the approval of any of our limited partners. Options may be issued independently
or together with other securities and may be attached to or separate from any offered securities. Each series of options will be
issued under a separate option agreement to be entered into between us and a bank or trust company, as option agent. The option
agent will act solely as our agent in connection with the options and will not have any obligation or relationship of agency or
trust for or with any holders or beneficial owners of options. A copy of the option agreement will be filed with the SEC in connection
with the offering of options.
The prospectus supplement relating to a particular
issue of options to purchase common units or other classes of units or any combination thereof will describe the terms of such
options, including, among other things, the following:
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the title of the options;
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the offering price for the options, if any;
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the aggregate number of the options;
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the designation and terms of the common units or other classes of units that maybe purchased upon exercise of the options;
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if applicable, the designation and terms of the securities that the options are issued with and the number of options issued
with each security;
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if applicable, the date from and after which the options and any securities issued with the options will be separately transferable;
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the number of common units or other classes of units that may be purchased upon exercise of a option and the price at which
such securities may be purchased upon exercise;
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the dates on which the right to exercise the options commence and expire;
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if applicable, the minimum or maximum amount of the options that may be exercised at any one time;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material federal income tax considerations;
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anti-dilution provisions of the options, if any;
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redemption or call provisions, if any, applicable to the options;
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any additional terms of the options, including terms, procedures, and limitations relating to the exchange and exercise of
the options; and
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any other information we think is important about the options.
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Each option will entitle the holder of the
option to purchase at the exercise price set forth in the applicable prospectus supplement the number of common units or other
classes of units being offered. Holders may exercise options at any time up to the close of business on the expiration date set
forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised options are void.
Holders may exercise options as set forth in the prospectus supplement relating to the options being offered.
Until you exercise your options to purchase
our common units or other classes of units, you will not have any rights as a holder thereof, by virtue of your ownership of the
options.
DESCRIPTION
OF THE WARRANTS
We may issue warrants for the purchase of
common units or other classes of units or any combination thereof. Our partnership agreement authorizes us to issue an unlimited
number of warrants to purchase common units or other classes of units for the consideration and with the rights, preferences, and
privileges established by our board of directors without the approval of any of our limited partners. Warrants may be issued independently
or together with other securities and may be attached to or separate from any offered securities. Each series of warrants will
be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant
agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants. A copy of the warrant agreement will be filed with the SEC in connection
with the offering of warrants.
The prospectus supplement relating to a particular
issue of warrants to purchase common units or other classes of units or any combination of the foregoing will describe the terms
of such warrants, including, among other things, the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the common units or other classes of units that maybe purchased upon exercise of the warrants;
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if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued
with each security;
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if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the number of common units or other classes of units that may be purchased upon exercise of a warrant and the price at which
such securities may be purchased upon exercise;
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the dates on which the right to exercise the warrants commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of
the warrants; and
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any other information we think is important about the warrants.
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Each warrant will entitle the holder of the
warrant to purchase the number common units or other classes of units being offered at the exercise price set forth in the applicable
prospectus supplement. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in
the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders
may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until you exercise your warrants to purchase
our common units or other classes of units, you will not have any rights as a holder of common units or other classes of units
by virtue of your ownership of warrants.
DESCRIPTION
OF THE RIGHTS
We may issue rights to purchase common units
or other classes of units or any combination thereof. Our partnership agreement authorizes us to issue an unlimited number of rights
to purchase common units or other classes of units for the consideration and with the rights, preferences, and privileges established
by our board of directors without the approval of any of our limited partners. These rights may be issued independently or together
with any other securities and may or may not be transferable by the holder receiving the rights. In connection with any offering
of such rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the
underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
Each series of rights will be issued under
a separate rights agreement, which we will enter into with a bank or trust company, as rights agent, all as set forth in the applicable
prospectus supplement. The rights agent will act solely as our agent in connection with the certificates relating to the rights
and will not assume any obligation or relationship of agency or trust with any holders of rights certificates or beneficial owners
of rights. We will file the rights agreement and the rights certificates relating to each series of rights with the SEC, and incorporate
them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue
a series of rights.
The applicable prospectus supplement will
describe the specific terms of any offering of rights for which this prospectus is being delivered, including, among other things,
the following:
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the date of determining the unitholders entitled to the rights distribution;
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the number of rights issued or to be issued to each unitholder;
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the exercise price payable for each common unit or other unit upon the exercise of the rights;
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the number and terms of the common units or other classes of units which may be purchased per each right;
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the extent to which the rights are transferable;
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the date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall
expire;
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the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with
the offering of such rights;
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any other terms of the rights, including the terms, procedures, conditions, and limitations relating to the exchange and exercise
of the rights; and
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any other information we think is important about the rights.
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The description in the applicable prospectus
supplement of any rights that we may offer will not necessarily be complete and will be qualified in its entirety by reference
to the applicable rights agreement and rights certificate, which will be filed with the SEC.
DESCRIPTION
OF THE DEBT SECURITIES
When used in this section, the terms “we,”
“us,” “our” and “issuer” refer to Höegh LNG Partners LP.
The following is a description of the terms
of the debt securities, which may be either senior debt securities or subordinated debt securities, and which we collectively refer
to as the debt securities. The descriptions below relating to the debt securities and the indentures are summaries of the anticipated
provisions thereof, do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all
of the provisions of the applicable indenture and any applicable U.S. federal income tax considerations, as well as any applicable
modifications of or additions to the general terms described below in the applicable prospectus supplement. The applicable prospectus
supplement may also state that any of the terms set forth herein are inapplicable to such series of debt securities.
If we offer senior debt securities, we will
issue them under a senior indenture. If we offer subordinated debt securities, we will issue them under a subordinated indenture.
A form of each indenture is filed as an exhibit to the registration statement of which this prospectus is a part. We have not restated
either indenture in its entirety in this description. You should read the relevant indenture because it, and not this description,
controls your rights as holders of the debt securities. Capitalized terms used in the summary have the meanings specified in the
indentures.
General
The debt securities will be:
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our direct general obligations;
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either senior debt securities or subordinated debt securities; and
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issued under separate indentures (which may be existing indentures) between us and a trustee that we will name in the related
prospectus supplement.
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The term “Trustee” as used in
this prospectus shall refer to the trustee under either of the above indentures. The debt securities will be governed by the provisions
of the related indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939 (the “Trust
Indenture Act”).
Specific Terms of Each Series of Debt
Securities
The indenture does not limit the total amount
of debt securities that may be issued. Debt securities under the indenture may be issued from time to time in separate series,
up to the aggregate amount authorized for each such series.
We will prepare a prospectus supplement and
either a supplemental indenture or a resolution of our board of directors and an accompanying officers’ certificate relating
to any series of debt securities that we offer, which will include specific terms relating to some or all of the following:
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whether the debt securities are senior or subordinated debt securities and, if subordinated debt securities, the specific subordination
provision applicable thereto;
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the guarantors of the debt securities, if any;
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whether the debt securities are secured or unsecured;
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the form and title of the debt securities;
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the total principal amount of the debt securities and any limit on such total principal amount;
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the price at which we will issue the debt securities;
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the date or dates on which the debt securities may be issued;
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the portion of the principal amount which will be payable if the maturity of the debt securities is accelerated;
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any right we may have to defer payments of interest by extending the dates payments are due and whether interest on those deferred
amounts will be payable;
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the dates on which the principal and premium, if any, of the debt securities will be payable;
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the interest rate which the debt securities will bear and the interest payment dates for the debt securities;
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any optional redemption provisions;
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whether the debt securities are convertible into or exchangeable for other securities and the conversion or exchange rate and
other related terms, conditions and features.
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any sinking fund or analogous provision, or option of the holder thereof, that would obligate us to repurchase, repay or otherwise
redeem the debt securities, and the period or periods within which, the price or prices at which, and the other terms and conditions
upon which such debt securities will be repurchased, repaid or redeemed;
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whether the debt securities are entitled to the benefits of any guarantees by subsidiary guarantors;
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whether the debt securities may be issued in amounts other than $1,000 each or multiples thereof;
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deletions from, modifications of or additions to the events of default or covenants with respect to debt securities of the
series, whether or not such events of default or covenants are consistent with the events of default or covenants described herein;
and
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any other terms of the series of debt securities and any additions, deletions or modifications to the applicable indenture.
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This description of debt securities will be
deemed modified, amended or supplemented by any description of any series of debt securities set forth in a prospectus supplement
related to that series.
The prospectus supplement will also describe
any material U.S. federal income tax consequences or other special considerations regarding the applicable series of debt securities,
including those relating to:
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debt securities with respect to which payments of principal, premium or interest are determined with reference to an index
or formula, including changes in prices of particular securities, currencies or commodities;
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debt securities with respect to which principal, premium or interest is payable in a foreign or composite currency;
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debt securities that are issued at a discount below their stated principal amount, bearing no interest or interest at a rate
that at the time of issuance is below market rates; and
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variable rate debt securities that are exchangeable for fixed rate debt securities.
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Interest payments may be made by check mailed
to the registered holders of debt securities or, if so stated in the applicable prospectus supplement, at the option of a holder,
by wire transfer to an account designated by the holder.
Unless otherwise provided in the applicable
prospectus supplement, fully registered securities may be transferred or exchanged at the office of the Trustee at which its corporate
trust business is principally administered in the United States, subject to the limitations provided in the indenture, without
the payment of any service charge, other than any applicable tax or governmental charge.
Any funds paid to a paying agent for the payment
of amounts due on any debt securities that remain unclaimed for two years will be returned to the issuer and the holders of the
debt securities must look only to the issuer for payment after that time.
Covenants
Reports
The indenture contains the following covenant
for the benefit of the holders of all series of debt securities:
So long as any debt securities are outstanding,
Höegh LNG Partners will:
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for as long as it is required to file information with the SEC pursuant to the Exchange Act, file with the Trustee, within
15 days after it is required to file with the SEC, copies of the annual report and of the information, documents and other reports
which it is required to file with the SEC pursuant to the Exchange Act; and
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if it is required to furnish annual or quarterly reports to its unitholders pursuant to the Exchange Act, file with the Trustee
any annual report or other reports sent to unitholders generally.
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A series of debt securities may contain additional
financial and other covenants. The applicable prospectus supplement will contain a description of any such covenants that are added
to the indenture specifically for the benefit of holders of a particular series.
Events of Default, Remedies and Notice
Events of Default
Each of the following events will be an “Event
of Default” under the indenture with respect to a series of debt securities:
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default in any payment of interest on any debt securities of that series when due that continues for 30 days;
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default in the payment of principal of or premium, if any, on any debt securities of that series when due at its stated maturity,
upon redemption, upon required repurchase or otherwise;
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default in the payment of any sinking fund payment on any debt securities of that series when due;
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failure by the issuer to comply for 60 days after notice with the other agreements contained in the indenture, any supplement
to the indenture or any board resolution authorizing the issuance of that series; or
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certain events of bankruptcy, insolvency or reorganization of the issuer.
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Exercise of Remedies
If an Event of Default, other than an Event
of Default described in the fifth bullet point above, occurs and is continuing, the Trustee or the holders of at least 25.0% in
principal amount of the outstanding debt securities of that series may declare the entire principal of, premium, if any, and accrued
and unpaid interest, if any, on all the debt securities of that series to be due and payable immediately.
A default under the fourth bullet point above
will not constitute an Event of Default until the Trustee or the holders of at least 25.0% in principal amount of the outstanding
debt securities of that series notify us of the default and such default is not cured within 60 days after receipt of such notice.
If an Event of Default described in the fifth
bullet point above occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest on all outstanding
debt securities of all series will become immediately due and payable without any declaration of acceleration or other act on the
part of the Trustee or any holders.
The holders of a majority in principal amount
of the outstanding debt securities of a series may:
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waive all past defaults, except with respect to nonpayment of principal, premium or interest; and
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rescind any declaration of acceleration by the Trustee or the holders with respect to the debt securities of that series, but
only if:
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rescinding the declaration of acceleration would not conflict with any judgment or decree of a court of competent jurisdiction;
and
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all existing Events of Default have been cured or waived, other than the nonpayment of principal, premium or interest on the
debt securities of that series that have become due solely by the declaration of acceleration.
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If an Event of Default occurs and is continuing,
the Trustee will be under no obligation, except as otherwise provided in the indenture, to exercise any of the rights or powers
under the indenture at the request or direction of any of the holders unless such holders have offered to the Trustee reasonable
indemnity or security against any costs, liability or expense. No holder may pursue any remedy with respect to the indenture or
the debt securities of any series, except to enforce the right to receive payment of principal, premium or interest when due, unless:
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such holder has previously given the Trustee notice that an Event of Default with respect to that series is continuing;
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holders of at least 25.0% in principal amount of the outstanding debt securities of that series have requested that the Trustee
pursue the remedy;
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such holders have offered the Trustee reasonable indemnity or security against any cost, liability or expense;
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the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of indemnity or
security; and
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the holders of a majority in principal amount of the outstanding debt securities of that series have not given the Trustee
a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
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The holders of a majority in principal amount
of the outstanding debt securities of a series have the right, subject to certain restrictions, to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of exercising any right or power conferred on the
Trustee with respect to that series of debt securities. The Trustee, however, may refuse to follow any direction that:
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is inconsistent with any provision of the indenture;
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the Trustee determines is unduly prejudicial to the rights of any other holder; or
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would involve the Trustee in personal liability.
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Notice of Event of Default
Within 30 days after the occurrence of an
Event of Default, we are required to give written notice to the Trustee and indicate the status of the default and what action
we are taking or propose to take to cure the default. In addition, we are required to deliver to the Trustee, within 120 days after
the end of each fiscal year, a compliance certificate indicating that we have complied with all covenants contained in the indenture
or whether any default or Event of Default has occurred during the previous year.
If an Event of Default occurs and is continuing
and is known to the Trustee, the Trustee must mail to each holder a notice of the Event of Default by the later of 90 days after
the Event of Default occurs or 30 days after the Trustee knows of the Event of Default. Except in the case of a default in the
payment of principal, premium or interest with respect to any debt securities, the Trustee may withhold such notice, but only if
and so long as the board of directors, the executive committee or a committee of directors or responsible officers of the Trustee
in good faith determines that withholding such notice is in the interests of the holders.
Amendments and Waivers
The issuer may amend the indenture without
the consent of any holder of debt securities to:
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cure any ambiguity, omission, defect or inconsistency;
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convey, transfer, assign, mortgage or pledge any property to or with the Trustee;
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provide for the assumption by a successor of our obligations under the indenture;
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add guarantors with respect to the debt securities;
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change or eliminate any restriction on the payment of principal of, or premium, if any, on, any debt securities;
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secure the debt securities;
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add covenants for the benefit of the holders or surrender any right or power conferred upon the issuer;
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make any change that does not adversely affect the rights of any holder;
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add or appoint a successor or separate Trustee; or
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comply with any requirement of the SEC in connection with the qualification of the indenture under the Trust Indenture Act.
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In addition, the issuer may amend the indenture
if the holders of a majority in aggregate principal amount of all debt securities of each series that would be affected then outstanding
under the indenture consent to it. The issuer may not, however, without the consent of each holder of outstanding debt securities
of each series that would be affected, amend the indenture to:
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reduce the percentage in principal amount of debt securities of any series whose holders must consent to an amendment;
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reduce the rate of or extend the time for payment of interest on any debt securities;
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reduce the principal of or extend the stated maturity of any debt securities;
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reduce the premium payable upon the redemption of any debt securities or change the time at which any debt securities may or
shall be redeemed;
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make any debt securities payable in any currency other than U.S. dollars;
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in the case of any subordinated debt security, make any change to the subordination provisions that adversely affects the rights
of any holder under such provisions;
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impair the right of any holder to receive payment of premium, principal or interest with respect to such holder’s debt
securities on or after the applicable due date;
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impair the right of any holder to institute suit for the enforcement of any payment with respect to such holder’s debt
securities;
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release any security that has been granted in respect of the debt securities;
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make any change to the amendment provisions which require each holder’s consent;
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in the case of any subordinated debt security, make any change to the subordination provisions that limits or terminates the
benefits applicable to any holder of senior indebtedness of Höegh LNG Partners; or
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make any change to the waiver provisions.
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The consent of the holders is not necessary
under the indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance
of the proposed amendment. After an amendment under the indenture becomes effective, the issuer is required to mail to all holders
a notice briefly describing the amendment. The failure to give, or any defect in, such notice, however, will not impair or affect
the validity of the amendment.
The holders of a majority in aggregate principal
amount of the outstanding debt securities of each affected series, on behalf of all such holders, and subject to certain rights
of the Trustee, may waive:
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compliance by the issuer with certain restrictive provisions of the indenture; and
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any past default under the indenture, subject to certain rights of the Trustee under the indenture;
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except that such majority of holders may not waive a default:
(i) in the payment of principal, premium or interest or (ii) in respect of a provision that under the indenture cannot be amended
without, in the case of either (i) or (ii), the consent of all holders of the series of debt securities that is affected.
Defeasance
At any time, the issuer may terminate, with
respect to debt securities of a particular series, all of its obligations under such series of debt securities and the indenture,
which we call a “legal defeasance.” If the issuer decides to make a legal defeasance, however, the issuer may not terminate
its obligations:
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relating to the defeasance trust;
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to register the transfer or exchange of the debt securities;
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to replace mutilated, destroyed, lost or stolen debt securities; or
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to maintain a registrar and paying agent in respect of the debt securities.
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If the issuer exercises its legal defeasance
option, any guarantee will terminate with respect to that series of debt securities.
At any time the issuer may also effect a “covenant
defeasance,” which means it has elected to terminate its obligations under covenants applicable to a series of debt securities
and described in the prospectus supplement applicable to such series, other than as described in such prospectus supplement.
The legal defeasance option may be exercised
notwithstanding a prior exercise of the covenant defeasance option. If the legal defeasance option is exercised, payment of the
affected series of debt securities may not be accelerated because of an Event of Default with respect to that series. If the covenant
defeasance option is exercised, payment of the affected series of debt securities may not be accelerated because of an Event of
Default specified in the fourth or fifth bullet points under “— Events of Default” above or an Event of Default
that is added specifically for such series and described in a prospectus supplement.
In order to exercise either defeasance option,
the issuer must:
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irrevocably deposit in trust with the Trustee money or certain U.S. government obligations for the payment of principal, premium,
if any, and interest on the series of debt securities to redemption or maturity, as the case may be;
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comply with certain other conditions, including that no default has occurred and is continuing after the deposit in trust;
and
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deliver to the Trustee an opinion of counsel to the effect that holders of the series of debt securities will not recognize
income, gain or loss for federal income tax purposes as a result of such defeasance and will be subject to 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. In the case of legal defeasance only, such opinion of counsel must be based on a ruling of the Internal Revenue Service,
or IRS, or other change in applicable federal income tax law.
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No Personal Liability
None of the past, present or future partners,
incorporators, managers, members, directors, officers, employees or unitholders of the issuer or our general partner will have
any liability for the obligations of the issuer under either indenture or the debt securities or for any claim based on such obligations
or their creation.
By accepting a debt security, each holder
will be deemed to have waived and released all such liability. This waiver and release are part of the consideration for our issuance
of the debt securities. This waiver may not be effective, however, to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
Provisions Relating only to the Senior
Debt Securities
The senior debt securities will rank equally
in right of payment with all of our other senior and unsubordinated debt. The senior debt securities will be effectively subordinated,
however, to all of our secured debt to the extent of the value of the collateral for that debt. We will disclose the amount of
our secured debt in the prospectus supplement.
Provisions Relating only to the Subordinated
Debt Securities
Subordinated Debt Securities Subordinated
to Senior Indebtedness
The subordinated debt securities will rank
junior in right of payment to all of the Senior Indebtedness of Höegh LNG Partners. “Senior Indebtedness” will
be defined in a supplemental indenture or authorizing resolutions respecting any issuance of a series of subordinated debt securities,
and the definition will be set forth in the prospectus supplement.
Payment Blockages
The subordinated indenture will provide that
no payment of principal, interest and any premium on the subordinated debt securities may be made in the event:
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we or our property is involved in any voluntary or involuntary liquidation or bankruptcy;
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we fail to pay the principal, interest, any premium or any other amounts on any Senior Indebtedness of Höegh LNG Partners
within any applicable grace period or the maturity of such Senior Indebtedness is accelerated following any other default, subject
to certain limited exceptions set forth in the subordinated indenture; or
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any other default on any Senior Indebtedness of Höegh LNG Partners occurs that permits immediate acceleration of its maturity,
in which case a payment blockage on the subordinated debt securities will be imposed for a maximum of 179 days at any one time.
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No Limitation on Amount of Senior
Debt
The subordinated indenture will not limit
the amount of Senior Indebtedness that Höegh LNG Partners may incur, unless otherwise indicated in the applicable prospectus
supplement.
Book Entry, Delivery and Form
A series of debt securities may be issued
in the form of one or more global certificates deposited with a depositary. We expect that The Depository Trust Company, New York,
New York (“DTC”) will act as depositary. If a series of debt securities is issued in book-entry form, one or more global
certificates will be issued and deposited with or on behalf of DTC and physical certificates will not be issued to each holder.
A global security may not be transferred unless it is exchanged in whole or in part for a certificated security, except that DTC,
its nominees and their successors may transfer a global security as a whole to one another.
DTC will keep a computerized record of its
participants, such as a broker, whose clients have purchased the debt securities. The participants will then keep records of their
clients who purchased the debt securities. Beneficial interests in global securities will be shown on, and transfers of beneficial
interests in global securities will be made only through, records maintained by DTC and its participants.
DTC advises us that it is:
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a limited-purpose trust company organized under the New York Banking Law;
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a “banking organization” within the meaning of the New York Banking Law;
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a member of the U.S. Federal Reserve System;
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
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a “clearing agency” registered under the provisions of Section 17A of the Exchange Act.
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DTC is owned by a number of its participants and by the NYSE
and the Financial Industry Regulatory Authority (“FINRA”). The rules that apply to DTC and its participants are on
file with the SEC.
DTC holds securities that its participants
deposit with DTC. DTC also records the settlement among participants of securities transactions, such as transfers and pledges,
in deposited securities through computerized records for participants’ accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations.
Principal, premium, if any, and interest payments
due on the global securities will be wired to DTC’s nominee. The issuer, the Trustee and any paying agent will treat DTC’s
nominee as the owner of the global securities for all purposes. Accordingly, the issuer, the Trustee and any paying agent will
have no direct responsibility or liability to pay amounts due on the global securities to owners of beneficial interests in the
global securities.
It is DTC’s current practice, upon receipt
of any payment of principal, premium, if any, or interest, to credit participants’ accounts on the payment date according
to their respective holdings of beneficial interests in the global securities as shown on DTC’s records. In addition, it
is DTC’s current practice to assign any consenting or voting rights to participants, whose accounts are credited with debt
securities on a record date, by using an omnibus proxy.
Payments by participants to owners of beneficial
interests in the global securities, as well as voting by participants, will be governed by the customary practices between the
participants and the owners of beneficial interests, as is the case with debt securities held for the account of customers registered
in “street name.” Payments to holders of beneficial interests are the responsibility of the participants and not of
DTC, the Trustee or us.
Beneficial interests in global securities
will be exchangeable for certificated securities with the same terms in authorized denominations only if:
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DTC notifies the issuer that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered
under applicable law and a successor depositary is not appointed by the issuer within 90 days; or
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the issuer determines not to require all of the debt securities of a series to be represented by a global security and notifies
the Trustee of the decision.
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The Trustee
A separate trustee may be appointed for any
series of debt securities. We may maintain banking and other commercial relationships with the Trustee and its affiliates in the
ordinary course of business, and the Trustee may own debt securities.
Governing Law
The indenture and the debt securities will
be governed by, and construed in accordance with, the laws of the State of New York.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material
U.S. federal income tax considerations that may be relevant to current and prospective unitholders and, unless otherwise noted
in the following discussion, is the opinion of Vinson & Elkins L.L.P., our U.S. counsel, insofar as it contains legal conclusions
with respect to matters of U.S. federal income tax law. The opinion of our counsel is dependent on the accuracy of factual representations
made by us to them, including descriptions of our operations contained or incorporated by reference herein. Statements contained
herein that “we believe,” “we expect” or similar phrases are not legal conclusions or opinions of counsel.
This discussion is based upon provisions of
the Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury Regulations (“Treasury Regulations”),
and current administrative rulings and court decisions, all as in effect or existence on the date of this prospectus and all of
which are subject to change, possibly with retroactive effect. Changes in these authorities may cause the tax consequences of unit
ownership to vary substantially from the consequences described below. Unless the context otherwise requires, references in this
section to “we,” “our” or “us” are references to Höegh LNG Partners LP.
The following discussion applies only to beneficial
owners of common units that own the common units as “capital assets” within the meaning of Section 1221 of the Code
(
i.e.
, generally, for investment purposes) and is not intended to be applicable to all categories of investors, such as
unitholders subject to special tax rules (
e.g.
, financial institutions, insurance companies, broker-dealers, tax-exempt
organizations, retirement plans or individual retirement accounts or former citizens or long-term residents of the United States),
persons who hold the units as part of a straddle, hedge, conversion, constructive sale or other integrated transaction for U.S.
federal income tax purposes, or persons that have a functional currency other than the U.S. dollar, each of whom may be subject
to tax rules that differ significantly from those summarized below. If a partnership or other entity classified as a partnership
for U.S. federal income tax purposes holds our common units, the tax treatment of its partners generally will depend upon the status
of the partner and the activities of the partnership. If you are a partner in a partnership holding our common units, you should
consult your own tax advisor regarding the tax consequences to you of the partnership’s ownership of our common units.
No ruling has been or will be requested from
the Internal Revenue Service (the “IRS”) regarding any matter affecting us or our current and prospective unitholders.
The opinions and statements made herein may be challenged by the IRS and, if so challenged, may not be sustained upon review in
a court. This discussion does not contain information regarding any U.S. federal, state, local, estate, gift or alternative minimum
tax considerations concerning the ownership or disposition of common units. This discussion does not comment on all aspects of
U.S. federal income taxation that may be important to particular unitholders in light of their individual circumstances, and each
current and prospective unitholder is urged to consult its own tax advisor regarding the U.S. federal, state, local and other tax
consequences of the ownership or disposition of common units.
Election to be Treated as a Corporation
We have elected to be treated as a corporation
for U.S. federal income tax purposes. Consequently, among other things, U.S. Holders (as defined below) will not be directly subject
to U.S. federal income tax on our income, but rather will be subject to U.S. federal income tax on distributions received from
us and dispositions of units as described below.
U.S. Federal Income Taxation of U.S.
Holders
As used herein, the term “U.S. Holder”
means a beneficial owner of our common units that owns (actually or constructively) less than 10.0% of the value or voting power
of our equity and that is:
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an individual U.S. citizen or resident (as determined for U.S. federal income tax purposes),
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a corporation (or other entity that is classified as a corporation for U.S. federal income tax purposes) organized under the
laws of the United States or any of its political subdivisions,
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an estate the income of which is subject to U.S. federal income taxation regardless of its source, or
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a trust if (1) a court within the United States is able to exercise primary supervision over the administration of the trust
and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) the trust has a valid
election in effect to be treated as a U.S. person for U.S. federal income tax purposes.
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Distributions
Subject to the discussion below of the rules
applicable to passive foreign investment companies (“PFICs”), any distributions to a U.S. Holder made by us with respect
to our common units generally will constitute dividends to the extent of our current and accumulated earnings and profits, as determined
under U.S. federal income tax principles. Distributions in excess of our earnings and profits will be treated first as a nontaxable
return of capital to the extent of the U.S. Holder’s tax basis in its common units and thereafter as capital gain. U.S. Holders
that are corporations generally will not be entitled to claim a dividends-received deduction with respect to distributions they
receive from us because we are not a U.S. corporation. Dividends received with respect to our common units generally will be treated
as “passive category income” for purposes of computing allowable foreign tax credits for U.S. federal income tax purposes.
Dividends received with respect to our common
units by a U.S. Holder that is an individual, trust or estate (a “U.S. Individual Holder”) generally will be treated
as “qualified dividend income,” which is taxable to such U.S. Individual Holder at preferential tax rates provided
that: (1) our common units are readily tradable on an established securities market in the United States (such as the NYSE, on
which our common units are traded); (2) we are not a PFIC for the taxable year during which the dividend is paid or the immediately
preceding taxable year (which we do not believe we are, have been or will be, as discussed below under “—PFIC Status
and Significant Tax Consequences”); (3) the U.S. Individual Holder has owned the common units for more than 60 days during
the 121-day period beginning 60 days before the date on which the common units become ex-dividend (and has not entered into certain
risk limiting transactions with respect to such common units); and (4) the U.S. Individual Holder is not under an obligation to
make related payments with respect to positions in substantially similar or related property. In addition, the preferential rate
on dividends does not apply to dividends received by a U.S. Individual Holder to the extent that the U.S. individual holder elects
to treat such dividends as investment income that may be offset by investment expenses. Because of the uncertainty of these matters,
including whether we are or will be a PFIC, there is no assurance that any dividends paid on our common units will be eligible
for these preferential rates in the hands of a U.S. Individual Holder, and any dividends paid on our common units that are not
eligible for these preferential rates will be taxed as ordinary income to a U.S. Individual Holder.
Special rules may apply to any amounts received
in respect of our common units that are treated as “extraordinary dividends.” In general, an extraordinary dividend
is a dividend with respect to a common unit that is equal to or in excess of 10.0% of a unitholder’s adjusted tax basis (or
fair market value upon the unitholder’s election) in such common unit. In addition, extraordinary dividends include dividends
received within a one-year period that, in the aggregate, equal or exceed 20.0% of a unitholder’s adjusted tax basis (or
fair market value). If we pay an “extraordinary dividend” on our common units that is treated as “qualified dividend
income,” then any loss recognized by a U.S. Individual Holder from the sale or exchange of such common units will be treated
as long-term capital loss to the extent of the amount of such dividend.
Sale, Exchange or Other Disposition
of Common Units
Subject to the discussion of PFIC status below,
a U.S. Holder generally will recognize capital gain or loss upon a sale, exchange or other disposition of our units in an amount
equal to the difference between the amount realized by the U.S. Holder from such sale, exchange or other disposition and the U.S.
Holder’s adjusted tax basis in such units. The U.S. Holder’s initial tax basis in its units generally will be the U.S.
Holder’s purchase price for the units and that tax basis will be reduced (but not below zero) by the amount of any distributions
on the units that are treated as non-taxable returns of capital (as discussed above under “—Distributions”).
Such gain or loss will be treated as long-term capital gain or loss if the U.S. Holder’s holding period is greater than one
year at the time of the sale, exchange or other disposition. Certain U.S. Holders (including individuals) may be eligible for preferential
rates of U.S. federal income tax in respect of long-term capital gains. A U.S. Holder’s ability to deduct capital losses
is subject to limitations. Such capital gain or loss generally will be treated as U.S. source income or loss, as applicable, for
U.S. foreign tax credit purposes.
Medicare Tax on Net Investment
Income
Certain U.S. Holders, including individuals,
estates and trusts, will be subject to an additional 3.8% Medicare tax on, among other things, dividends and capital gains from
the sale or other disposition of equity interests. For individuals, the additional Medicare tax applies to the lesser of (1) “net
investment income” or (2) the excess of “modified adjusted gross income” over $200,000 ($250,000 if married and
filing jointly or $125,000 if married and filing separately). “Net investment income” generally equals the taxpayer’s
gross investment income reduced by deductions that are allocable to such income. Unitholders should consult their tax advisors
regarding the implications of the additional Medicare tax resulting from their ownership and disposition of our common units.
PFIC Status and Significant Tax
Consequences
Adverse U.S. federal income tax rules apply
to a U.S. Holder that owns an equity interest in a non-U.S. corporation that is classified as a PFIC for U.S. federal income tax
purposes. In general, we are treated as a PFIC with respect to a U.S. Holder if either:
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at least 75.0% of our gross income (including the gross income of our joint ventures and subsidiaries) in any taxable year
in which the holder held our units consists of passive income (
e.g.
, dividends, interest, capital gains from the sale or
exchange of investment property and rents derived other than in the active conduct of a rental business); or
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at least 50.0% of the average value of the assets held by us (including the assets of our joint ventures and subsidiaries)
during any taxable year in which the holder held our units produce, or are held for the production of, passive income.
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Income earned, or treated as earned (for U.S.
federal income tax purposes), by us in connection with the performance of services would not constitute passive income. By contrast,
rental income generally would constitute “passive income” unless we were treated as deriving that rental income in
the active conduct of a trade or business under the applicable rules.
Based on our current and projected methods
of operation and an opinion of counsel, we believe that we were not a PFIC for any taxable year and we expect that we will not
be a PFIC for our current or any future taxable year. We have received an opinion of our U.S. counsel, Vinson & Elkins L.L.P.,
in support of this position that concludes that the income our subsidiaries earn from our present time-chartering activities should
not constitute passive income for purposes of determining whether we are a PFIC. In addition, we have represented to our U.S. counsel
that more than 25.0% of our gross income for all of our previous taxable years arose, and we expect that more than 25.0% of our
gross income for our current taxable year and each future year will arise from such or similar time-chartering activities or other
income our counsel has opined does not constitute passive income, and more than 50.0% of the average value of our assets for each
such year was or will be held for the production of such nonpassive income. Assuming the accuracy of representations we have made
to our U.S. counsel for purposes of this opinion, our U.S. counsel is of the opinion that we should not be a PFIC for any of our
previous taxable years, and assuming the composition of our income and assets is consistent with these expectations for our current
and future years, we should not be a PFIC for our current or any future taxable year. This opinion is based and its accuracy is
conditioned on representations, valuations and projections provided by us regarding our assets, income and charters to our U.S.
counsel. While we believe these representations, valuations and projections to be accurate, the shipping market is volatile, and
no assurance can be given that they will continue to be accurate at any time in the future.
Our counsel has indicated to us that the conclusions
described above are not free from doubt. While there is legal authority supporting our conclusions, including IRS pronouncements
concerning the characterization of income derived from time charters as services income, the United States Court of Appeals for
the Fifth Circuit (the “Fifth Circuit”) held in
Tidewater Inc. v. United States
, 565 F.3d 299 (5th Cir. 2009)
that income derived from certain marine time charter agreements should be treated as rental income rather than services income
for purposes of a “foreign sales corporation” provision of the Code. In that case, the Fifth Circuit did not address
the definition of passive income or the PFIC rules; however, the reasoning of the case could have implications as to how the income
from a time charter would be classified under such rules. If the reasoning of this case were extended to the PFIC context, the
gross income we derive or are deemed to derive from our time-chartering activities may be treated as rental income, and we would
likely be treated as a PFIC. The IRS has announced its nonacquiescence with the Fifth Circuit’s holding in
Tidewater
and its position that the marine time charter agreements at issue in
Tidewater
should be treated as service contracts.
Distinguishing between arrangements treated
as generating rental income and those treated as generating services income involves weighing and balancing competing factual considerations,
and there is no legal authority under the PFIC rules addressing our specific method of operation. Conclusions in this area therefore
remain matters of interpretation. We are not seeking a ruling from the IRS on the treatment of income generated from our time-chartering
operations, and the opinion of our counsel is not binding on the IRS or any court. Thus, while we have received an opinion of counsel
in support of our position, it is possible that the IRS or a court could disagree with this position and the opinion of our counsel.
In addition, although we intend to conduct our affairs in a manner to avoid being classified as a PFIC with respect to our current
or any future taxable year, we cannot assure unitholders that the nature of our operations will not change and that we will not
become a PFIC in our current or any future taxable year.
As discussed more fully below, if we were
to be treated as a PFIC for any taxable year (and regardless of whether we remain a PFIC over the subsequent taxable years), a
U.S. Holder would be subject to different taxation rules depending on whether the U.S. Holder makes an election to treat us as
a “Qualified Electing Fund,” which we refer to as a “QEF election.” As an alternative to making a QEF election,
a U.S. Holder would be able to make a “mark-to-market” election with respect to our common units, as discussed below.
If we are a PFIC, a U.S. Holder will be subject to the PFIC rules described herein with respect to any of our subsidiaries that
are PFICs. However, the mark-to-market election discussed below will likely not be available with respect to shares of such PFIC
subsidiaries. In addition, if a U.S. Holder owns our common units during any taxable year that we are a PFIC, such holder must
file an annual report with the IRS.
Taxation of U.S. Holders Making
a Timely QEF Election
If a U.S. Holder makes a timely QEF election
(an “Electing Holder”), then, for U.S. federal income tax purposes, that Electing Holder must report as income for
its taxable year its pro rata share of our ordinary earnings and net capital gain, if any, for our taxable years that end with
or within the taxable year for which that holder is reporting, regardless of whether or not the Electing Holder received distributions
from us in that year. The Electing Holder’s adjusted tax basis in the common units will be increased to reflect taxed but
undistributed earnings and profits. Distributions of earnings and profits that were previously taxed will result in a corresponding
reduction in the Electing Holder’s adjusted tax basis in common units and will not be taxed again once distributed. An Electing
Holder generally will recognize capital gain or loss on the sale, exchange or other disposition of our common units. A U.S. Holder
makes a QEF election with respect to any year that we are a PFIC by filing IRS Form 8621 with its U.S. federal income tax return.
If, contrary to our expectations, we determine that we are treated as a PFIC for any taxable year, we will provide each U.S. Holder
with the information necessary to make the QEF election described above.
Taxation of U.S. Holders Making
a “Mark-to-Market” Election
If we were to be treated as a PFIC for any
taxable year and, as we anticipate, our units were treated as “marketable stock,” then, as an alternative to making
a QEF election, a U.S. Holder would be allowed to make a “mark-to-market” election with respect to our common units,
provided the U.S. Holder completes and files IRS Form 8621 in accordance with the relevant instructions and related Treasury Regulations.
If that election is made, the U.S. Holder generally would include as ordinary income in each taxable year the excess, if any, of
the fair market value of the U.S. Holder’s common units at the end of the taxable year over the holder’s adjusted tax
basis in the common units. The U.S. Holder also would be permitted an ordinary loss in respect of the excess, if any, of the U.S.
Holder’s adjusted tax basis in the common units over the fair market value thereof at the end of the taxable year, but only
to the extent of the net amount previously included in income as a result of the mark-to-market election. A U.S. Holder’s
tax basis in its common units would be adjusted to reflect any such income or loss recognized. Gain recognized on the sale, exchange
or other disposition of our common units would be treated as ordinary income, and any loss recognized on the sale, exchange or
other disposition of the common units would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market
gains previously included in income by the U.S. Holder. Because the mark-to-market election only applies to marketable stock, however,
it would not apply to a U.S. Holder’s indirect interest in any of our subsidiaries that were determined to be PFICs.
Taxation of U.S. Holders Not Making
a Timely QEF or Mark-to-Market Election
If we were to be treated as a PFIC for any
taxable year, a U.S. Holder that does not make either a QEF election or a “mark-to-market” election for that year (a
“Non-Electing Holder”) would be subject to special rules resulting in increased tax liability with respect to (1) any
excess distribution (
i.e.
, the portion of any distributions received by the Non-Electing Holder on our common units in a
taxable year in excess of 125.0% of the average annual distributions received by the Non-Electing Holder in the three preceding
taxable years, or, if shorter, the Non-Electing Holder’s holding period for the common units) and (2) any gain realized on
the sale, exchange or other disposition of the units. These special rules would apply for all periods in which the Non-Electing
Holder holds its common units, even if we ceased to be a PFIC. Under these special rules:
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the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for
the common units;
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the amount allocated to the current taxable year and any taxable year prior to the taxable year we were first treated as a
PFIC with respect to the Non-Electing Holder would be taxed as ordinary income; and
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the
applicable class of taxpayers for that year, and an interest charge for the deemed deferral benefit would be imposed with respect
to the resulting tax attributable to each such other taxable year.
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These penalties would not apply to a qualified
pension, profit sharing or other retirement trust or other tax-exempt organization that did not borrow money or otherwise utilize
leverage in connection with its acquisition of our common units. If we were treated as a PFIC for any taxable year and a Non-Electing
Holder who is an individual dies while owning our common units, such holder’s successor generally would not receive a step-up
in tax basis with respect to such units.
U.S. Federal Income Taxation of Non-U.S.
Holders
A beneficial owner of our common units (other
than a partnership or an entity or arrangement treated as a partnership for U.S. federal income tax purposes) that is not a U.S.
Holder is referred to as a “Non-U.S. Holder.” If you are a partner in a partnership (or an entity or arrangement treated
as a partnership for U.S. federal income tax purposes) holding our common units, you should consult your own tax advisor regarding
the tax consequences to you of the partnership’s ownership of our common units.
Distributions
Distributions we pay to a Non-U.S. Holder
will not be subject to U.S. federal income tax or withholding tax if the Non-U.S. Holder is not engaged in a U.S. trade or business.
If the Non-U.S. Holder is engaged in a U.S. trade or business, our distributions will be subject to U.S. federal income tax in
the same manner as a U.S. Holder to the extent they constitute income effectively connected with the Non-U.S. Holder’s U.S.
trade or business. Effectively connected dividends received by a corporate Non-U.S. Holder may also be subject to an additional
U.S. branch profits tax at a 30% rate (or, if applicable, a lower treaty rate). However, distributions paid to a Non-U.S. Holder
that is engaged in a U.S. trade or business may be exempt from taxation under an income tax treaty if the income arising from the
distribution is not attributable to a U.S. permanent establishment maintained by the Non-U.S. Holder.
Disposition of Units
In general, a Non-U.S. Holder is not subject
to U.S. federal income tax or withholding tax on any gain resulting from the disposition of our common units provided the Non-U.S.
Holder is not engaged in a U.S. trade or business. A Non-U.S. Holder that is engaged in a U.S. trade or business will be subject
to U.S. federal income tax in the same manner as a U.S. Holder in the event the gain from the disposition of units is effectively
connected with the conduct of such U.S. trade or business (provided, in the case of a Non-U.S. Holder entitled to the benefits
of an income tax treaty with the U.S., such gain also is attributable to a U.S. permanent establishment). However, even if not
engaged in a U.S. trade or business, individual Non-U.S. Holders may be subject to tax on gain resulting from the disposition of
our common units if they are present in the United States for 183 days or more during the taxable year in which those units are
disposed or they meet certain other requirements.
Backup
Withholding and Information Reporting
In general, payments to a non-corporate U.S.
Holder of distributions or the proceeds of a disposition of common units will be subject to information reporting. These payments
to a non-corporate U.S. Holder also may be subject to backup withholding if the non-corporate U.S. Holder:
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fails to provide an accurate taxpayer identification number;
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is notified by the IRS that it has failed to report all interest or corporate distributions required to be reported on its
U.S. federal income tax returns; or
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in certain circumstances, fails to comply with applicable certification requirements.
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Non-U.S. Holders may be required to establish
their exemption from information reporting and backup withholding by certifying their status on IRS Form W-8BEN, W-8BENE, W-8ECI,
W-8EXP or W-8IMY, as applicable.
Backup withholding is not an additional tax.
Rather, a unitholder generally may obtain a credit for any amount withheld against its liability for U.S. federal income tax (and
obtain a refund of any amounts withheld in excess of such liability) by timely filing a U.S. federal income tax return with the
IRS.
U.S. Holders purchasing more than $100,000
of our common units generally will be required to file IRS Form 926 reporting that payment to us. For purposes of determining the
total dollar value of common units purchased, units purchased by certain related parties (including family members) are included.
Substantial penalties may be imposed upon a U.S. Holder that fails to comply with this reporting obligation. Each U.S. Holder should
consult its own tax advisor as to the possible obligation to file IRS Form 926.
In addition, individual citizens or residents
of the United States holding certain “foreign financial assets” (which generally includes stock and other securities
issued by a foreign person unless held in an account maintained by a financial institution) that exceed certain thresholds (the
lowest being holding foreign financial assets with an aggregate value in excess of: (1) $50,000 on the last day of the tax year
or (2) $75,000 at any time during the tax year) are required to report information relating to such assets. Significant penalties
may apply for failure to satisfy the reporting obligations described above. Unitholders should consult their tax advisors regarding
the reporting obligations, if any, that would result from the purchase, ownership or disposition of our units.
NON-UNITED
STATES TAX CONSIDERATIONS
Unless the context otherwise requires, references
in this section to “we,” “our” or “us” are references to Höegh LNG Partners LP.
Marshall Islands Tax Consequences
The following discussion is based upon the
opinion of Watson Farley & Williams LLP, our counsel as to matters of the laws of the Republic of the Marshall Islands, and
the current laws of the Republic of the Marshall Islands applicable to persons who are not citizens of and do not reside in, maintain
offices in or engage in business or transactions in the Republic of the Marshall Islands.
Because we and our subsidiaries do not and
do not expect to conduct business, transactions or operations in the Republic of the Marshall Islands, and because all documentation
related to any offering will be executed outside of the Republic of the Marshall Islands, under current Marshall Islands law you
will not be subject to Marshall Islands taxation or withholding on distributions, including upon distribution treated as a return
of capital, we make to you as a unitholder. In addition, you will not be subject to Marshall Islands stamp, capital gains or other
taxes on the purchase, ownership or disposition of common units, and you will not be required by the Republic of the Marshall Islands
to file a tax return relating to your ownership of common units.
Norway Tax Consequences
The following is a discussion of the material
Norwegian tax consequences that may be relevant to current and prospective unitholders who are persons not resident in Norway for
taxation purposes, which we refer to as “Non-Norwegian Holders” and is the opinion of Advokatfirmaet Thommessen AS,
our counsel as to taxation matters under the laws of the Kingdom of Norway, insofar as it contains legal conclusions based on the
application of the taxation laws of the Kingdom of Norway to our particular factual circumstances. Prospective unitholders who
are resident in Norway for taxation purposes are urged to consult their own tax advisors regarding the potential Norwegian tax
consequences to them of an investment in our common units. For this purpose, a company incorporated outside of Norway will be treated
as resident in Norway in the event its central management and control is carried out in Norway.
Under the Norwegian Tax Act on Income and
Wealth, Non-Norwegian Holders will not be subject to any taxes in Norway on income or profits in respect of the acquisition, holding,
disposition or redemption of the common units, provided that we are not treated as carrying on business in Norway, and the Non-Norwegian
Holder is not engaged in a Norwegian trade or business to which the common units are effectively connected, or if the Non-Norwegian
Holder is a resident in a country that has an income tax treaty with Norway, such holder does not have a permanent establishment
in Norway to which the common units are effectively connected.
A Non-Norwegian Holder that carries on a business
in Norway through a partnership is subject to Norwegian tax on income derived from the business if managed from Norway or carried
on by the Partnership in Norway.
We believe that we will be able to conduct
our affairs so that Non-Norwegian Holders should not be subject to Norwegian tax on the acquisition, holding, disposition or redemption
of the common units. However, this determination is dependent upon the facts existing at such time, including (but not limited
to) the place where our board of directors meets and the place where our management makes decisions or takes certain actions affecting
our business. We intend to conduct our affairs in a manner consistent with Norwegian tax practice so that our business should not
be treated as managed from or carried on in Norway for taxation purposes, and consequently, Non-Norwegian Holders should not be
subject to tax in Norway solely by reason of the acquisition, holding, disposition or redemption of their common units. Nonetheless,
there is no legal authority addressing our specific circumstances, and conclusions in this area remain matters of interpretation.
Thus, it is possible that the Norwegian taxation authority could challenge, or a court could disagree with, our position.
While we do not expect it to be the case,
if the arrangements we propose to enter into result in our being considered to carry on business in Norway for the purposes of
the Norwegian Tax Act on Income and Wealth, unitholders would be considered to be carrying on business in Norway and would be required
to file tax returns with the Norwegian Tax Administration and, subject to any relief provided in any relevant double taxation treaty
(including, in the case of holders resident in the United States, the U.S.-Norway Tax Treaty), would be subject to taxation in
Norway on any income considered to be attributable to the business carried on in Norway.
United Kingdom Tax Consequences
The following is a discussion of the material
United Kingdom tax consequences that may be relevant to current and prospective common unitholders who are persons not resident
and not domiciled in the United Kingdom for taxation purposes (and who are persons who have not been resident or domiciled for
tax purposes in the United Kingdom) and who do not hold their common units as part of a trade, profession or vocation carried on
in the United Kingdom (“Non-UK Holders”).
Current and prospective unitholders who are,
or have been, resident or domiciled in the United Kingdom for taxation purposes, or who hold their common units through a trade,
profession or vocation in the United Kingdom are urged to consult their own tax advisors regarding the potential United Kingdom
tax consequences to them of an investment in our units, options, warrants, rights or debt securities and are responsible for filing
their own UK tax returns and paying any applicable UK taxes (which may be due on amounts received by us but not distributed).
The discussion that follows is based upon
current United Kingdom tax law and what is understood to be the current practice of HM Revenue and Customs as at the date of this
document, both of which are subject to change, possibly with retrospective effect. Unless the context otherwise requires, references
in this section to “we,” “our” or “us” are references to Höegh LNG Partners LP.
Taxation of income and disposals
. We
expect to conduct our affairs so that Non-UK Holders should not be subject to United Kingdom income tax, capital gains tax or corporation
tax on income or gains arising from the Partnership. Distributions on our common units may be made to Non-UK Holders without withholding
or deduction for or on account of United Kingdom income tax.
Stamp taxes
. No liability to United
Kingdom stamp duty or stamp duty reserve tax should arise in connection with the issue of common units to unitholders or the transfer
of common units in the Partnership.
PLAN
OF DISTRIBUTION
The securities offered pursuant to this prospectus
and any accompanying prospectus supplement may be sold in any of the following ways:
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directly to one or more purchasers;
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through underwriters, brokers or dealers; or
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through a combination of any of the above methods of sale.
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The applicable prospectus supplement relating
to the securities will set forth, among other things:
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the offering terms, including the name or names of any underwriters, dealers or agents;
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the purchase price of the securities and the proceeds to us from such sale;
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any underwriting discounts, concessions, commissions and other items constituting compensation to underwriters, dealers or
agents;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers;
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in the case of debt securities, the interest rate, maturity and any redemption provisions;
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in the case of debt securities that are convertible into or exchangeable for other securities, the conversion or exchange rate
and other terms, conditions and features; and
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any securities exchanges on which the securities may be listed.
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We will fix a price or prices of our securities
at:
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market prices prevailing at the time of any sale under this registration statement;
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prices related to market prices; or
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We may change the price of the securities
offered from time to time.
We, or agents designated by us, may directly
solicit, from time to time, offers to purchase the securities. Any such agent may be deemed to be an underwriter as that term is
defined in the Securities Act. We will name any agents involved in the offer or sale of the securities and describe any commissions
payable by us to these agents in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, these agents
will be acting on a best efforts basis for the period of their appointment. The agents may be entitled under agreements which may
be entered into with us to indemnification by us against specific civil liabilities, including liabilities under the Securities
Act. The agents may also be our customers or may engage in transactions with or perform services for us in the ordinary course
of business.
If we or the selling unitholder utilize any
underwriters in the sale of the securities in respect of which this prospectus is delivered, we and, if applicable, the selling
unitholder will enter into an underwriting agreement with the underwriters at the time of sale to them. We will set forth the names
of these underwriters and the terms of the transaction in the prospectus supplement, which will be used by the underwriters to
make resales of the securities in respect of which this prospectus is delivered to the public. We and, if applicable, the selling
unitholder may indemnify the underwriters under the relevant underwriting agreement against specific civil liabilities, including
liabilities under the Securities Act. The underwriters may also be our customers or may engage in transactions with or perform
services for us in the ordinary course of business.
In compliance with the guidelines of FINRA,
the maximum compensation to be paid to underwriters participating in any offering made pursuant to this prospectus will not exceed
8% of the gross proceeds from that offering.
If we utilize a dealer in the sale of the
securities in respect of which this prospectus is delivered, we will sell those securities to the dealer, as principal. The dealer
may then resell those securities to the public at varying prices to be determined by the dealer at the time of resale. We may indemnify
the dealers against specific liabilities, including liabilities under the Securities Act. The dealers may also be our customers
or may engage in transactions with, or perform services for us in the ordinary course of business.
Offers to purchase securities may be solicited
directly by us and the sale thereof may be made by us directly to institutional investors or others, who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale thereof. The terms of any such sales will be described in the
prospectus supplement relating thereto. We may use electronic media, including the internet, to sell offered securities directly.
We may offer our common units into an existing
trading market on the terms described in the prospectus supplement relating thereto. Underwriters, dealers and agents who participate
in any at-the-market offerings will be described in the prospectus supplement relating thereto.
Certain of the underwriters and their affiliates
may be customers of, may engage in transactions with and may perform services for us or our affiliates in the ordinary course of
business.
A prospectus and accompanying prospectus supplement
in electronic form may be made available on the websites maintained by the underwriters. The underwriters may agree to allocate
a number of securities for sale to their online brokerage account holders. Such allocations of securities for internet distributions
will be made on the same basis as other allocations. In addition, securities may be sold by the underwriters to securities dealers
who resell securities to online brokerage account holders.
To the extent required, this prospectus may
be amended or supplemented from time to time to describe a specific plan of distribution. The place and time of delivery for the
securities in respect of which this prospectus is delivered will be set forth in the accompanying prospectus supplement.
In connection with offerings of securities
under the registration statement of which this prospectus forms a part and in compliance with applicable law, underwriters, brokers
or dealers may engage in transactions that stabilize or maintain the market price of the securities at levels above those that
might otherwise prevail in the open market. Specifically, underwriters, brokers or dealers may over-allot in connection with offerings,
creating a short position in the securities for their own accounts. For the purpose of covering a syndicate short position or stabilizing
the price of the securities, the underwriters, brokers or dealers may place bids for the securities or effect purchases of the
securities in the open market. Finally, the underwriters may impose a penalty whereby selling concessions allowed to syndicate
members or other brokers or dealers for distribution of the securities in offerings may be reclaimed by the syndicate if the syndicate
repurchases previously distributed securities in transactions to cover short positions, in stabilization transactions or otherwise.
These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than the price
that might otherwise prevail in the open market, and, if commenced, may be discontinued at any time.
SELLING
UNITHOLDER
This prospectus covers the offering for resale
from time to time, in one or more offerings, of up to 2,116,060 common units owned by Hoegh LNG Holdings Ltd., the selling unitholder.
These common units were obtained by the selling unitholder in connection with our initial public offering on August 12, 2014. As
of September 23, 2016, the selling unitholder also owned 13,156,060 of our subordinated units, which the selling unitholder obtained
in connection with our initial public offering. The subordinated units may be converted into common units on a one-for-one basis
upon termination of the subordination period under certain circumstances, as set forth in our partnership agreement. In addition
to holding the common units and subordinated units in us, the selling unitholder also owns all of the ownership interests in our
general partner. See “About Hoegh LNG Partners LP” for additional information regarding our relationship with the selling
unitholder.
The following table sets forth information
relating to the selling unitholder as of September 23, 2016 based on information supplied to us by the selling unitholder on or
prior to that date. We have not sought to verify such information. Information concerning the selling unitholder may change over
time. The selling unitholder may hold or acquire at any time common units in addition to those offered by this prospectus and may
have acquired additional common units since the date on which the information reflected herein was provided to us. In addition,
the selling unitholder may have sold, transferred or otherwise disposed of some or all of its common units since the date on which
the information reflected herein was provided to us and may in the future sell, transfer or otherwise dispose of some or all of
its common units in private placement transactions exempt from or not subject to the registration requirements of the Securities
Act.
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Common Units Owned
After Offering
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Selling Unitholder
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Common Units
Owned Prior
To Offering(1)
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Common Units
Being
Offered(1)
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Number of
Units(2)
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Percentage(3)
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Hoegh LNG Holdings Ltd. (4)
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2,116,060
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2,116,060
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0
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0
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%
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(1)
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Does not include 13,156,060 subordinated units, which are convertible into common units on a one-for-one basis.
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(2)
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Assumes the sale of all common units held by the selling unitholder offered by this prospectus.
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(3)
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Based on 13,166,710 common units outstanding as of September 23, 2016.
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(4)
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Höegh LNG Holdings Ltd. is a public company listed on the Oslo Børs stock
exchange. The address of Höegh LNG Holdings Ltd. is Canon’s Court, 22 Victoria Street, Hamilton HM12, Bermuda. Leif
Höegh & Co.
Ltd. is the
largest shareholder of
Höegh LNG Holdings Ltd.,
holding a 41.54% ownership interest. Leif
Höegh & Co. Ltd. is indirectly
controlled by Leif O. Høegh and a family trust under which Morten Høegh, one of our directors, is the primary
beneficiary.
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The prospectus supplement for any offering
or our common units by the selling unitholder will set forth the following information with respect to the selling unitholder:
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the nature of any position, office or other material relationship that the selling unitholder has had within the last three
years with us or any of our affiliates;
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the number of common units owned by the selling unitholder prior to the offering;
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the amount of common units to be offered for the selling unitholder’s account; and
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the amount and (if one percent or more) the percentage of common units to be owned by the selling unitholder after the completion
of the offering.
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SERVICE
OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES
We are organized under the laws of the Marshall
Islands as a limited partnership. Our general partner is organized under the laws of the Marshall Islands as a limited liability
company. The Marshall Islands has a less developed body of securities laws as compared to the United States and provides protections
for investors to a significantly lesser extent.
Most of our directors and officers and those
of our subsidiaries are residents of countries other than the United States. Substantially all of our and our subsidiaries’
assets and a substantial portion of the assets of our directors and officers are located outside the United States. As a result,
it may be difficult or impossible for U.S. investors to effect service of process within the United States upon us, our directors
or officers, our general partner or our subsidiaries or to realize against us or them judgments obtained in U.S. courts, including
judgments predicated upon the civil liability provisions of the securities laws of the United States or any state in the United
States. However, we have expressly submitted to the jurisdiction of the U.S. federal and New York state courts sitting in the City
of New York for the purpose of any suit, action or proceeding arising under the securities laws of the United States or any state
in the United States, and we have appointed The Trust Company of the Marshall Islands, Inc., Trust Company Complex, Ajeltake Island,
Ajeltake Road, Majuro, Marshall Islands MH 96960, to accept service of process on our behalf in any such action.
Watson Farley & Williams LLP, our counsel
relating to issues regarding Marshall Islands law, has advised us that there is uncertainty as to whether the courts of the Marshall
Islands would (1) recognize or enforce against us, our general partner, or the directors or officers of such entities judgments
of courts of the United States based on civil liability provisions of applicable U.S. federal and state securities laws or (2)
impose liabilities against us, our general partner or such directors and officers in original actions brought in the Marshall Islands,
based on these laws.
LEGAL
MATTERS
Unless otherwise stated in the applicable
prospectus supplement, (a) the validity of the debt securities under New York law and certain other legal matters will be passed
upon for us by Vinson & Elkins L.L.P. and (b) the validity of the equity securities and certain other legal matters with respect
to the laws of the Republic of the Marshall Islands will be passed upon for us by Watson Farley & Williams LLP. Any underwriters
will be advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The historical consolidated and combined carve-out
financial statements of Höegh LNG Partners LP and the combined financial statements of SRV Joint Gas Ltd and SRV Joint Gas
Two Ltd. as of December 31, 2015 and 2014, and for each of the three years in the period ended December 31, 2015 appearing in our
annual report in Form 20-F for the year ended December 31, 2015 have been incorporated by reference into this Prospectus in reliance
on the reports of Ernst & Young AS, independent registered public accounting firm, given on the authority of such firm as experts
in auditing and accounting.
The financial statements of Höegh LNG
FSRU III Ltd. and Hoegh LNG Cyprus Limited as of and for the year ended December 31, 2014 incorporated into this registration statement
by reference to Höegh LNG Partners LP’s Current Report on Form 6-K dated September 26, 2016 have been incorporated
by reference into this Prospectus in reliance on the reports of Ernst & Young AS, independent registered public accounting
firm, given on the authority of such firm as experts in auditing and accounting.
Ernst & Young AS is located at Donning
Eufemias Gate 6, Oslo Atrium, P.O. Box 20, NO-0051 Oslo, Norway.
EXPENSES
The following table sets forth the costs and
expenses, other than the underwriting discounts and commissions, in connection with the issuance and distribution of the securities
covered by this prospectus. All amounts are estimated, except the SEC registration fee and the FINRA fee.
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U.S. Securities and Exchange Commission registration fee
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$
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64,178
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Financial Industry Regulatory Authority filing fee
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96,098
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New York Stock Exchange listing fee
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Printing and engraving costs
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*
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Transfer agent fees and other
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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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*
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To be provided in a prospectus supplement or in a Report on Form 6-K subsequently incorporated by reference into this prospectus.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
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Item 8.
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Indemnification of Directors and Officers.
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Höegh LNG Partners LP is a Marshall Islands
limited partnership. Under the Marshall Islands Limited Partnership Act, a partnership may, and shall have the power to, indemnify
and hold harmless any partner or other person from and against any and all claims and demands whatsoever, subject to any standards
and restrictions contained in the partnership agreement. Under our partnership agreement, in most circumstances, we will indemnify
the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages or similar events:
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(2)
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any departing general partner;
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(3)
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any person who is or was an affiliate of our general partner or any departing general partner;
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(4)
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any person who is or was a member, partner, director, officer, fiduciary or trustee of any entity described in (1), (2) or
(3) above;
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(5)
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any person who is or was serving as an officer, director, member, partner, fiduciary or trustee of another person at the request
of any entity described in (1), (2) or (3) above;
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|
|
(6)
|
any person designated by our board of directors;
|
|
|
(7)
|
the members of our board of directors; and
|
Any indemnification under these provisions
will only be out of our assets. Unless it otherwise agrees, our general partner will not be personally liable for, or have any
obligation to contribute or lend funds or assets to us to enable us to effectuate, indemnification. We may purchase insurance against
liabilities asserted against and expenses incurred by persons for our activities, regardless of whether we would have the power
to indemnify the person against liabilities under our partnership agreement. We currently maintain directors’ and officers’
insurance for our directors and officers.
Exhibit
Number
|
|
Description
|
|
1.1*
|
|
Form of Underwriting Agreement
|
|
3.1
|
|
Certificate of Limited Partnership of Höegh LNG Partners LP (incorporated by reference to Exhibit 3.1 to the registrant’s Form F-1 Registration Statement (333-197228), filed on July 3, 2014)
|
|
3.2
|
|
First Amended and Restated Agreement of Limited Partnership of Höegh LNG Partners LP (incorporated by reference to Exhibit 1.2 to the registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2014, filed on April 24, 2015)
|
|
4.1
|
|
Form of Senior Indenture
|
|
4.2
|
|
Form of Subordinated Indenture
|
|
4.3*
|
|
Form of Debt Securities
|
|
4.4*
|
|
Form of Warrant Certificate
|
|
4.5*
|
|
Form of Warrant Agreement
|
|
4.6*
|
|
Form of Option Agreement
|
Exhibit
Number
|
|
Description
|
|
4.7*
|
|
Form of Rights Agreement
|
|
5.1
|
|
Opinion of Watson Farley & Williams LLP as to the legality of the primary equity securities being registered and the selling unitholder common units being registered
|
|
5.2
|
|
Opinion of Vinson & Elkins L.L.P. as to the validity of the debt securities being registered
|
|
8.1
|
|
Opinion of Vinson & Elkins L.L.P. relating to tax matters
|
|
8.2
|
|
Opinion of Watson Farley & Williams LLP relating to tax matters
|
|
8.3
|
|
Opinion of Advokatfirmaet Thommessen AS relating to tax matters
|
|
12.1
|
|
Ratio of earnings to fixed charges
|
|
23.1
|
|
Consent of Ernst & Young AS
|
|
23.2
|
|
Consent of Watson Farley & Williams LLP (contained in Exhibits 5.1 and 8.2)
|
|
23.3
|
|
Consent of Vinson & Elkins L.L.P. (contained in Exhibits 5.2 and 8.1)
|
|
23.4
|
|
Consent of Advokatfirmaet Thommessen AS (contained in Exhibit 8.3)
|
|
24.1
|
|
Power of Attorney (included on Page II-5)
|
|
25.1**
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 under the Senior Indenture
|
|
25.2**
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 under the Subordinated Indenture
|
|
|
*
|
To be filed by amendment or as an exhibit to a Report on Form 6-K of the registrant that is incorporated by reference into
this registration statement.
|
|
|
**
|
To be filed in accordance with Section 310(a) of the Trust Indenture Act of 1939, as amended.
|
The undersigned registrant hereby undertakes:
|
|
1.
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
|
|
a.
|
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
|
|
|
b.
|
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 Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
|
|
|
c.
|
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 1(a), 1(b) and 1(c)
of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the 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 therein, 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.
|
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A.
of Form 20-F at the start of any delayed offering or throughout a continuous offering.
|
|
|
5.
|
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 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; or
|
|
|
6.
|
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:
|
|
a.
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
|
|
|
b.
|
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;
|
|
|
c.
|
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
|
|
|
d.
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
|
|
7.
|
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual
report pursuant to section 13(a) or 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.
|
|
|
8.
|
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
|
|
|
9.
|
Insofar as indemnification for liabilities arising under the Securities Act 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
|
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 F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of London, United Kingdom, on the 26th day of September, 2016.
|
|
HÖEGH LNG PARTNERS LP
|
|
|
|
|
|
|
By:
|
/s/ Richard Tyrrell
|
|
|
Name:
|
Richard Tyrrell
|
|
|
Title:
|
Chief Executive Officer and Chief Financial Officer
|
POWER OF ATTORNEY
Each person whose signature appears below
appoints Richard Tyrrell as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his 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 registration statement (including any amendments thereto) for this offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended and to file the same with all exhibits
thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully
to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act
of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Richard
Tyrrell
|
|
Chief Executive Officer and Chief Financial Officer (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)
|
|
September 26, 2016
|
|
Richard Tyrrell
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Sveinung Støhle
|
|
|
|
|
|
Sveinung Støhle
|
|
Director and Chairman
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ Steffen Føreid
|
|
|
|
|
|
Steffen Føreid
|
|
Director
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ Claiborne Harris
|
|
|
|
|
|
Claiborne Harris
|
|
Director
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ Morten W. Høegh
|
|
|
|
|
|
Morten W. Høegh
|
|
Director
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ Andrew Jamieson
|
|
|
|
|
|
Andrew Jamieson
|
|
Director
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ Robert Shaw
|
|
|
|
|
|
Robert Shaw
|
|
Director
|
|
September 26, 2016
|
|
|
|
|
|
|
|
/s/ David Spivak
|
|
|
|
|
|
David Spivak
|
|
Director
|
|
September 26, 2016
|
SIGNATURE OF AUTHORIZED REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the Securities Act of 1933, as
amended, the undersigned, a duly authorized representative of Höegh LNG Partners LP in the United States, has signed this
registration statement in the City of Newark, State of Delaware, on the 26th day of September, 2016.
|
|
PUGLISI & ASSOCIATES
|
|
|
|
|
|
|
By:
|
/s/ Donald J. Puglisi
|
|
|
Name:
|
Donald J. Puglisi
|
|
|
Title:
|
Managing Director
|
|
|
|
Authorized Representative in the United States
|
EXHIBIT INDEX
Exhibit
Number
|
|
Description
|
|
1.1*
|
|
Form of Underwriting Agreement
|
|
3.1
|
|
Certificate of Limited Partnership of Höegh LNG Partners LP (incorporated by reference to Exhibit 3.1 to the registrant’s Form F-1 Registration Statement (333-197228), filed on July 3, 2014)
|
|
3.2
|
|
First Amended and Restated Agreement of Limited Partnership of Höegh LNG Partners LP (incorporated by reference to Exhibit 1.2 to the registrant’s annual report on Form 20-F for the fiscal year ended December 31, 2014, filed on April 24, 2015)
|
|
4.1
|
|
Form of Senior Indenture
|
|
4.2
|
|
Form of Subordinated Indenture
|
|
4.3*
|
|
Form of Debt Securities
|
|
4.4*
|
|
Form of Warrant Certificate
|
|
4.5*
|
|
Form of Warrant Agreement
|
|
4.6*
|
|
Form of Option Agreement
|
|
4.7*
|
|
Form of Rights Agreement
|
|
5.1
|
|
Opinion of Watson Farley & Williams LLP as to the legality of the primary equity securities being registered and the selling unitholder common units being registered
|
|
5.2
|
|
Opinion of Vinson & Elkins L.L.P. as to the validity of the debt securities being registered
|
|
8.1
|
|
Opinion of Vinson & Elkins L.L.P. relating to tax matters
|
|
8.2
|
|
Opinion of Watson Farley & Williams LLP relating to tax matters
|
|
8.3
|
|
Opinion of Advokatfirmaet Thommessen AS relating to tax matters
|
|
12.1
|
|
Ratio of earnings to fixed charges
|
|
23.1
|
|
Consent of Ernst & Young AS
|
|
23.2
|
|
Consent of Watson Farley & Williams LLP (contained in Exhibits 5.1 and 8.2)
|
|
23.3
|
|
Consent of Vinson & Elkins L.L.P. (contained in Exhibits 5.2 and 8.1)
|
|
23.4
|
|
Consent of Advokatfirmaet Thommessen AS (contained in Exhibit 8.3)
|
|
24.1
|
|
Power of Attorney (included on Page II-5)
|
|
25.1**
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 under the Senior Indenture
|
|
25.2**
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 under the Subordinated Indenture
|
|
|
*
|
To be filed by amendment or as an exhibit to a Report on Form 6-K of the registrant that is incorporated by reference into
this registration statement.
|
|
|
**
|
To be filed in accordance with Section 310(a) of the Trust Indenture Act of 1939, as amended.
|
Exhibit 4.1
HÖEGH LNG PARTNERS LP,
as Issuer,
and
[ ],
as Trustee
INDENTURE
Dated as of ,
2016
Senior Debt Securities
CROSS-REFERENCE TABLE
|
TIA Section
|
|
Indenture Section
|
|
310(a)
|
|
7.10
|
|
(b)
|
|
7.10
|
|
(c)
|
|
N.A.
|
|
311(a)
|
|
7.11
|
|
(b)
|
|
7.11
|
|
(c)
|
|
N.A.
|
|
312(a)
|
|
5.01
|
|
(b)
|
|
5.02
|
|
(c)
|
|
5.02
|
|
313(a)
|
|
5.03
|
|
(b)
|
|
5.03
|
|
(c)
|
|
13.03
|
|
(d)
|
|
5.03
|
|
314(a)
|
|
4.05
|
|
(b)
|
|
N.A.
|
|
(c)(1)
|
|
13.05
|
|
(c)(2)
|
|
13.05
|
|
(c)(3)
|
|
N.A.
|
|
(d)
|
|
N.A.
|
|
(e)
|
|
13.05
|
|
(f)
|
|
N.A.
|
|
315(a)
|
|
7.01
|
|
(b)
|
|
6.07 & 13.03
|
|
(c)
|
|
7.01
|
|
(d)
|
|
7.01
|
|
(e)
|
|
6.08
|
|
316(a) (last sentence)
|
|
1.01
|
|
(a)(1)(A)
|
|
6.06
|
|
(a)(1)(B)
|
|
6.06
|
|
(a)(2)
|
|
9.01(d)
|
|
(b)
|
|
6.04
|
|
(c)
|
|
5.04
|
|
317(a)(1)
|
|
6.02
|
|
(a)(2)
|
|
6.02
|
|
(b)
|
|
4.04
|
|
318(a)
|
|
13.07
|
N.A. means Not Applicable
NOTE: This Cross-Reference table shall
not, for any purpose, be deemed part of this Indenture.
TABLE OF CONTENTS
|
|
ARTICLE I
|
|
|
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
|
Section 1.01
|
Definitions
|
1
|
|
Section 1.02
|
Other Definitions
|
6
|
|
Section 1.03
|
Incorporation by Reference of Trust Indenture Act
|
6
|
|
Section 1.04
|
Rules of Construction
|
6
|
|
|
|
|
|
|
ARTICLE II
|
|
|
|
DEBT SECURITIES
|
|
|
|
|
|
|
Section 2.01
|
Forms Generally
|
7
|
|
Section 2.02
|
Form of Trustee’s Certificate of Authentication
|
7
|
|
Section 2.03
|
Principal Amount; Issuable in Series
|
7
|
|
Section 2.04
|
Execution of Debt Securities
|
10
|
|
Section 2.05
|
Authentication and Delivery of Debt Securities
|
10
|
|
Section 2.06
|
Denomination of Debt Securities
|
12
|
|
Section 2.07
|
Registration of Transfer and Exchange
|
12
|
|
Section 2.08
|
Temporary Debt Securities
|
13
|
|
Section 2.09
|
Mutilated, Destroyed, Lost or Stolen Debt Securities
|
14
|
|
Section 2.10
|
Cancellation of Surrendered Debt Securities
|
14
|
|
Section 2.11
|
Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
|
15
|
|
Section 2.12
|
Payment of Interest; Interest Rights Preserved
|
15
|
|
Section 2.13
|
Securities Denominated in Dollars
|
15
|
|
Section 2.14
|
Wire Transfers
|
15
|
|
Section 2.15
|
Securities Issuable in the Form of a Global Security
|
15
|
|
Section 2.16
|
Medium Term Securities
|
18
|
|
Section 2.17
|
Defaulted Interest
|
18
|
|
Section 2.18
|
CUSIP Numbers
|
19
|
|
|
|
|
|
|
ARTICLE III
|
|
|
|
REDEMPTION OF DEBT SECURITIES
|
|
|
|
|
|
|
Section 3.01
|
Applicability of Article
|
19
|
|
Section 3.02
|
Notice of Redemption; Selection of Debt Securities
|
20
|
|
Section 3.03
|
Payment of Debt Securities Called for Redemption
|
21
|
|
Section 3.04
|
Mandatory and Optional Sinking Funds
|
22
|
|
Section 3.05
|
Redemption of Debt Securities for Sinking Fund
|
22
|
|
|
|
|
|
|
ARTICLE IV
|
|
|
|
PARTICULAR COVENANTS OF THE ISSUER
|
|
|
|
|
|
|
Section 4.01
|
Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
|
23
|
|
Section 4.02
|
Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
|
24
|
|
Section 4.03
|
Appointment to Fill a Vacancy in the Office of Trustee
|
24
|
|
Section 4.04
|
Duties of Paying Agents, etc
|
24
|
|
Section 4.05
|
SEC Reports; Financial Statements
|
25
|
|
Section 4.06
|
Compliance Certificate
|
26
|
|
Section 4.07
|
Further Instruments and Acts
|
26
|
|
Section 4.08
|
Existence
|
26
|
|
Section 4.09
|
Maintenance of Properties
|
27
|
|
Section 4.10
|
Payment of Taxes and Other Claims
|
27
|
|
Section 4.11
|
Waiver of Certain Covenants
|
27
|
|
|
|
|
|
|
ARTICLE V
|
|
|
|
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
|
|
|
|
|
|
|
Section 5.01
|
Issuer to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
|
27
|
|
Section 5.02
|
Communications to Holders
|
28
|
|
Section 5.03
|
Reports by Trustee
|
28
|
|
Section 5.04
|
Record Dates for Action by Holders
|
28
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
|
|
|
|
|
|
|
Section 6.01
|
Events of Default
|
29
|
|
Section 6.02
|
Collection of Debt by Trustee, etc
|
30
|
|
Section 6.03
|
Application of Moneys Collected by Trustee
|
31
|
|
Section 6.04
|
Limitation on Suits by Holders
|
32
|
|
Section 6.05
|
Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
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33
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Section 6.06
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Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
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33
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Section 6.07
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Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
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34
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Section 6.08
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Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
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34
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ARTICLE VII
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CONCERNING THE TRUSTEE
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Section 7.01
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Certain Duties and Responsibilities
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34
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Section 7.02
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Certain Rights of Trustee
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36
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Section 7.03
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Trustee Not Liable for Recitals in Indenture or in Debt Securities
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37
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Section 7.04
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Trustee, Paying Agent or Registrar May Own Debt Securities
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37
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Section 7.05
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Moneys Received by Trustee to Be Held in Trust
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37
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Section 7.06
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Compensation and Reimbursement
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37
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Section 7.07
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Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
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38
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Section 7.08
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Separate Trustee; Replacement of Trustee
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38
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Section 7.09
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Successor Trustee by Merger
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39
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Section 7.10
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Eligibility; Disqualification
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40
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Section 7.11
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Preferential Collection of Claims Against Issuer
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40
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Section 7.12
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Compliance with Tax Laws
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40
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ARTICLE VIII
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CONCERNING THE HOLDERS
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Section 8.01
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Evidence of Action by Holders
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40
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Section 8.02
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Proof of Execution of Instruments and of Holding of Debt Securities
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40
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Section 8.03
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Who May Be Deemed Owner of Debt Securities
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41
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Section 8.04
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Instruments Executed by Holders Bind Future Holders
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41
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ARTICLE IX
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SUPPLEMENTAL INDENTURES
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Section 9.01
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Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
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42
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Section 9.02
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Modification of Indenture with Consent of Holders of Debt Securities
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43
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Section 9.03
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Effect of Supplemental Indentures
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44
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Section 9.04
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Debt Securities May Bear Notation of Changes by Supplemental Indentures
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45
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ARTICLE X
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CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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Section 10.01
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Consolidations and Mergers of the Issuer
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45
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Section 10.02
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Rights and Duties of Successor Company
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45
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ARTICLE XI
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SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
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Section 11.01
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Applicability of Article
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46
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Section 11.02
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Satisfaction and Discharge of Indenture; Defeasance
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46
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Section 11.03
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Conditions of Defeasance
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47
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Section 11.04
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Application of Trust Money
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48
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Section 11.05
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Repayment to Issuer
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48
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Section 11.06
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Indemnity for U.S. Government Obligations
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48
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Section 11.07
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Reinstatement
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48
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ARTICLE XII
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[RESERVED]
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ARTICLE XIII
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MISCELLANEOUS PROVISIONS
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Section 13.01
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Successors and Assigns of Issuer Bound by Indenture
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49
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Section 13.02
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Acts of Board, Committee or Officer of Successor Company Valid
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49
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Section 13.03
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Required Notices or Demands
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49
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Section 13.04
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Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
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50
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Section 13.05
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Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Issuer
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50
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Section 13.06
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Payments Due on Legal Holidays
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51
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Section 13.07
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Provisions Required by TIA to Control
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51
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Section 13.08
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Computation of Interest on Debt Securities
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51
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Section 13.09
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Rules by Trustee, Paying Agent and Registrar
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51
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Section 13.10
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No Recourse Against Others
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51
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Section 13.11
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Severability
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51
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Section 13.12
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Effect of Headings
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51
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Section 13.13
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Indenture May Be Executed in Counterparts
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51
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THIS INDENTURE dated
as of ,
2016 is between Höegh LNG Partners LP, a Marshall Islands limited partnership (the “Issuer”), and [ ],
a , as trustee (the “Trustee”).
RECITALS OF THE ISSUER
The Issuer has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Issuer’s debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called
the “Debt Securities”), as in this Indenture provided. All things necessary to make this Indenture a valid agreement
of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS
INDENTURE WITNESSETH
That in order to declare
the terms and conditions upon which the Debt Securities are authenticated, issued and delivered, and in consideration of the premises,
and of the purchase and acceptance of the Debt Securities by the holders thereof, the Issuer and the Trustee covenant and agree
with each other, for the benefit of the respective Holders from time to time of the Debt Securities or any series thereof, as follows:
ARTICLE
I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. The Trustee may request and may conclusively rely upon an Officers’ Certificate
to determine whether any Person is an Affiliate of any specified Person.
“Agent”
means any Registrar or paying agent.
“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Issuer or any authorized committee of the Board of Directors of the Issuer or any directors
and/or officers of the Issuer to whom such Board of Directors or such committee shall have duly delegated its authority to act
hereunder.
“Business Day”
means any day other than a Legal Holiday.
“capital stock”
of any Person means and includes any and all shares, rights to purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated) the equity of such Person (excluding any debt securities
that are convertible into, or exchangeable for, such equity).
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Debt”
of any Person at any date means any obligation created or assumed by such Person for the repayment of borrowed money and any guarantee
thereof.
“Debt Security”
or “Debt Securities” has the meaning stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as the case may be, of any series authenticated and delivered under this Indenture.
“Default”
means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
“Depositary”
means, unless otherwise specified by the Issuer pursuant to either Sections 2.03 or 2.15, with respect to Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company, New York,
New York, or any successor thereto registered as a clearing agency under the Exchange Act or other applicable statute or regulations.
“Dollar”
or “$” means such currency of the United States as at the time of payment is legal tender for the payment of public
and private debts.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and any successor statute.
“Floating Rate
Security” means a Debt Security that provides for the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 2.03.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession
of the United States, as in effect from time to time.
“General Partner”
means Höegh LNG GP LLC, a Marshall Islands limited liability company, and its successors, as general partner of the Issuer.
“Global Security”
means with respect to any series of Debt Securities issued hereunder, a Debt Security which is executed by the Issuer and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture
and any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an Officers’ Certificate,
which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all the Outstanding Debt Securities of such series or any portion thereof, in
either case having the same terms, including, without limitation, the same original issue date, date or dates on which principal
is due and interest rate or method of determining interest.
“guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term “guarantee” shall not include endorsements for collection or deposit in
the ordinary course of business. The term “guarantee” used as a verb has a corresponding meaning.
“Holder,”
“Holder of Debt Securities” or other similar terms means, a Person in whose name a Debt Security is registered in the
Debt Security Register (as defined in Section 2.07(a)).
“Indenture”
means this instrument as originally executed, or, if amended or supplemented as herein provided, as so amended or supplemented
and shall include the form and terms of particular series of Debt Securities as contemplated hereunder, whether or not a supplemental
Indenture is entered into with respect thereto.
“Issuer Order”
means a written request or order signed in the name of the Issuer by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President of the Issuer, and by the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Issuer, in each case
delivered to the Trustee, or if the Issuer shall change its form of entity to other than a limited partnership, by Persons or officers,
members, agents and others holding positions comparable to those of the foregoing nature, as applicable.
“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York, New York or at a Place of Payment are
authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, security interest, pledge, charge or other encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under applicable law.
“Officer”
means, with respect to a Person, the Chairman of the Board, the President, any Vice President, the Treasurer, any Assistant Treasurer,
Controller, Secretary, Assistant Secretary or any Assistant Vice President of such Person.
“Officers’
Certificate” means a certificate signed by two Officers of the Issuer. One of the Officers signing the Officers’ Certificate
of the Issuer must be the Issuer’s chief executive officer, chief financial officer or chief accounting officer (or if the
Issuer shall change its form of entity to other than a limited partnership, by Persons, officers, members, agents and others holding
positions comparable to those of the foregoing nature, as applicable).
“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the
Issuer or the Trustee.
“Original Issue
Discount Debt Security” means any Debt 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 6.01.
“Outstanding,”
when used with respect to any series of Debt Securities, means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
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(a)
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Debt Securities of that series theretofore canceled by
the Trustee or delivered to the Trustee for cancellation;
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(b)
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Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or any paying agent (other than the Issuer) in trust
or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own paying agent) for the Holders of such Debt
Securities; provided, that, if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been made; and
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(c)
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Debt Securities of that series which have been paid pursuant
to Section 2.09 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof satisfactory
to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations of
the Issuer;
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provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Issuer or any other obligor
upon the Debt Securities or any Affiliate of the Issuer 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 Debt Securities which an officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Debt Securities and that the pledgee is not
either of the Issuer or any other obligor upon the Debt Securities or an Affiliate of the Issuer or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Person”
means any individual, corporation, partnership, joint venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof or other
entity of any kind.
“Redemption Date,”
when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“SEC” means
the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended, and any successor statute.
“Stated Maturity”
means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of
such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing
for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control
of the issuer unless such contingency has occurred).
“Subsidiary”
of any Person means:
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(1)
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any corporation, association or other business entity of
which more than 50% of the total voting power of equity interests entitled, without regard to the occurrence of any contingency,
to vote in the election of directors, managers, trustees or equivalent Persons thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof;
or
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(2)
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in the case of a partnership, more than 50% of the partners’
equity interests, considering all partners’ equity interests as a single class, is at such time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof.
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“TIA” means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in effect on the date of this Indenture as
originally executed and, to the extent required by law, as amended.
“Trustee”
initially means [__________________] and any other Person or Persons appointed as such from time to time pursuant to Section 7.08,
and, subject to the provisions of Article VII, includes its or their successors and assigns. If at any time there is more than
one such Person, “Trustee” as used with respect to the Debt Securities of any series shall mean the Trustee with respect
to the Debt Securities of that series.
“Trust Officer”
means any officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.
“United States”
means the United States of America (including the States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
“U.S. Government
Obligations” means direct obligations of the United States of America, obligations on which the payment of principal and
interest is fully guaranteed by the United States of America or obligations or guarantees for the payment of which the full faith
and credit of the United States of America is pledged.
“Yield to Maturity”
means the yield to maturity, calculated at the time of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance with accepted financial practice.
Section 1.02
Other
Definitions
.
|
Term
|
|
Defined in Section
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“Debt Security Register”
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2.07
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“Defaulted Interest”
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2.17
|
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“Event of Default”
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6.01
|
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“Place of Payment”
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2.03
|
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“Registrar”
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2.07
|
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“Successor Company”
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10.01
|
Section 1.03
Incorporation
by Reference of Trust Indenture Act
. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
All terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section 1.04
Rules
of Construction
.
Unless the context
otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions; and
(f) the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP.
ARTICLE
II
DEBT SECURITIES
Section 2.01
Forms
Generally
. The Debt Securities of each series shall be in substantially the form established without the approval of any Holder
by or pursuant to a resolution of the Board of Directors or in one or more Indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Issuer may deem appropriate
(and, if not contained in a supplemental Indenture entered into in accordance with Article IX, as are not prohibited by the provisions
of this Indenture) or as may be required or appropriate to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange on which such series of Debt Securities may be listed, or to conform to general usage, or
as may, consistently herewith, be determined by the officers executing such Debt Securities as evidenced by their execution of
the Debt Securities.
The definitive Debt
Securities of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt.
Section 2.02
Form
of Trustee’s Certificate of Authentication
. The Trustee’s certificate of authentication on all Debt Securities
authenticated by the Trustee shall be in substantially the following form:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the
Debt Securities of the series designated therein referred to in the within-mentioned Indenture.
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[ ],
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As Trustee
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By:
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Authorized Signatory
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Section 2.03
Principal
Amount; Issuable in Series
. The aggregate principal amount of Debt Securities which may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities
may be issued in one or more series in fully registered form. There shall be established, without the approval of any Holders,
in or pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate, or established in one
or more Indentures supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the following:
(a) the
title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities);
(b) any
limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to this Article II);
(c) the
date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(d) the
rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method
of determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will be determined, the record dates for the determination of
Holders thereof to whom such interest is payable; and the basis upon which interest will be calculated if other than that of a
360-day year of twelve thirty-day months;
(e) the
place or places, if any, in addition to or instead of the corporate trust office of the Trustee, where the principal of, and premium,
if any, and interest on, Debt Securities of the series shall be payable (“Place of Payment”);
(f) the
price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer or otherwise;
(g) the
obligation, if any, of the Issuer to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligations;
(h) the
terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for capital stock (which may be
represented by depositary shares), other Debt Securities or warrants for capital stock or Debt or other securities of any kind
of the Issuer or any other obligor and the terms and conditions upon which such conversion or exchange shall be effected, including
the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in
lieu of those described herein;
(i) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series
shall be issuable;
(j) if
the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be determined;
(k) if
the principal amount payable at the Stated Maturity of Debt Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity
or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal
amount is to be determined);
(l) any
changes or additions to Article XI, including the addition of additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b);
(m) if
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(n) the
terms, if any, of the transfer, mortgage, pledge or assignment as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether certain provisions of the TIA are applicable and any
corresponding changes to provisions of this Indenture as currently in effect;
(o) any
addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of
the Trustee or the Holders to declare the principal of, and premium and interest on, such Debt Securities due and payable;
(p) if
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms
and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities and the form of any legend
or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section
2.15(a);
(q) any
trustees, authenticating or paying agents, transfer agents or registrars;
(r) the
applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X, including conditioning any merger, conveyance, transfer or lease permitted by Article X
upon the satisfaction of any Debt coverage standard by the Issuer and any Successor Company (as defined in Article X);
(s) with
regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; and
(t) any
other terms of the Debt Securities of the series (which terms shall not be prohibited by the provisions of this Indenture).
All Debt Securities
of any one series appertaining thereto shall be substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set forth in such Officers’ Certificate or in
any such Indenture supplemental hereto.
Section 2.04
Execution
of Debt Securities
. The Debt Securities shall be signed on behalf of the Issuer by the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President of the Issuer, and, if the seal of the Issuer is reproduced
thereon, it shall be attested by its Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures
upon the Debt Securities may be the manual or facsimile signatures of the present or any future such authorized officers and may
be imprinted or otherwise reproduced on the Debt Securities. The seal of the Issuer, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities
as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, signed manually by the Trustee,
shall be entitled to the benefits of the Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Issuer, shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated
and delivered hereunder.
In case any officer
of the Issuer who shall have signed any of the Debt Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by the Issuer, such Debt Securities nevertheless may
be authenticated and delivered or disposed of as though the Person who signed such Debt Securities had not ceased to be such officer
of the Issuer; and any Debt Security may be signed on behalf of the Issuer by such Persons as, at the actual date of the execution
of such Debt Security, shall be the proper officers of the Issuer, although at the date of such Debt Security or of the execution
of this Indenture any such Person was not such officer.
Section 2.05
Authentication
and Delivery of Debt Securities
. At any time and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Debt Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon an Issuer Order. In authenticating such Debt Securities, and
accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be entitled
to receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(a) a
copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or Assistant Secretary of the Issuer,
authorizing the terms of issuance of any series of Debt Securities;
(b) an
executed supplemental Indenture, if any;
(c) an
Officers’ Certificate; and
(d) an
Opinion of Counsel prepared in accordance with Section 13.05 which shall also state:
(i) that
the form of such Debt Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture;
(ii) that
the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.03 in conformity with the provisions of this Indenture;
(iii) that
such Debt Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable
in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally and rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(iv) that
the Issuer has the partnership power to issue such Debt Securities and has duly taken all necessary partnership action with respect
to such issuance;
(v) that
the issuance of such Debt Securities will not contravene the organizational documents of the Issuer or result in any material violation
of any of the terms or provisions of any law or regulation or of any material indenture, mortgage or other agreement known to such
counsel by which the Issuer is bound;
(vi) that
authentication and delivery of such Debt Securities and the execution and delivery of any supplemental Indenture will not violate
the terms of this Indenture; and
(vii) such
other matters as the Trustee may reasonably request.
Such Opinion of Counsel
need express no opinion as to whether a court in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have
the right to decline to authenticate and deliver any Debt Securities under this Section 2.05 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents (or any combination thereof) shall determine that such
action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint
an authenticating agent reasonably acceptable to the Issuer to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, paying agent or agent for service of notices and demands.
Unless otherwise provided
in the form of Debt Security for any series, each Debt Security shall be dated the date of its authentication.
Section 2.06
Denomination
of Debt Securities
. Unless otherwise provided in the form of Debt Security for any series, the Debt Securities of each series
shall be issuable only as fully registered Debt Securities in such Dollar denominations as shall be specified or contemplated by
Section 2.03. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of
such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.07
Registration
of Transfer and Exchange
.
(a) The
Issuer shall keep or cause to be kept a register for each series of Debt Securities issued hereunder (hereinafter collectively
referred to as the “Debt Security Register”), in which, subject to such reasonable regulations as it may prescribe,
the Issuer shall provide for the registration of all Debt Securities and the transfer of Debt Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Debt Security at any office or agency to be maintained by the Issuer in
accordance with the provisions of Section 4.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Debt Security or Debt Securities of authorized denominations for a like aggregate principal
amount. In no event may Debt Securities be issued as, or exchanged for, bearer securities.
Unless and until otherwise
determined by the Issuer by resolution of the Board of Directors, the register of the Issuer for the purpose of registration, exchange
or registration of transfer of the Debt Securities shall be kept at the principal corporate trust office of the Trustee and, for
this purpose, the Trustee shall be designated “Registrar.”
Debt Securities of
any series (other than a Global Security, except as set forth below) may be exchanged for a like aggregate principal amount of
Debt Securities of the same series of other authorized denominations. Subject to Section 2.15, Debt Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Issuer as provided in Section 4.02, and the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities which the Holder making
the exchange shall be entitled to receive.
(b) All
Debt Securities presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Issuer,
the Trustee or the Registrar) be duly endorsed or be accompanied by a written instrument or instruments of transfer, in form satisfactory
to the Issuer, the Trustee and the Registrar, duly executed by the Holder or his attorney duly authorized in writing.
All Debt Securities
issued in exchange for or upon transfer of Debt Securities shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Debt Securities surrendered for such exchange or transfer.
No service charge shall
be made for any exchange or registration of transfer of Debt Securities (except as provided by Section 2.09), but the Issuer may
require payment of a sum sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in relation
thereto, other than those expressly provided in this Indenture to be made at the Issuer’s own expense or without expense
or without charge to the Holders.
The Issuer shall not
be required (i) to issue, register the transfer of or exchange any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (ii) to register the transfer of or exchange any Debt Securities selected,
called or being called for redemption.
Prior to the due presentation
for registration of transfer of any Debt Security, the Issuer, the Trustee, any paying agent or any Registrar may deem and treat
the Person in whose name a Debt Security is registered as the absolute owner of such Debt Security for the purpose of receiving
payment of or on account of the principal of, and premium, if any, and (subject to Section 2.12) interest on, such Debt Security
and for all other purposes whatsoever, whether or not such Debt Security is overdue, and none of the Issuer, the Trustee, any paying
agent or any Registrar shall be affected by notice to the contrary.
None of the Issuer,
the Trustee, any agent of the Trustee, any paying agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 2.08
Temporary
Debt Securities
. Pending the preparation of definitive Debt Securities of any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced)
of any authorized denomination, and substantially in the form of the definitive Debt Securities in lieu of which they are issued,
in registered form with such omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as may
be determined by the Issuer with the concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the Issuer and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Debt Securities.
If temporary Debt Securities
of any series are issued, the Issuer will cause definitive Debt Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Debt Securities of such series, the temporary Debt Securities of such series shall be exchangeable
for definitive Debt Securities of such series upon surrender of the temporary Debt Securities of such series at the office or agency
of the Issuer at a Place of Payment for such series, without charge to the Holder thereof, except as provided in Section 2.07 in
connection with a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any series, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Debt Securities
of the same series of authorized denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of such series.
Upon any exchange of
a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction
of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for
all purposes by the amount to be exchanged and endorsed.
Section 2.09
Mutilated,
Destroyed, Lost or Stolen Debt Securities
. If (a) any mutilated Debt Security is surrendered to the Trustee at its corporate
trust office or (b) the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any
Debt Security, and there is delivered to the Issuer and the Trustee such security or indemnity as may be required by them to save
each of them and any paying agent harmless, and neither the Issuer nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser, then the Issuer shall execute and, upon an Issuer Order, the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of
the same series of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding. Upon the issuance
of any substituted Debt Security, the Issuer may require the payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Debt which
has matured or is about to mature or which has been called for redemption shall become mutilated or be destroyed, lost or stolen,
the Issuer may, instead of issuing a substituted Debt Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish the Issuer and the Trustee with
such security or indemnity as either may require to save it harmless from all risk, however remote, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Issuer and the Trustee of the destruction, loss or theft of such Debt Security
and of the ownership thereof.
Every substituted Debt
Security of any series issued pursuant to the provisions of this Section 2.09 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Debt Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series duly issued hereunder. All Debt Securities shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or remedies, notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10
Cancellation
of Surrendered Debt Securities
. All Debt Securities surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to the Issuer or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it, or
if surrendered to the Trustee, shall be canceled by it, and no Debt Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All canceled Debt Securities held by the Trustee shall be destroyed (subject
to the record retention requirements of the Exchange Act) and certification of their destruction delivered to the Issuer, unless
otherwise directed. On request of the Issuer, the Trustee shall deliver to the Issuer canceled Debt Securities held by the Trustee.
If the Issuer shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction
of the Debt represented thereby unless and until the same are delivered or surrendered to the Trustee for cancellation. The Issuer
may not issue new Debt Securities to replace Debt Securities it has redeemed, paid or delivered to the Trustee for cancellation.
Section 2.11
Provisions
of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
. Nothing in this Indenture or in the
Debt Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto, the Holders
or any Registrar or paying agent, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for the sole benefit
of the parties hereto, the Holders and any Registrar and paying agents.
Section 2.12
Payment
of Interest; Interest Rights Preserved
.
(a) Interest
on any Debt Security that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to
the Person in whose name such Debt Security is registered at the close of business on the regular record date for such interest
notwithstanding the cancellation of such Debt Security upon any transfer or exchange subsequent to the regular record date. Payment
of interest on Debt Securities shall be made at the corporate trust office of the Trustee (except as otherwise specified pursuant
to Section 2.03), or at the option of the Issuer, by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in accordance with arrangements satisfactory
to the Trustee, at the option of the Holder by wire transfer to an account designated by the Holder.
(b) Subject
to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security of the same series shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Section 2.13
Securities
Denominated in Dollars
. Except as otherwise specified pursuant to Section 2.03 for Debt Securities of any series, payment of
the principal of, and premium, if any, and interest on, Debt Securities of such series will be made in Dollars.
Section 2.14
Wire
Transfers
. Notwithstanding any other provision to the contrary in this Indenture, the Issuer may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or premium, if any, or interest on, the Debt Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in immediately available
funds to an account designated by the Trustee before 11:00 a.m., New York City time, on the date such moneys are to be paid to
the Holders of the Debt Securities in accordance with the terms hereof.
Section 2.15
Securities
Issuable in the Form of a Global Security
.
(a) If
the Issuer shall establish pursuant to Sections 2.01 and 2.03 that the Debt Securities of a particular series are to be issued
in whole or in part in the form of one or more Global Securities, then the Issuer shall execute and the Trustee or its agent shall,
in accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented
by such Global Security or Securities, or such portion thereof as the Issuer shall specify in an Officers’ Certificate, shall
be registered in the name of the Depositary for such Global Security or Securities or its nominee, shall be delivered by the Trustee
or its agent to the Depositary or pursuant to the Depositary’s instruction and shall bear a legend substantially to the following
effect:
“UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO HEREIN,”
or such other legend as may then be required
by the Depositary for such Global Security or Securities.
(b) Notwithstanding
any other provision of this Section 2.15 or of Section 2.07 to the contrary, and subject to the provisions of paragraph (c) below,
unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive
Debt Securities in registered form, a Global Security may be transferred, in whole but not in part and in the manner provided in
Section 2.07, only by the Depositary to a nominee of the Depositary for such Global Security, or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary
for such Global Security selected or approved by the Issuer, or to a nominee of such successor Depositary.
(c) (i)
If at any time the Depositary for a Global Security or Securities notifies the Issuer that it is unwilling or unable to continue
as Depositary for such Global Security or Securities or if at any time the Depositary for the Debt Securities for such series shall
no longer be eligible or in good standing under the Exchange Act or other applicable statute, rule or regulation, the Issuer shall
appoint a successor Depositary with respect to such Global Security or Securities. If a successor Depositary for such Global Security
or Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer shall execute, and the Trustee or its agent, upon receipt of an Issuer Order for the authentication and delivery of
such individual Debt Securities of such series in exchange for such Global Security, will authenticate and deliver, individual
Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security or Securities.
(ii) The
Issuer may at any time and in its sole discretion determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of individual
Debt Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual
Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal
amount of such series or portion thereof in exchange for such Global Security or Securities.
(iii) If
specified by the Issuer pursuant to Sections 2.01 and 2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for
individual Debt Securities of such series of like tenor and terms in definitive form on such terms as are acceptable to the Issuer,
the Trustee and such Depositary. Thereupon the Issuer shall execute, and the Trustee or its agent upon receipt of an Issuer Order
for the authentication and delivery of definitive Debt Securities of such series shall authenticate and deliver, without service
charge, to each Person specified by such Depositary a new Debt Security or Securities of the same series of like tenor and terms
and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such
Person’s beneficial interest in the Global Security; and to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Debt Securities delivered to Holders thereof.
(iv) In
any exchange provided for in any of the preceding three paragraphs, the Issuer will execute and the Trustee or its agent will authenticate
and deliver individual Debt Securities. Upon the exchange of the entire principal amount of a Global Security for individual Debt
Securities, such Global Security shall be canceled by the Trustee or its agent. Except as provided in the preceding paragraph,
Debt Securities issued in exchange for a Global Security pursuant to this Section 2.15 shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver such Debt Securities
to the Persons in whose names such Debt Securities are so registered.
Payments in respect
of the principal of and interest on any Debt Securities registered in the name of the Depositary or its nominee will be payable
to the Depositary or such nominee in its capacity as the registered owner of such Global Security. The Issuer and the Trustee may
treat the Person in whose name the Debt Securities, including the Global Security, are registered as the owner thereof for the
purpose of receiving such payments and for any and all other purposes whatsoever. None of the Issuer, the Trustee, any Registrar,
the paying agent or any agent of the Issuer or the Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of the beneficial ownership interests of the Global Security by the Depositary or its nominee
or any of the Depositary’s direct or indirect participants, or for maintaining, supervising or reviewing any records of the
Depositary, its nominee or any of its direct or indirect participants relating to the beneficial ownership interests of the Global
Security, the payments to the beneficial owners of the Global Security of amounts paid to the Depositary or its nominee, or any
other matter relating to the actions and practices of the Depositary, its nominee or any of its direct or indirect participants.
None of the Issuer, the Trustee or any such agent will be liable for any delay by the Depositary, its nominee, or any of its direct
or indirect participants in identifying the beneficial owners of the Debt Securities, and the Issuer and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Debt Securities to be issued).
Section 2.16
Medium
Term Securities
. Notwithstanding any contrary provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Issuer to deliver to the Trustee an Officers’ Certificate, resolutions
of the Board of Directors, supplemental Indenture, Opinion of Counsel or written order or any other document otherwise required
pursuant to Sections 2.01, 2.03, 2.05 or 13.05 at or prior to the time of authentication of each Debt Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first
such Debt Security of such series to be issued; provided, that any subsequent request by the Issuer to the Trustee to authenticate
Debt Securities of such series upon original issuance shall constitute a representation and warranty by the Issuer that, as of
the date of such request, the statements made in the Officers’ Certificate delivered pursuant to Sections 2.05 or 13.05 shall
be true and correct as if made on such date and that the Opinion of Counsel delivered at or prior to such time of authentication
of an original issuance of Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt Securities
of such series that are identical to the Debt Securities issued in the first issuance of Debt Securities of such series.
An Issuer Order delivered
by the Issuer to the Trustee in the circumstances set forth in the preceding paragraph, may provide that Debt Securities which
are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of Persons designated in such written order (any such telephonic instructions to be promptly confirmed
in writing by such Person) and that such Persons are authorized to determine, consistent with the Officers’ Certificate,
supplemental Indenture or resolution of the Board of Directors relating to such written order, such terms and conditions of such
Debt Securities as are specified in such Officers’ Certificate, supplemental Indenture or such resolution.
Section 2.17
Defaulted
Interest
. Any interest on any Debt Security of a particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such series and in this Indenture (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant record date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or
(b) below:
(a) The
Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of such series 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 Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Debt Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with
the Trustee an amount of money 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 in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not 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 Issuer of such special record date and, in the name and at the expense
of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage pre-paid, to each Holder thereof at its address as it appears in the Debt 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 the Debt Securities of
such series are registered at the close of business on such special record date.
(b) The
Issuer may make payment of any Defaulted Interest on the Debt Securities of such series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities of such series may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.
Section 2.18
CUSIP
Numbers
. The Issuer in issuing the Debt Securities may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the accuracy of such numbers either as printed on the Debt Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on
the Debt Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE
III
REDEMPTION OF DEBT SECURITIES
Section 3.01
Applicability
of Article
. The provisions of this Article shall be applicable to the Debt Securities of any series which are redeemable before
their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such series.
Section 3.02
Notice
of Redemption; Selection of Debt Securities
. In case the Issuer shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with their terms, by resolution of the Board of Directors
or a supplemental Indenture, the Issuer shall fix a date for redemption and shall give notice of such redemption at least 30 and
not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series so to be redeemed
as a whole or in part, in the manner provided in Section 13.03. The notice if given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Debt Security of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of
redemption shall specify the date fixed for redemption, the redemption price at which Debt Securities of such series are to be
redeemed (or the method of calculating such redemption price), the Place or Places of Payment that payment will be made upon presentation
and surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will be paid as specified in
said notice, that the redemption is for a sinking fund payment (if applicable), that, unless otherwise specified in such notice,
that, if the Issuer defaults in making such redemption payment, the paying agent is prohibited from making such payment pursuant
to the terms of this Indenture, that on and after said date any interest thereon or on the portions thereof to be redeemed will
cease to accrue, that in the case of Original Issue Discount Securities original issue discount accrued after the date fixed for
redemption will cease to accrue, the terms of the Debt Securities of that series pursuant to which the Debt Securities of that
series are being redeemed and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Debt Securities of that series. If less than all the Debt Securities of a series are to be redeemed
the notice of redemption shall specify the certificate numbers of the Debt Securities of that series to be redeemed. In case any
Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities of that series in principal amount equal to the unredeemed portion thereof, will be issued.
At least 45 days but
not more than 60 days before the Redemption Date unless the Trustee consents to a shorter period, the Issuer shall give written
notice to the Trustee of the Redemption Date, the principal amount of Debt Securities to be redeemed and the series and terms of
the Debt Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an Officers’ Certificate
and an Opinion of Counsel from the Issuer to the effect that such redemption will comply with the conditions herein. If fewer than
all the Debt Securities of a series are to be redeemed, the record date relating to such redemption shall be selected by the Issuer
and given in writing to the Trustee, which record date shall be not less than 15 days after the date of notice to the Trustee.
By 11:00 a.m., New
York City time, on the Redemption Date for any Debt Securities, the Issuer shall deposit with the Trustee or with a paying agent
(or, if the Issuer is acting as its own paying agent, segregate and hold in trust) an amount of money in Dollars (except as provided
pursuant to Section 2.03) sufficient to pay the redemption price of such Debt Securities or any portions thereof that are to be
redeemed on that date, together with any interest accrued to the Redemption Date.
If less than all the
Debt Securities of like tenor and terms of a series are to be redeemed, the Trustee shall select, on a pro rata basis, by lot or
by such other method as in its sole discretion it shall deem appropriate and fair, the Debt Securities of that series or portions
thereof (in multiples of $1,000) to be redeemed. In any case where more than one Debt Security of such series is registered in
the same name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it were represented by
one Debt Security of such series. The Trustee shall promptly notify the Issuer in writing of the Debt Securities selected for redemption
and, in the case of any Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal, premium, if
any, and interest shall bear interest until paid from the Redemption Date at the rate borne by the Debt Securities of that series.
If less than all the Debt Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt Securities to
be redeemed shall be selected by the Issuer. Provisions of this Indenture that apply to Debt Securities called for redemption also
apply to portions of Debt Securities called for redemption.
Section 3.03
Payment
of Debt Securities Called for Redemption
. If notice of redemption has been given as provided in Section 3.02, the Debt Securities
or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the
date and at the Place or Places of Payment stated in such notice at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest accrued to said date) any interest on the Debt Securities
or portions of Debt Securities of any series so called for redemption shall cease to accrue, any original issue discount in the
case of Original Issue Discount Securities shall cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption.
Any Debt Security that
is to be redeemed only in part shall be surrendered at the corporate trust office or such other office or agency of the Issuer
as is specified pursuant to Section 2.03 with, if the Issuer, the Registrar or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the Issuer, the Registrar and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing, and the Issuer shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Debt Security without service charge, a new Debt Security or Debt Securities of the same series, of like
tenor and form, 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 Debt Security so surrendered; except that if a Global Security is so surrendered,
the Issuer shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
Section 3.04
Mandatory
and Optional Sinking Funds
. The minimum amount of any sinking fund payment provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture is herein referred to as an “optional sinking fund payment.”
In lieu of making all
or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Issuer may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Issuer or (b)
receive credit for the principal amount of Debt Securities of that series which have been redeemed either at the election of the
Issuer pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Debt Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not been previously
so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee at the redemption price specified
in such Debt Securities, resolution or supplemental Indenture for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 3.05
Redemption
of Debt Securities for Sinking Fund
. Not less than 60 days prior to each sinking fund payment date for any series of Debt Securities,
the Issuer 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, any resolution or supplemental Indenture, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to this Section 3.05 (which Debt Securities, if not previously redeemed, will accompany such
certificate) and whether the Issuer intends to exercise its right to make any permitted optional sinking fund payment with respect
to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Issuer shall be obligated to make the cash payment or payments
therein referred to, if any, by 11 a.m., New York City time, on the next succeeding sinking fund payment date. Failure of the Issuer
to deliver such certificate (or to deliver the Debt Securities specified in this paragraph) shall not constitute a Default, but
such failure shall require that the sinking fund payment due on the next succeeding sinking fund payment date for that series shall
be paid entirely in cash and shall be sufficient to redeem the principal amount of such Debt Securities subject to a mandatory
sinking fund payment without the option to deliver or credit Debt Securities as provided in this Section 3.05 and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment
or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which
shall equal or exceed $100,000 (or a lesser sum if the Issuer shall so request) with respect to the Debt Securities of any particular
series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such
Debt Securities at the redemption price specified in such Debt Securities, resolution or supplemental Indenture for operation of
the sinking fund together with any accrued interest to the date fixed for redemption. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by
the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section
3.05. Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee on the last
sinking fund payment date with respect to Debt Securities of such series and not held for the payment or redemption of particular
Debt Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose,
to the payment of the principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select
the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section
3.02 and the Issuer shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that
the notice of redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice
having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section
3.03.
The Trustee shall not
redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation
of the sinking fund for such series during the continuance of a Default in payment of interest on such Debt Securities or of any
Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities,
except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee for
that purpose in accordance with the terms of this Article III. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such Default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such Default or Event of Default, be held as security for the payment of such Debt Securities; provided,
however, that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied pursuant to the provisions
of this Section 3.05.
ARTICLE
IV
PARTICULAR COVENANTS OF THE ISSUER
Section 4.01
Payment
of Principal of, and Premium, If Any, and Interest on, Debt Securities
. The Issuer, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the
Debt Securities at the place, at the respective times and in the manner provided herein or in the Debt Securities. Each installment
of interest on the Debt Securities may at the Issuer’s option be paid by mailing checks for such interest payable to the
Person entitled thereto pursuant to Section 2.07(a) to the address of such Person as it appears on the Debt Security Register.
Principal, premium
and interest of Debt Securities of any series shall be considered paid on the date due if, by 11 a.m., New York City time, on such
date the Trustee or any paying agent holds in accordance with this Indenture money sufficient to pay all principal, premium and
interest then due.
The Issuer shall pay
interest on overdue principal or premium, if any, at the rate specified therefor in the Debt Securities and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful.
Section 4.02
Maintenance
of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
. The Issuer will maintain in each
Place of Payment for any series of Debt Securities an office or agency where Debt Securities of such series may be presented or
surrendered for payment, and it shall also maintain (in or outside such Place of Payment) an office or agency where Debt Securities
of such series may be surrendered for transfer or exchange and where notices and demands to or upon the Issuer in respect of the
Debt Securities of such series and this Indenture may be served. The Issuer 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 Issuer 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 office of the Trustee where its corporate trust business is principally administered in the United
States, and the Issuer hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands.
The Issuer may also
from time to time designate different or additional offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligations described in the preceding paragraph. The Issuer will give prompt written
notice to the Trustee of any such additional designation or rescission of designation and any change in the location of any such
different or additional office or agency.
Section 4.03
Appointment
to Fill a Vacancy in the Office of Trustee
. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with respect
to each series of Debt Securities.
Section 4.04
Duties
of Paying Agents, etc
.
(a) The
Issuer shall cause each paying agent, if any, other than the Trustee, to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this Section 4.04,
(i) that
it will hold all sums held by it as such agent for the payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the Issuer or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt Securities of such series;
(ii) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of, and premium, if any, or interest on, the Debt Securities of such series when the same shall
be due and payable; and
(iii) that
it will at any time during the continuance of an Event of Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If
the Issuer shall act as its own paying agent, it will, on or before each due date of the principal of, and premium, if any, or
interest on, the Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of the Debt
Securities of such series a sum sufficient to pay such principal, premium, if any, or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure by the Issuer to take such action or the failure by any other obligor on such Debt Securities
to make any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the same shall be due and
payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Issuer may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or
any paying agent, as required by this Section 4.04, such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Issuer or such paying agent.
(d) Whenever
the Issuer shall have one or more paying agents with respect to any series of Debt Securities, it will, prior to each due date
of the principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with any such paying agent
a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless any such paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
(e) Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.
Section 4.05
SEC
Reports; Financial Statements
.
(a) The
Issuer shall, so long as any of the Debt Securities are Outstanding, file with the Trustee, within 15 days after it files the same
with the SEC, copies of the annual reports and the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) that the Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Issuer shall also comply with the provisions of TIA Section 314(a).
(b) If
the Issuer is required to furnish annual or quarterly reports to its unitholders pursuant to the Exchange Act, the Issuer shall,
so long as any of the Debt Securities are outstanding, cause any annual report furnished to its unitholders generally and any quarterly
or other financial reports furnished by it to its unitholders generally to be filed with the Trustee and mailed to the Holders
in the manner and to the extent provided in Section 5.03.
(c) The
Issuer shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the
Trustee may be required to deliver to Holders under this Section.
(d) The
Issuer shall, so long as any of the Notes are Outstanding, deliver to the Trustee, within 30 days of any Officer of the Issuer
becoming aware of the occurrence of any Default or Event of Default, an Officers’ Certificate specifying such Default or
Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
Section 4.06
Compliance
Certificate
.
(a) The
Issuer shall, so long as any of the Debt Securities are outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Issuer, an Officers’ Certificate stating that a review of the activities of the Issuer and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officers of the Issuer with a view to determining
whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his knowledge the Issuer has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof, without regard to any grace period or requirement of notice required by this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may
have knowledge and what action the Issuer is taking or propose to take with respect thereto) and that to the best of his knowledge
no event has occurred and remains in existence by reason of which payments on account of the principal of, or premium, if any,
or interest, if any, on the Debt Securities are prohibited or, if such event has occurred, a description of the event and what
action the Issuer are taking or propose to take with respect thereto.
(b) The
Issuer shall, so long as any of the Debt Securities are outstanding, deliver to the Trustee within 30 days after the occurrence
of any Default or Event of Default under this Indenture, an Officers’ Certificate specifying such Default or Event of Default,
the status thereof and what action the Issuer are taking or propose to take with respect thereto.
Section 4.07
Further
Instruments and Acts
. The Issuer will, upon request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture.
Section 4.08
Existence
.
Except as permitted by Article X hereof, the Issuer shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence and all rights (charter and statutory) and franchises of the Issuer, provided that the Issuer shall
not be required to preserve any such right or franchise, if the Board of Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer.
Section 4.09
Maintenance
of Properties
. The Issuer shall cause all properties owned by the Issuer or any of its Subsidiaries or used or held for use
in the conduct of its business or the business of any such Subsidiary to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Issuer from discontinuing the operation or maintenance of any of such properties if such discontinuance
is, in the judgment of the Issuer, desirable in the conduct of its business or the business of any such Subsidiary and not disadvantageous
in any material respect to the Holders.
Section 4.10
Payment
of Taxes and Other Claims
. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any of its Subsidiaries or
upon the income, profits or property of the Issuer or any of its Subsidiaries, and (ii) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon the property of the Issuer or any of its Subsidiaries; provided
that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
Section 4.11
Waiver
of Certain Covenants
. The Issuer may, with respect to the Debt Securities of any series, omit in any particular instance to
comply with any covenant set forth in this Article IV (except Sections 4.01 through 4.08) or made applicable to such Debt Securities
pursuant to Section 2.03, if, before or after the time for such compliance, the Holders of at least a majority in principal amount
of the Outstanding Debt Securities of each series affected, waive such compliance in such instance with such covenant, but no such
waiver shall extend to or affect such covenant except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Issuer and the duties of the Trustee in respect of any such covenant shall remain in full force and effect.
ARTICLE
V
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
Section 5.01
Issuer
to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series:
(a) not
more than 10 days after each record date with respect to the payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such record date, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer of any such request, a list
of similar form and contents as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the
Trustee shall be the Registrar, such lists shall not be required to be furnished.
The Trustee shall preserve,
in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (i) contained in
the most recent list furnished to it as provided in this Section 5.01 or (ii) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy
any list furnished to it as provided in this Section 5.01 upon receipt of a new list so furnished.
Section 5.02
Communications
to Holders
. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under
this Indenture or the Debt Securities. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
Section 5.03
Reports
by Trustee
. Within 60 days after each January 31, beginning with the first January 31 following the date of this Indenture,
and in any event on or before April 1 in each year, the Trustee shall mail to Holders a brief report dated as of such January 31
that complies with TIA Section 313(a); provided, however, that if no event described in TIA Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be transmitted. The Trustee also shall comply with TIA Section 313(b).
Reports pursuant to
this Section 5.03 shall be transmitted by mail:
(a) to
all Holders, as the names and addresses of such Holders appear in the Debt Security Register; and
(b) except
in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a Debt Security of any series whose name and address
appear in the information preserved at the time by the Trustee in accordance with Section 5.01.
A copy of each report
at the time of its mailing to Holders shall be filed with the Securities and Exchange Commission and each stock exchange (if any)
on which the Debt Securities of any series are listed. The Issuer agree to notify promptly the Trustee whenever the Debt Securities
of any series become listed on any stock exchange and of any delisting thereof.
Section 5.04
Record
Dates for Action by Holders
. If the Issuer shall solicit from the Holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice, consent or waiver or the taking of any other action),
the Issuer may, at its option, by resolution of the Board of Directors, fix in advance a record date for the determination of Holders
of Debt Securities entitled to take such action, but the Issuer shall have no obligation to do so. Any such record date shall be
fixed at the Issuer’s discretion. If such a record date is fixed, such action may be sought or given before or after the
record date, but only the Holders of Debt Securities of record at the close of business on such record date shall be deemed to
be Holders of Debt Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action, and for that purpose the Debt Securities of such
series Outstanding shall be computed as of such record date.
ARTICLE
VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01
Events
of Default
. If any one or more of the following shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an “Event of Default”):
(a) default
in the payment of any installment of interest upon any Debt Securities of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default
in the payment of the principal of or premium, if any, on any Debt Securities of that series as and when the same shall become
due and payable, whether at Stated Maturity, upon redemption, by declaration, upon required repurchase or otherwise; or
(c) default
in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become
due and payable; or
(d) failure
on the part of the Issuer, duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the
Debt Securities of that series, in any resolution of the Board of Directors authorizing the issuance of that series of Debt Securities,
in this Indenture with respect to such series or in any supplemental Indenture with respect to such series (other than a covenant
a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a period of 60 days
after the date on which written notice specifying such failure and requiring the Issuer, to remedy the same shall have been given,
by registered or certified mail, to the Issuer, by the Trustee or to the Issuer, and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Debt Securities of that series at the time Outstanding; or
(e) the
Issuer, pursuant to or within the meaning of any Bankruptcy Law,
(i)
commences a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property; or
(iv) makes
a general assignment for the benefit of its creditors;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Issuer as debtor in an involuntary case,
(ii) appoints
a Custodian of the Issuer or a Custodian for all or substantially all of the property of the Issuer, or if applicable, any of or
(iii) orders
the liquidation of the Issuer and the order or decree remains unstayed and in effect for 60 days;
(g) any
other Event of Default provided with respect to Debt Securities of that series; then and in each and every case that an Event of
Default described in clause (a), (b), (c), (d), or (g) with respect to Debt Securities of that series at the time Outstanding occurs
and is continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of that series shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then Outstanding hereunder, by notice in writing to the Issuer (and to the Trustee if given by Holders),
may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion
of the principal amount as may be specified in the terms of that series), premium, if any, and interest on all the Debt Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Debt Securities of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (e) or (f) occurs, then and in each and every such case, unless the principal of and
interest on all the Debt Securities shall have become due and payable, the principal of (or, if any Debt Securities are Original
Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereof), premium, if any,
and interest on all the Debt Securities then Outstanding hereunder shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders, anything in this Indenture or in the Debt Securities contained
to the contrary notwithstanding.
The Holders of a majority
in aggregate principal amount of the Debt Securities of a particular series by written notice to the Trustee may waive all past
Defaults (except with respect to the nonpayment of principal, premium, if any, or interest) and rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered
and if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that
has become due solely because of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
Section 6.02
Collection
of Debt by Trustee, etc
. If an Event of Default occurs and is continuing, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid or enforce the performance of any provision of the Debt Securities of the affected series or this Indenture,
and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or any other obligor upon the Debt Securities of such series (and collect in the manner provided by law out
of the property of the Issuer or any other obligor upon the Debt Securities of such series wherever situated the moneys adjudged
or decreed to be payable).
In case there shall
be pending proceedings for the bankruptcy or for the reorganization of the Issuer or any other obligor upon the Debt Securities
of any series under any Bankruptcy Law, or in case a Custodian shall have been appointed for its property, or in case of any other
similar judicial proceedings relative to the Issuer or any other obligor upon the Debt Securities of any series, its creditors
or its property, the Trustee, irrespective of whether the principal of Debt Securities of any series 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 pursuant
to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file
and prove a claim or claims for the whole amount of principal, premium, if any, and interest (or, if the Debt Securities of such
series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Debt Securities of such series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee,
its agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings
relative to the Issuer, or any other obligor upon the Debt Securities of such series, its creditors or its property, and to collect
and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with
respect to the claims of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred,
and all advances made, by the Trustee except as a result of its negligence or bad faith.
All rights of action
and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any such Debt Securities, or the production thereof in any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall be for the ratable benefit
of the Holders of all the Debt Securities in respect of which such action was taken.
In case of an Event
of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 6.03
Application
of Moneys Collected by Trustee
. Any moneys or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied, in the order following, at the date or dates fixed by the Trustee for the distribution
of such moneys or other property, upon presentation of the several Debt Securities of such series in respect of which moneys or
other property have been collected, and the notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment
of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the
principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due, to
the payment of interest on the Debt Securities of such series in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities of such series,
such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the
principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due, by declaration
or otherwise, to the payment of the whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of interest at the rate or Yield to Maturity (in the case of Original
Issue Discount Debt Securities) borne by the Debt Securities of such series; and, in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Debt Security
of such series over any Debt Security of such series, ratably to the aggregate of such principal and premium, if any, and interest;
and
FOURTH: The remainder,
if any, shall be paid to the Issuer, its successors or assigns, or to whomsoever may be lawfully entitled to receive the same,
or as a court of competent jurisdiction may direct.
The Trustee may fix
a record date and payment date for any payment to Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Issuer shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.04
Limitation
on Suits by Holders
. No Holder of any Debt Security of any series shall have any right by virtue or by availing of any provision
of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default with respect to Debt Securities of that same series
and of the continuance thereof and unless the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request upon the Trustee to institute such action or proceedings in respect of
such Event of Default in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity or security
as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after
its receipt of such notice, request and offer of indemnity or security shall have failed to institute any such action or proceedings
and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every Debt Security with every other Holder and the Trustee,
that no one or more Holders shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain priority over or preference to any other
such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all such Holders. For the protection and enforcement of the provisions of this Section 6.04, each and every Holder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any
other provision in this Indenture, however, the right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt Security, on or after the respective due dates expressed
in such Debt Security, and to institute suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 6.05
Remedies
Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
. All powers and remedies given by this Article
VI to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair any
such right or power, or shall be construed to be a waiver of any such Default or an acquiescence therein; and, subject to the provisions
of Section 6.04, every power and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.06
Rights
of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
. The Holders of a majority
in aggregate principal amount of the Debt Securities of any series at the time Outstanding 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 right, trust or power
conferred on the Trustee, with respect to the Debt Securities of such series; provided, however, that such direction shall not
be otherwise than in accordance with law and the provisions of this Indenture, and that subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine
that the action so directed may not lawfully be taken, or if the Trustee shall by a responsible officer or officers determine that
the action so directed would involve it in personal liability or would be unduly prejudicial to Holders of Debt Securities of such
series not taking part in such direction; and provided, further, however, that nothing in this Indenture contained shall impair
the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction by such
Holders. Prior to the acceleration of the maturity of the Debt Securities of any series, as provided in Section 6.01, the Holders
of a majority in aggregate principal amount of the Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities of that series waive any past Default or Event of Default and its consequences for that series,
except a Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt Securities and a Default
in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected thereby. In case
of any such waiver, such Default shall cease to exist, any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture, the Issuer, the Trustee and the Holders of the Debt Securities of that series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.07
Trustee
to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
. The Trustee shall, within 90
days after the occurrence of a Default known to it, or if later, within 30 days after the Trustee obtains actual knowledge of the
Default, with respect to a series of Debt Securities give to the Holders thereof, in the manner provided in Section 13.03, notice
of all Defaults with respect to such series known to the Trustee, unless such Defaults shall have been cured or waived before the
giving of such notice; provided, that, except in the case of Default in the payment of the principal of, or premium, if any, or
interest on, any of the Debt Securities of such series or in the making of any sinking fund payment with respect to the Debt 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 directors or responsible officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders thereof.
Section 6.08
Requirement
of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
. All parties to this Indenture agree,
and each Holder of any Debt Security 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the TIA, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, 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 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25 percent
in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the enforcement
of the payment of the principal of, or premium, if any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
ARTICLE
VII
CONCERNING THE TRUSTEE
Section 7.01
Certain
Duties and Responsibilities
. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth
in this Indenture. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act,
its own bad faith or its own willful misconduct, except that:
(a) this
paragraph shall not be construed to limit the effect of the first paragraph of this Section 7.01;
(b) prior
to the occurrence of an Event of Default with respect to the Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred:
(i) the
duties and obligations of the Trustee with respect to Debt Securities of any series shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations with respect to
such series as are specifically set forth in this Indenture, and no implied covenants or obligations with respect to such series
shall be read into this Indenture against the Trustee;
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee 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; but the Trustee shall examine the evidence furnished to it pursuant to Sections
4.05 and 4.06 to determine whether or not such evidence conforms to the requirement of this Indenture;
(iii) the
Trustee shall not be liable for an 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; and
(iv) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to Debt Securities of any
series in good faith in accordance with the direction of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of that 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 Debt
Securities of such series.
None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be 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 7.02
Certain
Rights of Trustee
. Except as otherwise provided in Section 7.01:
(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 or other paper or document (whether in its original
or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Order (unless other
evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuer;
(c) the
Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of Debt Securities of any series pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) prior
to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, 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, approval or other paper or document, unless requested in writing to
do so by the Holders of a majority in aggregate principal amount of the then Outstanding Debt Securities of a series affected by
such matter; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding, and the reasonable expense of every such investigation shall be
paid by the Issuer or, if paid by the Trustee, shall be repaid by the Issuer upon demand;
(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
by it with due care hereunder; and
(h) if
any property other than cash shall at any time be subject to a Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property
to such Lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax Liens or other
prior Liens or encumbrances thereon.
Section 7.03
Trustee
Not Liable for Recitals in Indenture or in Debt Securities
. The recitals contained herein, in the Debt Securities (except the
Trustee’s certificate of authentication) shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of
the Debt Securities of any series, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that the statements made by it or to be made by it
in a Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer are true and accurate. The Trustee shall not
be accountable for the use or application by the Issuer of any of the Debt Securities or of the proceeds thereof.
Section 7.04
Trustee,
Paying Agent or Registrar May Own Debt Securities
. The Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the provisions of the TIA relating to conflicts of
interest and preferential claims may otherwise deal with the Issuer with the same rights it would have if it were not Trustee,
paying agent or Registrar.
Section 7.05
Moneys
Received by Trustee to Be Held in Trust
. Subject to the provisions of Section 11.05, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for which they were received, but 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 moneys received
by it hereunder. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time to the Issuer upon an Issuer Order.
Section 7.06
Compensation
and Reimbursement
. The Issuer covenants and agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the
Issuer will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ), including without
limitation, Section 6.02, except any such expense, disbursement or advances as may arise from its negligence, willful misconduct
or bad faith. The Issuer also covenants to indemnify in Dollars the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, willful misconduct or bad faith on the part of the Trustee, arising out of or in connection
with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending
itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Issuer under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional Debt hereunder and shall survive the satisfaction and discharge
of this Indenture. The Issuer and the Holders agree that such additional Debt shall be secured by a Lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs
expenses or renders services after an Event of Default specified in Sections 6.01(e) or 6.01(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any bankruptcy, insolvency, reorganization or other
similar law.
Section 7.07
Right
of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
. Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08
Separate
Trustee; Replacement of Trustee
. The Issuer may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving notice to
the Issuer. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee
for such series and only such series by so notifying the Trustee and may appoint a successor Trustee. The Issuer shall remove the
Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
Custodian takes charge of the Trustee or its property; or
(d) the
Trustee otherwise becomes incapable of acting.
If the Trustee resigns,
is removed by the Issuer or by the Holders of a majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason
(the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Debt Securities of each applicable
series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the
Lien provided for in Section 7.06.
If a successor Trustee
does not take office within 60 days after the retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails
to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the
replacement of the Trustee pursuant to this Section 7.08, Issuer’s obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
In the case of the
appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Issuer,
any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall
execute and deliver an Indenture supplemental hereto (i) which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series
as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that 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 separate, retiring or successor 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.
Section 7.09
Successor
Trustee by Merger
. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Trustee.
In case at the time
such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver such Debt Securities so authenticated; and in case at
that time any of the Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
Section 7.10
Eligibility;
Disqualification
. The Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities of a particular series or Person directly or indirectly controlling, controlled by or under common
control with such obligor shall serve as Trustee upon the Debt Securities of such series. The Trustee shall comply with Section
310(b) of the TIA; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the TIA this Indenture
or any indenture or indentures under which other securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met.
Section 7.11
Preferential
Collection of Claims Against Issuer
. The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor relationship
listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the TIA to
the extent indicated therein.
Section 7.12
Compliance
with Tax Laws
. The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting and withholding requirements
applicable to it with respect to payments of premium (if any) and interest on the Debt Securities, whether acting as Trustee, Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE
VIII
CONCERNING THE HOLDERS
Section 8.01
Evidence
of Action by Holders
. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including the making of any demand or request, the giving of
any direction, notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by Holders in Person or by agent or proxy appointed in writing, by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the provisions of Section 5.02 or by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
Section 8.02
Proof
of Execution of Instruments and of Holding of Debt Securities
. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
proof of the execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The ownership of Debt Securities of any series shall be proved by the Debt Security Register or by a certificate of the Registrar
for such series. The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem
necessary.
Section 8.03
Who
May Be Deemed Owner of Debt Securities
. Prior to due presentment for registration of transfer of any Debt Security, the Issuer,
the Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Debt Security shall be registered
upon the books of the Issuer as the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.12) interest on such Debt Security and for all other purposes, and
neither the Issuer nor the Trustee nor any paying agent nor any Registrar shall be affected by any notice to the contrary; and
all such payments so made to any such Holder for the time being, or upon his order, shall be valid and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
None of the Issuer,
the Trustee, any agent of the Trustee, any paying agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 8.04
Instruments
Executed by Holders Bind Future Holders
. At any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action and subject to the following paragraph, any Holder of
a Debt Security which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust office and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any
Debt Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and
of any Debt Security issued upon transfer thereof or in exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Debt Security or such other Debt Securities. Any action taken by the Holders of the percentage
in aggregate principal amount of the Debt Securities of any series specified in this Indenture in connection with such action shall
be conclusively binding upon the Issuer, the Trustee and the Holders of all the Debt Securities of such series.
The Issuer may, but
shall not be obligated to, fix a record date for the purpose of determining the Holders of Debt Securities entitled to give their
consent or take any other action required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt Securities at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be Holders of Debt Securities after such record date.
No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the Holders of
the percentage in aggregate principal amount of the Debt Securities of such series specified in this Indenture shall have been
received within such 120-day period.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
Section 9.01
Purposes
for Which Supplemental Indenture May Be Entered into Without Consent of Holders
. The Issuer, when authorized by resolutions
of the Board of Directors, and the Trustee may from time to time and at any time, without the consent of Holders, enter into an
Indenture or Indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to
evidence the succession pursuant to Article X of another Person to the Issuer, or successive successions, and the assumption by
the Successor Company (as defined in Section 10.01) of the covenants, agreements and obligations of the Issuer in this Indenture
and in the Debt Securities;
(b) to
surrender any right or power herein conferred upon the Issuer or to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities, stating that such covenants are expressly being included
solely for the benefit of such series) as the Board of Directors shall consider to be for the protection of the Holders of such
Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default in any of such additional covenants,
restrictions, conditions or provisions a Default or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture; provided, that in respect of any such additional covenant, restriction, condition or provision
such supplemental Indenture may provide for a particular period of grace after Default (which period may be shorter or longer than
that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of the Holders of a majority in aggregate principal amount of
any or all series of Debt Securities to waive such default;
(c) to
cure any ambiguity or omission or to correct or supplement any provision contained herein, in any supplemental Indenture or in
any Debt Securities of any series that may be defective or inconsistent with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series; to convey, transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture as shall not adversely
affect the interests of any Holders of Debt Securities of any series;
(d) to
modify or amend this Indenture in such a manner as to permit the qualification of this Indenture or any Indenture supplemental
hereto under the TIA as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of the TIA;
(e) to
add to or change any of the provisions of this Indenture to change or eliminate any restrictions on the payment of principal of,
or premium, if any, on, Debt Securities; provided, that any such action shall not adversely affect the interests of the Holders
of Debt Securities of any series in any material respect or permit or facilitate the issuance of Debt Securities of any series
in uncertificated form;
(f) to
secure any or all of the Debt Securities;
(g) to
make any change that does not adversely affect the rights of any Holder;
(h) to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise permitted under this Section 9.01 shall neither apply to any
Debt Security of any series created prior to the execution of such supplemental Indenture and entitled to the benefit of such provision
nor modify the rights of the Holder of any such Debt Security with respect to such provision or shall become effective only when
there is no such Debt Security Outstanding;
(i) to
evidence and provide for the acceptance of appointment hereunder by a successor or separate Trustee with respect to the Debt 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; and
(j) to
establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby
authorized to join with the Issuer in the execution of any such supplemental Indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental Indenture which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental Indenture
authorized by the provisions of this Section 9.01 may be executed by the Issuer and the Trustee without the consent of the Holders
of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Modification
of Indenture with Consent of Holders of Debt Securities
. Without notice to any Holder but with the consent (evidenced as provided
in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such supplemental Indenture (including consents obtained in connection with a tender offer or exchange
offer for any such series of Debt Securities), the Issuer, when authorized by resolutions of the Board of Directors, and the Trustee
may from time to time and at any time enter into an Indenture or Indentures supplemental hereto (which shall conform to the provisions
of the TIA as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental Indenture or of modifying in any manner the rights
of the Holders of the Debt Securities of such series; provided, that no such supplemental Indenture, without the consent of the
Holders of each Debt Security so affected, shall: reduce the percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; reduce the rate of or extend the time for payment of interest on any Debt Security; reduce
the principal of or extend the Stated Maturity of any Debt Security; reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed in accordance with Article III; make any Debt Security
payable in currency other than the Dollar; impair the right of any Holder to receive payment of premium, if any, principal of and
interest on such Holder’s Debt Securities on or after the due dates therefor or to institute suit for the enforcement of
any payment on or with respect to such Holder’s Debt Securities; release any security that may have been granted in respect
of the Debt Securities; or make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture
which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of
the Issuer, accompanied by a copy of resolutions of the Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Issuer
in the execution of such supplemental Indenture unless such supplemental Indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental Indenture.
It shall not be necessary
for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed supplemental Indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
After an amendment
under this Section 9.02 becomes effective, the Issuer shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
Section 9.03
Effect
of Supplemental Indentures
. Upon the execution of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental Indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
The Trustee, subject
to the provisions of Sections 7.01 and 7.02, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of this Article IX.
Section 9.04
Debt
Securities May Bear Notation of Changes by Supplemental Indentures
. Debt Securities of any series authenticated and delivered
after the execution of any supplemental Indenture pursuant to the provisions of this Article IX 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. New Debt
Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental Indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure to make the appropriate notation
or to issue a new Debt Security of such series shall not affect the validity of such amendment.
ARTICLE
X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01
Consolidations
and Mergers of the Issuer
. The Issuer shall not consolidate or amalgamate with or merge with or into any Person, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all its assets to any Person, whether in a single transaction or a
series of related transactions, except (1) in accordance with the provisions of its partnership agreement, and (2) unless: (a)
either (i) the Issuer shall be the continuing Person in the case of a merger or (ii) the resulting, surviving or transferee Person
if other than the such Issuer (the “Successor Company”), shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Issuer under this Indenture
and the Debt Securities according to their tenor; (b) immediately after giving effect to such transaction (and treating any Debt
which becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result of such transaction
as having been incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default or Event of Default
would occur or be continuing; and (c) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation, amalgamation, merger or disposition and such supplemental Indenture (if any)
comply with this Indenture.
Section 10.02
Rights
and Duties of Successor Company
. In case of any consolidation, amalgamation or merger in respect of the Issuer where the Issuer
is not the continuing Person, or disposition of all or substantially all of the assets of the Issuer in accordance with Section
10.01, the Successor Company shall succeed to and be substituted for the Issuer with the same effect as if it had been named herein
as the respective party to this Indenture, and the predecessor entity shall be released from all liabilities and obligations under
this Indenture and the Debt Securities, except that no such release will occur in the case of a lease of all or substantially all
of its assets. The Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the
Issuer, any or all the Debt Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of the Successor Company, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt Securities which previously
shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Debt Securities which
the Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities
so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all such Debt Securities had been issued at the date
of the execution hereof.
In case of any such
consolidation, amalgamation, merger, sale or disposition such changes in phraseology and form (but not in substance) may be made
in the Debt Securities thereafter to be issued as may be appropriate.
ARTICLE
XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01
Applicability
of Article
. The provisions of this Article XI relating to defeasance of Debt Securities shall be applicable to each series
of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt Securities of such series.
Section 11.02
Satisfaction
and Discharge of Indenture; Defeasance.
(a) If
at any time the Issuer shall have delivered to the Trustee for cancellation all Debt Securities of any series theretofore authenticated
and delivered (other than any Debt Securities of such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Issuer as provided in Section 11.05) or all Debt Securities of such series not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Issuer shall deposit with the Trustee as trust funds the entire amount in cash sufficient to pay at maturity or upon redemption
all Debt Securities of such series not theretofore delivered to the Trustee for cancellation, including principal and premium,
if any, and interest due or to become due on such date of Stated Maturity or redemption date, as the case may be, and if in either
case the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for) with respect to the Debt Securities of such series, and the Trustee, on demand of the Issuer accompanied
by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject
to Sections 11.02(c), 11.03 and 11.07, the Issuer at any time may terminate, with respect to Debt Securities of a particular series,
all its obligations under the Debt Securities of such series and this Indenture with respect to the Debt Securities of such series
(“legal defeasance option”) or the operation of (x) any covenant made applicable to such Debt Securities pursuant to
Section 2.03, (y) Sections 6.01(d) and 6.01(g) (“covenant defeasance option”). The Issuer may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises
its legal defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of
Default. If the Issuer exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may not
be accelerated because of an Event of Default specified in Sections 6.01(d) and 6.01(g).
Upon satisfaction of
the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding
clauses (a) and (b) above, the Issuer’s obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 11.05, 11.06 and 11.07
shall survive until the Debt Securities of the defeased series have been paid in full. Thereafter, the Issuer’s obligations
in Sections 7.06, 11.05 and 11.06 shall survive.
Section 11.03
Conditions
of Defeasance
. The Issuer may exercise its legal defeasance option or its covenant defeasance option with respect to Debt Securities
of a particular series only if:
(a) the
Issuer irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to Stated Maturity or redemption, as the case may be;
(b) the
Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing its opinion
that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal,
premium and interest when due on all the Debt Securities of such series to Stated Maturity or redemption, as the case may be;
(c) 91
days pass after the deposit is made and during the 91-day period no Default specified in Sections 6.01(e) or 6.01(f) with respect
to the Issuer occurs which is continuing at the end of the period;
(d) no
Default has occurred and is continuing on the date of such deposit and after giving effect thereto;
(e) the
deposit does not constitute a default under any other agreement binding on the Issuer;
(f) the
Issuer delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(g) in
the event of the legal defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that the
Issuer has received from the Internal Revenue Service a ruling, or since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case of the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred;
(h) in
the event of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not occurred; and
(i) the
Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Debt Securities of such series as contemplated by this Article XI have been complied with.
Before or after a deposit,
the Issuer may make arrangements satisfactory to the Trustee for the redemption of Debt Securities of such series at a future date
in accordance with Article III.
Section 11.04
Application
of Trust Money
. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article
XI. It shall apply the deposited money and the money from U.S. Government Obligations through any paying agent and in accordance
with this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities of the defeased series.
Section 11.05
Repayment
to Issuer
. The Trustee and any paying agent shall promptly turn over to the Issuer upon request any excess money or securities
held by them at any time.
Subject to any applicable
abandoned property law, the Trustee and any paying agent shall pay to the Issuer upon request any money held by them for the payment
of principal, premium or interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look
to the Issuer for payment as general creditors.
Section 11.06
Indemnity
for U.S. Government Obligations
. The Issuer shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
Section 11.07
Reinstatement
.
If the Trustee or any paying agent is unable to apply any money or U.S. Government Obligations in accordance with this Article
XI by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining
or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Debt Securities of the defeased
series shall be revived and reinstated as though no deposit had occurred pursuant to this Article XI until such time as the Trustee
or any paying agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE
XII
[RESERVED]
This Article XII has
been intentionally omitted.
ARTICLE
XIII
MISCELLANEOUS PROVISIONS
Section 13.01
Successors
and Assigns of Issuer Bound by Indenture
. All the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer or the Trustee shall bind their respective successors and assigns, whether so expressed or not.
Section 13.02
Acts
of Board, Committee or Officer of Successor Company Valid
. Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Issuer shall and may be done and performed with like
force and effect by the like board, committee or officer of any Successor Company.
Section 13.03
Required
Notices or Demands
. Any notice or communication by the Issuer or the Trustee to the others is duly given if in writing (in
the English language) and delivered in Person or mailed by registered or certified mail (return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the other’s address:
If to the Issuer:
Höegh LNG Partners LP
Attention: Chief Executive Officer
Wessex House, 5
th
Floor
45 Reid Street
Hamilton, HM12 Bermuda
+441-295-6815
If to the Trustee:
[ ]
[ ]
[ ]
[ ]
The Issuer or the Trustee
by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender
receives confirmation of successful transmission; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice required
or permitted to a Holder by the Issuer or the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly
mailed by being deposited postage prepaid in a post office letter box in the United States addressed to such Holder at the address
of such Holder as shown on the Debt Security Register. Any report pursuant to Section 313 of the TIA shall be transmitted in compliance
with subsection (c) therein.
Notwithstanding the
foregoing, any notice to Holders of Floating Rate Debt Securities regarding the determination of a periodic rate of interest, if
such notice is required pursuant to Section 2.03, shall be sufficiently given if given in the manner specified pursuant to Section
2.03.
In the event of suspension
of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
In the event it shall
be impracticable to give notice by publication, then such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
Failure to mail a notice
or communication to a Holder or any defect in it or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.
Section 13.04
Indenture
and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
. THIS INDENTURE AND EACH DEBT SECURITY
SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
Section 13.05
Officers’
Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Issuer
. Upon any application or demand
by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent
have been complied with, except that in the case of any such application or demand as to which the furnishing of such document
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or
condition, (b) 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, (c) a statement that, in the opinion of such Person, 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 (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section 13.06
Payments
Due on Legal Holidays
. In any case where the date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment
shall not be a Business Day at any Place of Payment for the Debt Securities of such series, then payment of interest or principal
and premium, if any, or the making of such sinking fund payment need not be made on such date at such Place of Payment, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period after such date. If a record date is not a Business
Day, the record date shall not be affected.
Section 13.07
Provisions
Required by TIA to Control
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318, inclusive,
of the TIA, such required provision shall control.
Section 13.08
Computation
of Interest on Debt Securities
. Interest, if any, on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03.
Section 13.09
Rules
by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.
Section 13.10
No
Recourse Against Others
. The General Partner and its directors, officers, employees and members, as such, shall have no liability
for any obligations of the Issuer under the Debt Securities, this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. By accepting a Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt Securities.
Section 13.11
Severability
.
In case any provision in this Indenture or the Debt 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 13.12
Effect
of Headings
. The article and section headings herein and in the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 13.13
Indenture
May Be Executed in Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
[Remainder of This Page Intentionally
Left Blank.]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
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HÖEGH LNG PARTNERS LP
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By:
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Name:
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Richard Tyrrell
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Title:
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Chief Executive Officer and Chief Financial Officer
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[TRUSTEE]
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By:
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Name:
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Title:
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Signature
Page to
Höegh LNG Partners LP Indenture (Senior Debt Securities)
Exhibit 4.2
HÖEGH LNG PARTNERS LP,
as Issuer,
and
[ ],
as Trustee
INDENTURE
Dated as of ,
2016
Subordinated Debt Securities
CROSS-REFERENCE TABLE
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TIA Section
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Indenture Section
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310(a)
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7.10
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(b)
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7.10
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(c)
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N.A.
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311(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312(a)
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5.01
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(b)
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5.02
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(c)
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5.02
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313(a)
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5.03
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(b)
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5.03
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(c)
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13.03
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(d)
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5.03
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314(a)
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4.05
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(b)
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N.A.
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(c)(1)
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13.05
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(c)(2)
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13.05
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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13.05
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(f)
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N.A.
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315(a)
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7.01
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(b)
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6.07 & 13.03
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(c)
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7.01
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(d)
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7.01
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(e)
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6.08
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316(a) (last sentence)
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1.01
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(a)(1)(A)
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6.06
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(a)(1)(B)
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6.06
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(a)(2)
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9.01(d)
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(b)
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6.04
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(c)
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5.04
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317(a)(1)
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6.02
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(a)(2)
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6.02
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(b)
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4.04
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318(a)
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13.07
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N.A. means Not Applicable
NOTE: This Cross-Reference table shall
not, for any purpose, be deemed part of this Indenture.
TABLE OF CONTENTS
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Article I
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DEFINITIONS AND
INCORPORATION BY REFERENCE
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Section 1.01
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Definitions
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1
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Section 1.02
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Other Definitions
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6
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Section 1.03
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Incorporation by Reference of Trust Indenture Act
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7
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Section 1.04
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Rules of Construction
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7
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Article II
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DEBT SECURITIES
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Section 2.01
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Forms Generally
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7
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Section 2.02
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Form of Trustee’s Certificate of Authentication
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8
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Section 2.03
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Principal Amount; Issuable in Series
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8
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Section 2.04
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Execution of Debt Securities
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10
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Section 2.05
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Authentication and Delivery of Debt Securities
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11
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Section 2.06
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Denomination of Debt Securities
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12
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Section 2.07
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Registration of Transfer and Exchange
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12
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Section 2.08
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Temporary Debt Securities
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14
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Section 2.09
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Mutilated, Destroyed, Lost or Stolen Debt Securities
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14
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Section 2.10
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Cancellation of Surrendered Debt Securities
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15
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Section 2.11
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Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
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15
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Section 2.12
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Payment of Interest; Interest Rights Preserved
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16
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Section 2.13
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Securities Denominated in Dollars
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16
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Section 2.14
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Wire Transfers
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16
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Section 2.15
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Securities Issuable in the Form of a Global Security
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16
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Section 2.16
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Medium Term Securities
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19
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Section 2.17
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Defaulted Interest
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19
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Section 2.18
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CUSIP Numbers
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20
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Article III
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REDEMPTION OF DEBT SECURITIES
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Section 3.01
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Applicability of Article
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20
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Section 3.02
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Notice of Redemption; Selection of Debt Securities
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20
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Section 3.03
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Payment of Debt Securities Called for Redemption
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22
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Section 3.04
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Mandatory and Optional Sinking Funds
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22
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Section 3.05
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Redemption of Debt Securities for Sinking Fund
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23
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Article IV
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PARTICULAR COVENANTS OF THE ISSUER
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Section 4.01
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Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
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24
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Section 4.02
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Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
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25
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Section 4.03
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Appointment to Fill a Vacancy in the Office of Trustee
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25
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Section 4.04
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Duties of Paying Agents, etc
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25
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Section 4.05
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SEC Reports; Financial Statements
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26
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Section 4.06
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Compliance Certificate
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27
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Section 4.07
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Further Instruments and Acts
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27
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Section 4.08
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Existence
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27
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Section 4.09
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Maintenance of Properties
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27
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Section 4.10
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Payment of Taxes and Other Claims
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27
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Section 4.11
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Waiver of Certain Covenants
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28
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Article V
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HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
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Section 5.01
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Issuer to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
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28
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Section 5.02
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Communications to Holders
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28
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Section 5.03
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Reports by Trustee
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28
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Section 5.04
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Record Dates for Action by Holders
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29
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Article VI
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REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
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Section 6.01
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Events of Default
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29
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Section 6.02
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Collection of Debt by Trustee, etc
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31
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Section 6.03
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Application of Moneys Collected by Trustee
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32
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Section 6.04
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Limitation on Suits by Holders
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33
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Section 6.05
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Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
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34
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Section 6.06
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Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
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34
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Section 6.07
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Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
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34
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Section 6.08
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Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
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35
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Article VII
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CONCERNING THE TRUSTEE
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Section 7.01
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Certain Duties and Responsibilities
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35
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Section 7.02
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Certain Rights of Trustee
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36
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Section 7.03
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Trustee Not Liable for Recitals in Indenture or in Debt Securities
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37
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Section 7.04
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Trustee, Paying Agent or Registrar May Own Debt Securities
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38
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Section 7.05
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Moneys Received by Trustee to Be Held in Trust
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38
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Section 7.06
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Compensation and Reimbursement
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38
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Section 7.07
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Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
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38
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Section 7.08
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Separate Trustee; Replacement of Trustee
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39
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Section 7.09
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Successor Trustee by Merger
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40
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Section 7.10
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Eligibility; Disqualification
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40
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Section 7.11
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Preferential Collection of Claims Against Issuer
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40
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Section 7.12
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Compliance with Tax Laws
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41
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Article VIII
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CONCERNING THE HOLDERS
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Section 8.01
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Evidence of Action by Holders
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41
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Section 8.02
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Proof of Execution of Instruments and of Holding of Debt Securities
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41
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Section 8.03
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Who May Be Deemed Owner of Debt Securities
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41
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Section 8.04
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Instruments Executed by Holders Bind Future Holders
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42
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Article IX
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SUPPLEMENTAL INDENTURES
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Section 9.01
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Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
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42
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Section 9.02
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Modification of Indenture with Consent of Holders of Debt Securities
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44
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Section 9.03
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Effect of Supplemental Indentures
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45
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Section 9.04
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Debt Securities May Bear Notation of Changes by Supplemental Indentures
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45
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Article X
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CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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Section 10.01
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Consolidations and Mergers of the Issuer
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46
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Section 10.02
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Rights and Duties of Successor Company
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46
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Article XI
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SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
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Section 11.01
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Applicability of Article
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46
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Section 11.02
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Satisfaction and Discharge of Indenture; Defeasance
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47
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Section 11.03
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Conditions of Defeasance
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47
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Section 11.04
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Application of Trust Money
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49
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Section 11.05
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Repayment to Issuer
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49
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Section 11.06
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Indemnity for U.S. Government Obligations
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49
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Section 11.07
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Reinstatement
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49
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Article XII
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[RESERVED]
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Article XIII
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MISCELLANEOUS PROVISIONS
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Section 13.01
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Successors and Assigns of Issuer Bound by Indenture
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49
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Section 13.02
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Acts of Board, Committee or Officer of Successor Company Valid
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49
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Section 13.03
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Required Notices or Demands
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49
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Section 13.04
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Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
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51
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Section 13.05
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Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Issuer
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51
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Section 13.06
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Payments Due on Legal Holidays
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51
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Section 13.07
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Provisions Required by TIA to Control
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51
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Section 13.08
|
Computation of Interest on Debt Securities
|
52
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Section 13.09
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Rules by Trustee, Paying Agent and Registrar
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52
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Section 13.10
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No Recourse Against Others
|
52
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Section 13.11
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Severability
|
52
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Section 13.12
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Effect of Headings
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52
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Section 13.13
|
Indenture May Be Executed in Counterparts
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52
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Article XIV
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SUBORDINATION OF DEBT SECURITIES
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Section 14.01
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Applicability of Article; Agreement to Subordinate
|
52
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Section 14.02
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Liquidation, Dissolution, Bankruptcy
|
52
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Section 14.03
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Default on Senior Indebtedness
|
53
|
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Section 14.04
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Acceleration of Payment of Debt Securities
|
54
|
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Section 14.05
|
When Distribution Must Be Paid Over
|
54
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Section 14.06
|
Subrogation
|
54
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Section 14.07
|
Relative Rights
|
54
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Section 14.08
|
Subordination May Not Be Impaired by Issuer
|
54
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Section 14.09
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Rights of Trustee and Paying Agents
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54
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Section 14.10
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Distribution or Notice to Representative
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55
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Section 14.11
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Article XIV Not to Prevent Defaults or Limit Right to Accelerate
|
55
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Section 14.12
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Trust Moneys Not Subordinated
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55
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Section 14.13
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Trustee Entitled to Rely
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55
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Section 14.14
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Trustee to Effectuate Subordination
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55
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Section 14.15
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Trustee Not Fiduciary for Holders of Senior Indebtedness
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56
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Section 14.16
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Reliance by Holders of Senior Indebtedness on Subordination Provisions
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56
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THIS INDENTURE dated
as of ,
2016 is between Höegh LNG Partners LP, a Marshall Islands limited partnership (the “Issuer”), and [ ],
a ,
as trustee (the “Trustee”).
RECITALS OF THE ISSUER
The Issuer has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Issuer’s debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called
the “Debt Securities”), as in this Indenture provided. All things necessary to make this Indenture a valid agreement
of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS
INDENTURE WITNESSETH
That in order to declare
the terms and conditions upon which the Debt Securities are authenticated, issued and delivered, and in consideration of the premises,
and of the purchase and acceptance of the Debt Securities by the holders thereof, the Issuer and the Trustee covenant and agree
with each other, for the benefit of the respective Holders from time to time of the Debt Securities or any series thereof, as follows:
Article
I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. The Trustee may request and may conclusively rely upon an Officers’ Certificate
to determine whether any Person is an Affiliate of any specified Person.
“Agent”
means any Registrar or paying agent.
“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors of the Issuer or any authorized committee of the Board of Directors of the Issuer or any directors
and/or officers of the Issuer to whom such Board of Directors or such committee shall have duly delegated its authority to act
hereunder.
“Business Day”
means any day other than a Legal Holiday.
“capital stock”
of any Person means and includes any and all shares, rights to purchase, warrants or options (whether or not currently exercisable),
participations or other equivalents of or interests in (however designated) the equity of such Person (excluding any debt securities
that are convertible into, or exchangeable for, such equity).
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Debt”
of any Person at any date means any obligation created or assumed by such Person for the repayment of borrowed money and any guarantee
thereof.
“Debt Security”
or “Debt Securities” has the meaning stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as the case may be, of any series authenticated and delivered under this Indenture.
“Default”
means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
“Depositary”
means, unless otherwise specified by the Issuer pursuant to either Sections 2.03 or 2.15, with respect to Debt Securities
of any series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency under the Exchange Act or other applicable statute
or regulations.
“Designated Senior
Indebtedness” means, as to any series of Debt Securities, any Senior Indebtedness identified as Designated Senior Indebtedness
in the Board Resolution or supplemental Indenture setting forth the terms of such series.
“Dollar”
or “$” means such currency of the United States as at the time of payment is legal tender for the payment of public
and private debts.
“Equity Interests”
means: (1) in the case of a corporation, capital stock; (2) in the case of an association or a business entity, any and
all shares, interests, participations, rights or other equivalents (however designated) of capital stock; (3) in the case
of a partnership or limited liability company, partnership or membership interests (whether general or limited); (4) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person; and (5) all warrants, options or other rights to acquire any of the interests described
in clauses (1) through (4) above (but excluding any debt security that is convertible into, or exchangeable for, any of the
interests described in clauses (1) through (4) above).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and any successor statute.
“Floating Rate
Security” means a Debt Security that provides for the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 2.03.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession
of the United States, as in effect from time to time.
“General Partner” means Höegh
LNG GP LLC, a Marshall Islands limited liability company, and its successors, as general partner of the Issuer.
“Global Security”
means with respect to any series of Debt Securities issued hereunder, a Debt Security which is executed by the Issuer and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture
and any Indentures supplemental hereto, or resolution of the Board of Directors and set forth in an Officers’ Certificate,
which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all the Outstanding Debt Securities of such series or any portion thereof, in
either case having the same terms, including, without limitation, the same original issue date, date or dates on which principal
is due and interest rate or method of determining interest.
“guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other obligation of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into for purposes of assuring in any other manner
the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided, however, that the term “guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The term “guarantee” used as a verb has a corresponding meaning.
“Holder,”
“Holder of Debt Securities” or other similar terms means, a Person in whose name a Debt Security is registered in the
Debt Security Register (as defined in Section 2.07(a)).
“Indenture”
means this instrument as originally executed, or, if amended or supplemented as herein provided, as so amended or supplemented
and shall include the form and terms of particular series of Debt Securities as contemplated hereunder, whether or not a supplemental
Indenture is entered into with respect thereto.
“Issuer Order”
means a written request or order signed in the name of the Issuer by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President of the Issuer, and by the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Issuer, in each case
delivered to the Trustee, or if the Issuer shall change its form of entity to other than a limited partnership, by Persons or officers,
members, agents and others holding positions comparable to those of the foregoing nature, as applicable.
“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York, New York or at a Place of Payment are
authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, security interest, pledge, charge or other encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under applicable law.
“Officer”
means, with respect to a Person, the Chairman of the Board, the President, any Vice President, the Treasurer, any Assistant Treasurer,
Controller, Secretary, Assistant Secretary or any Assistant Vice President of such Person.
“Officers’
Certificate” means a certificate signed by two Officers of the Issuer. One of the Officers signing the Officers’ Certificate
of the Issuer must be the Issuer’s chief executive officer, chief financial officer or chief accounting officer (or if the
Issuer shall change its form of entity to other than a limited partnership, by Persons, officers, members, agents and others holding
positions comparable to those of the foregoing nature, as applicable).
“Opinion of Counsel”
means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the
Issuer or the Trustee.
“Original Issue
Discount Debt Security” means any Debt 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 6.01.
“Outstanding,”
when used with respect to any series of Debt Securities, means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
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(a)
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Debt Securities of that series theretofore canceled by
the Trustee or delivered to the Trustee for cancellation;
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(b)
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Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or any paying agent (other than the Issuer) in trust
or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own paying agent) for the Holders of such Debt
Securities; provided, that, if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has been made; and
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(c)
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Debt Securities of that series which have been paid pursuant
to Section 2.09 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations
of the Issuer;
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provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Debt Securities owned by the Issuer or any other obligor
upon the Debt Securities or any Affiliate of the Issuer 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 Debt Securities which an officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such Debt Securities and that the pledgee is not
either of the Issuer or any other obligor upon the Debt Securities or an Affiliate of the Issuer or of such other obligor. In determining
whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Person”
means any individual, corporation, partnership, joint venture, limited liability company, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof or other
entity of any kind.
“Redemption Date,”
when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Representative”
means the trustee, agent or representative (if any) for an issue of Senior Indebtedness and, in the absence of any trustee, agent
or representative, it means the holder or holders of such issue.
“SEC” means
the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended, and any successor statute.
“Senior Indebtedness”
means, as to any series of Debt Securities, the indebtedness of the Issuer identified as Senior Indebtedness in the Board Resolution
or supplemental Indenture setting forth the terms of such series.
“Stated Maturity”
means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of
such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing
for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control
of the issuer unless such contingency has occurred).
“Subsidiary”
of any Person means:
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(1)
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any corporation, association or other business entity of
which more than 50% of the total voting power of equity interests entitled, without regard to the occurrence of any contingency,
to vote in the election of directors, managers, trustees or equivalent Persons thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof;
or
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(2)
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in the case of a partnership, more than 50% of the partners’
equity interests, considering all partners’ equity interests as a single class, is at such time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or combination thereof.
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“TIA” means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in effect on the date of this Indenture as
originally executed and, to the extent required by law, as amended.
“Trustee”
initially means [ ]
and any other Person or Persons appointed as such from time to time pursuant to Section 7.08, and, subject to the provisions
of Article VII, includes its or their successors and assigns. If at any time there is more than one such Person, “Trustee”
as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of that series.
“Trust Officer”
means any officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.
“United States”
means the United States of America (including the States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
“U.S. Government
Obligations” means direct obligations of the United States of America, obligations on which the payment of principal and
interest is fully guaranteed by the United States of America or obligations or guarantees for the payment of which the full faith
and credit of the United States of America is pledged.
“Yield to Maturity”
means the yield to maturity, calculated at the time of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance with accepted financial practice.
Section 1.02
Other
Definitions
.
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Term
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Defined in Section
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“Blockage Notice”
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14.03
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Payment Blockage Period”
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14.03
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“Debt Security Register”
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2.07
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“Defaulted Interest”
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2.17
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“Event of Default”
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6.01
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“Place of Payment”
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2.03
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“Registrar”
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2.07
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“Subordinated Debt Securities”
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14.01
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“Successor Company”
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10.01
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Section 1.03
Incorporation
by Reference of Trust Indenture Act
. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
All terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section 1.04
Rules
of Construction
.
Unless the context
otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions; and
(f) the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP.
Article
II
DEBT SECURITIES
Section 2.01
Forms
Generally
. The Debt Securities of each series shall be in substantially the form established without the approval of any Holder
by or pursuant to a resolution of the Board of Directors or in one or more Indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Issuer may deem appropriate
(and, if not contained in a supplemental Indenture entered into in accordance with Article IX, as are not prohibited by the provisions
of this Indenture) or as may be required or appropriate to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange on which such series of Debt Securities may be listed, or to conform to general usage, or
as may, consistently herewith, be determined by the officers executing such Debt Securities as evidenced by their execution of
the Debt Securities.
The definitive Debt
Securities of each series shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt.
Section 2.02
Form
of Trustee’s Certificate of Authentication
. The Trustee’s certificate of authentication on all Debt Securities
authenticated by the Trustee shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the
Debt Securities of the series designated therein referred to in the within-mentioned Indenture.
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[ ]
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As Trustee
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By:
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Authorized Signatory
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Section 2.03
Principal
Amount; Issuable in Series
. The aggregate principal amount of Debt Securities which may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities
may be issued in one or more series in fully registered form. There shall be established, without the approval of any Holders,
in or pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate, or established in one
or more Indentures supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the following:
(a) the
title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities);
(b) any
limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to this Article II);
(c) the
date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(d) the
rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method
of determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will be determined, the record dates for the determination of
Holders thereof to whom such interest is payable; and the basis upon which interest will be calculated if other than that of a
360-day year of twelve thirty-day months;
(e) the
place or places, if any, in addition to or instead of the corporate trust office of the Trustee, where the principal of, and premium,
if any, and interest on, Debt Securities of the series shall be payable (“Place of Payment”);
(f) the
price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer or otherwise;
(g) the
obligation, if any, of the Issuer to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligations;
(h) the
terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for capital stock (which may be
represented by depositary shares), other Debt Securities or warrants for capital stock or Debt or other securities of any kind
of the Issuer or any other obligor and the terms and conditions upon which such conversion or exchange shall be effected, including
the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in
lieu of those described herein;
(i) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series
shall be issuable;
(j) if
the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be determined;
(k) if
the principal amount payable at the Stated Maturity of Debt Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity
or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal
amount is to be determined);
(l) any
changes or additions to Article XI, including the addition of additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b);
(m) if
other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(n) the
terms, if any, of the transfer, mortgage, pledge or assignment as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether certain provisions of the TIA are applicable and any
corresponding changes to provisions of this Indenture as currently in effect;
(o) any
addition to or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of
the Trustee or the Holders to declare the principal of, and premium and interest on, such Debt Securities due and payable;
(p) if
the Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms
and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities and the form of any legend
or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.15(a);
(q) any
trustees, authenticating or paying agents, transfer agents or registrars;
(r) the
applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X, including conditioning any merger, conveyance, transfer or lease permitted by Article X
upon the satisfaction of any Debt coverage standard by the Issuer and any Successor Company (as defined in Article X);
(s) with
regard to Debt Securities of the series that do not bear interest, the dates for certain required reports to the Trustee; and
(t) any
other terms of the Debt Securities of the series (which terms shall not be prohibited by the provisions of this Indenture).
All Debt Securities
of any one series appertaining thereto shall be substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set forth in such Officers’ Certificate or in
any such Indenture supplemental hereto.
Section 2.04
Execution
of Debt Securities
. The Debt Securities shall be signed on behalf of the Issuer by the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President of the Issuer, and, if the seal of the Issuer is reproduced
thereon, it shall be attested by its Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures
upon the Debt Securities may be the manual or facsimile signatures of the present or any future such authorized officers and may
be imprinted or otherwise reproduced on the Debt Securities. The seal of the Issuer, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities
as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, signed manually by the Trustee,
shall be entitled to the benefits of the Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Issuer, shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated
and delivered hereunder.
In case any officer
of the Issuer who shall have signed any of the Debt Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by the Issuer, such Debt Securities nevertheless may
be authenticated and delivered or disposed of as though the Person who signed such Debt Securities had not ceased to be such officer
of the Issuer; and any Debt Security may be signed on behalf of the Issuer by such Persons as, at the actual date of the execution
of such Debt Security, shall be the proper officers of the Issuer, although at the date of such Debt Security or of the execution
of this Indenture any such Person was not such officer.
Section 2.05
Authentication
and Delivery of Debt Securities
. At any time and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Debt Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon an Issuer Order. In authenticating such Debt Securities, and
accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be entitled
to receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(a) a
copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or Assistant Secretary of the Issuer,
authorizing the terms of issuance of any series of Debt Securities;
(b) an
executed supplemental Indenture, if any;
(c) an
Officers’ Certificate; and
(d) an
Opinion of Counsel prepared in accordance with Section 13.05 which shall also state:
(i) that
the form of such Debt Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture;
(ii) that
the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.03 in conformity with the provisions of this Indenture;
(iii) that
such Debt Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable
in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally and rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(iv) that
the Issuer has the partnership power to issue such Debt Securities and has duly taken all necessary partnership action with respect
to such issuance;
(v) that
the issuance of such Debt Securities will not contravene the organizational documents of the Issuer or result in any material violation
of any of the terms or provisions of any law or regulation or of any material indenture, mortgage or other agreement known to such
counsel by which the Issuer is bound;
(vi) that
authentication and delivery of such Debt Securities and the execution and delivery of any supplemental Indenture will not violate
the terms of this Indenture; and
(vii) such
other matters as the Trustee may reasonably request.
Such Opinion of Counsel
need express no opinion as to whether a court in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have
the right to decline to authenticate and deliver any Debt Securities under this Section 2.05 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors, trustees or vice presidents (or any combination thereof) shall
determine that such action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint
an authenticating agent reasonably acceptable to the Issuer to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, paying agent or agent for service of notices and demands.
Unless otherwise provided
in the form of Debt Security for any series, each Debt Security shall be dated the date of its authentication.
Section 2.06
Denomination
of Debt Securities
. Unless otherwise provided in the form of Debt Security for any series, the Debt Securities of each series
shall be issuable only as fully registered Debt Securities in such Dollar denominations as shall be specified or contemplated by
Section 2.03. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities
of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.07
Registration
of Transfer and Exchange
.
(a) The
Issuer shall keep or cause to be kept a register for each series of Debt Securities issued hereunder (hereinafter collectively
referred to as the “Debt Security Register”), in which, subject to such reasonable regulations as it may prescribe,
the Issuer shall provide for the registration of all Debt Securities and the transfer of Debt Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Debt Security at any office or agency to be maintained by the Issuer in
accordance with the provisions of Section 4.02, the Issuer shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Debt Security or Debt Securities of authorized denominations for a like aggregate
principal amount. In no event may Debt Securities be issued as, or exchanged for, bearer securities.
Unless and until otherwise
determined by the Issuer by resolution of the Board of Directors, the register of the Issuer for the purpose of registration, exchange
or registration of transfer of the Debt Securities shall be kept at the principal corporate trust office of the Trustee and, for
this purpose, the Trustee shall be designated “Registrar.”
Debt Securities of
any series (other than a Global Security, except as set forth below) may be exchanged for a like aggregate principal amount of
Debt Securities of the same series of other authorized denominations. Subject to Section 2.15, Debt Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Issuer as provided in Section 4.02, and the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities which the Holder making
the exchange shall be entitled to receive.
(b) All
Debt Securities presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Issuer,
the Trustee or the Registrar) be duly endorsed or be accompanied by a written instrument or instruments of transfer, in form satisfactory
to the Issuer, the Trustee and the Registrar, duly executed by the Holder or his attorney duly authorized in writing.
All Debt Securities
issued in exchange for or upon transfer of Debt Securities shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Debt Securities surrendered for such exchange or transfer.
No service charge shall
be made for any exchange or registration of transfer of Debt Securities (except as provided by Section 2.09), but the Issuer
may require payment of a sum sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in relation
thereto, other than those expressly provided in this Indenture to be made at the Issuer’s own expense or without expense
or without charge to the Holders.
The Issuer shall not
be required (i) to issue, register the transfer of or exchange any Debt Securities for a period of 15 days next preceding
any mailing of notice of redemption of Debt Securities of such series or (ii) to register the transfer of or exchange any
Debt Securities selected, called or being called for redemption.
Prior to the due presentation
for registration of transfer of any Debt Security, the Issuer, the Trustee, any paying agent or any Registrar may deem and treat
the Person in whose name a Debt Security is registered as the absolute owner of such Debt Security for the purpose of receiving
payment of or on account of the principal of, and premium, if any, and (subject to Section 2.12) interest on, such Debt Security
and for all other purposes whatsoever, whether or not such Debt Security is overdue, and none of the Issuer, the Trustee, any paying
agent or any Registrar shall be affected by notice to the contrary.
None of the Issuer,
the Trustee, any agent of the Trustee, any paying agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 2.08
Temporary
Debt Securities
. Pending the preparation of definitive Debt Securities of any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Debt Securities (printed, lithographed, photocopied, typewritten or otherwise produced)
of any authorized denomination, and substantially in the form of the definitive Debt Securities in lieu of which they are issued,
in registered form with such omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as may
be determined by the Issuer with the concurrence of the Trustee. Temporary Debt Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the Issuer and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Debt Securities.
If temporary Debt Securities
of any series are issued, the Issuer will cause definitive Debt Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Debt Securities of such series, the temporary Debt Securities of such series shall be exchangeable
for definitive Debt Securities of such series upon surrender of the temporary Debt Securities of such series at the office or agency
of the Issuer at a Place of Payment for such series, without charge to the Holder thereof, except as provided in Section 2.07
in connection with a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any series, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Debt Securities of the same series of authorized denominations and of like tenor. Until so exchanged, temporary Debt Securities
of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of such
series.
Upon any exchange of
a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect
the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall
be reduced for all purposes by the amount to be exchanged and endorsed.
Section 2.09
Mutilated,
Destroyed, Lost or Stolen Debt Securities
. If (a) any mutilated Debt Security is surrendered to the Trustee at its corporate
trust office or (b) the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of
any Debt Security, and there is delivered to the Issuer and the Trustee such security or indemnity as may be required by them to
save each of them and any paying agent harmless, and neither the Issuer nor the Trustee receives notice that such Debt Security
has been acquired by a bona fide purchaser, then the Issuer shall execute and, upon an Issuer Order, the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of
the same series of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding. Upon the issuance
of any substituted Debt Security, the Issuer may require the payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Debt which
has matured or is about to mature or which has been called for redemption shall become mutilated or be destroyed, lost or stolen,
the Issuer may, instead of issuing a substituted Debt Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish the Issuer and the Trustee with
such security or indemnity as either may require to save it harmless from all risk, however remote, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Issuer and the Trustee of the destruction, loss or theft of such Debt Security
and of the ownership thereof.
Every substituted Debt
Security of any series issued pursuant to the provisions of this Section 2.09 by virtue of the fact that any Debt Security
is destroyed, lost or stolen shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Debt Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that series duly issued hereunder. All Debt Securities shall be held
and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.10
Cancellation
of Surrendered Debt Securities
. All Debt Securities surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to the Issuer or any paying agent or a Registrar, be delivered to the Trustee for cancellation by it, or
if surrendered to the Trustee, shall be canceled by it, and no Debt Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All canceled Debt Securities held by the Trustee shall be destroyed (subject
to the record retention requirements of the Exchange Act) and certification of their destruction delivered to the Issuer, unless
otherwise directed. On request of the Issuer, the Trustee shall deliver to the Issuer canceled Debt Securities held by the Trustee.
If the Issuer shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction
of the Debt represented thereby unless and until the same are delivered or surrendered to the Trustee for cancellation. The Issuer
may not issue new Debt Securities to replace Debt Securities it has redeemed, paid or delivered to the Trustee for cancellation.
Section 2.11
Provisions
of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
. Nothing in this Indenture or in the
Debt Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto, the Holders
or any Registrar or paying agent, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for the sole benefit
of the parties hereto, the Holders and any Registrar and paying agents.
Section 2.12
Payment
of Interest; Interest Rights Preserved
.
(a) Interest
on any Debt Security that is payable and is punctually paid or duly provided for on any interest payment date shall be paid to
the Person in whose name such Debt Security is registered at the close of business on the regular record date for such interest
notwithstanding the cancellation of such Debt Security upon any transfer or exchange subsequent to the regular record date. Payment
of interest on Debt Securities shall be made at the corporate trust office of the Trustee (except as otherwise specified pursuant
to Section 2.03), or at the option of the Issuer, by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in accordance with arrangements satisfactory
to the Trustee, at the option of the Holder by wire transfer to an account designated by the Holder.
(b) Subject
to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt Security of a particular series delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security of the same series
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Debt Security.
Section 2.13
Securities
Denominated in Dollars
. Except as otherwise specified pursuant to Section 2.03 for Debt Securities of any series, payment
of the principal of, and premium, if any, and interest on, Debt Securities of such series will be made in Dollars.
Section 2.14
Wire
Transfers
. Notwithstanding any other provision to the contrary in this Indenture, the Issuer may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or premium, if any, or interest on, the Debt Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in immediately available
funds to an account designated by the Trustee before 11:00 a.m., New York City time, on the date such moneys are to be paid
to the Holders of the Debt Securities in accordance with the terms hereof.
Section 2.15
Securities
Issuable in the Form of a Global Security
.
(a) If
the Issuer shall establish pursuant to Sections 2.01 and 2.03 that the Debt Securities of a particular series are to be issued
in whole or in part in the form of one or more Global Securities, then the Issuer shall execute and the Trustee or its agent shall,
in accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to
be represented by such Global Security or Securities, or such portion thereof as the Issuer shall specify in an Officers’
Certificate, shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the Depositary’s instruction and shall bear a legend
substantially to the following effect:
“UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO HEREIN,”
or such other legend as may then be required
by the Depositary for such Global Security or Securities.
(b) Notwithstanding
any other provision of this Section 2.15 or of Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive
Debt Securities in registered form, a Global Security may be transferred, in whole but not in part and in the manner provided in
Section 2.07, only by the Depositary to a nominee of the Depositary for such Global Security, or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary, or by the Depositary or a nominee of the Depositary to a successor Depositary
for such Global Security selected or approved by the Issuer, or to a nominee of such successor Depositary.
(c) (i) If
at any time the Depositary for a Global Security or Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the Depositary for the Debt Securities for such series shall
no longer be eligible or in good standing under the Exchange Act or other applicable statute, rule or regulation, the Issuer shall
appoint a successor Depositary with respect to such Global Security or Securities. If a successor Depositary for such Global Security
or Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer shall execute, and the Trustee or its agent, upon receipt of an Issuer Order for the authentication and delivery of
such individual Debt Securities of such series in exchange for such Global Security, will authenticate and deliver, individual
Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security or Securities.
(ii) The
Issuer may at any time and in its sole discretion determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In
such event the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of individual
Debt Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual
Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal
amount of such series or portion thereof in exchange for such Global Security or Securities.
(iii) If
specified by the Issuer pursuant to Sections 2.01 and 2.03 with respect to Debt Securities issued or issuable in the form
of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part
for individual Debt Securities of such series of like tenor and terms in definitive form on such terms as are acceptable to the
Issuer, the Trustee and such Depositary. Thereupon the Issuer shall execute, and the Trustee or its agent upon receipt of an Issuer
Order for the authentication and delivery of definitive Debt Securities of such series shall authenticate and deliver, without
service charge, to each Person specified by such Depositary a new Debt Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange
for such Person’s beneficial interest in the Global Security; and to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
(iv) In
any exchange provided for in any of the preceding three paragraphs, the Issuer will execute and the Trustee or its agent will authenticate
and deliver individual Debt Securities. Upon the exchange of the entire principal amount of a Global Security for individual Debt
Securities, such Global Security shall be canceled by the Trustee or its agent. Except as provided in the preceding paragraph,
Debt Securities issued in exchange for a Global Security pursuant to this Section 2.15 shall be registered in such names and
in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver such Debt Securities
to the Persons in whose names such Debt Securities are so registered.
Payments in respect
of the principal of and interest on any Debt Securities registered in the name of the Depositary or its nominee will be payable
to the Depositary or such nominee in its capacity as the registered owner of such Global Security. The Issuer and the Trustee may
treat the Person in whose name the Debt Securities, including the Global Security, are registered as the owner thereof for the
purpose of receiving such payments and for any and all other purposes whatsoever. None of the Issuer, the Trustee, any Registrar,
the paying agent or any agent of the Issuer or the Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of the beneficial ownership interests of the Global Security by the Depositary or its nominee
or any of the Depositary’s direct or indirect participants, or for maintaining, supervising or reviewing any records of the
Depositary, its nominee or any of its direct or indirect participants relating to the beneficial ownership interests of the Global
Security, the payments to the beneficial owners of the Global Security of amounts paid to the Depositary or its nominee, or any
other matter relating to the actions and practices of the Depositary, its nominee or any of its direct or indirect participants.
None of the Issuer, the Trustee or any such agent will be liable for any delay by the Depositary, its nominee, or any of its direct
or indirect participants in identifying the beneficial owners of the Debt Securities, and the Issuer and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Debt Securities to be issued).
Section 2.16
Medium
Term Securities
. Notwithstanding any contrary provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Issuer to deliver to the Trustee an Officers’ Certificate, resolutions
of the Board of Directors, supplemental Indenture, Opinion of Counsel or written order or any other document otherwise required
pursuant to Sections 2.01, 2.03, 2.05 or 13.05 at or prior to the time of authentication of each Debt Security of such series
if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first
such Debt Security of such series to be issued; provided, that any subsequent request by the Issuer to the Trustee to authenticate
Debt Securities of such series upon original issuance shall constitute a representation and warranty by the Issuer that, as of
the date of such request, the statements made in the Officers’ Certificate delivered pursuant to Sections 2.05 or 13.05
shall be true and correct as if made on such date and that the Opinion of Counsel delivered at or prior to such time of authentication
of an original issuance of Debt Securities shall specifically state that it shall relate to all subsequent issuances of Debt Securities
of such series that are identical to the Debt Securities issued in the first issuance of Debt Securities of such series.
An Issuer Order delivered
by the Issuer to the Trustee in the circumstances set forth in the preceding paragraph, may provide that Debt Securities which
are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of Persons designated in such written order (any such telephonic instructions to be promptly confirmed
in writing by such Person) and that such Persons are authorized to determine, consistent with the Officers’ Certificate,
supplemental Indenture or resolution of the Board of Directors relating to such written order, such terms and conditions of such
Debt Securities as are specified in such Officers’ Certificate, supplemental Indenture or such resolution.
Section 2.17
Defaulted
Interest
. Any interest on any Debt Security of a particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such series and in this Indenture (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant record date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or
(b) below:
(a) The
Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of such series 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 Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Debt Security of such series and the date of the proposed payment, and at the same time the Issuer shall deposit with
the Trustee an amount of money 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 in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of such Defaulted Interest which shall be not 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 Issuer of such special record date and, in the name and at the expense
of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage pre-paid, to each Holder thereof at its address as it appears in the Debt 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 the Debt Securities of
such series are registered at the close of business on such special record date.
(b) The
Issuer may make payment of any Defaulted Interest on the Debt Securities of such series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities of such series may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.
Section 2.18
CUSIP
Numbers
. The Issuer in issuing the Debt Securities may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the accuracy of such numbers either as printed on the Debt Securities or
as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on
the Debt Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
Article
III
REDEMPTION OF DEBT SECURITIES
Section 3.01
Applicability
of Article
. The provisions of this Article shall be applicable to the Debt Securities of any series which are redeemable before
their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such series.
Section 3.02
Notice
of Redemption; Selection of Debt Securities
. In case the Issuer shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with their terms, by resolution of the Board of Directors
or a supplemental Indenture, the Issuer shall fix a date for redemption and shall give notice of such redemption at least 30 and
not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series so to be redeemed
as a whole or in part, in the manner provided in Section 13.03. The notice if given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such
notice or any defect in the notice to the Holder of any Debt Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of
redemption shall specify the date fixed for redemption, the redemption price at which Debt Securities of such series are to be
redeemed (or the method of calculating such redemption price), the Place or Places of Payment that payment will be made upon presentation
and surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will be paid as specified in
said notice, that the redemption is for a sinking fund payment (if applicable), that, unless otherwise specified in such notice,
that, if the Issuer defaults in making such redemption payment, the paying agent is prohibited from making such payment pursuant
to the terms of this Indenture, that on and after said date any interest thereon or on the portions thereof to be redeemed will
cease to accrue, that in the case of Original Issue Discount Securities original issue discount accrued after the date fixed for
redemption will cease to accrue, the terms of the Debt Securities of that series pursuant to which the Debt Securities of that
series are being redeemed and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Debt Securities of that series. If less than all the Debt Securities of a series are to be redeemed
the notice of redemption shall specify the certificate numbers of the Debt Securities of that series to be redeemed. In case any
Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities of that series in principal amount equal to the unredeemed portion thereof, will be issued.
At least 45 days but
not more than 60 days before the Redemption Date unless the Trustee consents to a shorter period, the Issuer shall give written
notice to the Trustee of the Redemption Date, the principal amount of Debt Securities to be redeemed and the series and terms of
the Debt Securities pursuant to which such redemption will occur. Such notice shall be accompanied by an Officers’ Certificate
and an Opinion of Counsel from the Issuer to the effect that such redemption will comply with the conditions herein. If fewer than
all the Debt Securities of a series are to be redeemed, the record date relating to such redemption shall be selected by the Issuer
and given in writing to the Trustee, which record date shall be not less than 15 days after the date of notice to the Trustee.
By 11:00 a.m.,
New York City time, on the Redemption Date for any Debt Securities, the Issuer shall deposit with the Trustee or with a paying
agent (or, if the Issuer is acting as its own paying agent, segregate and hold in trust) an amount of money in Dollars (except
as provided pursuant to Section 2.03) sufficient to pay the redemption price of such Debt Securities or any portions thereof
that are to be redeemed on that date, together with any interest accrued to the Redemption Date.
If less than all the
Debt Securities of like tenor and terms of a series are to be redeemed, the Trustee shall select, on a pro rata basis, by lot or
by such other method as in its sole discretion it shall deem appropriate and fair, the Debt Securities of that series or portions
thereof (in multiples of $1,000) to be redeemed. In any case where more than one Debt Security of such series is registered in
the same name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it were represented by
one Debt Security of such series. The Trustee shall promptly notify the Issuer in writing of the Debt Securities selected for redemption
and, in the case of any Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal, premium, if
any, and interest shall bear interest until paid from the Redemption Date at the rate borne by the Debt Securities of that series.
If less than all the Debt Securities of unlike tenor and terms of a series are to be redeemed, the particular Debt Securities to
be redeemed shall be selected by the Issuer. Provisions of this Indenture that apply to Debt Securities called for redemption also
apply to portions of Debt Securities called for redemption.
Section 3.03
Payment
of Debt Securities Called for Redemption
. If notice of redemption has been given as provided in Section 3.02, the Debt
Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable
on the date and at the Place or Places of Payment stated in such notice at the applicable redemption price, together with any interest
accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest accrued to said date) any interest on the Debt Securities
or portions of Debt Securities of any series so called for redemption shall cease to accrue, any original issue discount in the
case of Original Issue Discount Securities shall cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption.
Any Debt Security that
is to be redeemed only in part shall be surrendered at the corporate trust office or such other office or agency of the Issuer
as is specified pursuant to Section 2.03 with, if the Issuer, the Registrar or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Issuer, the Registrar and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing, and the Issuer shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Debt Security without service charge, a new Debt Security or Debt Securities of the same series, of like
tenor and form, 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 Debt Security so surrendered; except that if a Global Security is so surrendered,
the Issuer shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered. In the case of a Debt Security providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
Section 3.04
Mandatory
and Optional Sinking Funds
. The minimum amount of any sinking fund payment provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture is herein referred to as an “optional sinking fund payment.”
In lieu of making all
or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Issuer may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Issuer
or (b) receive credit for the principal amount of Debt Securities of that series which have been redeemed either at the election
of the Issuer pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments
pursuant to the terms of such Debt Securities, resolution or supplemental Indenture; provided, that such Debt Securities have not
been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee at the redemption
price specified in such Debt Securities, resolution or supplemental Indenture for redemption through operation of the sinking fund
and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 3.05
Redemption
of Debt Securities for Sinking Fund
. Not less than 60 days prior to each sinking fund payment date for any series of Debt Securities,
the Issuer 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, any resolution or supplemental Indenture, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to this Section 3.05 (which Debt Securities, if not previously redeemed, will accompany
such certificate) and whether the Issuer intends to exercise its right to make any permitted optional sinking fund payment with
respect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect
to such series. Such certificate shall be irrevocable and upon its delivery the Issuer shall be obligated to make the cash payment
or payments therein referred to, if any, by 11 a.m., New York City time, on the next succeeding sinking fund payment date.
Failure of the Issuer to deliver such certificate (or to deliver the Debt Securities specified in this paragraph) shall not constitute
a Default, but such failure shall require that the sinking fund payment due on the next succeeding sinking fund payment date for
that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Debt Securities subject
to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided in this Section 3.05 and
without the right to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment
or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which
shall equal or exceed $100,000 (or a lesser sum if the Issuer shall so request) with respect to the Debt Securities of any particular
series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such
Debt Securities at the redemption price specified in such Debt Securities, resolution or supplemental Indenture for operation of
the sinking fund together with any accrued interest to the date fixed for redemption. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by
the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 3.05.
Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee on the last sinking
fund payment date with respect to Debt Securities of such series and not held for the payment or redemption of particular Debt
Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose,
to the payment of the principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select
the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02
and the Issuer shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that
the notice of redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice
having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section 3.03.
The Trustee shall not
redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation
of the sinking fund for such series during the continuance of a Default in payment of interest on such Debt Securities or of any
Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities,
except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee for
that purpose in accordance with the terms of this Article III. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such Default or Event of Default shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such Default or Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied
pursuant to the provisions of this Section 3.05.
Article
IV
PARTICULAR COVENANTS OF THE ISSUER
Section 4.01
Payment
of Principal of, and Premium, If Any, and Interest on, Debt Securities
. The Issuer, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the
Debt Securities at the place, at the respective times and in the manner provided herein or in the Debt Securities. Each installment
of interest on the Debt Securities may at the Issuer’s option be paid by mailing checks for such interest payable to the
Person entitled thereto pursuant to Section 2.07(a) to the address of such Person as it appears on the Debt Security Register.
Principal, premium
and interest of Debt Securities of any series shall be considered paid on the date due if, by 11 a.m., New York City time,
on such date the Trustee or any paying agent holds in accordance with this Indenture money sufficient to pay all principal, premium
and interest then due.
The Issuer shall pay
interest on overdue principal or premium, if any, at the rate specified therefor in the Debt Securities and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful.
Section 4.02
Maintenance
of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
. The Issuer will maintain in each
Place of Payment for any series of Debt Securities an office or agency where Debt Securities of such series may be presented or
surrendered for payment, and it shall also maintain (in or outside such Place of Payment) an office or agency where Debt Securities
of such series may be surrendered for transfer or exchange and where notices and demands to or upon the Issuer in respect of the
Debt Securities of such series and this Indenture may be served. The Issuer 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 Issuer 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 office of the Trustee where its corporate trust business is principally administered in the United
States, and the Issuer hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands.
The Issuer may also
from time to time designate different or additional offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligations described in the preceding paragraph. The Issuer will give prompt written
notice to the Trustee of any such additional designation or rescission of designation and any change in the location of any such
different or additional office or agency.
Section 4.03
Appointment
to Fill a Vacancy in the Office of Trustee
. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder with respect
to each series of Debt Securities.
Section 4.04
Duties
of Paying Agents, etc.
(a) The
Issuer shall cause each paying agent, if any, other than the Trustee, to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this Section 4.04,
(i) that
it will hold all sums held by it as such agent for the payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the Issuer or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt Securities of such series;
(ii) that
it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of, and premium, if any, or interest on, the Debt Securities of such series when the same shall
be due and payable; and
(iii) that
it will at any time during the continuance of an Event of Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If
the Issuer shall act as its own paying agent, it will, on or before each due date of the principal of, and premium, if any, or
interest on, the Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders of the Debt
Securities of such series a sum sufficient to pay such principal, premium, if any, or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure by the Issuer to take such action or the failure by any other obligor on such Debt Securities
to make any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the same shall be due and
payable.
(c) Anything
in this Section 4.04 to the contrary notwithstanding, the Issuer may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or
any paying agent, as required by this Section 4.04, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Issuer or such paying agent.
(d) Whenever
the Issuer shall have one or more paying agents with respect to any series of Debt Securities, it will, prior to each due date
of the principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with any such paying agent
a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless any such paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
(e) Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04
is subject to the provisions of Section 11.05.
Section 4.05
SEC
Reports; Financial Statements
.
(a) The
Issuer shall, so long as any of the Debt Securities are Outstanding, file with the Trustee, within 15 days after it files the same
with the SEC, copies of the annual reports and the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) that the Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Issuer shall also comply with the provisions of TIA Section 314(a).
(b) If
the Issuer is required to furnish annual or quarterly reports to its unitholders pursuant to the Exchange Act, the Issuer shall,
so long as any of the Debt Securities are outstanding, cause any annual report furnished to its unitholders generally and any quarterly
or other financial reports furnished by it to its unitholders generally to be filed with the Trustee and mailed to the Holders
in the manner and to the extent provided in Section 5.03.
(c) The
Issuer shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the
Trustee may be required to deliver to Holders under this Section.
(d) The
Issuer shall, so long as any of the Notes are Outstanding, deliver to the Trustee, within 30 days of any Officer of the Issuer
becoming aware of the occurrence of any Default or Event of Default, an Officers’ Certificate specifying such Default or
Event of Default and what action the Issuer is taking or proposes to take with respect thereto.
Section 4.06
Compliance
Certificate
.
(a) The
Issuer shall, so long as any of the Debt Securities are outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Issuer, an Officers’ Certificate stating that a review of the activities of the Issuer and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officers of the Issuer with a view to determining
whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his knowledge the Issuer has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions hereof, without regard to any grace period or requirement of notice required by this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may
have knowledge and what action the Issuer is taking or propose to take with respect thereto) and that to the best of his knowledge
no event has occurred and remains in existence by reason of which payments on account of the principal of, or premium, if any,
or interest, if any, on the Debt Securities are prohibited or, if such event has occurred, a description of the event and what
action the Issuer are taking or propose to take with respect thereto.
(b) The
Issuer shall, so long as any of the Debt Securities are outstanding, deliver to the Trustee within 30 days after the occurrence
of any Default or Event of Default under this Indenture, an Officers’ Certificate specifying such Default or Event of Default,
the status thereof and what action the Issuer are taking or propose to take with respect thereto.
Section 4.07
Further
Instruments and Acts
. The Issuer will, upon request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture.
Section 4.08
Existence
.
Except as permitted by Article X hereof, the Issuer shall do or cause to be done all things necessary to preserve and keep
in full force and effect its existence and all rights (charter and statutory) and franchises of the Issuer, provided that the Issuer
shall not be required to preserve any such right or franchise, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer.
Section 4.09
Maintenance
of Properties
. The Issuer shall cause all properties owned by the Issuer or any of its Subsidiaries or used or held for use
in the conduct of its business or the business of any such Subsidiary to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Issuer from discontinuing the operation or maintenance of any of such properties if such discontinuance
is, in the judgment of the Issuer, desirable in the conduct of its business or the business of any such Subsidiary and not disadvantageous
in any material respect to the Holders.
Section 4.10
Payment
of Taxes and Other Claims
. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any of its Subsidiaries
or upon the income, profits or property of the Issuer or any of its Subsidiaries, and (ii) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien upon the property of the Issuer or any of its Subsidiaries; provided
that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
Section 4.11
Waiver
of Certain Covenants
. The Issuer may, with respect to the Debt Securities of any series, omit in any particular instance to
comply with any covenant set forth in this Article IV (except Sections 4.01 through 4.08) or made applicable to such
Debt Securities pursuant to Section 2.03, if, before or after the time for such compliance, the Holders of at least a majority
in principal amount of the Outstanding Debt Securities of each series affected, waive such compliance in such instance with such
covenant, but no such waiver shall extend to or affect such covenant except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.
Article
V
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
Section 5.01
Issuer
to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
. The Issuer covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series:
(a) not
more than 10 days after each record date with respect to the payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such record date, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer of any such request, a list
of similar form and contents as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the
Trustee shall be the Registrar, such lists shall not be required to be furnished.
The Trustee shall preserve,
in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (i) contained
in the most recent list furnished to it as provided in this Section 5.01 or (ii) received by it in the capacity of paying
agent or Registrar (if so acting) hereunder.
The Trustee may destroy
any list furnished to it as provided in this Section 5.01 upon receipt of a new list so furnished.
Section 5.02
Communications
to Holders
. Holders may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under
this Indenture or the Debt Securities. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c)
of the TIA.
Section 5.03
Reports
by Trustee
. Within 60 days after each January 31, beginning with the first January 31 following the date of this
Indenture, and in any event on or before April 1 in each year, the Trustee shall mail to Holders a brief report dated as of
such January 31 that complies with TIA Section 313(a); provided, however, that if no event described in TIA Section 313(a)
has occurred within the twelve months preceding the reporting date, no report need be transmitted. The Trustee also shall comply
with TIA Section 313(b).
Reports pursuant to
this Section 5.03 shall be transmitted by mail:
(a) to
all Holders, as the names and addresses of such Holders appear in the Debt Security Register; and
(b) except
in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee in accordance with Section 5.01.
A copy of each report
at the time of its mailing to Holders shall be filed with the Securities and Exchange Commission and each stock exchange (if any)
on which the Debt Securities of any series are listed. The Issuer agree to notify promptly the Trustee whenever the Debt Securities
of any series become listed on any stock exchange and of any delisting thereof.
Section 5.04
Record
Dates for Action by Holders
. If the Issuer shall solicit from the Holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice, consent or waiver or the taking of any other action),
the Issuer may, at its option, by resolution of the Board of Directors, fix in advance a record date for the determination of Holders
of Debt Securities entitled to take such action, but the Issuer shall have no obligation to do so. Any such record date shall be
fixed at the Issuer’s discretion. If such a record date is fixed, such action may be sought or given before or after the
record date, but only the Holders of Debt Securities of record at the close of business on such record date shall be deemed to
be Holders of Debt Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action, and for that purpose the Debt Securities of such
series Outstanding shall be computed as of such record date.
Article
VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01
Events
of Default
. If any one or more of the following shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an “Event of Default”):
(a) default
in the payment of any installment of interest upon any Debt Securities of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default
in the payment of the principal of or premium, if any, on any Debt Securities of that series as and when the same shall become
due and payable, whether at Stated Maturity, upon redemption, by declaration, upon required repurchase or otherwise; or
(c) default
in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become
due and payable; or
(d) failure
on the part of the Issuer, duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the
Debt Securities of that series, in any resolution of the Board of Directors authorizing the issuance of that series of Debt Securities,
in this Indenture with respect to such series or in any supplemental Indenture with respect to such series (other than a covenant
a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a period of 60 days
after the date on which written notice specifying such failure and requiring the Issuer, to remedy the same shall have been given,
by registered or certified mail, to the Issuer, by the Trustee or to the Issuer, and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Debt Securities of that series at the time Outstanding; or
(e) the
Issuer, pursuant to or within the meaning of any Bankruptcy Law,
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property; or
(iv) makes
a general assignment for the benefit of its creditors;
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Issuer as debtor in an involuntary case,
(ii) appoints
a Custodian of the Issuer or a Custodian for all or substantially all of the property of the Issuer, or if applicable, any of or
(iii) orders
the liquidation of the Issuer and the order or decree remains unstayed and in effect for 60 days;
(g) any
other Event of Default provided with respect to Debt Securities of that series; then and in each and every case that an Event of
Default described in clause (a), (b), (c), (d), or (g) with respect to Debt Securities of that series at the time Outstanding
occurs and is continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of that series shall
have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then Outstanding hereunder, by notice in writing to the Issuer (and to the Trustee if given by Holders),
may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion
of the principal amount as may be specified in the terms of that series), premium, if any, and interest on all the Debt Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Debt Securities of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (e) or (f) occurs, then and in each and every such case, unless the principal of
and interest on all the Debt Securities shall have become due and payable, the principal of (or, if any Debt Securities are Original
Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms thereof), premium, if any,
and interest on all the Debt Securities then Outstanding hereunder shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders, anything in this Indenture or in the Debt Securities contained
to the contrary notwithstanding.
The Holders of a majority
in aggregate principal amount of the Debt Securities of a particular series by written notice to the Trustee may waive all past
Defaults (except with respect to the nonpayment of principal, premium, if any, or interest) and rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered
and if all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest that
has become due solely because of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
Section 6.02
Collection
of Debt by Trustee, etc.
If an Event of Default occurs and is continuing, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid or enforce the performance of any provision of the Debt Securities of the affected series or this Indenture,
and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or any other obligor upon the Debt Securities of such series (and collect in the manner provided by law out
of the property of the Issuer or any other obligor upon the Debt Securities of such series wherever situated the moneys adjudged
or decreed to be payable).
In case there shall
be pending proceedings for the bankruptcy or for the reorganization of the Issuer or any other obligor upon the Debt Securities
of any series under any Bankruptcy Law, or in case a Custodian shall have been appointed for its property, or in case of any other
similar judicial proceedings relative to the Issuer or any other obligor upon the Debt Securities of any series, its creditors
or its property, the Trustee, irrespective of whether the principal of Debt Securities of any series 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 pursuant
to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise,
to file and prove a claim or claims for the whole amount of principal, premium, if any, and interest (or, if the Debt Securities
of such series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms
of such series) owing and unpaid in respect of the Debt Securities of such series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the
Trustee, its agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings
relative to the Issuer, or any other obligor upon the Debt Securities of such series, its creditors or its property, and to collect
and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with
respect to the claims of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred,
and all advances made, by the Trustee except as a result of its negligence or bad faith.
All rights of action
and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any such Debt Securities, or the production thereof in any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall be for the ratable
benefit of the Holders of all the Debt Securities in respect of which such action was taken.
In case of an Event
of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 6.03
Application
of Moneys Collected by Trustee
. Any moneys or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied, in the order following, at the date or dates fixed by the Trustee for the distribution
of such moneys or other property, upon presentation of the several Debt Securities of such series in respect of which moneys or
other property have been collected, and the notation thereon of the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment
of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the
principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due, to
the payment of interest on the Debt Securities of such series in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities of such series,
such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the
principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due, by declaration
or otherwise, to the payment of the whole amount then owing and unpaid upon the Debt Securities of such series for principal and
premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of interest at the rate or Yield to Maturity (in the case of Original
Issue Discount Debt Securities) borne by the Debt Securities of such series; and, in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Debt Security
of such series over any Debt Security of such series, ratably to the aggregate of such principal and premium, if any, and interest;
and
FOURTH: The remainder,
if any, shall be paid to the Issuer, its successors or assigns, or to whomsoever may be lawfully entitled to receive the same,
or as a court of competent jurisdiction may direct.
The Trustee may fix
a record date and payment date for any payment to Holders pursuant to this Section 6.03. At least 15 days before such record
date, the Issuer shall mail to each Holder and the Trustee a notice that states the record date, the payment date and amount to
be paid.
Section 6.04
Limitation
on Suits by Holders
. No Holder of any Debt Security of any series shall have any right by virtue or by availing of any provision
of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default with respect to Debt Securities of that same series
and of the continuance thereof and unless the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request upon the Trustee to institute such action or proceedings in respect of
such Event of Default in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity or security
as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after
its receipt of such notice, request and offer of indemnity or security shall have failed to institute any such action or proceedings
and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it
being understood and intended, and being expressly covenanted by the Holder of every Debt Security with every other Holder and
the Trustee, that no one or more Holders shall have any right in any manner whatever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all such Holders. For the protection and enforcement of the provisions of this Section 6.04,
each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any
other provision in this Indenture, however, the right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt Security, on or after the respective due dates expressed
in such Debt Security, and to institute suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 6.05
Remedies
Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
. All powers and remedies given by this Article VI
to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or
of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair any
such right or power, or shall be construed to be a waiver of any such Default or an acquiescence therein; and, subject to the provisions
of Section 6.04, every power and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.06
Rights
of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
. The Holders of a majority
in aggregate principal amount of the Debt Securities of any series at the time Outstanding 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 right, trust or power
conferred on the Trustee, with respect to the Debt Securities of such series; provided, however, that such direction shall not
be otherwise than in accordance with law and the provisions of this Indenture, and that subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine
that the action so directed may not lawfully be taken, or if the Trustee shall by a responsible officer or officers determine that
the action so directed would involve it in personal liability or would be unduly prejudicial to Holders of Debt Securities of such
series not taking part in such direction; and provided, further, however, that nothing in this Indenture contained shall impair
the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction by such
Holders. Prior to the acceleration of the maturity of the Debt Securities of any series, as provided in Section 6.01, the
Holders of a majority in aggregate principal amount of the Debt Securities of that series at the time Outstanding may on behalf
of the Holders of all the Debt Securities of that series waive any past Default or Event of Default and its consequences for that
series, except a Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt Securities and
a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected
thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture, the Issuer, the Trustee and the Holders of the Debt Securities of that
series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.07
Trustee
to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
. The Trustee shall, within 90
days after the occurrence of a Default known to it, or if later, within 30 days after the Trustee obtains actual knowledge of the
Default, with respect to a series of Debt Securities give to the Holders thereof, in the manner provided in Section 13.03,
notice of all Defaults with respect to such series known to the Trustee, unless such Defaults shall have been cured or waived before
the giving of such notice; provided, that, except in the case of Default in the payment of the principal of, or premium, if any,
or interest on, any of the Debt Securities of such series or in the making of any sinking fund payment with respect to the Debt
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 directors or responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders thereof.
Section 6.08
Requirement
of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
. All parties to this Indenture agree,
and each Holder of any Debt Security 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the TIA, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, 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 6.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25
percent in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the enforcement
of the payment of the principal of, or premium, if any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
Article
VII
CONCERNING THE TRUSTEE
Section 7.01
Certain
Duties and Responsibilities
. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of
all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth
in this Indenture. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this
Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act,
its own bad faith or its own willful misconduct, except that:
(a) this
paragraph shall not be construed to limit the effect of the first paragraph of this Section 7.01;
(b) prior
to the occurrence of an Event of Default with respect to the Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred:
(i) the
duties and obligations of the Trustee with respect to Debt Securities of any series shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations with respect to
such series as are specifically set forth in this Indenture, and no implied covenants or obligations with respect to such series
shall be read into this Indenture against the Trustee;
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee 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; but the Trustee shall examine the evidence furnished to it pursuant to Sections 4.05
and 4.06 to determine whether or not such evidence conforms to the requirement of this Indenture;
(iii) the
Trustee shall not be liable for an 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; and
(iv) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to Debt Securities of any
series in good faith in accordance with the direction of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of that 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 Debt
Securities of such series.
None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be 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 7.02
Certain
Rights of Trustee
. Except as otherwise provided in Section 7.01:
(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 or other paper or document (whether in its original
or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Order (unless other
evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuer;
(c) the
Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of Debt Securities of any series pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) prior
to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, 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, approval or other paper or document, unless requested in writing to
do so by the Holders of a majority in aggregate principal amount of the then Outstanding Debt Securities of a series affected by
such matter; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding, and the reasonable expense of every such investigation shall be
paid by the Issuer or, if paid by the Trustee, shall be repaid by the Issuer upon demand;
(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
by it with due care hereunder; and
(h) if
any property other than cash shall at any time be subject to a Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property
to such Lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax Liens or other
prior Liens or encumbrances thereon.
Section 7.03
Trustee
Not Liable for Recitals in Indenture or in Debt Securities
. The recitals contained herein, in the Debt Securities (except the
Trustee’s certificate of authentication) shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of
the Debt Securities of any series, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that the statements made by it or to be made by it
in a Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer are true and accurate. The Trustee shall
not be accountable for the use or application by the Issuer of any of the Debt Securities or of the proceeds thereof.
Section 7.04
Trustee,
Paying Agent or Registrar May Own Debt Securities
. The Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the provisions of the TIA relating to conflicts of
interest and preferential claims may otherwise deal with the Issuer with the same rights it would have if it were not Trustee,
paying agent or Registrar.
Section 7.05
Moneys
Received by Trustee to Be Held in Trust
. Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but 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 moneys
received by it hereunder. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time to the Issuer upon an Issuer Order.
Section 7.06
Compensation
and Reimbursement
. The Issuer covenants and agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the
Issuer will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ), including without
limitation, Section 6.02, except any such expense, disbursement or advances as may arise from its negligence, willful misconduct
or bad faith. The Issuer also covenants to indemnify in Dollars the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, willful misconduct or bad faith on the part of the Trustee, arising out of or in connection
with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending
itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Issuer under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional Debt hereunder and shall survive the satisfaction
and discharge of this Indenture. The Issuer and the Holders agree that such additional Debt shall be secured by a Lien prior to
that of the Debt Securities upon all property and funds held or collected by the Trustee, as such, except funds held in trust for
the payment of principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs
expenses or renders services after an Event of Default specified in Sections 6.01(e) or 6.01(f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency, reorganization
or other similar law.
Section 7.07
Right
of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
. Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08
Separate
Trustee; Replacement of Trustee
. The Issuer may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving notice to
the Issuer. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee
for such series and only such series by so notifying the Trustee and may appoint a successor Trustee. The Issuer shall remove the
Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
Custodian takes charge of the Trustee or its property; or
(d) the
Trustee otherwise becomes incapable of acting.
If the Trustee resigns,
is removed by the Issuer or by the Holders of a majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason
(the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Debt Securities of each applicable
series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the
Lien provided for in Section 7.06.
If a successor Trustee
does not take office within 60 days after the retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails
to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the
replacement of the Trustee pursuant to this Section 7.08, Issuer’s obligations under Section 7.06 shall continue
for the benefit of the retiring Trustee.
In the case of the
appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Issuer,
any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall
execute and deliver an Indenture supplemental hereto (i) which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series
as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that 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 separate, retiring or successor 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.
Section 7.09
Successor
Trustee by Merger
. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Trustee.
In case at the time
such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver such Debt Securities so authenticated; and in case at
that time any of the Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have.
Section 7.10
Eligibility;
Disqualification
. The Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
No obligor upon the Debt Securities of a particular series or Person directly or indirectly controlling, controlled by or under
common control with such obligor shall serve as Trustee upon the Debt Securities of such series. The Trustee shall comply with
Section 310(b) of the TIA; provided, however, that there shall be excluded from the operation of Section 310(b)(1) of the
TIA this Indenture or any indenture or indentures under which other securities or certificates of interest or participation in
other securities of the Issuer are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the
TIA are met.
Section 7.11
Preferential
Collection of Claims Against Issuer
. The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor relationship
listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section 311(a) of
the TIA to the extent indicated therein.
Section 7.12
Compliance
with Tax Laws
. The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting and withholding requirements
applicable to it with respect to payments of premium (if any) and interest on the Debt Securities, whether acting as Trustee, Registrar,
paying agent or otherwise with respect to the Debt Securities.
Article
VIII
CONCERNING THE HOLDERS
Section 8.01
Evidence
of Action by Holders
. Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including the making of any demand or request, the giving of
any direction, notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by Holders in Person or by agent or proxy appointed in writing, by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with the provisions of Section 5.02 or by a combination
of such instrument or instruments and any such record of such a meeting of Holders.
Section 8.02
Proof
of Execution of Instruments and of Holding of Debt Securities
. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
proof of the execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The ownership of Debt Securities of any series shall be proved by the Debt Security Register or by a certificate of the Registrar
for such series. The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall
deem necessary.
Section 8.03
Who
May Be Deemed Owner of Debt Securities
. Prior to due presentment for registration of transfer of any Debt Security, the Issuer,
the Trustee, any paying agent and any Registrar may deem and treat the Person in whose name any Debt Security shall be registered
upon the books of the Issuer as the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.12) interest on such Debt Security and for all other purposes,
and neither the Issuer nor the Trustee nor any paying agent nor any Registrar shall be affected by any notice to the contrary;
and all such payments so made to any such Holder for the time being, or upon his order, shall be valid and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
None of the Issuer,
the Trustee, any agent of the Trustee, any paying agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 8.04
Instruments
Executed by Holders Bind Future Holders
. At any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action and subject to the following paragraph, any Holder of
a Debt Security which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any Debt Security
shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and of any Debt Security
issued upon transfer thereof or in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto
is made upon such Debt Security or such other Debt Securities. Any action taken by the Holders of the percentage in aggregate principal
amount of the Debt Securities of any series specified in this Indenture in connection with such action shall be conclusively binding
upon the Issuer, the Trustee and the Holders of all the Debt Securities of such series.
The Issuer may, but
shall not be obligated to, fix a record date for the purpose of determining the Holders of Debt Securities entitled to give their
consent or take any other action required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt Securities at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be Holders of Debt Securities after such record date.
No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the Holders of
the percentage in aggregate principal amount of the Debt Securities of such series specified in this Indenture shall have been
received within such 120-day period.
Article
IX
SUPPLEMENTAL INDENTURES
Section 9.01
Purposes
for Which Supplemental Indenture May Be Entered into Without Consent of Holders
. The Issuer, when authorized by resolutions
of the Board of Directors, and the Trustee may from time to time and at any time, without the consent of Holders, enter into an
Indenture or Indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to
evidence the succession pursuant to Article X of another Person to the Issuer, or successive successions, and the assumption by
the Successor Company (as defined in Section 10.01) of the covenants, agreements and obligations of the Issuer in this Indenture
and in the Debt Securities;
(b) to
surrender any right or power herein conferred upon the Issuer or to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities, stating that such covenants are expressly being included
solely for the benefit of such series) as the Board of Directors shall consider to be for the protection of the Holders of such
Debt Securities, and to make the occurrence, or the occurrence and continuance, of a Default in any of such additional covenants,
restrictions, conditions or provisions a Default or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture; provided, that in respect of any such additional covenant, restriction, condition or provision
such supplemental Indenture may provide for a particular period of grace after Default (which period may be shorter or longer than
that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of the Holders of a majority in aggregate principal amount of
any or all series of Debt Securities to waive such default;
(c) to
cure any ambiguity or omission or to correct or supplement any provision contained herein, in any supplemental Indenture or in
any Debt Securities of any series that may be defective or inconsistent with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series; to convey, transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture as shall not adversely
affect the interests of any Holders of Debt Securities of any series;
(d) to
modify or amend this Indenture in such a manner as to permit the qualification of this Indenture or any Indenture supplemental
hereto under the TIA as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of the TIA;
(e) to
add to or change any of the provisions of this Indenture to change or eliminate any restrictions on the payment of principal of,
or premium, if any, on, Debt Securities; provided, that any such action shall not adversely affect the interests of the Holders
of Debt Securities of any series in any material respect or permit or facilitate the issuance of Debt Securities of any series
in uncertificated form;
(f) to
secure any or all of the Debt Securities;
(g) to
make any change that does not adversely affect the rights of any Holder;
(h) to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise permitted under this Section 9.01 shall neither apply
to any Debt Security of any series created prior to the execution of such supplemental Indenture and entitled to the benefit of
such provision nor modify the rights of the Holder of any such Debt Security with respect to such provision or shall become effective
only when there is no such Debt Security Outstanding;
(i) to
evidence and provide for the acceptance of appointment hereunder by a successor or separate Trustee with respect to the Debt 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; and
(j) to
establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby
authorized to join with the Issuer in the execution of any such supplemental Indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental Indenture which affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental Indenture
authorized by the provisions of this Section 9.01 may be executed by the Issuer and the Trustee without the consent of the
Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Modification
of Indenture with Consent of Holders of Debt Securities
. Without notice to any Holder but with the consent (evidenced as provided
in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt Securities
of each series affected by such supplemental Indenture (including consents obtained in connection with a tender offer or exchange
offer for any such series of Debt Securities), the Issuer, when authorized by resolutions of the Board of Directors, and the Trustee
may from time to time and at any time enter into an Indenture or Indentures supplemental hereto (which shall conform to the provisions
of the TIA as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental Indenture or of modifying in any manner the rights
of the Holders of the Debt Securities of such series; provided, that no such supplemental Indenture, without the consent of the
Holders of each Debt Security so affected, shall: reduce the percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; reduce the rate of or extend the time for payment of interest on any Debt Security; reduce
the principal of or extend the Stated Maturity of any Debt Security; reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed in accordance with Article III; make any Debt
Security payable in currency other than the Dollar; impair the right of any Holder to receive payment of premium, if any, principal
of and interest on such Holder’s Debt Securities on or after the due dates therefor or to institute suit for the enforcement
of any payment on or with respect to such Holder’s Debt Securities; release any security that may have been granted in respect
of the Debt Securities; or make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture
which changes or eliminates any covenant or other provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of
the Issuer, accompanied by a copy of resolutions of the Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Issuer
in the execution of such supplemental Indenture unless such supplemental Indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to
enter into such supplemental Indenture.
It shall not be necessary
for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed supplemental Indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
An amendment under
this Section 9.02 may not make any change that adversely affects the rights of any holder of Senior Indebtedness then Outstanding
unless the holders of such Senior Indebtedness (or any group or Representative thereof authorized to give a consent) consents to
such change.
After an amendment
under this Section 9.02 becomes effective, the Issuer shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
Section 9.03
Effect
of Supplemental Indentures
. Upon the execution of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental Indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
The Trustee, subject
to the provisions of Sections 7.01 and 7.02, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of this Article IX.
Section 9.04
Debt
Securities May Bear Notation of Changes by Supplemental Indentures
. Debt Securities of any series authenticated and delivered
after the execution of any supplemental Indenture pursuant to the provisions of this Article IX 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. New
Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental Indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure to make the appropriate notation
or to issue a new Debt Security of such series shall not affect the validity of such amendment.
Article
X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01
Consolidations
and Mergers of the Issuer
. The Issuer shall not consolidate or amalgamate with or merge with or into any Person, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all its assets to any Person, whether in a single transaction or a
series of related transactions, except (1) in accordance with the provisions of its partnership agreement, and (2) unless:
(a) either (i) the Issuer shall be the continuing Person in the case of a merger or (ii) the resulting, surviving
or transferee Person if other than the such Issuer (the “Successor Company”), shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Issuer
under this Indenture and the Debt Securities according to their tenor; (b) immediately after giving effect to such transaction
(and treating any Debt which becomes an obligation of the Successor Company or any Subsidiary of the Successor Company as a result
of such transaction as having been incurred by the Successor Company or such Subsidiary at the time of such transaction), no Default
or Event of Default would occur or be continuing; and (c) the Issuer shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or disposition and such supplemental
Indenture (if any) comply with this Indenture.
Section 10.02
Rights
and Duties of Successor Company
. In case of any consolidation, amalgamation or merger in respect of the Issuer where the Issuer
is not the continuing Person, or disposition of all or substantially all of the assets of the Issuer in accordance with Section 10.01,
the Successor Company shall succeed to and be substituted for the Issuer with the same effect as if it had been named herein as
the respective party to this Indenture, and the predecessor entity shall be released from all liabilities and obligations under
this Indenture and the Debt Securities, except that no such release will occur in the case of a lease of all or substantially all
of its assets. The Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the
Issuer, any or all the Debt Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of the Successor Company, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt Securities which previously
shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Debt Securities which
the Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities
so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all such Debt Securities had been issued at the date
of the execution hereof.
In case of any such
consolidation, amalgamation, merger, sale or disposition such changes in phraseology and form (but not in substance) may be made
in the Debt Securities thereafter to be issued as may be appropriate.
Article
XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01
Applicability
of Article
. The provisions of this Article XI relating to defeasance of Debt Securities shall be applicable to each series
of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt Securities of such series.
Section 11.02
Satisfaction
and Discharge of Indenture; Defeasance
.
(a) If
at any time the Issuer shall have delivered to the Trustee for cancellation all Debt Securities of any series theretofore authenticated
and delivered (other than any Debt Securities of such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Issuer as provided in Section 11.05) or all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and the Issuer shall deposit with the Trustee as trust funds the entire amount in cash sufficient to pay at maturity
or upon redemption all Debt Securities of such series not theretofore delivered to the Trustee for cancellation, including principal
and premium, if any, and interest due or to become due on such date of Stated Maturity or redemption date, as the case may be,
and if in either case the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture
shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Debt Securities
herein expressly provided for) with respect to the Debt Securities of such series, and the Trustee, on demand of the Issuer accompanied
by an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject
to Sections 11.02(c), 11.03 and 11.07, the Issuer at any time may terminate, with respect to Debt Securities of a particular
series, all its obligations under the Debt Securities of such series and this Indenture with respect to the Debt Securities of
such series (“legal defeasance option”) or the operation of (x) any covenant made applicable to such Debt Securities
pursuant to Section 2.03, (y) Sections 6.01(d) and 6.01(g) (“covenant defeasance option”). The Issuer
may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises
its legal defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of
Default. If the Issuer exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may not
be accelerated because of an Event of Default specified in Sections 6.01(d) and 6.01(g).
Upon satisfaction of
the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding
clauses (a) and (b) above, the Issuer’s obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have been paid in full. Thereafter, the Issuer’s
obligations in Sections 7.06, 11.05 and 11.06 shall survive.
Section 11.03
Conditions
of Defeasance
. The Issuer may exercise its legal defeasance option or its covenant defeasance option with respect to Debt Securities
of a particular series only if:
(a) the
Issuer irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to Stated Maturity or redemption, as the case may be;
(b) the
Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing its opinion
that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal,
premium and interest when due on all the Debt Securities of such series to Stated Maturity or redemption, as the case may be;
(c) 91
days pass after the deposit is made and during the 91-day period no Default specified in Sections 6.01(e) or 6.01(f) with
respect to the Issuer occurs which is continuing at the end of the period;
(d) no
Default has occurred and is continuing on the date of such deposit and after giving effect thereto;
(e) the
deposit does not constitute a default under any other agreement binding on the Issuer;
(f) the
Issuer delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the Investment Company Act of 1940;
(g) in
the event of the legal defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that the
Issuer has received from the Internal Revenue Service a ruling, or since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case of the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred;
(h) in
the event of the covenant defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not occurred; and
(i) the
Issuer delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Debt Securities of such series as contemplated by this Article XI have been complied
with.
Before or after a deposit,
the Issuer may make arrangements satisfactory to the Trustee for the redemption of Debt Securities of such series at a future date
in accordance with Article III.
Section 11.04
Application
of Trust Money
. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article XI.
It shall apply the deposited money and the money from U.S. Government Obligations through any paying agent and in accordance with
this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities of the defeased series.
Section 11.05
Repayment
to Issuer
. The Trustee and any paying agent shall promptly turn over to the Issuer upon request any excess money or securities
held by them at any time.
Subject to any applicable
abandoned property law, the Trustee and any paying agent shall pay to the Issuer upon request any money held by them for the payment
of principal, premium or interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look
to the Issuer for payment as general creditors.
Section 11.06
Indemnity
for U.S. Government Obligations
. The Issuer shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations.
Section 11.07
Reinstatement
.
If the Trustee or any paying agent is unable to apply any money or U.S. Government Obligations in accordance with this Article XI
by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining
or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Debt Securities of the defeased
series shall be revived and reinstated as though no deposit had occurred pursuant to this Article XI until such time as the
Trustee or any paying agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article XI.
Article
XII
[RESERVED]
This Article XII
has been intentionally omitted.
Article
XIII
MISCELLANEOUS PROVISIONS
Section 13.01
Successors
and Assigns of Issuer Bound by Indenture
. All the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer or the Trustee shall bind their respective successors and assigns, whether so expressed or not.
Section 13.02
Acts
of Board, Committee or Officer of Successor Company Valid
. Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer of the Issuer shall and may be done and performed with like
force and effect by the like board, committee or officer of any Successor Company.
Section 13.03
Required
Notices or Demands
. Any notice or communication by the Issuer or the Trustee to the others is duly given if in writing (in
the English language) and delivered in Person or mailed by registered or certified mail (return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the other’s address:
If to the Issuer:
Höegh LNG Partners LP
Attention: Chief Executive Officer
Wessex House, 5
th
Floor
45 Reid Street
Hamilton, HM12 Bermuda
+441-295-6815
If to the Trustee:
[ ]
[ ]
[ ]
[ ]
The Issuer or the Trustee
by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender
receives confirmation of successful transmission; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice required
or permitted to a Holder by the Issuer or the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly
mailed by being deposited postage prepaid in a post office letter box in the United States addressed to such Holder at the address
of such Holder as shown on the Debt Security Register. Any report pursuant to Section 313 of the TIA shall be transmitted
in compliance with subsection (c) therein.
Notwithstanding the
foregoing, any notice to Holders of Floating Rate Debt Securities regarding the determination of a periodic rate of interest, if
such notice is required pursuant to Section 2.03, shall be sufficiently given if given in the manner specified pursuant to
Section 2.03.
In the event of suspension
of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
In the event it shall
be impracticable to give notice by publication, then such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
Failure to mail a notice
or communication to a Holder or any defect in it or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or communication is mailed or published in the manner provided
above, it is conclusively presumed duly given.
Section 13.04
Indenture
and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
. THIS INDENTURE AND EACH DEBT SECURITY
SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
Section 13.05
Officers’
Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Issuer
. Upon any application or demand
by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the
Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent
have been complied with, except that in the case of any such application or demand as to which the furnishing of such document
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant
or condition, (b) 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, (c) a statement that, in the opinion of such Person, 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 (d) a statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.
Section 13.06
Payments
Due on Legal Holidays
. In any case where the date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment
shall not be a Business Day at any Place of Payment for the Debt Securities of such series, then payment of interest or principal
and premium, if any, or the making of such sinking fund payment need not be made on such date at such Place of Payment, but may
be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period after such date. If a record date is not a Business
Day, the record date shall not be affected.
Section 13.07
Provisions
Required by TIA to Control
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318, inclusive,
of the TIA, such required provision shall control.
Section 13.08
Computation
of Interest on Debt Securities
. Interest, if any, on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03.
Section 13.09
Rules
by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.
Section 13.10
No
Recourse Against Others
. The General Partner and its directors, officers, employees and members, as such, shall have no liability
for any obligations of the Issuer under the Debt Securities, this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. By accepting a Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt Securities.
Section 13.11
Severability
.
In case any provision in this Indenture or the Debt 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 13.12
Effect
of Headings
. The article and section headings herein and in the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 13.13
Indenture
May Be Executed in Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
Article
XIV
SUBORDINATION OF DEBT SECURITIES
Section 14.01
Applicability
of Article; Agreement to Subordinate
. The provisions of this Article XIV shall be applicable to the Debt Securities of
any series (Debt Securities of such series being referred to in this Article XIV as “Subordinated Debt Securities”)
except to the extent such provisions may be changed or added to pursuant to Section 2.03. Each Holder by accepting a Subordinated
Debt Security agrees that the indebtedness evidenced by such Subordinated Debt Security is subordinated in right of payment, to
the extent and in the manner provided in this Article XIV (as the same may be changed or added to pursuant to Section 2.03
or by any supplemental indenture), to the prior payment of all Senior Indebtedness and that the subordination is for the benefit
of and enforceable by the holders of Senior Indebtedness. All provisions of this Article XIV shall be subject to Section 14.12.
Section 14.02
Liquidation,
Dissolution, Bankruptcy
. Upon any payment or distribution of the assets of the Issuer to creditors upon a voluntary or involuntary
liquidation or a dissolution of the Issuer or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to the Issuer or its property:
(1) holders
of Senior Indebtedness shall be entitled to receive payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy, whether or not allowed as a claim against the Issuer
in such bankruptcy proceeding) before Holders of Subordinated Debt Securities shall be entitled to receive any payment of principal
of, or premium, if any, or interest on, the Subordinated Debt Securities from the Issuer; and
(2) until
the Senior Indebtedness is paid in full, any distribution to which Holders of Subordinated Debt Securities would be entitled but
for this Article XIV shall be made to holders of Senior Indebtedness as their interests may appear, except that such Holders
may receive Equity Interests and any debt securities that are subordinated to Senior Indebtedness of the Issuer to at least the
same extent as the Subordinated Debt Securities.
Section 14.03
Default
on Senior Indebtedness
. The Issuer may not pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit into a defeasance trust or pursuant to Article XI and may not repurchase, redeem or otherwise
retire (except, in the case of Subordinated Debt Securities that provide for a mandatory sinking fund pursuant to Section 3.04,
by the delivery of Subordinated Debt Securities by the Issuer to the Trustee pursuant to the first paragraph of Section 3.05)
any Debt Securities (collectively, “pay the Subordinated Debt Securities”) if (i) any principal, premium, interest
or any other amount payable in respect of Senior Indebtedness is not paid within any applicable grace period (including at maturity)
or (ii) any other default on Senior Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated in accordance
with its terms unless, in either case, (x) the default has been cured or waived and any such acceleration has been rescinded
or (y) such Senior Indebtedness has been paid in full in cash; provided, however, that the Issuer may pay the Subordinated
Debt Securities without regard to the foregoing if the Issuer and the Trustee receive written notice approving such payment from
the Representative of each issue of Designated Senior Indebtedness. During the continuance of any default (other than a default
described in clause (i) or (ii) of the preceding sentence) with respect to any Senior Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration)
or the expiration of any applicable grace periods, the Issuer may not pay the Subordinated Debt Securities for a period (a “Payment
Blockage Period”) commencing upon the receipt by the Issuer and the Trustee of written notice of such default from the Representative
of any Designated Senior Indebtedness specifying an election to effect a Payment Blockage Period (a “Blockage Notice”)
and ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated (i) by written notice to the Trustee
and the Issuer from the Person or Persons who gave such Blockage Notice, (ii) by repayment in full in cash of such Designated
Senior Indebtedness or (iii) because the default giving rise to such Blockage Notice is no longer continuing). Notwithstanding
the provisions described in the immediately preceding sentence (but subject to the provisions contained in the first sentence of
this Section 14.03), unless the holders of such Designated Senior Indebtedness or the Representative of such holders shall
have: accelerated the maturity of such Designated Senior Indebtedness, the Issuer may resume payments on the Subordinated Debt
Securities after such Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to any number of issues of Senior Indebtedness during such period. For purposes
of this Section 14.03, no default or event of default which existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Senior Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis of the commencement of a subsequent Payment Blockage Period by the Representative of such Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
Section 14.04
Acceleration
of Payment of Debt Securities
. If payment of the Subordinated Debt Securities is accelerated because of an Event of Default,
the Issuer or the Trustee shall promptly notify the holders of the Designated Senior Indebtedness (or their Representatives) of
the acceleration.
Section 14.05
When
Distribution Must Be Paid Over
. If a distribution is made to Holders of Subordinated Debt Securities that because of this Article XIV
should not have been made to them, the Holders who receive such distribution shall hold it in trust for holders of Senior Indebtedness
and pay it over to them as their interests may appear.
Section 14.06
Subrogation
.
After all Senior Indebtedness is paid in full and until the Subordinated Debt Securities are paid in full, Holders thereof shall
be subrogated to the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness. A distribution
made under this Article XIV to holders of Senior Indebtedness which otherwise would have been made to Holders of Subordinated
Debt Securities is not, as between the Issuer and such Holders, a payment by the Issuer on Senior Indebtedness.
Section 14.07
Relative
Rights
. This Article XIV defines the relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in the Indenture shall:
(1) impair,
as between the Issuer and Holders of Subordinated Debt Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay principal of, and premium, if any, and interest on, the Subordinated Debt Securities in accordance with their terms; or
(2) prevent
the Trustee or any Holder of Subordinated Debt Securities from exercising its available remedies upon an Event of Default, subject
to the rights of holders of Senior Indebtedness to receive distributions otherwise payable to Holders of Subordinated Debt Securities.
Section 14.08
Subordination
May Not Be Impaired by Issuer
. No right of any holder of Senior Indebtedness to enforce the subordination of the indebtedness
evidenced by the Subordinated Debt Securities shall be impaired by any act or failure to act by the Issuer or by its failure to
comply with the Indenture.
Section 14.09
Rights
of Trustee and Paying Agents
. Notwithstanding Section 14.03, the Trustee or any paying agent may continue to make payments
on Subordinated Debt Securities and shall not be charged with knowledge of the existence of facts that would prohibit the making
of any such payments unless, not less than two Business Days prior to the date of such payment, a responsible officer of the Trustee
receives notice satisfactory to it that payments may not be made under this Article XIV. The Issuer, the Registrar, any paying
agent, a Representative or a holder of Senior Indebtedness may give the notice; provided, however, that, if an issue of Senior
Indebtedness has a Representative, only the Representative may give the notice. The Trustee in its individual or any other capacity
may hold Senior Indebtedness with the same rights it would have if it were not Trustee. The Registrar and any paying agent may
do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article XIV with respect to
any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article VII shall deprive the Trustee of any of its rights as such holder. Nothing in this Article XIV shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 7.06.
Section 14.10
Distribution
or Notice to Representative
. Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the
distribution may be made and the notice given to their Representative (if any).
Section 14.11
Article XIV
Not to Prevent Defaults or Limit Right to Accelerate
. The failure to make a payment pursuant to the Debt Securities by reason
of any provision in this Article XIV shall not be construed as preventing the occurrence of a Default. Nothing in this Article XIV
shall have any effect on the right of the Holders or the Trustee to accelerate the maturity of the Subordinated Debt Securities.
Section 14.12
Trust
Moneys Not Subordinated
. Notwithstanding anything contained herein to the contrary, payments from money or the proceeds of
U.S. Government Obligations held in a defeasance trust or in trust under Article XI by the Trustee for the payment of principal
of, and premium, if any, and interest on, the Subordinated Debt Securities shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this Article XIV, and none of the Holders thereof shall be
obligated to pay over any such amount to the Issuer or any holder of Senior Indebtedness or any other creditor of the Issuer.
Section 14.13
Trustee
Entitled to Rely
. Upon any payment or distribution pursuant to this Article XIV, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 14.02 are pending, (ii) upon a certificate of the liquidating trustee or agent or other Person
making such payment or distribution to the Trustee or to such Holders or (iii) upon the Representatives for the holders of
Senior Indebtedness for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders
of the Senior Indebtedness and other indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article XIV. In the event that the Trustee determines,
in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article XIV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article XIV,
and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article XIV.
Section 14.14
Trustee
to Effectuate Subordination
. Each Holder by accepting a Subordinated Debt Security authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Holders
of Subordinated Debt Securities and the holders of Senior Indebtedness as provided in this Article XIV and appoints the Trustee
as attorney-in-fact for any and all such purposes.
Section 14.15
Trustee
Not Fiduciary for Holders of Senior Indebtedness
. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Holders of
Subordinated Debt Securities or the Issuer or any other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article XIV or otherwise.
Section 14.16
Reliance
by Holders of Senior Indebtedness on Subordination Provisions
. Each Holder by accepting a Subordinated Debt Security acknowledges
and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder
of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of the Subordinated
Debt Securities, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness and such holder of Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
[Remainder of This Page Intentionally
Left Blank.]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
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HÖEGH LNG PARTNERS LP
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By:
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Name:
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Richard Tyrrell
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Title:
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Chief Executive Officer and Chief Financial Officer
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[TRUSTEE]
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By:
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Name:
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Title:
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Signature
Page to
Höegh LNG Partners LP Indenture (Subordinated Debt Securities)
Exhibit 5.1
Höegh LNG Partners LP
45 Reid Street
Hamilton, HM 12
Bermuda
Our reference: 29496.50002/80458898v3
September 26, 2016
Höegh LNG Partners LP: Registration
Statement on Form F-3: Exhibit 5.1 Opinion
Ladies and Gentlemen:
We have acted as special counsel as to
matters of the law of the Republic of the Marshall Islands (“
Marshall Islands Law
”) for Höegh LNG Partners
LP, a Marshall Islands limited partnership (the “
Partnership
”), in connection with the preparation of a Registration
Statement on Form F-3 (the “
Registration Statement
”) filed by the Partnership with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “
Securities
Act
”), with respect to:
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(a)
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the registration of the sale by Höegh LNG Holdings Ltd., a Bermuda exempted company (the “
Selling
Unitholder
”) of up to 2,116,060 of the Partnership’s common units (the “
Resale Units
”) previously
issued pursuant to a Contribution, Purchase and Sale Agreement (the “
Contribution Agreement
”) dated August 8,
2014 and made by and among the Selling Unitholder, Höegh LNG Ltd., a Bermuda exempted company, the Partnership, Höegh
LNG GP LLC, a Marshall Islands limited liability company and the general partner of the Partnership (the “
General Partner
”),
and Höegh LNG Partners Operating LLC, a Marshall Islands limited liability company; and
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(a)
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the registration of the issuance and sale from time to time by the Partnership of up to $600 million
aggregate offering price (or any such further aggregate offering price as may be registered pursuant to Rule 462(b)) of:
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a.
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common units to be issued by the Partnership (“
Common
Units
”), each representing limited partner interests in the Partnership;
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b.
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other classes of units to be issued by the Partnership, which
may be convertible into other securities of the Partnership (“
Preferred Units
”), each representing limited partner
interests in the Partnership;
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Page 2
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c.
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options (the “
Options
”), warrants (the “
Warrants
”) and rights
(the “
Rights
”) to purchase Common Units or Preferred Units; and
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d.
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debt securities (“
Debt Securities
”, together
with the Common Units, Preferred Units, Options, Warrants and Rights, the “
Securities
”) including convertible
debt securities, which may be issued pursuant to one of two forms of indenture for debt securities in the forms filed as Exhibits
4.1 and 4.2 to the Registration Statement (each, an “
Indenture
”).
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The Securities will be sold from time to
time as set forth in the Registration Statement, the prospectus contained therein (the “
Prospectus
”) and supplements
to the Prospectus (the “
Prospectus Supplements
”).
As such counsel, we have examined originals
or copies (certified or otherwise identified to our satisfaction) of the following documents:
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(i)
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the Registration Statement and Prospectus;
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(ii)
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the Contribution Agreement;
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(iv)
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the Certificate of Limited Partnership of the Partnership, as amended, and the First Amended and
Restated Agreement of Limited Partnership dated August 12, 2014 (together, the “
Organizational Documents
”, and
together with the Registration Statement, Prospectus, and each Indenture, the “
Documents
”); and
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(v)
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such other papers, documents, agreements, certificates of public officials and certificates of
representatives of the Partnership and the General Partner as we have deemed relevant and necessary as the basis for the opinion
hereafter expressed.
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In such examination, we have assumed (a)
the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies,
(d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct and complete,
and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within
the due diligence review undertaken by us. We have also assumed the power and legal right of all parties (other than the Partnership)
to the Registration Statement and any amendments or supplements thereto (including any necessary post-effective amendments), and
all parties to the Indentures (other than the Partnership), to enter into and perform their respective obligations thereunder,
and the due authorization, execution and delivery of the Indentures by all parties thereto. We have further assumed the validity
and enforceability of all documents under all applicable laws other than Marshall Islands Law. As to any questions of fact material
to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid certificates.
Page 3
In rendering this opinion letter, we have
also assumed:
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(i)
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that the issuance and, if applicable, sale of the Securities complies in all respects with the
terms, conditions and restrictions set forth in the Documents and all of the instruments and other documents relating thereto or
executed in connection therewith;
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(ii)
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the filing by the Partnership of the Registration Statement and Prospectus substantially in the
form examined by us;
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(iii)
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a definitive purchase agreement, underwriting agreement or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and delivered by the applicable registrants and the other
parties thereto;
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(iv)
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any Securities, including Securities issuable upon conversion, exchange or exercise of any Security
being offered, will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise,
and will be validly issued, and the certificates, if any, evidencing the same will be duly executed and delivered, against receipt
of the consideration approved by the Partnership and, as applicable, the General Partner; and
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(v)
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the definitive terms of any Security, other than Common Units, offered pursuant to the Registration
Statement will have been established in accordance with resolutions of the Board of Directors of the Partnership, the General Partner
(if applicable), the Organizational Documents and applicable law.
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With respect to the issuance and sale of
any series of Preferred Units, we have further assumed that an appropriate certificate of designations or similar instrument setting
forth the preferential, deferred, qualified or special rights, powers, privileges, conditions or duties with respect to such series
of Preferred Units, or an amendment to the Organizational Documents, will have been duly adopted and fixed by the Board of Directors
of the Partnership and, if applicable, the General Partner in a form to be described in a Prospectus Supplement, all in conformity
with the requirements of the Organizational Documents.
With respect to the issuance and sale of
any Debt Securities, we have further assumed that (i) the relevant Indenture will be duly qualified under the Trust Indenture Act
of 1939, as amended, (ii) the relevant Indenture will have been duly executed and delivered by the Partnership and the trustee
named therein (the “
Trustee
”) substantially in the form examined by us and any applicable supplemental indenture
will have been duly executed and delivered by the Partnership and the Trustee in accordance with the terms and conditions of the
relevant Indenture regarding the creation, authentication and delivery of any supplemental indenture to such Indenture and (iii)
such Debt Securities when issued, will be executed, authenticated, issued and delivered (a) against receipt of the consideration
therefor approved by the Partnership and, if applicable, the General Partner and (b) as provided in the relevant Indenture with
respect thereto.
As to matters of fact material to this
opinion that have not been independently established, we have relied upon the representations and certificates of officers or representatives
of the Partnership and of public officials, in each case as we have deemed relevant and appropriate. We have not independently
verified the facts so relied on.
Page 4
This opinion letter is limited to Marshall
Islands Law and is as of the date hereof. We expressly disclaim any responsibility to advise of any development or circumstance
of any kind, including any change of law or fact that may occur after the date of this opinion letter that might affect the opinion
expressed herein.
Based on the foregoing and having regard
to legal considerations which we deem relevant, we are of the opinion that:
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1.
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The Partnership is validly existing under Marshall Islands Law.
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2.
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The Partnership has the limited partnership power to enter into each Indenture.
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3.
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The Resale Units have been validly issued and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the
Marshall Islands Limited Partnership Act).
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4.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Partnership,
and, if applicable, the General Partner, and when issued and delivered against payment therefor in accordance with the terms of
the Organizational Documents, the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus
and a Prospectus Supplement, the Common Units will be validly issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Marshall Islands
Limited Partnership Act).
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5.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Partnership,
and, if applicable, the General Partner, and when issued and delivered against payment therefor in accordance with the terms of
the Organizational Documents, the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus
and a Prospectus Supplement, the Preferred Units will be validly issued, fully paid and nonassessable, and if the Preferred Units
are convertible into Common Units or other Preferred Units, then such resulting Common Units or Preferred Units upon conversion
will be (subject to compliance with the requirements set forth in this Paragraph and Paragraph 4 above), validly issued, fully
paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected
by Sections 30, 41, 51 and 60 of the Marshall Islands Limited Partnership Act).
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6.
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Upon the due execution and delivery of an Indenture by the parties thereto substantially in the
form examined by us, when (a) the specific terms of a particular Debt Security have been duly authorized by the Partnership and,
if applicable, the General Partner and established in accordance with the relevant Indenture, and (b) such Debt Security has been
duly executed, authenticated, issued for value and delivered in accordance with such Indenture, and if the Debt Securities are
convertible into Common Units or Preferred Units, then such resulting Common Units or Preferred Units will be (subject to compliance
with the requirements set forth in Paragraphs 4 and 5 above), validly issued, fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 30, 41, 51 and 60 of the Marshall Islands
Limited Partnership Act).
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Page 5
We consent to the filing of this opinion
as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement, and the references to
our firm in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to any part of the Registration
Statement within the meaning of the term “expert” as used in the Securities Act.
Very truly yours,
Watson Farley & Williams LLP
/s/ Watson Farley & Williams LLP
Exhibit 5.2
September 26, 2016
Höegh LNG Partners LP
Wessex House, 5th Floor
45 Reid Street
Hamilton, HM 12 Bermuda
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Re:
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Registration Statement on Form F-3 (the “Registration Statement”)
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Ladies and Gentlemen:
We have acted as counsel
for Höegh LNG Partners LP, a Marshall Islands limited partnership (the “Partnership”), with respect to certain
legal matters in connection with the preparation and filing of a registration statement on Form F-3 (such registration statement,
as amended and supplemented from time to time, the “Registration Statement”) filed on the date hereof with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
and to which this opinion is to be filed as an exhibit. The Registration Statement relates to the registration of the sale from
time to time, pursuant to Rule 415 under the Securities Act, of (a) the Partnership’s senior debt securities (“Senior
Debt Securities”) and subordinated debt securities (“Subordinated Debt Securities” and together with the Senior
Debt Securities, the “Debt Securities”), (b) common units and other units, each representing limited partner interests
in the Partnership (the “Units”) that may be issued and sold by the Partnership or, in the case of common units, sold
by Höegh LNG Holdings Ltd., the selling unitholder, and (c) options, warrants and rights to purchase Units (together with
the Units and the Debt Securities, the “Securities”). The Securities will be offered in amounts, at prices and on terms
to be determined in light of market conditions at the time of sale and to be set forth in supplements (each a “Prospectus
Supplement”) to the prospectus contained in the Registration Statement (the “Prospectus”).
The Senior Debt Securities
will be issued in one or more series pursuant to an indenture (together with any supplemental indentures, the “Senior Indenture”)
to be entered into between the Partnership and a trustee (the “Senior Trustee”), in substantially the form filed as
an exhibit to the Registration Statement. The Subordinated Debt Securities will be issued in one or more series pursuant to a subordinated
indenture (together with any supplemental indentures, the “Subordinated Indenture”) to be entered into between the
Partnership and a trustee (the “Subordinated Trustee”), in substantially the form filed as an exhibit to the Registration
Statement. The Senior Indenture and the Subordinated Indenture are hereinafter referred to each as an “Indenture” and
together as the “Indentures”.
Page 2
We have examined originals
or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the form of Senior Indenture
and the form of Subordinated Indenture filed as exhibits to the Registration Statement, (iii) such certificates, agreements, instruments,
records and documents as we considered appropriate for purposes of the opinions hereafter expressed. In addition, we reviewed such
questions of law, as we considered appropriate.
In connection with
rendering the opinions set forth below, we have assumed that (i) all information contained in all documents reviewed by us is true
and correct, (ii) all signatures on all documents examined by us are genuine, (iii) all documents submitted to us as originals
are authentic and all documents submitted to us as copies conform to the originals of those documents, (iv) the Registration Statement,
and any amendments thereto (including post-effective amendments), will have become effective, and at the time hereof and at the
time of issuance of any Securities proposed to be offered and sold pursuant thereto will remain, effective and comply with all
applicable laws, (v) a Prospectus Supplement will have been prepared and filed with the Commission describing the Debt Securities
offered thereby, (vi) all Debt Securities will be issued and sold in compliance with applicable federal, state and foreign securities
laws and in the manner specified in the Registration Statement and the applicable Prospectus Supplement, (vii) the applicable Indenture
will be duly authorized, executed and delivered by the parties thereto, (viii) each person that will sign an Indenture will have
the legal capacity and authority to do so, (ix) the applicable Indenture will have been duly qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), (x) a definitive purchase agreement with respect to any Debt Securities
offered will have been duly authorized and validly executed and delivered by the Partnership and the other parties thereto, and
(xi) any common units issuable upon conversion of any Debt Securities will have been duly authorized and reserved for issuance
upon such conversion.
Page 3
Based on the foregoing,
and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that when (a)
the applicable Indenture has been duly qualified under the Trust Indenture Act, (b) an appropriate Prospectus Supplement or term
sheet with respect to the Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder, (c) the Partnership has taken all necessary Partnership action to approve the issuance
and terms of any such Debt Securities, (d) the applicable Indenture has been duly authorized, executed and delivered by each party
thereto in accordance with the laws applicable to each party thereto, (e) the terms of such Debt Securities and of their issuance
and sale have been duly established in conformity with the applicable Indenture so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon the Partnership and so as to comply with any requirements
or restrictions imposed by any court or governmental body having jurisdiction over the Partnership, (f) any common units issuable
upon the conversion of any such Debt Securities, if applicable, have been duly and validly authorized for issuance, and (g) such
Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated
in the Registration Statement and the applicable purchase agreement, upon payment of the consideration for such Debt Securities
as provided for in the applicable purchase agreement, such Debt Securities will constitute valid and legally binding obligations
of the Partnership, enforceable against the Partnership in accordance with their terms, except as such enforcement is subject to
any applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium and similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless
of whether enforcement is sought in a proceeding in equity or at law), public policy, applicable law relating to fiduciary duties
and indemnification and an implied covenant of good faith and fair dealing.
We express no opinions
concerning the validity or enforceability of any provisions contained in the Indentures that purport to waive or not give effect
to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law
or the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based
upon negligence or any violation of federal or state securities or blue sky laws.
The foregoing opinions
are limited to the laws of the State of New York and the federal laws of the United States of America and we are expressing no
opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the caption “Legal
Matters” in the Registration Statement and the Prospectus. By giving such consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission
issued thereunder.
Very truly
yours,
/s/
Vinson
& Elkins L.L.P.
Vinson &
Elkins L.L.P.
Exhibit 8.1
Tel
+1.713.758.2222
Fax
+1.713.758.2346
September 26, 2016
Höegh LNG Partners LP
Wessex House, 5th Floor
45 Reid Street
Hamilton, HM 12 Bermuda
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Re:
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Höegh LNG Partners LP Registration Statement on Form F-3
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Ladies and Gentlemen:
We have acted as U.S.
counsel for Höegh LNG Partners LP (the “
Partnership
”), a Marshall Islands limited partnership, with
respect to certain legal matters in connection with the preparation of a Prospectus(the “
Prospectus
”),
forming part of the Registration Statement on Form F-3, filed September 26, 2016 (the “
Registration Statement
”),
to which this opinion is an exhibit.
This opinion is based
on various facts and assumptions, and is conditioned upon certain representations made by the Partnership as to factual matters
through a representation letter certified by an officer of the Partnership (the “
Officer’s Certificate
”).
In addition, this opinion is based upon the factual representations of the Partnership concerning its business, properties and
governing documents as set forth in the Registration Statement.
In our capacity as
counsel to the Partnership, we have made such legal and factual examinations and inquiries, including an examination of originals
or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as
we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing
such documents and the conformity to authentic original documents of all documents submitted to us as copies. For the purpose of
our opinion, we have not made an independent investigation or audit of the facts set forth in the above-referenced documents or
in the Officer’s Certificate. In addition, in rendering this opinion we have assumed the truth and accuracy of all representations
and statements made to us which are qualified as to knowledge or belief, without regard to such qualification.
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Vinson
& Elkins LLP Attorneys at Law
Abu Dhabi Austin Beijing
Dallas Dubai Hong Kong Houston London Moscow
New York Palo Alto Riyadh
San Francisco Shanghai Tokyo Washington
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First City Tower, 1001
Fannin Street, Suite 2300
Houston, TX 77002
Tel 713.758.2222 Fax
713.758.2346 www.velaw.com
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Page 2
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We are opining herein
as to the effect on the subject transaction only of the federal income tax laws of the United States, and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other federal laws, foreign laws, the laws of any state or
any other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state. We hereby
confirm that all statements of legal conclusions contained in the discussion in the Prospectus under the caption “Material
U.S. Federal Income Tax Considerations” constitute the opinion of Vinson & Elkins L.L.P. with respect to the matters
set forth therein as of the effective date of the Registration Statement, subject to the assumptions, qualifications, and limitations
set forth therein. No opinion is expressed as to any matter not discussed in the Registration Statement and the Officer’s
Certificate.
This opinion is rendered
to you as of the effective date of the Registration Statement, and we undertake no obligation to update this opinion subsequent
to the date hereof. This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations
thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change
either prospectively or retroactively. Also, any variation or difference in the facts from those set forth in the representations
described above, including in the Registration Statement and the Officer’s Certificate, may affect the conclusions stated
herein.
This opinion is furnished
to you, and is for your use in connection with the transactions set forth in the Registration Statement. This opinion may not be
relied upon by you for any other purpose or furnished to, assigned to, quoted to or relied upon by any other person, firm or other
entity, for any purpose, without our prior written consent. However, this opinion may be relied upon by you and by persons entitled
to rely on it pursuant to applicable provisions of federal securities law, including persons purchasing common units pursuant to
the Registration Statement.
We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the captions “Material
U.S. Federal Income Tax Considerations” and “Legal Matters” in the Registration Statement. We further consent
to the incorporation by reference of this letter and consent into any registration statement filed pursuant to Rule 462(b) under
the Securities Act with respect to the common units. By giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.
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Very truly yours,
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/s/ Vinson & Elkins L.L.P.
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Vinson & Elkins L.L.P.
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Exhibit 8.2
Höegh LNG Partners LP
45 Reid Street
Hamilton, HM 12
Bermuda
Our reference: 29496.50002/80459247v3
September 26, 2016
Registration Statement on Form F-3:
Exhibit 8.2
Dear Sirs:
We have acted as special counsel as to
matters of the law of the Republic of the Marshall Islands (“
Marshall Islands Law
”) for Höegh LNG Partners
LP, a Marshall Islands limited partnership (the “
Partnership
”), in connection with the preparation and filing
with the Securities and Exchange Commission (the “
Commission
”), pursuant to the Securities Act of 1933, as amended
(the “
Securities Act
”), and the rules and regulations promulgated thereunder (“
Rules
”), of
a registration statement on Form F-3 (such registration statement and any additional registration statement filed pursuant to Rule
462(b) is referred to as the “
Registration Statement
”) for the registration of the sale from time to time of
(i) up to 2,116,060 of the Partnership’s common units by Höegh LNG Holdings Ltd., (ii) common units to be issued
by the Partnership (“
Common Units
”), each representing limited partnership interests in the Partnership, (iii)
other classes of units to be issued by the Partnership, which may be convertible into other securities of the Partnership (“
Preferred
Units
”), each representing limited partnership interests in the Partnership, (iv) options, warrants and rights to purchase
Common Units or Preferred Units, and (v) debt securities including convertible debt securities, which may be issued pursuant to
one of two forms of indenture for debt securities in the forms filed as Exhibits 4.1 and 4.2 to the Registration Statement.. The
securities will be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the “
Prospectus
”)
and supplements to the Prospectus (the “
Prospectus Supplements
”).
In rendering this opinion, we have examined
originals or photocopies of all such documents, including (i) the Registration Statement and the Prospectus and (ii) certificates
of public officials and of representatives of the Partnership as we have deemed necessary. In such examination, we have assumed:
(a) the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies,
(d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct and complete
and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within
the due diligence review undertaken by us. As to any questions of fact material to our opinion, we have, when relevant facts were
not independently established, relied upon the aforesaid certificates. We have also assumed that (i) the Registration Statement
and any amendments or supplements thereto (including any necessary post-effective amendments) shall have become effective under
the Securities Act, and (ii) a Prospectus Supplement shall have been prepared and filed with the Commission describing the securities
offered thereby.
Page 2
This opinion is limited to Marshall Islands
Law and is as of the date hereof. We expressly disclaim any responsibility to advise of any development or circumstance of any
kind, including any change of law or fact that may occur after the date of this opinion letter that might affect the opinion expressed
herein.
Based on the facts as set forth in the
Prospectus and having regard to legal considerations which we deem relevant, and subject to the qualifications, limitations and
assumptions set forth herein, we hereby confirm that we have reviewed the discussion set forth in the Prospectus under the caption
“Non-United States Tax Considerations – Marshall Islands Tax Consequences” and we confirm that the statements
in such discussion, to the extent they constitute summaries of law or legal conclusions, unless otherwise noted, are the opinion
of Watson Farley & Williams LLP with respect to Marshall Islands tax consequences as of the date of the Prospectus (except
for the representations and statements of fact of the Partnership included under such caption, as to which we express no opinion).
We consent to the filing of this opinion
as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement and to the references
to our firm in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or related Rules nor do we admit that we are experts with respect to any part
of the Registration Statement within the meaning of the term “expert” as used in the Securities Act or related Rules.
Very truly yours,
Watson Farley & Williams LLP
/s/ Watson Farley & Williams LLP
Exhibit 8.3
Höegh LNG Partners LP
Wessex House, 5
th
Floor
45 Reid Street
Hamilton, HM 12
Bermuda
Oslo
,
26 September 2016
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Re:
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Höegh LNG Partners LP Registration Statement on Form F-3
|
The undersigned Advokatfirmaet Thommessen AS ("
Thommessen
")
is writing as Norwegian tax counsel to Höegh LNG Partners LP (the "
Company
"), a Marshall Islands limited
partnership. You have provided us with a prospectus (the "
Prospectus
"), forming part of the Registration
Statement on Form F-3, filed with the U.S. Securities and Exchange Commission on 26 September 2016 (the "
Registration
Statement
").
This opinion is based upon the factual representations of the
Company concerning its business, properties and governing documents as set forth in the Registration Statement.
For the purpose of our opinion, we have not made an independent
investigation or audit of the facts set forth in the Registration Statement. In addition, in rendering this opinion we have assumed
the truth and accuracy of all representations and statements made to us which are qualified as to knowledge or belief, without
regards to such qualification. Consequently, we do not accept any responsibility whatsoever to any party in the event there are
factual inaccuracies in these representations and statements that affect our opinion.
We are opining herein as to the effect on the subject transaction
only of the income tax laws of the Kingdom of Norway, and we express no opinion with respect to the applicability thereto, or the
effect thereon, of other Norwegian laws, foreign laws, the laws of any state or any other jurisdiction. We hereby confirm that
all statements of legal conclusions contained in the discussion in the Prospectus under the caption "Non-United States Tax
Considerations – Norway Tax Consequences" constitute the opinion of Thommessen with respect to the matters set forth
therein as of the effective date of the Registration Statement, subject to the assumptions, qualifications, and limitations set
forth therein. The wording of the discussion, upon which this opinion is based, is for the sake of good order, included as Appendix
1 to this letter. No opinion is expressed as to any matter not discussed therein.
This opinion is rendered to you as of the effective date of
the Registration Statement, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is
based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Norwegian Tax Administration
and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively.
Also, any variation or difference in the facts from those set forth in the representations in the Registration Statement may affect
the conclusions stated herein.
You should be aware that the practices followed by the Norwegian
Tax Administration are not well defined in all areas. Thommessen is therefore not able to guarantee that the Norwegian Tax Administration
will concur with this opinion.
This opinion is furnished to you, and is for your use in connection
with the transactions set forth in the Registration Statement. This opinion may not be relied upon by you for any other purpose
or furnished to, assigned to, quoted to or relied upon by any other person, firm or other entity, for any purpose, without our
prior written consent. However, this opinion may be relied upon by you and by persons entitled to rely on it pursuant to applicable
provisions of U.S. federal securities law, including persons purchasing common units pursuant to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit
to the Prospectus and to the use of our name under the captions “Non-United States Tax Considerations – Norway Tax
Consequences” in the Registration Statement. We further consent to the incorporation by reference of this letter and consent
into any registration statement filed pursuant to Rule 462(b) under the Securities Act with respect to the common units. By giving
this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities
Act and the rules and regulations thereunder.
Very truly yours
Advokatfirmaet Thommessen AS
/s/ Finn Backer-Grøndahl
Finn Backer-Grøndahl
Advokat (H)
Appendix 1
Norway Tax Consequences
The following is a discussion of the material Norwegian tax
consequences that may be relevant to current and prospective unitholders who are persons not resident in Norway for taxation purposes,
which we refer to as “Non-Norwegian Holders”, and is the opinion of Advokatfirmaet Thommessen AS, our counsel as to
taxation matters under the laws of the Kingdom of Norway, insofar as it contains legal conclusions based on the application of
the taxation laws of the Kingdom of Norway to our particular factual circumstances. Prospective unitholders who are resident in
Norway for taxation purposes are urged to consult their own tax advisors regarding the potential Norwegian tax consequences to
them of an investment in our common units. For this purpose, a company incorporated outside of Norway will be treated as resident
in Norway in the event its central management and control is carried out in Norway.
Under the Norwegian Tax Act on Income and Wealth, Non-Norwegian
Holders will not be subject to any taxes in Norway on income or profits in respect of the acquisition, holding, disposition or
redemption of the common units, provided that we are not treated as carrying on business in Norway, and the Non-Norwegian Holder
is not engaged in a Norwegian trade or business to which the common units are effectively connected, or if the Non-Norwegian Holder
is a resident in a country that has an income tax treaty with Norway, such holder does not have a permanent establishment in Norway
to which the common units are effectively connected.
A Non-Norwegian Holder that carries on a business in Norway
through a partnership is subject to Norwegian tax on income derived from the business if managed from Norway or carried on by the
Partnership in Norway.
We believe that we will be able to conduct our affairs so that
Non-Norwegian Holders should not be subject to Norwegian tax on the acquisition, holding, disposition or redemption of the common
units. However, this determination is dependent upon the facts existing at such time, including (but not limited to) the place
where our board of directors meets and the place where our management makes decisions or takes certain actions affecting our business.
We intend to conduct our affairs in a manner consistent with Norwegian tax practice so that our business should not be treated
as managed from or carried on in Norway for taxation purposes, and consequently, Non-Norwegian Holders should not be subject to
tax in Norway solely by reason of the acquisition, holding, disposition or redemption of their common units. Nonetheless, there
is no legal authority addressing our specific circumstances, and conclusions in this area remain matters of interpretation. Thus,
it is possible that the Norwegian taxation authority could challenge, or a court could disagree with, our position.
While we do not expect it to be the case, if the arrangements
we propose to enter into result in our being considered to carry on business in Norway for the purposes of the Norwegian Tax Act
on Income and Wealth, unitholders would be considered to be carrying on business in Norway and would be required to file tax returns
with the Norwegian Tax Administration and, subject to any relief provided in any relevant double taxation treaty (including, in
the case of holders resident in the United States, the U.S.-Norway Tax Treaty), would be subject to taxation in Norway on any income
considered to be attributable to the business carried on in Norway.
Exhibit 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
|
|
|
Six months
ended June
30,
|
|
|
Years ended June 30,
|
|
|
(in USD thousands)
|
|
2016
|
|
|
2015
|
|
|
2014
|
|
|
2013
|
|
|
Earnings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pre-tax income
|
|
$
|
3,971
|
|
|
|
41,592
|
|
|
|
1,795
|
|
|
$
|
40,466
|
|
|
Less: Equity in earnings of joint ventures
|
|
|
—
|
|
|
|
17,123
|
|
|
|
—
|
|
|
|
40,228
|
|
|
Add: Equity in losses of joint ventures
|
|
|
8,575
|
|
|
|
—
|
|
|
|
5,330
|
|
|
|
—
|
|
|
Add: Fixed charges
|
|
|
12,760
|
|
|
|
17,770
|
|
|
|
20,559
|
|
|
|
16,950
|
|
|
Add: Amortization of capitalized interest
|
|
|
—
|
|
|
|
—
|
|
|
|
2,155
|
|
|
|
1,368
|
|
|
Add: Distributions from equity investees
|
|
|
3,970
|
|
|
|
5,796
|
|
|
|
6,666
|
|
|
|
5,542
|
|
|
Less: Interest capitalized
|
|
|
—
|
|
|
|
—
|
|
|
|
5,447
|
|
|
|
8,299
|
|
|
Earnings
|
|
|
29,276
|
|
|
|
48,035
|
|
|
|
31,058
|
|
|
|
15,799
|
|
|
Fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
11,115
|
|
|
|
14,099
|
|
|
|
9,163
|
|
|
|
6,110
|
|
|
Interest capitalized
|
|
|
—
|
|
|
|
—
|
|
|
|
5,447
|
|
|
|
8,299
|
|
|
Amortization of debt issuance cost and capitalized expenses related to indebtedness
|
|
|
1,645
|
|
|
|
3,671
|
|
|
|
5,949
|
|
|
|
2,541
|
|
|
Fixed charges
|
|
|
12,760
|
|
|
|
17,770
|
|
|
|
20,559
|
|
|
|
16,950
|
|
|
Earnings to fixed charges ratio
|
|
|
2.29
|
x
|
|
|
2.70
|
x
|
|
|
1.51
|
x
|
|
|
0.93
|
x
|
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the reference to our firm under the caption “Experts”
in the Registration Statement (Form F-3) and related prospectus of Höegh LNG Partners LP for the registration of common units
representing limited partnership interests, other classes of units representing limited partnership interests and debt securities
that may be issued and sold by the Partnership or, in the case of common units, sold by the selling unitholder and to the incorporation
by reference therein of our reports (i) dated April 28, 2016, with respect to the consolidated and combined carve-out financial
statements of Höegh LNG Partners LP
included in its Annual Report on Form 20-F for the
year ended December 31, 2015
, (ii) dated April 28, 2016, related to the
combined financial
statements of SRV Joint Gas Ltd. and SRV Joint Gas Two Ltd., included in the Annual Report on Form 20-F of
Höegh LNG
Partners LP
for the year ended December 31, 2015 and (iii) dated September 26, 2016 with
respect to the combined carve-out financial statements of Höegh LNG FRSU III Ltd. and Höegh LNG Cyprus Limited included
in the Report on Form 6-K of
Höegh LNG Partners LP d
ated September 26, 2016,
each filed with the Securities and Exchange Commission
.
/s/ Ernst & Young AS
Oslo, Norway
September 26, 2016