Exhibit 1.1
EXECUTION VERSION
SEASPAN
CORPORATION
$80,000,000
7.125% Senior Notes due 2027
Plus
an option to purchase up to $12,000,000 additional principal amount of Senior Notes due 2027
Underwriting Agreement
New York, New York
October 2,
2017
To the Representatives named
in Schedule I
hereto
of the several Underwriters
named in
Schedule II
hereto
Ladies and Gentlemen:
Seaspan Corporation, a corporation organized under the laws of the Republic of The Marshall Islands (the “
Company
”), proposes
to sell to the several underwriters named in Schedule II hereto (the “
Underwriters
”), for whom you (the “
Representatives
”) are acting as representatives, the aggregate principal amount of its 7.125% Senior Notes due
2027 (the “
Firm Securities
”) of the Company set forth in Schedule I hereto. The Company also proposes to grant to the Underwriters an option to purchase up to an additional aggregate principal amount of such 7.125% Senior Notes due
2027 set forth in Schedule I hereto (the “
Option Securities
”; the Option Securities, together with the Firm Securities, being hereinafter called the “
Securities
”). The Securities are to be issued under an indenture
to be dated as of October 10, 2017 (the “
Base Indenture
”), between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”), as supplemented by a first supplemental indenture to be dated as of
October 10, 2017 (the “
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”). To the extent there are no additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the term Underwriters shall mean either the singular or plural as the context requires. The use of the neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to
Item 6 of
Form F-3
which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20
hereof.
1.
Representations and Warranties.
The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form
F-3
under the Act and has
prepared and filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on Form
F-3,
including a related basic prospectus, for registration under the Act of
the offering and sale of the Securities, which Registration Statement, including post-effective amendments 1, 2 and 3 thereto and any additional amendments thereto filed prior to the Applicable Time, has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending, or to the knowledge of the Company, are threatened. The Company may have filed
with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Final Prospectuses, each of which has previously been furnished to you and at the time of the filing thereof with the
Commission, each such Preliminary Final Prospectus complied in all material respects with the requirements of the Act. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b).
As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Applicable Time or, to the extent not completed at the Applicable Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the Applicable Time, will be included or made therein. The Registration Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein) and on any date on which Option Securities are purchased hereunder, if such date is not the Closing Date (an “
Option Closing Date
”), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act
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and the Trust Indenture Act and the respective rules thereunder; on each Effective Date, at the Applicable Time and on the Closing Date and any Option Closing Date, the Registration Statement did
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b); on the
Closing Date and any Option Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and on each Effective Date, the Closing Date and any Option Closing Date the Indenture did or will comply in all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder;
provided
,
however
, that the Company makes no representations or warranties as to the information contained in the Registration Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives, specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriters consists of the information described as such in Section 8 hereof.
(c) Neither (i) the Disclosure Package, when taken together as a whole, nor (ii) any road show that is a
“written communication” within the meaning of Rule 433(d)(8)(i), when considered together with the Disclosure Package, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as
such in Section 8 hereof.
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the Act) of the Securities and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of
this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
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(e) Each Issuer Free Writing Prospectus does not include any information that
conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not
apply to statements in any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(f) The Company and its Subsidiaries have been duly incorporated and are existing corporations in good standing under the laws
of the Republic of The Marshall Islands, the Commonwealth of the Bahamas, Bermuda, Canada and the Republic of India, with full corporate power and authority to own or lease, as the case may be, and to operate their properties and conduct their
business in all material respects as described in the Disclosure Package and the Final Prospectus; and the Company and its Subsidiaries are duly qualified to do business as foreign corporations in good standing in all other jurisdictions in which
their ownership or leasing of property or the conduct of their business requires such qualification, except where the failure so to register or qualify would not reasonably be expected to have a Material Adverse Effect. “
Material Adverse
Effect
,” as used throughout this Agreement, means a material adverse effect on the condition (financial or otherwise), results of operations, earnings, business, properties or assets or prospects of the Company, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(g) There are no restrictions on subsequent transfers of the Securities under the laws of the Republic of The Marshall
Islands.
(h) The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Final
Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; all shares of the outstanding capital stock of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; an application will be made for the admission, listing and trading of the Securities on The New York Stock Exchange.
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(i) The Securities have been duly authorized, and, when executed by the Company
and authenticated by the Trustee in accordance with the terms of the Indenture and delivered to and duly paid for by the Underwriters in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms and entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Each of the Base Indenture and the Supplemental Indenture has been duly authorized by the Company and
duly qualified under the Trust Indenture Act, and, when the Base Indenture and the Supplemental Indenture are executed and delivered by the Company and the Trustee, the Indenture will constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law). The Securities and the Indenture will conform to the description thereof in the Disclosure Package and the Final Prospectus.
(j) To the Company’s knowledge, there is no franchise, agreement, contract, indenture or other document or instrument of
a character required to be described in the Registration Statement, the Disclosure Package or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required.
(k) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, each Preliminary Final
Prospectus and the Final Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Applicable Time, and when read together with the other information in the Final Prospectus, at the date of the Final Prospectus and at the Closing Date and each Option Closing Date, did not or will not
include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(l) This Agreement has been duly authorized, validly executed and delivered by the Company.
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(m) The Company is not and, immediately after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be, required to register as an investment company under the Investment Company Act of 1940, as amended.
(n) No consent, approval, authorization, filing with or order (“
Consent
”) of any court or governmental agency
or body in the United States, the Republic of The Marshall Islands or any other jurisdiction, including, without limitation, the International Maritime Organization (the “
IMO
”), is required in connection with the transactions
contemplated by this Agreement or the Indenture, except (i) such as have been obtained under the Act or the Trust Indenture Act; (ii) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus; (iii) such Consents that have been, or prior to the Closing Date will be, obtained; (iv) such
Consents that, if not obtained, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Company to perform its obligations under this Agreement, the Indenture or
each of the agreements listed in Schedule VI (collectively, the “
Operative Agreements
”); and (v) such Consents that are not customarily obtained or made prior to the consummation of transactions such as those contemplated by
this Agreement and the Operative Agreements, which (A) if not obtained on or prior to the Closing Date, would not, individually or in the aggregate, have a material adverse effect on the operation of the Company’s business and (B) are
expected in the reasonable judgment of the Company to be obtained in the ordinary course of business subsequent to the consummation of the transactions.
(o) The Company and its Subsidiaries are not (i) in violation of any provision of its charter or
by-laws,
or similar organizational documents; (ii) in violation or in default under (and no event that, with notice or lapse of time or both, would constitute such a default has occurred or is continuing under)
the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument to which it is a party or bound or to which its property is subject; or (iii) in violation of any statute,
law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority including, without limitation, the IMO, having jurisdiction over the Company or any of its
Subsidiaries or any of its properties, as applicable, which default or violation, in the case of clauses (ii) or (iii), would, if continued, reasonably be expected to have a Material Adverse Effect, or materially impair the ability of the
Company or any of its Subsidiaries to perform its obligations under this Agreement or the Operative Agreements.
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(p) None of the execution and delivery of this Agreement and the Indenture, the
issue and sale of the Securities or the consummation of any other of the transactions contemplated by this Agreement or the Indenture nor the fulfillment of the terms hereof or thereof will (i) conflict with, or result in a violation of, the
charter or
by-laws
of the Company or any of its Subsidiaries, (ii) conflict with, or result in a breach or violation of, the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Subsidiaries is a party or bound or to which its property is subject; (iii) violate any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority, including, without limitation, the IMO, having
jurisdiction over the Company or any of its Subsidiaries or any of its properties; or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries, which
conflicts, breaches, violations, defaults or liens, in the case of clauses (ii), (iii) or (iv), would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q) Except as disclosed in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, no holders
of securities of the Company have current rights to the registration of such securities under the Registration Statement with respect to the offering of the Securities.
(r) The consolidated historical financial statements included in the Preliminary Final Prospectus, the Final Prospectus and
the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby on the basis stated therein as of the dates and for the periods indicated,
comply as to form in all material respects with the applicable accounting requirements of the Act and have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set forth under the caption “Selected Historical Consolidated Financial and Operating Data” in the Preliminary Final Prospectus, the Final Prospectus and Registration
Statement and under the caption “Selected Financial Data” in the Company’s Annual Report on Form
20-F
for the year ended December 31, 2016 (the “
2016 Annual Report
”) fairly
present, on the basis stated therein, the
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information included therein. No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained under the caption
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the 2016 Annual Report, the Report on Form
6-K
that contains financial information for the three-month
period ended March 31, 2017, and the Report on Form
6-K
that contains financial information for the three-month period ended June 30, 2017 has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
(s) No action, suit or proceeding by or before any court or governmental
agency, authority or body, including, without limitation, the IMO, or any arbitrator involving the Company or any of its Subsidiaries or its property is pending or, to the knowledge of the Company, threatened that (i) would reasonably be
expected to have a material adverse effect on the performance by the Company of this Agreement or the Indenture or the consummation by the Company of any of the transactions contemplated hereby or thereby or (ii) would reasonably be expected to
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(t) On or as of the Closing Date and the Option Closing Date, as the case may be, the Company will own, lease, possess or
otherwise have the right to use all such assets as are necessary to the conduct of its operations as described in the Disclosure Package and the Final Prospectus.
(u) KPMG LLP, who have audited certain financial statements and delivered their report with respect to the audited
consolidated financial statements included in or incorporated by reference into the Preliminary Final Prospectus and the Final Prospectus, were and are the independent registered public accounting firm with respect to the Company within the meaning
of the Act and the applicable published rules and regulations thereunder.
(v) The assets of the Company at their fair
valuation exceed the liabilities of the Company, including contingent liabilities, the capital of the Company is adequate to conduct the business of the Company and the Company has the ability to pay its debts and obligations, including contingent
obligations, as such debts mature and the Company does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debt matures. In addition, the Company is not “insolvent” (as such term is defined under
Section 101(32) of Title 11 of the United States Code and Section 2(g) of the Marshall Islands Business Corporations Act).
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(w) There are no documentary, stamp or other issuance or transfer taxes or
duties or similar fees or charges under U.S. Federal law or the laws of any U.S. state, the Republic of The Marshall Islands, Canada or Hong Kong, or any political subdivision of any thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance by the Company of the Securities, or the sale and delivery by the Company of the Securities or the consummation of the transactions contemplated by this Agreement or the Indenture.
(x) The Company and its Subsidiaries have filed all foreign, United States federal, state and local tax returns that are
required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any supplement thereto)) and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good faith and as to which the Company or any of its Subsidiaries has set aside adequate reserves in accordance with U.S. generally accepted accounting principles or as would not
reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(y) No labor problem or dispute with the employees of the Company, Seaspan Management Services Limited (the
“
Manager
”), Seaspan Ship Management Ltd. (the “
Ship Manager
”), Seaspan Crew Management Ltd. or Seaspan Advisory Services Limited (the “
Advisor
”) exists or, to the knowledge of the Company, is
threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or the Manager’s principal suppliers, contractors or customers, that would reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(z) The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are reasonably adequate and customary in the businesses in which it is engaged; all policies of insurance and fidelity or surety bonds insuring the Company, its Subsidiaries, or its businesses, assets, employees,
officers and directors are in full force and effect; the Company and its Subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and
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there are no claims by the Company or any of its Subsidiaries under any such policy or instrument as to which any insurance company or other institution is denying liability or defending under a
reservation of rights clause; the Company and its Subsidiaries have not been refused any insurance coverage sought or applied for; and the Company has no reason to believe that neither it nor any of its Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect, except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(aa) The Company and its Subsidiaries possess all licenses, certificates, permits and other authorizations
(“
Permits
”) issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its businesses in the manner described in the Disclosure Package and the Final Prospectus, subject to such qualifications as
may be set forth in the Disclosure Package and the Final Prospectus and except for those permits that if not obtained, would not reasonably be expected to have a Material Adverse Effect; and the Company and its Subsidiaries have not received any
notice of proceedings relating to the revocation or modification of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(bb) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Company’s internal controls
over financial reporting are effective and the Company is not aware of any material weakness in its internal control over financial reporting.
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(cc) The Company maintains “disclosure controls and procedures” (as
such term is defined in Rule
13a-15(e)
under the Exchange Act); such disclosure controls and procedures are effective.
(dd) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ee) The Company and its Subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local
laws and regulations, including, without limitation, those of the IMO, relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental
Laws
”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their businesses and (iii) have not received notice of any actual or
potential liability under any Environmental Law, except where such
non-compliance
with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). Except as set forth in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto), neither the Company nor any of its Subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(ff) In the ordinary course of its business, the Company periodically reviews the
effect of the Environmental Laws on the business, operations and properties of the Company and its Subsidiaries, in the course of which the Company identifies and evaluates associated costs and liabilities (including, without limitation, any capital
or operating expenditures required for
clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
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(gg) The Company, its Subsidiaries and its directors and officers, in their
capacities as such, are in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “
Sarbanes-Oxley Act
”) that are
effective and applicable to the Company, its Subsidiaries and its directors and officers.
(hh) None of the Company, any
of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “
FCPA
”), or any law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions applicable to the Company or any of its Subsidiaries, or committed an offence under any other anti-bribery or anti-corruption law applicable to the Company or any of its Subsidiaries, including, without limitation, making use of the
mail or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money or other property, gift, promise to give, or authorization of the giving of
anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and any other anti-bribery or
anti-corruption law applicable to the Company or any of its Subsidiaries; and the Company and its Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses to the extent relating to the Company and its
Subsidiaries in compliance with the FCPA and all anti-bribery and anti-corruption laws applicable to the Company or any of its Subsidiaries and have instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(ii) The operations of the Company and its Subsidiaries
are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “
Money Laundering Laws
”) and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
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(jj) None of the Company, any of its Subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries is an individual or entity (“
Person
”) currently the subject or target of any sanctions administered or enforced by the United
States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“
OFAC
”), the United Nations Security Council (“
UNSC
”), the European Union, Her
Majesty’s Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the
subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any Subsidiaries, joint venture partners or other Person, to fund
any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in
the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(kk) The Company and its
Subsidiaries (A) own, possess, license or have other rights to use, on reasonable terms, all patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology,
know-how
and other intellectual property (collectively, the “
Intellectual Property
”) necessary for the conduct of their respective businesses as now conducted, except
where the failure to possess such rights would not reasonably be expected to have a Material Adverse Effect, and (B) the Company has no reason to believe that the conduct of the businesses of the Company and its Subsidiaries will conflict with,
and neither the Company nor any of its Subsidiaries have received any notice of any claim of conflict with, any such rights of others.
(ll) Neither the Company nor any of its properties or assets has any immunity from the jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the United States, the Republic of The Marshall Islands, Canada or Hong Kong or any political subdivisions
thereof.
(mm) Each of the Operative Agreements has been duly authorized, validly executed and delivered by the Company
and its Subsidiaries and, to the knowledge of the Company, by the other parties thereto. Each of the Operative Agreements is a valid and binding agreement of the Company and its Subsidiaries enforceable
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against each such party in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) public policy, applicable law relating to fiduciary duties and
indemnification and an implied covenant of good faith and fair dealing. The statements set forth in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, insofar as they purport to describe certain terms of the
Operative Agreements, fairly summarize the matters described therein.
(nn) No capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the Republic of The Marshall Islands or Canada, or to any political subdivision or taxing authority of either thereof or therein in connection with the issuance and delivery by the Company of
the Securities to or for the respective accounts of the Underwriters or the sale and delivery by the Underwriters of the Securities to the initial purchasers thereof, aside from any capital gains, income, withholding or other taxes payable by any
Underwriter in connection with a business carried on by that Underwriter in the Republic of The Marshall Islands or Canada in respect of the sale and delivery of the Securities.
(oo) All payments of principal, premium (if any), any additional amounts and any interest on the Securities may, under the
current laws and regulations of the Republic of The Marshall Islands and any political subdivisions thereof, be paid in United States dollars and may be freely transferred out of the Republic of The Marshall Islands, and all such payments will not
be subject to withholding or other taxes under the laws and regulations of the Republic of The Marshall Islands and are otherwise free and clear of any other tax, withholding or deduction under the laws and regulations of the Republic of The
Marshall Islands and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses, registrations, clearances and qualifications of or with any court or governmental agency or body in the Republic of The Marshall
Islands.
(pp) Each of the vessels listed on
Schedule IV-A
hereto is duly
registered as a vessel in the sole ownership of the Company or one of its Subsidiaries; the Company or its Subsidiary, as applicable, has good and marketable title to all of such owned vessels, free and clear of all liens, claims, charges, debts or
encumbrances and defects of the title of record and each such vessel is in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of Hong Kong as would affect its registry with the Hong
Kong Registry, except for such liens, claims, charges, debts or
14
encumbrances, defects of the title of record, failure to pay such taxes, fees and other amounts (i) as described, and subject to the limitations contained, in the Disclosure Package and
Final Prospectus, (ii) as contemplated or provided by the Credit Facilities (as defined below) or (iii) as do not materially affect the value of such vessels, taken as a whole, and do not materially interfere with the use of such vessels,
as they have been used in the past and are proposed to be used in the future, as described in the Disclosure Package and the Final Prospectus. With respect to each of the vessels listed on Schedule
IV-B
hereto
held under lease by the Company or one of its Subsidiaries, such vessels are held under valid and subsisting and enforceable leases (except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)), with such exceptions as do not materially interfere with
the use of the vessels of the Company or its Subsidiaries, taken as a whole as they have been used in the past as described in the Disclosure Package and the Final Prospectus and are proposed to be used in the future as described in the Disclosure
Package and the Final Prospectus.
(qq) Since the date of the latest audited financial statements included in the
Disclosure Package and the Final Prospectus and other than as set forth in or contemplated by the Disclosure Package and the Final Prospectus, (i) the Company and its Subsidiaries have not sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, investigation, order or decree, (ii) there has not been any material change in the
capitalization or material increase in the short-term debt or long-term debt of the Company or any of its Subsidiaries or any material adverse change, or any development involving or which could reasonably be expected to involve, individually or in
the aggregate, a prospective material adverse change in or affecting the general affairs, condition (financial or otherwise), results of operations, business, properties or assets or prospects of the Company and its Subsidiaries, taken as a whole,
and (iii) the Company and its Subsidiaries have not incurred any liability or obligation, direct, indirect or contingent, or entered into any transactions, whether or not in the ordinary course of business, that, individually or in the
aggregate, is material to the Company and its Subsidiaries taken as a whole.
(rr) Except as set forth in the Disclosure
Package and the Final Prospectus, the Company and its Subsidiaries are not prohibited, directly or indirectly, from paying any dividends, from making any other distribution, from repaying any loans or advances or from transferring any of its
property or assets.
15
(ss) The statistical and market-related data included in the Disclosure Package,
the Final Prospectus and the Registration Statement are based on or derived from sources which the Company believe to be reliable and accurate.
(tt) The statements set forth in (i) the Preliminary Final Prospectus and the Final Prospectus under the caption
“Non-United
States Tax Considerations—Canadian Federal Income Tax Considerations” and (ii) the 2016 Annual Report under “Item 4. Information on the Company—B. Business
Overview—Taxation of the Company—Canadian Taxation” that constitute factual matters, intentions, expectations and beliefs relating to the Company are accurate in all material respects.
(uu) The Company’s head office is not located in Canada. A majority of the Company’s directors are resident
outside Canada, and the approval of this offering, and its terms, on behalf of the Company has taken place outside Canada. The business of the Company is the ownership and operation of containerships that operate principally in international waters
and outside of Canada, and the Company principally administers that business outside of Canada. The offer and sale of the Securities as contemplated by the Disclosure Package and the Final Prospectus to any purchaser outside of Canada and not
resident in Canada is not subject to the prospectus requirements of the
Securities Act
(British Columbia).
Any certificate signed
by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, the principal amount of Firm Securities set forth opposite such Underwriter’s
name in Schedule II hereto at the applicable purchase price set forth in Schedule I hereto.
(b) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to the aggregate principal amount of Option Securities set
forth in Schedule I hereto at the applicable purchase price set forth in Schedule I hereto. Said option may be exercised in whole or in part at any time and from time to time on or before the 30th day after the date of this Agreement upon written or
telegraphic notice by the Representatives to the Company setting forth the
16
principal amount of Option Securities as to which the several Underwriters are exercising the option and the Option Closing Date. The principal amount of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Firm Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any Securities having a principal amount of less than $25.00.
3.
Delivery and Payment.
Delivery of and
payment for the Firm Securities, and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the second Business Day immediately preceding the Closing Date) shall be made at the location,
on the date and at the time specified on Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “
Closing Date
”). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the aggregate purchase price of the Securities to or upon the order of the Company by wire
transfer payable in
same-day
funds
to an account specified by the Company. Delivery of the Firm Securities and the Option Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the second
Business Day immediately preceding the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives on the date specified by the Representatives (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in
same-day
funds to an account specified by the Company . If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the Option Closing Date for the
Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 6 hereof.
4.
Offering by Underwriters.
It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements.
The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Final
17
Prospectus) to the Basic Prospectus unless the Company has furnished the Representatives a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Representatives reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of
any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or prevention and, upon such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or prevention, including, if necessary, by
filing an amendment to the Registration Statement or a new registration statement and using its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing a description of the Securities, in the form of Schedule III
hereto and will file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs
an event or development as a result of which the Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such
statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
18
(d) If, at any time when a prospectus relating to the Securities is required to
be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration
statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the
Representatives of such event, (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or
omission or effect such compliance, (iii) use its commercially reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in
use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may
reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may reasonably designate and will maintain such qualifications in effect so long as reasonably required for the distribution of the Securities;
provided
that in no event shall the
19
Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The
Company agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the Company under Rule 433;
provided
that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule VII hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Company
agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164
and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Final Prospectus or the Final Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company
will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(i) The Company will comply in all material respects with all applicable securities and other applicable laws, rules and
regulations, including, without limitation, the
Sarbanes-Oxley
Act, and will use its commercially reasonable efforts to cause the Company’s directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation, the provisions of the
Sarbanes-Oxley
Act.
20
(j) The Company will not take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs, fees and expenses relating to the following matters: (i) the preparation,
printing or reproduction and, if applicable, filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Final Prospectus, each Free Writing Prospectus, the Final Prospectus and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Final
Prospectus, the Final Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the registration of the Securities under the Exchange Act
and the listing of the Securities on The New York Stock Exchange; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with the Financial Industry Regulatory Authority (“
FINRA
”) or the applicable Canadian
securities regulatory authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Trustee, the Company’s accountants and the fees and expenses of counsel (including local and special counsel)
for the Company; and (ix) all other costs, fees and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that except as provided in this subsection (k), and Sections 7 and 8 hereof,
the Underwriters will pay all of their own costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on the resale of any of the Securities by them, the transportation and other expenses incurred by or on their
behalf in connection with presentations by Company representatives to prospective purchasers of Securities and any advertising expenses connected with any offers they may make.
21
(l) The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Preliminary Final Prospectus and the Final Prospectus under “Use of Proceeds”.
(m) The Company shall use commercially reasonable efforts to effect the admission, listing and trading of the Firm Securities
and the Option Securities on The New York Stock Exchange within 30 days of the Closing Date or the Option Closing Date, as the case may be.
6.
Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Firm Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the Closing Date and any Option Closing Date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus and the Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and the Registration Statement is effective and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) [Reserved]
(c) The Company shall have requested and caused Perkins Coie LLP, United States counsel for the Company, to have furnished to
the Representatives their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect that:
(i) The Registration Statement, including post-effective amendments 1, 2 and 3 thereto and any additional amendments thereto
filed prior to the Applicable Time, has become effective. To such counsel’s knowledge, no stop order suspending effectiveness of the Registration Statement has been issued under the Act, and no proceedings for this purpose have been instituted
or are pending or threatened by the Commission. Any required filing of the Preliminary Final Prospectus and the Final Prospectus and any supplement thereto pursuant to Rule 424(b) under the Act has been made in the manner and within the time period
required by Rule 424(b) (without reference to 424(b)(8)). Without independent verification of the factual
22
accuracy, completeness or fairness of any statements made in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus each (except for the financial statements and
financial schedules and other financial information included therein, as to which such counsel need express no opinion) appears on its face to be appropriately responsive in all material respects to the requirements of the Act and the applicable
rules and regulations of the Commission thereunder;
(ii) The description of the statutes and regulations set forth in the
2016 Annual Report under the caption “Item 4. Information on the Company—B. Business Overview—Environmental and Other Regulations—United States,” accurately describes in all material respects the portions of the statutes and
regulations addressed thereby;
provided
,
however
, that such counsel need express no opinion with respect to any laws other than those of the United States;
(iii) The statements in the Preliminary Final Prospectus and the Final Prospectus under the caption “Certain United States
Federal Income Tax Considerations” and in the Company’s 2016 Annual Report under the captions “Item 4. Information on the Company—B. Business Overview—Taxation of the Company —United States Taxation” and “Item
10. Additional Information—E. Taxation—Material U.S. Federal Income Tax Considerations,” in each case with respect to legal matters or legal conclusions, in all material respects, are accurate discussions of the material U.S. federal
income tax considerations addressed therein (we do not opine or comment on the representations and statements of fact of the Company included in such discussions);
(iv) Insofar as matters of United States Federal law are concerned, to such counsel’s knowledge, there are no agreements,
contracts, indentures, leases or other documents or instruments that are required to be filed as exhibits to the Registration Statement that are not filed as required;
(v) The Company is not, and immediately upon receipt of payment for the Securities, and the application of the proceeds thereof
as described in the Disclosure Package and the Final Prospectus will not be, required to register as an investment company under the Investment Company Act of 1940, as amended;
(vi) All consents, approvals, authorizations or other orders of, or registrations or filings on the part of the Company with
any United States federal governmental or regulatory authority required for the issuance of the Securities and the consummation of the transactions contemplated in this Agreement, the Preliminary Final Prospectus and the Final Prospectus have been
made or obtained, or will be effective as of the date of the opinion;
23
(vii) Without independent verification of the factual accuracy, completeness or
fairness of any statements made therein, the documents (and excluding exhibits thereto) incorporated or deemed to be incorporated by reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, when each
became effective or was filed with the Commission, as the case may be, each (except for the financial statements and financial schedules, and other financial and statistical information included therein, as to which such counsel need express no
opinion), appears on its face to be appropriately responsive in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder;
(viii) Neither the issue and sale of the Securities nor the fulfillment of the terms thereof will (i) result in a breach
or the imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument filed
as an exhibit to the Registration Statement (including any document filed as an exhibit to any document incorporated by reference into the Registration Statement) to which the Company is a party or bound or to which its property is subject, which
breaches or impositions of such lien, charge or encumbrance would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) violate any generally applicable U.S. federal statute, law, rule or
regulation (other than U.S. federal securities, state or foreign securities or blue sky or anti-fraud statutes, laws, rules or regulations, laws and regulations relating to commodity (and other) futures and indices and other similar instruments, and
the rules and regulations of FINRA), or any judgment, order or decree to the knowledge of such counsel applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties, which violations would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(ix) Except as disclosed in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, to the
knowledge of such counsel, no holders of securities of the Company have current rights to the registration of such securities under the Registration Statement with respect to the offering of the Securities;
(x) The Indenture has been duly qualified under the Trust Indenture Act. Assuming that each of the Base Indenture and the
Supplemental Indenture has been duly authorized, executed and delivered by the Company, the Indenture constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered
24
in a proceeding in equity or at law). The Securities and the Indenture conform in all material respects to the descriptions thereof in the Disclosure Package and the Final Prospectus; and
(xi) Assuming the Securities have been duly authorized, executed and delivered by the Company and authenticated by the Trustee,
the Securities constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
In addition, such counsel shall state that, such counsel has participated in conferences with officers and other representatives of the
Company, representatives of the Underwriters and representatives of the independent auditors of the Company at which the contents of the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus and any amendments or
supplements thereto were discussed. Such counsel shall state that, although such counsel assumes no responsibility for the factual accuracy, completeness or fairness of any statements (other than as set forth in paragraphs (ii) and (iii) above,
subject to the assumptions, exclusions and qualifications set forth in such counsel’s opinion) made in (a) the Registration Statement or any amendment thereto, (b) the Preliminary Final Prospectus or any amendment or supplement
thereto, (c) the Final Prospectus or any amendment or supplement thereto, or (d) the documents incorporated by reference in the Registration Statement or any further amendment or supplement thereto, nothing has come to such counsel’s
attention that causes such counsel to believe that:
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|
a.
|
the Registration Statement or the prospectus included therein (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as
of its most recent Effective Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or
|
|
|
b.
|
the Final Prospectus (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its date, or as amended or
supplemented, if applicable, as of the Closing Date or the Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, or
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|
|
c.
|
the Disclosure Package (except for any financial statements and financial schedules and other financial
information included therein, as to which such counsel need not comment) as of its date or as amended or supplemented, if applicable, as of the Applicable Time contained or contains any untrue
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25
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|
statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
|
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and
employees of the Company and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the
signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to United States Federal laws. References to the Final Prospectus in this paragraph (c) shall also include any supplements thereto at the
Closing Date or the Option Closing Date, as the case may be.
(d) The Company shall have requested and caused Blakes,
Cassels & Graydon LLP, Canadian tax counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect
that:
(i) All statements of legal conclusions contained under the caption
“Non-United
States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus are correct and accurate with respect to the
matters set forth therein as of the Closing Date or the Option Closing Date, as the case may be, as applicable to those holders who acquire Securities in connection with the offering thereof and such counsel is of the opinion that the statements
under the caption
“Non-United
States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus, with respect to those matters as
to which no legal conclusions are provided, are an accurate discussion of the Canadian federal income tax matters (except for the representations and statements of fact of the Company included therein) applicable to those holders who acquire
Securities in connection with the offering thereof;
(ii) The statements set forth in the 2016 Annual Report incorporated
by reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus under the caption “Item 4. Information on the Company—B. Business Overview—Taxation of the Company—Canadian Taxation”
accurately describe the Canadian income tax matters described therein as of the Closing Date or the Option Closing Date, as the case may be
In rendering such opinion, such counsel need express no opinion or comment on any representation or statement of fact,
intention or assumption, or of risk (except to the extent of any conclusion of law set out under such captions), or of a general nature (except to the extent of any conclusion of law set out under such captions), made by or on behalf of the Company
in the Preliminary Final Prospectus and the Final Prospectus including, but without restricting the generality of the foregoing, the
26
following statements under such captions: “It is not our current intention that our central management and control be exercised in Canada”; “Based on our operations and our
understanding of the foregoing intention of the definition of international shipping, we do not believe that we are, nor do we expect to be, resident in Canada for purposes of the Canada Tax Act, and we intend that our affairs will be conducted and
operated in a manner such that we do not become a resident of Canada under the Canada Tax Act”; “A Canadian resident corporation that carries on an international shipping business, as described in the previous sentence, in the Republic of
The Marshall Islands is exempt from income tax under the current laws of the Republic of the Marshall Islands”; and “Subject to the below assumption, we expect that we will qualify for these statutory exemptions under the Canada Tax Act.
Based on our operations, we do not believe that we are, nor do we expect to be, carrying on a business in Canada for purposes of the Canada Tax Act other than a business that would provide us with these statutory exemptions from Canadian income
tax”.
Such opinion of such counsel may be based on the provisions of the Canada Tax Act and the regulations
thereunder in force as of the date of such opinion, all specific proposals to amend the Canada Tax Act and the regulations thereunder which have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date of such
opinion (the “
Proposed Amendments
”), the provisions of the Canada-United States Tax Convention (1980) and such counsel’s understanding of existing case law and the current published administrative policies and assessing
practices of the Canada Revenue Agency. Such counsel may state that there can be no assurance that the Proposed Amendments will be implemented in their current form or at all. Such opinion will not otherwise take into account or anticipate any
changes in law, whether by legislative, governmental or judicial decision or action, and will not take into account provincial, territorial or foreign tax legislation or considerations;
References to the Final Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date or the Option
Closing Date, as the case may be.
(e) The Company shall have requested and caused Dennis J. Reeder, Reeder &
Simpson, P.C., Marshall Islands counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect that:
(i) The Company and each Subsidiary of the Company organized under the laws of the Republic of The Marshall Islands has been
duly incorporated and is validly existing as a corporation in good standing under the laws of the Republic of The Marshall Islands, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and
conduct its business in all material respects as described in the Disclosure Package and the Final Prospectus;
27
(ii) The Company’s authorized equity capitalization is as set forth in the
Disclosure Package and the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Final Prospectus; the outstanding Common Shares and the
Company’s preferred shares have been duly and validly authorized and issued and are fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for
the Securities that have not been waived; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iii) To the knowledge
of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body of the Republic of The Marshall Islands or any arbitrator involving the Company or its property of a
character required to be disclosed in the Registration Statement which is not adequately disclosed in the Disclosure Package and the Final Prospectus; and the statements included in the 2016 Annual Report incorporated by reference into the
Registration Statement, the Preliminary Final Prospectus and the Final Prospectus under the caption “Item 8. Financial Information—A. Financial Statements and Other Financial Information—Dividend Policy” and the statements
included in the Registration Statement under “Description of Capital Stock” insofar as such statements constitute a summary of the terms of the capital stock of the Company, Marshall Islands legal matters, documents or proceedings referred
to therein, and the statements in the Preliminary Final Prospectus and the Final Prospectus under the captions
“Non-United
States Tax Considerations—Marshall Islands Tax Considerations” and
“Enforceability of Civil Liabilities” insofar as such statements summarize Marshall Islands tax considerations, legal matters, agreements, documents or proceedings, accurately and fairly describe in all material respects such legal
matters, agreements, documents or proceedings;
provided
,
however
, that such counsel need express no opinion with respect to the laws of any other jurisdiction;
(iv) Insofar as matters of Marshall Islands law are concerned, the Registration Statement and the filing of the Registration
Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company;
(v) Each of this Agreement, the Base Indenture, the Supplemental Indenture, the Securities and the Operative Agreements to
which the Company is a party has been duly authorized, validly executed and delivered by the Company;
28
(vi) To the knowledge of such counsel, no permits of, or declarations or filings
with, any governmental or regulatory authorities and all courts and other tribunals, in the Republic of The Marshall Islands, are required for the Company or any of its Subsidiaries to own or lease, as the case may be, and to operate its properties
and to carry on its business in the manner described in the Disclosure Package and the Final Prospectus;
(vii) No consent,
registration or qualification under the laws of the Republic of The Marshall Islands is required for the offering, issuance and sale by the Company of the Securities, the execution, delivery and performance of this Agreement or the Indenture by the
Company or the consummation of the transactions contemplated by this Agreement or the Indenture;
(viii) Neither the issue
and sale of the Securities, the execution, delivery and performance of this Agreement or the Indenture, nor the consummation of any other of the transactions contemplated herein or therein nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance under Marshall Islands law upon any property or assets of the Company or any of its Subsidiaries pursuant to (i) the articles of incorporation
or
by-laws
of the Company or its Subsidiaries or (ii) any Marshall Islands statute, law, rule, order, or regulation of general application to which the Company or any of its Subsidiaries is subject;
(ix) All payments of principal, premium (if any), any additional amounts and any interest on the Securities may, under the
current laws and regulations of the Republic of The Marshall Islands, be paid in United States dollars and may be freely transferred out of the Republic of The Marshall Islands, and all such payments will not be subject to withholding or other taxes
under the laws and regulations of the Republic of The Marshall Islands and are otherwise free and clear of any other tax, withholding or deduction and without the necessity of obtaining any consents, approvals, authorizations, orders, licenses,
registrations, clearances and qualifications of or with any court or governmental agency or body in the Republic of The Marshall Islands;
(x) No documentary, stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to the Republic of The Marshall Islands or to any political subdivision or taxing authority thereof or therein in connection with the sale and delivery by the Company of the Securities for the
respective accounts of the Underwriters or the sale and delivery by the Underwriters of the Securities to the initial purchasers thereof; and
(xi) The choice of law provision set forth in Section 14 hereof is legal, valid and binding under the laws of the Republic
of The Marshall
29
Islands and such counsel knows of no reason why the courts of the Republic of The Marshall Islands would not give effect to the choice of New York law as the proper law of this Agreement; the
Company has the legal capacity to sue and be sued in its own name under the laws of the Republic of The Marshall Islands; the Company has the power to submit, and has irrevocably submitted, to the
non-exclusive
jurisdiction of the New York Courts and has validly and irrevocably appointed Puglisi & Associates as its designee, appointee and authorized agent for the purpose described in
Section 15 hereof under the laws of the Republic of The Marshall Islands; the irrevocable submission of the Company to the
non-exclusive
jurisdiction of the New York Courts, and assuming the Company is
not regularly engaged in the conduct of activities pursuant to contractual arrangements with the Republic of The Marshall Islands or another sovereign jurisdiction or any division, bureau, office, agency, department or political subdivision thereof,
the waiver by the Company of any immunity and any objection to the venue of the proceeding in a New York Court in this Agreement are legal, valid and binding under the laws of the Republic of The Marshall Islands and, assuming the foregoing, such
counsel knows of no reason why the courts of the Republic of The Marshall Islands would not give effect to the submission and waivers; service of process in the manner set forth in Section 15 of this Agreement will be effective to confer valid
personal jurisdiction over the Company under the laws of the Republic of The Marshall Islands; and provided that the following provisions of The Marshall Islands Uniform Foreign Money-Judgments Recognition Act as set out below are complied with, a
final and conclusive judgment against the Company obtained in a New York court arising out of or in relation to the obligations of the Company under this Agreement would be enforceable in the courts of the Republic of The Marshall Islands without a
retrial on the merits.
Such provisions provide as follows: that a judgment obtained in a foreign jurisdiction would be
recognized unless (a) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; (b) the foreign court did not have personal jurisdiction over
the defendant; (c) the foreign court did not have jurisdiction over the subject matter; or (d) the foreign country does not recognize or enforce judgments of any other foreign nation. In addition, a foreign judgment need not be recognized
if (a) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; (b) the judgment was obtained by fraud; (c) the cause of action on which the judgment
is based is repugnant to the public policy of the Republic of The Marshall Islands; (d) the judgment conflicts with another final and conclusive judgment; (e) the proceeding in the foreign court was contrary to an agreement between the
parties under which the dispute in question was to be settled otherwise than by proceedings in the court; or (f) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of
the action. If none of the above grounds exist then the Republic of The Marshall Islands High Court will enforce a foreign judgment without a retrial on the merits.
30
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Company and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals
thereof, and that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to the laws of the Republic of The Marshall Islands in effect as of the date of such opinion. References to the Final
Prospectus in this paragraph (e) shall also include any supplements thereto at the Closing Date or the Option Closing Date, as the case may be.
(f) The Representatives shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such
opinions, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the
Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Company shall have furnished to the Representatives a certificate of the Company, signed
by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date or
the Option Closing Date, as the case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date or the Option Closing Date, as the case may be;
(ii) no stop order
suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
31
(h) The Company shall have requested and caused KPMG LLP to have furnished to
the Representatives, at the date hereof and at the Closing Date or the Option Closing Date, as the case may be, letters, dated respectively as of the date hereof and as of the Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to the Representatives, confirming that they are the independent registered public accounting firm of the Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder adopted
by the Commission and the Public Company Accounting Oversight Board (United States) (the “
PCAOB
”), and they have performed a review of the unaudited interim consolidated financial information of the Company as at March 31,
2017, and for the three-month periods ended March 31, 2017 and March 31, 2016, and as at June 30, 2017, and for the three-month and
six-month
periods ended June 30, 2017 and June 30,
2016, in each case in accordance with the PCAOB standards for a review of interim financial information as described in AS 4105, Reviews of Interim Financial Information, and stating in effect that:
(i) in their opinion, the audited consolidated financial statements incorporated by reference into the Registration Statement,
the Preliminary Final Prospectus and the Final Prospectus and reported on by them comply as to form, in all material respects, with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted
by the Commission;
(ii) on the basis of: a reading of the latest unaudited interim consolidated financial statements made
available by the Company; their limited review, in accordance with the standards established under PCAOB AS 4105, of the unaudited interim consolidated financial statements for the three-month periods ended March 31, 2017 and March 31,
2016 and for the three-month and
six-month
periods ended June 30, 2017 and June 30, 2016 and as at March 31, 2017 and June 30, 2017; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of shareholders,
directors and any committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to June 30, 2017, nothing came
to their attention which caused them to believe that:
(1) any material modifications should be made to said unaudited
interim consolidated financial statements incorporated by
32
reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus for them to be in conformity with generally accepted accounting principles; or said unaudited
financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; or
(2) with respect to the period subsequent to June 30, 2017, there were any changes, at a specified date not more than
five days prior to the date of the letter, in the capital stock of the Company, increases in consolidated long-term debt, consolidated long-term obligations under capital lease or consolidated other long-term liabilities or decreases in consolidated
net assets of the Company, as compared with the amounts shown on the June 30, 2017 combined balance sheet included in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, or for the period from July 1,
2017 to such specified date there were any decreases, as compared with the comparative period in the preceding year, in consolidated revenue or net earnings or basic and diluted earnings per share, excluding in all instances the impact of any
changes in the fair value of financial instruments of the Company, except in all instances for changes or decreases set forth in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus or in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its predecessor) set forth in the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus agrees with the financial statements included in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, the accounting records of the Company and its predecessor,
or to other financial information provided by the Company, in which case the sources of such other financial information shall be described, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (h) include any supplement thereto at the date of the letter.
(i) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in
33
paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(j) Prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the
Representatives such further information, certificates and documents as the Representatives may reasonably request.
(k)
Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s securities by any “nationally recognized statistical rating organization” (as defined in Section (3)(a)(62) of the
Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(l) Subsequent to the Closing Date or the Option Closing Date, as the case may be, an application shall have been made for the
admission, listing and trading of the Securities on The New York Stock Exchange and the Company is not aware of any reason such application would not be received within 30 days of the Closing Date or the Option Closing Date, as the case may be, and
satisfactory evidence of such shall have been provided to the Representatives.
If any of the conditions specified in this Section 6
shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at
the office of Cravath, Swaine & Moore LLP, counsel for the Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, on the Closing Date or the Option Closing Date, as the case may be.
34
7.
Reimbursement of the Underwriters’ Expenses
. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters, severally, on demand for
all reasonable out of pocket expenses (including reasonable fees and disbursements of counsel) that shall have been actually incurred by them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees, affiliates and agents of each Underwriter, and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act to the same extent as referred to in subsection (a) in the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Securities,
(ii) the name of each Underwriter
35
on the cover page and, under the caption “Underwriting”, (iii) the list of Underwriters and their respective participation in the sale of the Securities, and (iv) the paragraphs
related to short sales, stabilization, and syndicate covering transactions in any Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve the indemnifying party from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ one separate counsel (in addition
to local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one action or series of related actions in
36
the same jurisdiction representing the indemnified parties who are parties to such action). An indemnifying party will not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release and no admission of fault of each indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) (collectively “
Losses
”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder.
If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering of the Securities (before deducting expenses), and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover
of the Final Prospectus.
Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other
37
method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter , and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of the Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate, without liability to any nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date or the Option Closing Date, as the case may be, shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be
subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Common Shares or any series of
the Company’s preferred shares shall have been suspended by the Commission or The New York Stock Exchange, (ii) trading in securities generally on The New York Stock Exchange or the NASDAQ Stock Market shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (iii) a banking moratorium shall have been declared either by Federal or New York State authorities or
38
(iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
11.
Representations and Indemnities to Survive
. The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers, and the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 5(k), 7, 8, 9, 11, 14 and 15 hereof shall survive
the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to RBC Capital Markets, LLC, 200 Vesey Street, 8th Floor, New York, NY 10281, Tel Number: (212)
618-7706,
Fax: (212)
658-6137,
Email: scott.primrose@rbccm.com, ATTN: Scott Primrose/Transaction Management, and Stifel, Nicolaus & Company, Incorporated, One South Street, 15th Floor, Baltimore, MD 21202, Attention: Legal
Department; or, if sent to the Company, will be mailed, delivered or telefaxed to David Spivak c/o Seaspan Ship Management Ltd. (fax no.: (604)
909-2704),
2600-200
Granville Street, Vancouver, British Columbia, Canada, V6C 1S4.
13.
Successors
. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers, directors, director nominees, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14.
Applicable Law
. This Agreement will be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New York.
15.
Jurisdiction
. The Company agrees that any
suit, action or proceeding against the Company brought by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company has appointed Puglisi & Associates as its authorized agent (the “
Authorized Agent
”) upon whom
process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein which may be instituted in any New York Court, by any Underwriter, the directors, officers, employees and
agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the
non-exclusive
jurisdiction of any such court in respect of any such suit, action or proceeding. The Company
hereby
39
represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action,
including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon
the Company. Notwithstanding the foregoing, any action arising out of or based upon this Agreement may be instituted by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter,
in any court of competent jurisdiction in the Republic of The Marshall Islands.
The provisions of this Section 15 shall survive any
termination of this Agreement, in whole or in part.
16.
Waiver of Immunity
. To the extent that the Company has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from
set-off
or any legal process (whether service or notice, attachment in aid or
otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement.
17.
Waiver of Jury Trial
. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
Arms-length Transactions
. The Company hereby acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related
discounts and commissions, is an
arm’s-length
commercial transaction between the Company on the one hand and the several Underwriters on the other, (b) in connection with the offering contemplated
hereby and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) none of the
Underwriters have assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and none of the Underwriters has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
19.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
40
20.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21.
Definitions
. The terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Applicable Time” shall mean 5:35 p.m. New York City time on October 2,
2017.
“Basic Prospectus” shall mean the prospectus referred to in paragraph 1(a) above contained in the
Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Common Shares” shall mean the Company’s outstanding Class A Common Shares, par value $.01 per share.
“Disclosure Package” shall mean (i) the Basic Prospectus, as amended and supplemented to the Applicable Time,
(ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule VII hereto, (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package,
and (iv) the other information, if any, identified in Schedule V hereto.
“Effective Date” shall mean each
date and time that the Registration Statement, any post-effective amendment or amendments thereto became or become effective including each deemed effective date pursuant to Rule 430B(e)(2) of the Act.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Final Prospectus” shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Applicable Time, together with the Basic Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
41
“Preliminary Final Prospectus” shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Basic Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including
post-effective amendments 1, 2 and 3 thereto and exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement
pursuant to Rule 430B, as amended at the Applicable Time and, in the event any additional post-effective amendment thereto becomes effective prior to the Closing Date or the Option Closing Date, as the case may be, shall also mean such registration
statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”,
“Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, “Rule 433”, “Rule 456”, and “Rule 457” refer to such rules under the Act.
“Subsidiaries” when used with reference to the Company shall mean all subsidiaries of the Company whose financial
statements are consolidated with the financial statements of the Company under U.S. generally accepted accounting principles applicable as of December 31, 2016.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“United States or Canadian Person” shall mean any person who is a national or
resident of the United States or Canada, any corporation, partnership, or other entity created or organized in or under the laws of the United States or Canada or of any political subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation, regardless of its source (other than any
non-United
States or
non-Canadian
branch of any United States or
Canadian Person), and shall include any United States or Canadian branch of a person other than a United States or Canadian Person. “U.S.” or “United States” shall mean the United States of America (including the states thereof
and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
22.
Patriot Act
. In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56
(signed into law October 26, 2001)), the Company acknowledges that the Underwriters are required to obtain, verify and
record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify
their respective clients.
42
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters.
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Very truly yours,
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SEASPAN CORPORATION,
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by
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/s/ David Spivak
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Name: David Spivak
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Title: Chief Financial Officer
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[
Signature Page to Underwriting Agreement
]
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I
hereto.
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RBC CAPITAL MARKETS, LLC,
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by
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/s/ Paul Nagle
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Name: Paul Nagle
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Title: MD
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STIFEL, NICOLAUS & COMPANY, INCORPORATED,
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by
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/s/ Chris Weyers
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Name: Chris Weyers
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Title: Managing Director
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For itself and the other
several Underwriters named in
Schedule II to the foregoing
Agreement.
[Signature Page to Underwriting
Agreement]
SCHEDULE I
Underwriting Agreement dated October 2, 2017
Registration
Statement
No. 333-211545
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Representatives:
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RBC Capital Markets, LLC
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Stifel, Nicolaus & Company, Incorporated
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Title, Purchase Price and Description of Securities:
Title: 7.125% Senior Notes due 2027
Principal Amount of Firm Securities to be issued and sold by the Company to retail investors: $80,000,000
Principal Amount of Option Securities to be issued and sold by the Company: $12,000,000
Price to Underwriters for Firm Securities: 96.85% of the principal amount
Price to Underwriters for Option Securities: 96.85% of the principal amount
Other provisions: none
Closing Date, Time and
Location: October 10, 2017, at 1:00 p.m. at the offices of Cravath, Swaine & Moore, LLP, Worldwide Plaza, 825 Eighth Avenue, New York, New York, 10019.
Type of Offering:
Non-Delayed
Modification of items to be covered by the letter from KPMG LLP delivered pursuant to Section 6(h): none
SCHEDULE II
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Underwriters
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Principal
Amount of
Firm Securities
to be Purchased
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RBC Capital Markets, LLC
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$
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34,000,000
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Stifel, Nicolaus & Company, Incorporated
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$
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12,000,000
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FBR Capital Markets & Co.
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$
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8,400,000
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Janney Montgomery Scott LLC
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$
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7,200,000
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Incapital LLC
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$
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7,200,000
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BB&T Capital Markets, a division of BB&T Securities, LLC
|
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$
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3,000,000
|
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Ladenburg Thalmann & Co. Inc.
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$
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3,000,000
|
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William Blair & Company, L.L.C.
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$
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2,000,000
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C.L. King & Associates, Inc.
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$
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2,000,000
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Maxim Group LLC
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$
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1,200,000
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$
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80,000,000
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SCHEDULE III
Filed Pursuant to Rule 433
Registration
No. 333-211545
SUMMARY OF FINAL TERMS
October 2, 2017
$80,000,000
SEASPAN CORPORATION
7.125% NOTES DUE 2027
This summary pricing sheet relates only to the
securities described below and should only be read together with the Preliminary Prospectus Supplement, subject to completion, dated October 2, 2017, relating to these securities and supersedes the information in the Preliminary Prospectus
Supplement to the extent inconsistent with the information in the Preliminary Prospectus Supplement. Except as set forth in the immediately preceding sentence, this summary pricing sheet is qualified in its entirety by reference to the Preliminary
Prospectus Supplement. Capitalized terms not defined herein have the meanings assigned to them in the Preliminary Prospectus Supplement.
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Issuer
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Seaspan Corporation
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Securities Offered
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7.125% Notes due 2027 (the “Notes”).
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Trade Date
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October 2, 2017.
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Settlement Date
|
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October 10, 2017
1
(DTC).
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Principal Amount
|
|
$80,000,000 (or $92,000,000 principal amount if the underwriters exercise their option to purchase additional Notes in full).
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Denominations
|
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$25 and integral multiples of $25 in excess thereof.
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Maturity
|
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October 30, 2027.
|
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Interest Payment Dates
|
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January 30, April 30, July 30 and October 30, commencing January 30, 2018.
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Optional Redemption
|
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The Notes will be redeemable at the option of the Issuer, in whole or in part, at any time on or after October 10, 2020, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest to, but
not including, the redemption date.
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Coupon
|
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7.125%.
|
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Public Offering Price
|
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100%.
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Day Count
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30/360.
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Net Proceeds to the Issuer
(before expenses)
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$77,480,000 (assuming no exercise of the underwriters’ option to purchase additional Notes).
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Ratings
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The Notes will not be rated by any nationally recognized statistical rating organization.
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Listing
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The Issuer intends to file an application to list the Notes on the New York Stock Exchange.
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CUSIP/ISIN
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81254U403 / US81254U4031
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(1)
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The Issuer expects that delivery of the Notes will be made against payment therefor on or about October 10, 2017, which will be the fifth business day following the date hereof (this settlement cycle being referred
to as “T+5”). Under Rule
15c6-1
of the Securities Exchange Act of 1934, trades in the secondary market generally are required to settle in two business days, unless the parties to a trade expressly
agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date hereof or the next succeeding business day will be required, by virtue of the fact that the Notes initially will settle in T+5, to specify alternative settlement
arrangements at the time of any such trade to prevent a failed settlement and should consult their own advisor.
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SUMMARY OF FINAL TERMS
October 2, 2017
$80,000,000
SEASPAN CORPORATION
7.125
% NOTES DUE 2027
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Joint Book-Running Managers
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RBC Capital Markets, LLC
Stifel, Nicolaus & Company, Incorporated
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Joint Lead Managers
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FBR Capital Markets & Co.
Janney Montgomery Scott LLC
Incapital LLC
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Co-Managers
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BB&T Capital Markets, a division of BB&T Securities, LLC
Ladenburg Thalmann & Co. Inc.
William Blair & Company, L.L.C.
C.L. King & Associates, Inc.
Maxim Group LLC
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This communication is intended for the sole use of the person to whom it is provided by us. This communication does not
constitute an offer to sell the Notes and is not soliciting an offer to buy the Notes in any jurisdiction where the offer or sale is not permitted.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on
the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting: RBC Capital Markets, LLC, 200 Vesey Street, 8th Floor,
New York, NY 10281, Toll-Free Number: (866)
375-6829,
Fax: (212)
658-6137,
Email: rbcnyfixedincomeprospectus@rbccm.com, ATTN: Transaction Management, and Stifel,
Nicolaus & Company, Incorporated at One South Street, 15th Floor, Baltimore, MD 21202, Attn: Syndicate Department, or telephone:
1-855-300-7136,
or
e-mail:
syndprospectus@stifel.com.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
SCHEDULE
IV-A
Owned Vessels
Vessels
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31.
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Seaspan Rio de Janeiro
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*
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Vessel subject to vessel sale agreement. Sale of vessel expected to close the week of October 9, 2017, at which time such vessel will no longer be an owned vessel.
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SCHEDULE
IV-B
Leased Vessels
1) Brotonne Bridge –
Leased from Xiangjiang (Shanghai) Ship Chartering Co., Ltd pursuant to agreements dated March 11, 2015
2) Brevik Bridge – Leased from
Xiangcheng (Shanghai) Ship Chartering Co., Ltd pursuant to agreements dated March 11, 2015
3) Bilbao Bridge – Leased from Xianglai (Shanghai)
Ship Chartering Co., Ltd
pursuant to agreements dated March 11, 2015
4) COSCO Pride – Leased from Haiju (Tianjin) Ship Leasing Co.,
Limited, Tianjin Yuan Geng Shi Pan Shipping Service Co., Ltd., and ICBC Financial Leasing Co., Ltd. pursuant to agreements dated June 10, 2011 and February 4, 2010
5) COSCO Faith – Leased from Endeavour Leasing Limited and Credit Agricole Corporate and Investment Bank pursuant to agreements dated October 21,
2010
6) Madinah - Leased from Hui Merchant Leasing (No. 1) Limited pursuant to agreements dated October 31, 2011
7) MOL Bravo – Leased from FPG Shipholding Panama 8 S.A. pursuant to agreements dated July 11, 2014
8) MOL Brightness - Leased from FPG Shipholding Panama 9 S.A. pursuant to agreements dated July 11, 2014
9) MOL Breeze - Leased from FPG Shipholding Panama 13 S.A. pursuant to agreements dated November 4, 2014
10) MOL Beacon - Leased from FPG Shipholding Panama 14 S.A. pursuant to agreements dated November 4, 2014
11) YM Winner - Leased from FPG Shipholding Panama 17 S.A. pursuant to agreements dated May 28, 2015
12) YM Wellness - Leased from FPG Shipholding Panama 20 S.A. pursuant to agreements dated August 12, 2015
13) YM Warmth - Leased from FPG Shipholding Panama 22 S.A. pursuant to agreements dated October 2, 2015
14) MOL Benefactor - Leased from FPG Shipholding Panama 23 S.A. pursuant to agreements dated March 11, 2016
15) MOL Beyond - Leased from FPG Shipholding Panama 25 S.A. pursuant to agreements dated April 26, 2016
16) YM Window - Leased from FPG Shipholding Panama 26 S.A. pursuant to agreements dated April 29, 2016.
17) MSC Shuba B – Leased from SEA 27 Leasing Co. Limited pursuant to agreements dated May 5, 2016.
18) MSC Shreya B – Leased from SEA 28 Leasing Co. Limited pursuant to agreements dated May 5, 2016.
19) MSC Nitya B – Leased from SEA 30 Leasing Co. Limited pursuant to agreements dated May 5, 2016.
20) YM Width – Leased from FPG Shipholding Panama 27 S.A. pursuant to agreements dated on or about May 27, 2016.
21) Maersk Genoa – Leased from FPG Shipholding Panama 27 S.A. pursuant to agreements dated on or about September 6, 2017.
22) YM Wind – Leased from FPG Shipholding Panama 35 S.A. pursuant to agreements dated on or about May 22, 2017.
SCHEDULE V
Schedule of other information included in the Disclosure Package
None.
SCHEDULE VI
Operative Agreements
The trade-mark
license agreement between Seaspan ULC (formerly known as Seaspan Marine Corporation and, prior to that, as Seaspan International Ltd.) and the Company (the “
Seaspan License Agreement
”).
The trade-mark license agreement between Washington Business Services Inc. (formerly known as Washington Corporations) (“
Washington
”) and the
Company (the “
W License Agreement
” and with the Seaspan License Agreement, the “
License Agreements
”).
The amended and
restated limited liability company agreement of Greater China Intermodal Investments LLC (“
Greater China Intermodal
”), dated as of March 14, 2011, as amended.
The Amended and Restated Change of Control Severance Plan for Employees of Seaspan Ship Management Ltd., dated as of March 1, 2017 (the “
Employee
Severance Plan
”).
The amended and restated omnibus agreement (the “
Omnibus Agreement
”) among the Company, the Manager, the Ship
Manager, the Advisor, Norsk Pacific Steamship Company Limited, and Seaspan ULC, dated as of January 27, 2012.
The $32,600,000 Tranche B Loan
Agreement between Seaspan Containership S452 Ltd. and The Bank of Tokyo Mitsubishi UFJ, Ltd., dated August 19, 2011.
The $117,400,000 Tranche A Loan
Agreement between Seaspan Containership S452 Ltd. and Industrial and Commercial Bank of China Limited, dated August 19, 2011.
The $223,800,000
Secured Loan Agreement among Seaspan YZJ 983 Ltd., Seaspan YZJ 985 Ltd., Seaspan YZJ 993 Ltd. and China Development Bank Corporation, dated July 3, 2012, as amended.
(1) The amended and restated $1.3 billion credit facility between Seaspan Corporation and Citigroup Global Markets Limited and BNP Paribas, among others,
dated December 23, 2013, as amended, (2) the $920 million credit facility between Seaspan Corporation and DnB NOR Bank ASA, Credit Suisse, The Export Import Bank of China, Industrial and Commercial Bank of China Limited and Sumitomo
Mitsui Banking Corporation, Brussels Branch, among others, dated August 8, 2007, (3) the $235.3 million credit facility between Seaspan Corporation and Sumitomo Mitsui Banking Corporation, Sumitomo Banking Corporation, Brussels Branch,
Sumitomo Mitsui Banking Corporation Europe Limited, Sumitomo Mitsui Banking Corporation, Brussels Branch and Sumitomo Mitsui Banking Corporation, among others, dated March 31, 2008, (4) the $365 million revolving credit facility between
Seaspan Corporation and DnB Nor Bank ASA, Credit Suisse and Fortis Capital Corp., among others, dated May 19, 2006, as amended by Amendment No. 1 on June 29, 2007 and as amended by Amendment No. 2
on August 7, 2007, (5) the $218.4 million credit facility between Seaspan Corporation and Sumitomo Mitsui Banking Corporation, among others, dated October 16, 2006, (6) the
$291.2 million credit facility between Seaspan Corporation and Fortis Bank S.A./N.V. and the Import Bank of Korea, among others, dated March 17, 2008, (7) the $130,000,000 credit facility between Seaspan Corporation and Industrial and
Commercial Bank of China Limited, among others, dated January 28, 2013, (8) the $210,000,000 credit facility among Seaspan Corporation and Industrial and Commercial Bank of China Limited, among others, dated January 28, 2013, (9) the
$115.2 million credit facility between Seaspan Corporation and Commonwealth Bank of Australia, among others, dated March 24, 2015, (10) the $195 million credit facility between Seaspan Corporation and DVB Bank America, N.V. among
others, dated April 10, 2015, (11) the $227.5 million credit facility between Seaspan Corporation and ING Bank, N.V., London Branch, among others, dated April 24, 2015, (12) the $75 million credit facility between Seaspan
Corporation and DekaBank Deutsche Giorzentrale, among others, dated September 18, 2015, (13) the $90 million credit facility between Seaspan Corporation and China Development Bank Corporation dated December 9, 2015, (14) the
$120 million credit facility between Seaspan Corporation and Citigroup Global Markets Limited, among others, dated April 28, 2017, as amended (collectively, the “
Credit Facilities
”).
The executive employment agreement between the Company and Gerry Wang dated May 16, 2016, as amended.
Indenture, dated as of April 3, 2014, between the Company and The Bank of New York Mellon, as trustee.
First Supplemental Indenture, dated as of April 3, 2014, between the Company and The Bank of New York Mellon, as trustee.
(1) The sale and lease back of the Brotonne Bridge with Xiangjiang (Shanghai) Ship Chartering Co., Ltd, among others, pursuant to agreements dated
March 11, 2015, (2) The sale and lease back of the Brevik Bridge with Xiangcheng (Shanghai) Ship Chartering Co., Ltd, among others, pursuant to agreements dated March 11, 2015, (3) The sale and lease back of the Bilbao Bridge with
Xianglai (Shanghai) Ship Chartering Co., Ltd, among others, pursuant to agreements dated March 11, 2015, (4) The sale of and lease back of the COSCO Pride with Haiju (Tianjin) Ship Leasing Co., Limited, Tianjin Yuan Geng Shi Pan Shipping
Service Co., Ltd., and ICBC Financial Leasing Co., Ltd. pursuant to agreements dated June 10, 2011 and February 4, 2010, (5) The sale and lease back of the COSCO Faith with Endeavour Leasing Limited and Credit Agricole Corporate and
Investment Bank pursuant to agreements dated October 21, 2010, (6) The sale and lease back of the Madinah with Hui Merchant Leasing (No. 1) Limited, among others, pursuant to agreements dated October 31, 2011, (7) The sale and lease
back of the MOL Bravo with FPG Shipholding Panama 8 S.A., among others, pursuant to agreements dated July 11, 2014, (8) The sale and lease back of the MOL Brightness with FPG Shipholding Panama 9 S.A., among others, pursuant to agreements dated
July 11, 2014, (9) The sale and lease back of the MOL Breeze with FPG Shipholding Panama 13 S.A., among others, pursuant to agreements dated November 4, 2014, (10) The sale and
lease back of the MOL Beacon with FPG Shipholding Panama 14 S.A., among others, pursuant to agreements dated November 4, 2014, (11) The sale and lease back of the YM Winner with FPG
Shipholding Panama 17 S.A., among others, pursuant to agreements dated May 28, 2015, (12) The sale and lease back of the YM Wellness with FPG Shipholding Panama 20 S.A., among others, pursuant to agreements dated August 12, 2015, (13) The
sale and lease back of the YM Warmth with FPG Shipholding Panama 22 S.A., among others, pursuant to agreements dated October 2, 2015, (14) The sale and lease back of the MOL Benefactor with FPG Shipholding Panama 23 S.A., among others, pursuant
to agreements dated March 11, 2016, (15) The sale and lease back of the MOL Beyond with FPG Shipholding Panama 25 S.A., among others, pursuant to agreements dated April 26, 2016, (16) The sale and lease back of the YM Window with FPG
Shipholding Panama 26 S.A., among others, pursuant to agreements dated April 29, 2016, (17) The sale and lease back of the YM Width with FPG Shipholding Panama 27 S.A., among others, pursuant to agreements dated on or about
May 27, 2016, (18) The sale and leaseback of one 11000 TEU vessel with Hull No. NCP 0145 with SEA 27 Leasing Co. Limited pursuant to agreements dated May 5, 2016, (19) The sale and leaseback of one 11000 TEU vessel with Hull No. NCP 0146
with SEA 28 Leasing Co. Limited pursuant to agreements dated May 5, 2016, (20) The sale and leaseback of one 11000 TEU vessel with Hull No. NCP 0147 with SEA 29 Leasing Co. Limited pursuant to agreements dated on or about May 5, 2016, (21)
The sale and leaseback of one 11000 TEU vessel with Hull No. NCP 0148 with SEA 30 Leasing Co. Limited pursuant to agreements dated May 5, 2016, (22) The sale and leaseback of one 11000 TEU vessel with Hull No. NCP 0153 with SEA 31 Leasing Co.
Limited pursuant to agreements dated May 5, 2016 , (23) The sale and leaseback of the Maersk Genoa with FPG Shipholding Panama 28 S.A., among others, pursuant to agreements dated on or about September 6, 2016 (collectively, the
“
Lease Transactions
”), and (24) The sale and leaseback of the YM Wind with FPG Shipholding Panama 35 S.A., among others, pursuant to agreements dated on or about May 22, 2017.
SCHEDULE VII
Schedule of Issuer Free Writing Prospectuses included in the Disclosure Package
Pricing Term Sheet in the form of Schedule III hereto.
Exhibit 4.1
EXECUTION VERSION
SEASPAN CORPORATION,
AS ISSUER,
TO
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
INDENTURE
DEBT SECURITIES
DATED AS OF OCTOBER 10, 2017
Reconciliation and tie between Trust Indenture Act of 1939 (the “Trust Indenture Act”) and Indenture
|
|
|
|
|
|
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Trust Indenture Act of 1939 Section
|
|
Indenture Section
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|
310
|
|
(a)(1)
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|
6.8
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|
|
|
(a)(2)
|
|
6.8
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|
|
|
(a)(3)
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|
TIA
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|
|
|
(a)(4)
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|
Not Applicable
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|
|
|
(a)(5)
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|
TIA
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(b)
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6.9
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|
|
|
|
|
311
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(a)
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|
TIA
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|
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(b)
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TIA
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|
|
312
|
|
(a)
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|
7.1
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|
|
|
(b)
|
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7.2
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|
|
|
(c)
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|
7.2
|
|
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|
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313
|
|
(a)
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|
7.3
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|
(b)
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7.3
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|
|
|
(c)
|
|
7.3
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|
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|
(d)
|
|
7.3
|
|
|
|
|
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314
|
|
(a)
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|
7.4; TIA
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|
|
|
(b)
|
|
Not Applicable
|
|
|
|
(c)(1)
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|
1.2
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|
|
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(c)(2)
|
|
1.2
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|
(c)(3)
|
|
Not Applicable
|
|
|
|
(d)
|
|
Not Applicable
|
|
|
|
(e)
|
|
1.2
|
|
|
|
(f)
|
|
1.2
|
|
|
|
|
|
315
|
|
(a)
|
|
6.1; TIA
|
|
|
|
(b)
|
|
6.3
|
|
|
|
(c)
|
|
6.1; TIA
|
|
|
|
(d)(1)
|
|
6.1; TIA
|
|
|
|
(d)(2)
|
|
6.1; TIA
|
|
|
|
(d)(3)
|
|
6.1; TIA
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|
|
|
(e)
|
|
5.15; TIA
|
|
|
|
|
|
316
|
|
(a) (last sentence)
|
|
1.1
|
|
|
|
(a)(1)(A)
|
|
5.2; 5.12
|
|
|
|
(a)(1)(B)
|
|
5.13
|
|
|
|
(b)
|
|
5.8
|
|
|
|
(c)
|
|
TIA
|
|
|
|
|
|
|
|
317
|
|
(a)(1)
|
|
5.3
|
|
|
|
(a)(2)
|
|
5.4
|
|
|
|
(b)
|
|
10.3
|
|
|
|
|
|
318
|
|
(a)
|
|
1.8
|
|
|
|
(b)
|
|
TIA
|
|
|
|
(c)
|
|
TIA
|
This reconciliation and tie section does not constitute part of the Indenture.
TABLE OF CONTENTS
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Page
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|
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
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1
|
|
|
Section 1.1.
|
|
Definitions
|
|
|
1
|
|
|
Section 1.2.
|
|
Compliance Certificates and Opinions
|
|
|
10
|
|
|
Section 1.3.
|
|
Form of Documents Delivered to Trustee
|
|
|
10
|
|
|
Section 1.4.
|
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Acts of Holders
|
|
|
11
|
|
|
Section 1.5.
|
|
Notices, Etc. to the Trustee and the Company
|
|
|
12
|
|
|
Section 1.6.
|
|
Notice to Holders of Securities; Waiver
|
|
|
13
|
|
|
Section 1.7.
|
|
Language of Notices
|
|
|
13
|
|
|
Section 1.8.
|
|
Conflict with Trust Indenture Act
|
|
|
13
|
|
|
Section 1.9.
|
|
Effect of Headings and Table of Contents
|
|
|
13
|
|
|
Section 1.10.
|
|
Successors and Assigns
|
|
|
14
|
|
|
Section 1.11.
|
|
Separability Clause
|
|
|
14
|
|
|
Section 1.12.
|
|
Benefits of Indenture
|
|
|
14
|
|
|
Section 1.13.
|
|
Governing Law
|
|
|
14
|
|
|
Section 1.14.
|
|
Legal Holidays
|
|
|
14
|
|
|
Section 1.15.
|
|
Counterparts
|
|
|
15
|
|
|
Section 1.16.
|
|
Judgment Currency
|
|
|
15
|
|
|
Section 1.17.
|
|
No Security Interest Created
|
|
|
15
|
|
|
Section 1.18.
|
|
Limitation on Individual Liability
|
|
|
15
|
|
|
|
|
|
ARTICLE 2 SECURITIES FORMS
|
|
|
16
|
|
|
Section 2.1.
|
|
Forms Generally
|
|
|
16
|
|
|
Section 2.2.
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
16
|
|
|
Section 2.3.
|
|
Securities in Global Form
|
|
|
17
|
|
|
|
|
|
ARTICLE 3 THE SECURITIES
|
|
|
17
|
|
|
Section 3.1.
|
|
Amount Unlimited; Issuable in Series
|
|
|
17
|
|
|
Section 3.2.
|
|
Currency; Denominations
|
|
|
20
|
|
|
Section 3.3.
|
|
Execution, Authentication, Delivery and Dating
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|
|
21
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|
Section 3.4.
|
|
Temporary Securities
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|
|
22
|
|
|
Section 3.5.
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|
Registration, Transfer and Exchange
|
|
|
23
|
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|
Section 3.6.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
25
|
|
|
Section 3.7.
|
|
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved
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|
|
26
|
|
|
Section 3.8.
|
|
Persons Deemed Owners
|
|
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28
|
|
|
Section 3.9.
|
|
Cancellation
|
|
|
28
|
|
|
Section 3.10.
|
|
Computation of Interest
|
|
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28
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|
|
|
|
|
ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
28
|
|
|
Section 4.1.
|
|
Satisfaction and Discharge
|
|
|
28
|
|
|
Section 4.2.
|
|
Defeasance and Covenant Defeasance
|
|
|
30
|
|
|
Section 4.3.
|
|
Application of Trust Money
|
|
|
33
|
|
|
Section 4.4.
|
|
Reinstatement
|
|
|
33
|
|
i
|
|
|
|
|
|
|
|
|
ARTICLE 5 REMEDIES
|
|
|
34
|
|
|
Section 5.1.
|
|
Events of Default
|
|
|
34
|
|
|
Section 5.2.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
35
|
|
|
Section 5.3.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
37
|
|
|
Section 5.4.
|
|
Trustee May File Proofs of Claim
|
|
|
38
|
|
|
Section 5.5.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
38
|
|
|
Section 5.6.
|
|
Application of Money Collected
|
|
|
39
|
|
|
Section 5.7.
|
|
Limitations on Suits
|
|
|
39
|
|
|
Section 5.8.
|
|
Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional Amounts
|
|
|
40
|
|
|
Section 5.9.
|
|
Restoration of Rights and Remedies
|
|
|
40
|
|
|
Section 5.10.
|
|
Rights and Remedies Cumulative
|
|
|
40
|
|
|
Section 5.11.
|
|
Delay or Omission Not Waiver
|
|
|
40
|
|
|
Section 5.12.
|
|
Control by Holders of Securities
|
|
|
41
|
|
|
Section 5.13.
|
|
Waiver of Past Defaults
|
|
|
41
|
|
|
Section 5.14.
|
|
Waiver of Usury, Stay or Extension Laws
|
|
|
41
|
|
|
Section 5.15.
|
|
Undertaking for Costs
|
|
|
42
|
|
|
|
|
|
ARTICLE 6 THE TRUSTEE
|
|
|
42
|
|
|
Section 6.1.
|
|
Certain Duties and Responsibilities
|
|
|
42
|
|
|
Section 6.2.
|
|
Certain Rights of Trustee
|
|
|
43
|
|
|
Section 6.3.
|
|
Notice of Defaults
|
|
|
47
|
|
|
Section 6.4.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
47
|
|
|
Section 6.5.
|
|
May Hold Securities
|
|
|
47
|
|
|
Section 6.6.
|
|
Money Held in Trust
|
|
|
47
|
|
|
Section 6.7.
|
|
Compensation and Reimbursement
|
|
|
47
|
|
|
Section 6.8.
|
|
Corporate Trustee Required; Eligibility
|
|
|
48
|
|
|
Section 6.9.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
49
|
|
|
Section 6.10.
|
|
Acceptance of Appointment by Successor
|
|
|
50
|
|
|
Section 6.11.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
51
|
|
|
Section 6.12.
|
|
Appointment of Authenticating Agent
|
|
|
51
|
|
|
|
|
|
ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
53
|
|
|
Section 7.1.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
53
|
|
|
Section 7.2.
|
|
Preservation of Information; Communications to Holders
|
|
|
53
|
|
|
Section 7.3.
|
|
Reports by Trustee
|
|
|
54
|
|
|
Section 7.4.
|
|
Reports by Company
|
|
|
54
|
|
|
|
|
|
ARTICLE 8 CONSOLIDATION, MERGER AND SALES
|
|
|
55
|
|
|
Section 8.1.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
55
|
|
|
Section 8.2.
|
|
Successor Person Substituted for Company
|
|
|
55
|
|
|
|
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
|
|
56
|
|
|
Section 9.1.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
56
|
|
|
Section 9.2.
|
|
Supplemental Indentures With Consent of Holders
|
|
|
57
|
|
ii
|
|
|
|
|
|
|
|
|
Section 9.3.
|
|
Execution of Supplemental Indentures
|
|
|
58
|
|
|
Section 9.4.
|
|
Effect of Supplemental Indentures
|
|
|
58
|
|
|
Section 9.5.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
58
|
|
|
Section 9.6.
|
|
Conformity With Trust Indenture Act
|
|
|
59
|
|
|
Section 9.7.
|
|
Notice of Supplemental Indenture
|
|
|
59
|
|
|
|
|
|
ARTICLE 10 COVENANTS
|
|
|
59
|
|
|
Section 10.1.
|
|
Payment of Principal, Any Premium, Interest and Additional Amounts
|
|
|
59
|
|
|
Section 10.2.
|
|
Maintenance of Office or Agency
|
|
|
59
|
|
|
Section 10.3.
|
|
Money for Securities Payments to be Held in Trust
|
|
|
60
|
|
|
Section 10.4.
|
|
Additional Amounts
|
|
|
61
|
|
|
Section 10.5.
|
|
[Reserved.]
|
|
|
62
|
|
|
Section 10.6.
|
|
[Reserved.]
|
|
|
62
|
|
|
Section 10.7.
|
|
Corporate Existence
|
|
|
62
|
|
|
Section 10.8.
|
|
Waiver of Certain Covenants
|
|
|
62
|
|
|
Section 10.9.
|
|
Company Statement as to Compliance; Notice of Certain Defaults
|
|
|
62
|
|
|
|
|
|
ARTICLE 11 REDEMPTION OF SECURITIES
|
|
|
63
|
|
|
Section 11.1.
|
|
Applicability of Article
|
|
|
63
|
|
|
Section 11.2.
|
|
Election to Redeem; Notice to Trustee
|
|
|
63
|
|
|
Section 11.3.
|
|
Selection by Trustee of Securities to be Redeemed
|
|
|
63
|
|
|
Section 11.4.
|
|
Notice of Redemption
|
|
|
64
|
|
|
Section 11.5.
|
|
Deposit of Redemption Price
|
|
|
65
|
|
|
Section 11.6.
|
|
Securities Payable on Redemption Date
|
|
|
66
|
|
|
Section 11.7.
|
|
Securities Redeemed in Part
|
|
|
66
|
|
|
|
|
|
ARTICLE 12 SINKING FUNDS
|
|
|
66
|
|
|
Section 12.1.
|
|
Applicability of Article
|
|
|
66
|
|
|
Section 12.2.
|
|
Satisfaction of Sinking Fund Payments With Securities
|
|
|
67
|
|
|
Section 12.3.
|
|
Redemption of Securities for Sinking Fund
|
|
|
67
|
|
|
|
|
|
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS
|
|
|
68
|
|
|
Section 13.1.
|
|
Applicability of Article
|
|
|
68
|
|
|
|
|
|
ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES
|
|
|
68
|
|
|
Section 14.1.
|
|
Applicability of Article
|
|
|
68
|
|
|
|
|
|
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES
|
|
|
69
|
|
|
Section 15.1.
|
|
Purposes for Which Meetings May Be Called
|
|
|
69
|
|
|
Section 15.2.
|
|
Call, Notice and Place of Meetings
|
|
|
69
|
|
|
Section 15.3.
|
|
Persons Entitled to Vote at Meetings
|
|
|
69
|
|
|
Section 15.4.
|
|
Quorum; Action
|
|
|
69
|
|
|
Section 15.5.
|
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
|
|
70
|
|
|
Section 15.6.
|
|
Counting Votes and Recording Action of Meetings
|
|
|
71
|
|
|
|
|
|
|
EXHIBIT A
|
|
FORM OF SECURITY
|
|
|
A-1
|
|
iii
INDENTURE, dated as of October 10, 2017 (the “Indenture”), between SEASPAN
CORPORATION, a corporation duly organized and existing under the laws of the Republic of The Marshall Islands (hereinafter called the “Company”), having its principal executive office located at Unit 2, 7th Floor, Bupa Centre, 141
Connaught Road West, Hong Kong, China, and The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), having its Corporate Trust Office located at 101 Barclay Street, Floor 7E, New York, New
York 10286.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its senior
unsecured debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and
to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
:
For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE 1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms “generally accepted accounting
principles” or “GAAP” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of
America at the date or time of such computation;
(4) the words “herein,” “hereof,” “hereto” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”).
Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act,” when used with respect to any Holders, has the meaning specified in Section 1.4.
“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which are owing to such Holders.
“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 the meanings correlative to the foregoing.
“Applicable Law” has the meaning specified in Section 6.2(23).
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to
authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper, in an official language of the place
of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on days that are legal holidays in the place of publication, and of general circulation in each
place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication.
“Authorized Officer” means, when used with respect to the Company, the Chairman (or, if applicable, either
Co-Chairman)
of the Board of Directors, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company.
2
“Board of Directors” means the board of directors of the Company or any committee of
that board duly authorized to act generally or in any particular respect for the Company hereunder.
“Board Resolution” means a
copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, delivered to the Trustee.
“Business Day” with respect to any Place of Payment or other location, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York or such Place of Payment are authorized or obligated by law, regulation or executive order to close.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person, including Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation” means an obligation under a lease that is required to be capitalized for financial reporting purposes
in accordance with generally accepted accounting principles, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with such principles.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Stock” in respect of any Corporation means Capital Stock of any class or classes (however designated) which has no
preference as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Corporation, and which is not subject to redemption by such Corporation.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the Securities.
“Company Request” and “Company Order” mean, respectively, a written request or order, as the case may be, signed in the
name of the Company by an Authorized Officer, and delivered to the Trustee.
“Conversion Event” means the cessation of use of
(i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking
community or (ii) any currency unit or composite currency for the purposes for which it was established.
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“Corporate Trust Office” means the principal corporate trust office of the Trustee at
which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at 101 Barclay Street, Floor 7E, New York, New York 10286.
“Corporation” includes corporations and limited liability companies and, except for purposes of Article 8, associations,
companies and business trusts.
“Currency,” with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms
hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.
“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s Ratings Service, CUSIP
Service Bureau.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the
United States of America.
“Event of Default” has the meaning specified in Section 5.1.
“Foreign Currency” means any currency, currency unit or composite currency, including, without limitation, the euro, issued by the
government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.
“Government Obligations” means securities which are (i) direct obligations of the United States of America or the other
government or governments which issued the Foreign Currency in which the principal of or any premium or interest on such Security or any Additional Amounts in respect thereof shall be payable, in each case where the payment or payments thereunder
are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or
governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, and which, in the case of
(i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository receipt.
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“Holder,” means the Person in whose name such Security is registered in the Security
Register.
“Indebtedness” means, with respect to any Person, (i) the principal of and any premium and interest on
(a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (ii) all Capitalized Lease
Obligations of such Person; (iii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business); (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in (i) through (iii) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons secured by any lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and (vii) any amendments, modifications, refundings, renewals or extensions of any indebtedness or obligation described as Indebtedness in clauses (i) through (vi) above.
“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 3.1 (as such terms and provisions may be amended pursuant to the
applicable provisions hereof).
“Independent Public Accountants” means accountants or a firm of accountants that, with respect
to the Company and any other obligor under the Securities, are independent public accountants within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may be other independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters
relating to this Indenture or certificates required to be provided hereunder.
“Indexed Security” means a Security the terms of
which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“Interest,” with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 10.4, includes such Additional Amounts.
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“Interest Payment Date,” with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 1.16.
“Maturity,” with respect to any Security, means the date on which the principal of such Security or an installment of principal
becomes due and payable as provided in or pursuant to this Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repurchase, notice of option to elect repayment or otherwise, and includes any applicable
Redemption Date.
“New York Banking Day” has the meaning specified in Section 1.16.
“Office” or “Agency,” with respect to any Securities, means an office or agency of the Company maintained or designated in
a Place of Payment for such Securities pursuant to Section 10.2 or any other office or agency of the Company maintained or designated for such Securities pursuant to Section 10.2 or, to the extent designated or required by
Section 10.2 in lieu of such office or agency, the Corporate Trust Office of the Trustee.
“Officer’s Certificate”
means a certificate signed by an Authorized Officer that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company that complies with the
requirements of Section 314(e) of the Trust Indenture Act.
“Original Issue Discount Security” means a Security issued
pursuant to this Indenture which provides for declaration of an amount less than the principal face amount thereof to be due and payable upon acceleration pursuant to Section 5.2.
“Outstanding,” when used with respect to any Securities, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) any such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar for cancellation;
(2) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been theretofore deposited pursuant hereto (other than pursuant to Section 4.2) with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
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(3) any such Security with respect to which the Company has effected defeasance pursuant to the
terms hereof, except to the extent provided in Section 4.2;
(4) any such Security which has been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide
purchaser in whose hands such Security is a valid obligation of the Company; and
(5) any such Security converted or exchanged as
contemplated by this Indenture into securities of the Company or another issuer, if the terms of such Security provide for such conversion or exchange pursuant to Section 3.1; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such
Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration thereof pursuant to Section 5.2 at the time of such determination, and (ii) the principal amount of
any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purposes shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee has received written notice from the Company to be so owned shall be so disregarded. Securities so owned which
shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (a) the pledgee’s right so to act with respect to such Securities and (b) that the pledgee is not the
Company or any other obligor upon the Securities or an Affiliate of the Company or such other obligor. Upon request of the Trustee, the Company shall promptly furnish to the Trustee an Officer’s Certificate: (i) listing and identifying all
Securities, if any, known by the Company to be owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor, and (ii) whether any such Securities so owned shall have been pledged in good
faith to a pledgee that is not the Company or any other obligor upon the Securities or an Affiliate of the Company or such other obligor, and the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
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“Paying Agent” means any Person authorized by the Company to pay the principal of, or
any premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the Company.
“Person” means
any individual, Corporation, partnership, joint venture, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” with respect to any Security, means the place or places where the principal of, or any premium or interest on,
or any Additional Amounts with respect to such Security are payable as provided in or pursuant to this Indenture or such Security.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same Indebtedness
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen Security.
“Preferred Stock” in respect of any
Corporation means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Corporation,
over shares of Capital Stock of any other class of such Corporation.
“Redemption Date,” with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security.
“Redemption
Price,” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security.
“Registered Security” means any Security established pursuant to Section 2.1 which is registered in a Security Register.
“Regular Record Date” for the interest payable on any Registered Security on any Interest Payment Date therefor means the date, if
any, specified in or pursuant to this Indenture or such Security as the “Regular Record Date”.
“Required Currency”
has the meaning specified in Section 1.16.
“Responsible Officer” means any vice president, any assistant vice president,
the secretary, any assistant secretary, the treasurer, any assistant treasurer, or any trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and, in each
case, having direct responsibility for the administration of this Indenture.
“Security” or “Securities” means any
note or notes, bond or bonds, debenture or debentures, or any other evidences of Indebtedness, as the case may be, authenticated and delivered under this Indenture;
provided
,
however
, that, if at any time there is more than one
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Person acting as Trustee under this Indenture, “Securities,” with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have
the respective meanings specified in Section 3.5.
“Special Record Date” for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
“Stated Maturity,” with respect to any
Security or any installment of principal thereof or interest thereon, or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.
“Subsidiary” means,
in respect of any Person, any Corporation, limited or general partnership or other business entity of which at the time of determination more than 50% of the voting power of the shares of its Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or
more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or provision, as the case may be, as amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in furtherance of the purposes of such Act or provision, as the case may be.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee
shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at
any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.
“United States,” except as otherwise provided in or pursuant to this Indenture or any Security, means the United States of America
(including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in the form of one or more global
Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to this Indenture, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “U.S. Depository” or “Depository” shall mean, with respect to
any Securities, the qualifying entity which has been appointed with respect to such Securities.
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“Vice President,” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title “Vice President”.
Section 1.2.
Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, 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, if any, have been complied with, except that in the case of any such application or request as to which
the furnishing of such documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture
shall include:
(1) a statement that the individual signing such certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, provided that such officer, after reasonable inquiry, has no reason to believe and does not believe that the
Opinion of Counsel with respect to the matters upon which his certificate or opinion is based is erroneous. Any such Opinion of
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Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, provided that such counsel, after reasonable inquiry, has no reason to believe and does not believe that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
Section 1.4. Acts of Holders.
(1)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and the Company and any agent of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise provided
in or pursuant to this Indenture, a Holder, including a U.S. Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent,
waiver or other Act provided in or pursuant to this Indenture to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such
global Security through such U.S. Depository’s standing instructions and customary practices.
The Company shall fix a record date
for the purpose of determining the Persons who are beneficial owners of interests in any permanent global Security held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent, waiver or other Act shall be valid or effective if made, given or taken more than 90 days after such record date.
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(2) The fact and date of the execution by any Person of any such instrument or writing referred
to in this Section 1.4 may be proved in any reasonable manner; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, shall be proved by the Security Register.
(4) [Reserved.]
(5) If the Company shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of
Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such Act is made upon such Security.
Section 1.5. Notices, Etc. to
the Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or
the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Chief Financial Officer, Chief Accounting Officer or Secretary, at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the Company.
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Section 1.6. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
In
any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. If by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a global Security,
such notice shall be sufficiently given if given to the Depository for such Security (or its designee), pursuant to the applicable procedures of the Depository, not later than the latest date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
Section 1.7. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication;
provided
,
however
, that the Company shall be responsible for providing any such translation
from the English language to the official language of such country of publication.
Section 1.8. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under any required provision of the Trust Indenture Act imposed hereon
by Section 318(c) thereof, such required provision shall control.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or any Security 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 1.12. Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This
Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state. Any dispute, action or
proceeding arising out of or relating to this Indenture or the rights of any party under this Indenture shall be exclusively maintained in the U.S. federal or New York State Court sitting in the Borough of Manhattan, The City of New York, New York.
Each of the parties hereto: (i) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law, and
(ii) irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding. Each party to this Indenture waives all right of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in
connection with this Indenture or any matter arising hereunder.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to convert or exchange Securities of a series that are convertible or exchangeable, shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture, any Security other than a provision in any Security that specifically states that such provision shall apply in lieu hereof) payment need not be made at such Place of Payment on such date, and such Securities need not be
converted or exchanged on such date but such payment may be made, and such Securities may be converted or exchanged, on the next succeeding day that is a Business Day with the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Interest Payment Date, Stated Maturity, Maturity or last
day for conversion or exchange, as the case may be, to such next succeeding Business Day.
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Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 1.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (i) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series or any indemnities due hereunder from the Company (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the requisite amount of the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which a final unappealable judgment is given and (ii) its obligations under this Indenture to make payments in the
Required Currency (a) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (i)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (b) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (c) shall not be affected by judgment
being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive order to be closed.
Section 1.17. No Security Interest Created.
Nothing in this Indenture or in any Security, express or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Company or its Subsidiaries is or may be located.
Section 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator, officer or director, as such, past, present or future, of the Company, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of the Company, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the
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obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom; and that any and all such personal liability of every name and nature, either at common
law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the
issuance of such Security.
ARTICLE 2
SECURITIES FORMS
Section 2.1.
Forms Generally.
Each Security issued pursuant to this Indenture shall be in substantially the form attached as Exhibit A and as set
forth pursuant to this Article, or in such other form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by or pursuant to this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Security as evidenced by their execution of such Security.
Unless otherwise provided in or
pursuant to this Indenture or any Securities, the Securities shall be issuable in registered form without coupons.
Definitive Securities
shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2. Form of Trustee’s Certificate of Authentication.
Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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as Trustee
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Dated:
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By:
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Authorized Officer
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Section 2.3. Securities in Global Form.
If Securities of a series shall be issuable in global form, any such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect thereto. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver, in each case at the Company’s expense, any Security in permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in
writing but need not be accompanied by or contained in an Officer’s Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise specified in or pursuant to this Indenture or any Security, payment of
principal of, any premium and interest on, and any Additional Amounts in respect of, any Security in temporary or permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security the Holder of such global Security.
ARTICLE 3
THE
SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be
issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in
or pursuant to a Board Resolution and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto,
(1) the title of such Securities and the series in which such Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7, upon
repayment in part of any Registered Security of such series pursuant to Article 13, upon
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surrender in part of any Registered Security for conversion into other securities of the Company or exchange for securities of another issuer pursuant to its terms, or pursuant to or as
contemplated by the terms of such Securities);
(3) [Reserved];
(4) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like
tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 3.5, and (iii) the name of the Depository or the U.S. Depository, as the
case may be, with respect to any such global Security;
(5) if any of such Securities are to be issuable in global form, the date as of
which any such global Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued);
(6) [Reserved];
(7) the date
or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are
to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to
Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a
360-day
year of
twelve
30-day
months;
(9) if in addition to or other than the Borough of Manhattan, The City of
New York, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities that are Registered Securities may be surrendered for registration
of transfer or exchange, any of such Securities may be surrendered for conversion or exchange and notices or demands to or upon the Company in respect of such Securities and this Indenture may be served, the extent to which, or the manner in which,
any interest payment or Additional Amounts on a global Security on an Interest Payment Date, will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;
(10) whether any of such Securities are to be redeemable at the option of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company;
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(11) whether the Company is obligated to redeem or purchase any of such Securities pursuant to
any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities
shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof;
(13) whether the Securities of the series will be convertible into other securities of the Company
and/or exchangeable for securities of another issuer, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;
(14) if other than the principal
amount thereof, the portion of the principal amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of the principal of, any premium or interest on or any Additional Amounts
with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional Amounts
with respect to any of such Securities are to be payable, at the election of the Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which such Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and
the Currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities
denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount
of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be
based, without limitation, on one or more Currencies, commodities, equity securities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to defeasance or Section 4.2(3) relating to covenant defeasance shall be
applicable to the Securities of such series, or any
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covenants in addition to those specified in Section 4.2(3) relating to the Securities of such series which shall be subject to covenant defeasance, and any deletions from, or modifications
or additions to, the provisions of Article 4 in respect of the Securities of such series;
(20) whether any of such Securities are to
be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and delivered;
(21) if
any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the
identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;
(23) [Reserved]; and
(24) any
other terms of such Securities and any other deletions from or modifications or additions to this Indenture in respect of such Securities.
All Securities of any one series shall be substantially identical except as to the date from which interest, if any, shall accrue and except
as may otherwise be provided by the Company in or pursuant to the Board Resolution and set forth in the Officer’s Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the
Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon written order of persons designated in the Officer’s Certificate or
supplemental indenture and that such persons are authorized to determine, consistent with such Officer’s Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are specified in such
Officer’s Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided, a series may be reopened for issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by
action taken by or pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate or supplemental indenture setting forth the terms of such series.
Section 3.2. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in Dollars shall be issuable in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
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Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman (or, if applicable, either
Co-Chairman)
of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer or the Treasurer or any Assistant Treasurer and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of original issuance of such Securities.
At any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver Securities, executed by the Company, to the Trustee for authentication and, provided that the Board Resolution and Officer’s Certificate or supplemental indenture or
indentures with respect to such Securities referred to in Section 3.1 and a Company Order for the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Company Order and subject to
the provisions hereof and of such Securities shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities, if any, have been established in conformity with the provisions of this Indenture;
(b) all conditions precedent to the authentication and delivery of such Securities, if any, have been complied with and that such Securities,
when completed by appropriate insertions, executed and attested by duly authorized officers of the Company, delivered by duly authorized officers of the Company to the Trustee for authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting
creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and will entitle the Holders thereof to the benefits of this Indenture; such Opinion of
Counsel need express no opinion as to the availability of equitable remedies;
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(c) all laws and requirements in respect of the execution and delivery by the Company of such
Securities have been complied with; and
(d) this Indenture has been qualified under the Trust Indenture Act; and
(2) an Officer’s Certificate stating that, to the best knowledge of the Persons executing such certificate, all conditions precedent to
the execution, authentication and delivery of such Securities, if any, appertaining thereto, have been complied with, and no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Securities
shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time, it shall not be necessary to
deliver an Opinion of Counsel and an Officer’s Certificate at the time of issuance of each Security, but such opinion and certificate, with appropriate modifications, shall be delivered at or before the time of issuance of the first Security of
such series. After any such first delivery, any separate written request by an Authorized Officer of the Company or any person designated in writing by an Authorized Officer that the Trustee authenticate and deliver Securities of such series for
original issue will be deemed to be a certification by the Company that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with and that no Event of
Default with respect to any of the Securities has occurred or is continuing.
The Trustee shall not be required to authenticate or to
cause an Authenticating Agent to authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided for in Section 2.2 or 6.12 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized officers. Such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall be exchanged in accordance
with the provisions thereof, if temporary Securities are issued, the Company shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge
to any Holder thereof. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations of the same series and containing identical terms and provisions. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.5.
Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the Company shall cause to be
kept a register (each such register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of the Registered Securities of such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in
or pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of
Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of any series
at any Office or Agency for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series denominated as
authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, any
global Security shall be exchangeable for Registered Securities only if (i) the Depository notifies the Company that it is no longer willing or able to act as a Depository for such global Security or ceases to be a clearing agency registered
under the Exchange Act, and the Company has not appointed a successor Depository within 90 days of that notice or becoming aware that the Depository is no longer so registered; (ii) an Event of Default has occurred and is continuing, and the
Depository requests the issuance of certificated Securities; or (iii) the Company determines not to have the Securities represented by a global Security. Neither the Company nor the Trustee will be liable for any delay by the Depository, its
nominee or any direct or indirect participant in identifying the beneficial owners of the Securities. The Company and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Depository or its nominee for all
purposes, including with respect to the registration and delivery, and the respective principal amounts, of the certificated Securities to be issued. If the beneficial owners of interests in a global Security are entitled to exchange such interests
for definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee Registered Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be
contained in or accompanied by an Officer’s Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged,
in whole or in part, for definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged, which shall be in the form of Registered Securities;
provided
,
however
, that no such
exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such
global Security shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security after the close of business at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before
the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the
Company or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange, or redemption of
Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer
or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise
provided in or pursuant to this Indenture, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of mailing of a notice of
redemption of Securities of like tenor and the same series under Section 11.3 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security selected for redemption
in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been
surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this
Section 3.6, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously
outstanding.
If there be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon the Company’s request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the
same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
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Notwithstanding the foregoing provisions of this Section 3.6, in case any mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.6, the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of
such series duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall be exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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Section 3.7.
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Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.
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Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called “Defaulted Interest”) shall forthwith
cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed by the Company in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on such Registered Security, the Special Record Date therefor and the date of the proposed payment, and at the same time the Company 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 on or prior to the date of the proposed payment, such money when so deposited to be held in trust for
the benefit of the Person entitled to such Defaulted Interest as
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provided in this clause (1). The Special Record Date for the payment of such Defaulted Interest 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 notification to the Trustee of the proposed payment. The Trustee shall, in the name and at the expense of the Company, cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series
pursuant to the provisions of this Indenture, at the option of the Company, interest on Registered Securities (other than global Securities) that bear interest may be paid by mailing a check to the address of the Person entitled thereto as such
address shall appear in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Registered Security of any series that is convertible into other securities of the Company or exchangeable for securities
of another issuer, which Registered Security is converted or exchanged after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security with respect to which the Stated Maturity is prior
to such Interest Payment Date), interest with respect to which the Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion or exchange, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted or exchanged, interest with respect to which the Stated Maturity is after the date of conversion or exchange of such Registered
Security shall not be payable.
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Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is registered in the Security Register as the owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 3.5
and 3.7) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in
any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
owner of such global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security 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 3.9. Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such
Securities, as well as Securities surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by or pursuant to this Indenture. All cancelled Securities held by the Trustee shall be destroyed by the Trustee, unless by a Company Order the Company directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any Security, interest on the Securities shall be computed on the basis of
a
360-day
year of twelve
30-day
months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.1. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of
Securities specified in such Company Order, and the Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
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(1) either
(a) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in which such Securities are payable in
an amount sufficient to pay and discharge the entire indebtedness on such Securities, including the principal of, any premium and interest on, and any Additional Amounts with respect to such Securities, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity or the applicable Redemption Date thereof, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series, including, without limitation, any fees, expenses and indemnities owed to the Trustee; and
(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
In
the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as
to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the Trustee under Section 6.7 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations of
the Company and the Trustee with respect to the Securities of such series under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any rights to
convert or exchange such Securities into securities of the Company or another issuer shall survive.
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Section 4.2. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 3.1, either or both of (i) defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 4.2 shall not be applicable with respect
to the Securities of such series, then such provisions, together with the other provisions of this Section 4.2 (with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any series of Securities), shall be
applicable to such Securities, and the Company may at its option by Board Resolution, at any time, with respect to such Securities, elect to have Section 4.2(2) or Section 4.2(3) be applied to such Outstanding Securities upon compliance
with the conditions set forth below in this Section 4.2.
(2) Upon the Company’s exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities on the date the conditions set forth in clause (4) of
this Section 4.2 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Outstanding Securities, which
shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 4.2 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its
other obligations under such Securities, and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in clause (4) of this Section 4.2 and as more fully set forth in
such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities when such payments are due, and any rights of such Holder to convert such
Securities into other securities of the Company or exchange such Securities for securities of another issuer, (ii) the obligations of the Company and the Trustee with respect to such Securities under Sections 3.5, 3.6, 10.2 and 10.3 and
with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.4 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 4.2(4)(a) below), and with respect to any rights to convert such Securities into other securities of the Company or exchange such Securities for securities of another issuer, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.2. The Company may exercise its option under this Section 4.2(2) notwithstanding the prior exercise of its option under clause (3) of this
Section 4.2 with respect to such Securities.
(3) Upon the Company’s exercise of the option to have this Section 4.2(3)
apply with respect to any Securities of or within a series, the Company shall be released from its obligations under, to the extent specified pursuant to Section 3.1(19), any covenant applicable to such Securities and any Event of Default with
respect to such Outstanding Securities, on and after the date the conditions set forth in clause (4) of this Section 4.2 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be not
“Outstanding” for the
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purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Company may omit to comply with, and shall have no liability in respect of, any
term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section
or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 5.1(4) or otherwise and the specified Events of Default shall not
longer constitute Events of Default, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or (3) of this Section 4.2 to any Outstanding Securities of
or within a series:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.8 who shall agree to comply with the provisions of this Section 4.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities, (1) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on and
Additional Amounts, if any, with respect to, such Outstanding Securities at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities on the days on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by which it is bound.
(c) No Event of Default or event which
with notice or lapse of time or both would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the
123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
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(d) In the case of an election under clause (2) of this Section 4.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since
the date of execution of this Indenture, there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not
recognize income, gain or loss for U.S. Federal income tax purposes as a result of such defeasance and will be subject to U.S. 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.
(e) In the case of an election under clause (3) of this Section 4.2, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and will be subject to
U.S. 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.
(f) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 123rd day after the date of deposit,
all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause
(4) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of the Company under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order
for relief in respect of the Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee an
Officer’s Certificate and the Company shall have delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 4.2 (as the
case may be) have been complied with.
(h) Notwithstanding any other provisions of this Section 4.2(4), such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit referred to in Section 4.2(4)(a) has
been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.2(4)(a) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such
Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in
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the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a
Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.2(5) and
Section 4.3, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.2 or the principal or interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
Anything in this
Section 4.2 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in
clause (4) of this Section 4.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.2.
Section 4.3. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any; but such money and Government Obligations need not be segregated from other funds except to the extent required by
law.
Section 4.4. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant
to Section 4.2(2) or 4.2(3) shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 4.3 with respect to such Securities in accordance with this Article;
provided
,
however
, that if the Company makes any payment of principal of or any premium or interest on any such
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Securities following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held
in trust.
ARTICLE 5
REMEDIES
Section 5.1. Events of
Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officer’s Certificate establishing the terms of such Series pursuant to this
Indenture:
(1) default in the payment of any interest on any Security of such series, or any Additional Amounts payable with respect
thereto, when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of such series, or any Additional Amounts payable with respect
thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity; or
(3) default in
the deposit of any sinking fund payment when and as due by the terms of a Security of such series; or
(4) default in the performance, or
breach, of any covenant or warranty of the Company in this Indenture or the Securities (other than a covenant or warranty a default in the performance or the breach of which is elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company in an involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or
composition of the Company and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
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(c) a final and
non-appealable
order appointing a
custodian, receiver, liquidator, assignee, trustee or other similar official of the Company of any substantial part of the property of the Company or ordering the winding up or liquidation of the affairs of the Company; or
(6) the commencement by the Company of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law
or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any insolvency proceedings against it, or the filing by the Company of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company or relief under any applicable law, or the
consent by the Company to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or any substantial part of the property of the Company or
the making by the Company of an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any Indebtedness of the Company (other than the Securities) with an aggregate principal amount outstanding, individually or in the
aggregate, of at least $25,000,000 shall not have been paid when due and shall continue not to be paid within any applicable grace period after final maturity (or when otherwise due by acceleration or otherwise); or
(8) the entry against the Company of one or more final and
non-appealable
judgments for the payment of
money in an aggregate uninsured or unbonded amount in excess of $25,000,000, by a court or courts of competent jurisdiction, which judgment remains or judgments remain undischarged, unstayed or unsatisfied for a period of 90 consecutive days; or
(9) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause
(5) or (6) of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal of all the Securities of such series, or
such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder of any Security of that series.
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At any time after a declaration of acceleration with respect to the Securities of any series has
been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company
has paid or deposited with the Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series,
(b) the principal of and any premium on any Securities of such series which have
become due otherwise than by such declaration of acceleration and interest thereon and any Additional Amounts with respect thereto at the rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional Amounts is lawful, interest upon overdue installments of any interest and
Additional Amounts at the rate or rates borne by or provided for in such Securities, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.7; and
(2) all Events of Default with respect to Securities of such series, other than the
non-payment
of the
principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Notwithstanding the foregoing, at the election of the Company, the sole remedy with respect to an Event of Default for the failure by the
Company to comply with its obligations under Section 314(a)(1) of the Trust Indenture Act relating to the Company’s failure to file any documents or reports that the Company is required to file with the SEC pursuant to Section 13.1 or
15(d) of the Exchange Act or of its covenants set forth in Section 7.4 (any such Event of Default, a “Reporting Default”), shall, after the occurrence of such Reporting Default consist exclusively of the right to receive additional
interest (the “Additional Interest”) on the Securities at an annual rate equal to (i) 0.25% of the principal amount of the Securities for each day during the 90 calendar day period beginning on, and including, the date on which such
Reporting Default first occurs and on which such Reporting Default is continuing and (ii) 0.50% of the principal amount of the Securities for each day during the 90 calendar day period beginning on, and including, the 91st day following the date on
which such Reporting Default first occurs and on which such Reporting Default is continuing. If the Company so elects, the Additional Interest shall accrue on all Outstanding Securities from and including the date on which such Reporting Default
first occurs until such violation is cured or waived and shall be payable as provided in Section 3.7. On the 181st day after such Reporting Default (if such violation is not cured or
36
waived prior to such 181st calendar day), then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal of all
the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount shall become immediately due and payable.
If the Company elects to pay the Additional
Interest as the sole remedy for the Reporting Default, the Company shall notify in writing, by a certificate, the Holders, the Paying Agent and the Trustee of such election at any time on or before the close of business on the fifth Business Day
prior to the date on which such Event of Default would otherwise occur. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that Additional Interest
is not payable. The Company shall pay the Additional Interest semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date following the date of such Reporting Default, in the same manner as described on the
face of the Security.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or any Additional Amounts with respect to any Security when such interest
or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or
(2) default is made in the
payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at their Maturity, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the
whole amount of money then due and payable with respect to such Securities, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of
interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.7.
If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as may be necessary to protect
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and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any power granted herein or
therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities of any series or the property of the Company or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any applicable series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities 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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities allowed in such
judicial proceeding, and
(2) to collect and receive any monies or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of the Securities in respect
of which such judgment has been recovered.
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Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, or any premium, interest or Additional Amounts, upon presentation of the Securities, and the notation thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal and any premium, interest and Additional Amounts
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitations on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously
given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of
not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity as is reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such
60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of such series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
39
Section 5.8. Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional
Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturity or Maturities therefor specified
in such Security (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided in or pursuant to this Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and
Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and each such Holder shall, subject to any determination
in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent
permitted by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of a Security may
be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
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Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series,
(2) such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be
incurred in compliance with such direction;
(3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(4) such direction is not unduly prejudicial to the rights of the other Holders of Securities of
such series not joining in such action.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series may waive any past default hereunder with respect to such series and its consequences, except a default
(1) in
the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series, or
(2) in respect of the payment of any amounts due from the Company to the Trustee pursuant to Section 6.7; or
(3) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company expressly waives (to
the extent that it may lawfully do so) all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any 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 any
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section 5.15 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 10% in
principal amount of Outstanding Securities of any 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, if any, on or Additional Amounts, if any, with respect to any
Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment, on or after the date for repayment) or for the enforcement of the right,
if any, to convert or exchange any Security into other securities in accordance with its terms.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain
Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon 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 that 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 not to verify or confirm the contents thereof.
(2) In the event that a Responsible Officer of the Trustee receives written
notice that an Event of Default has occurred and is continuing, 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.
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(3) 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, or its own willful misconduct (as conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review), except that
(a) this paragraph (3) shall not be construed to limit the effect of paragraph (1) of this Section 6.1;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities 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.
Section 6.2. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Trustee need not investigate any statement, warranty or representation or any fact or matter stated in any such document and may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.3 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s
Certificate and/or an Opinion of Counsel and shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate and/or Opinion of Counsel;
(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee such security or indemnity as is reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or
document, but the Trustee, in its discretion, may, but shall not be obligated to make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney;
(7) 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 supervision of or misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by (i) the Trustee in each document related hereto to which it is a party and (ii) the entity serving as the Trustee in each of its capacities hereunder and in each of its capacities
as under any related document whether or not specifically set forth therein and each agent, custodian and other Person employed to act hereunder and under any related document, as the case may be, including the Authenticating Agent, Paying Agent,
and Security Registrar;
(9) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers;
(10)
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 Article 6;
(11) the Trustee shall not be liable for any action taken or omitted to be taken by it in good faith that is believed to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture, unless the Trustee’s conduct constitutes negligence;
(12) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty;
(13) the Trustee shall not be deemed to have notice or actual knowledge of any Event of Default unless written notice of any Event of Default
is received by a Responsible Officer of the Trustee pursuant to Section 1.5 hereof and such notice references this Indenture and the Securities;
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(14) the Trustee shall not be bound to make any investigation into (i) the performance or
observance by the Company or any other Person of any of the covenants, agreements or other terms or conditions set forth in this Indenture or in any related document, (ii) the occurrence of any default, or the validity, enforceability,
effectiveness or genuineness of this Indenture, any related document or any other agreement, instrument or document, or (iii) the satisfaction of any condition set forth in this Indenture or any related document;
(15) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(16) the Trustee may, from time to time, request that the Company deliver a certificate (upon which the Trustee may conclusively rely) setting
forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or any related document together with a specimen signature of such authorized officers; provided, however, that
from time to time, the Company may, by delivering to the Trustee a revised certificate, change the information previously provided by it pursuant to this Section 6.2(16), but the Trustee shall be entitled to conclusively rely on the then
current certificate until receipt of a superseding certificate;
(17) the Trustee shall not have any duty or responsibility in respect of
(i) any recording, filing, or depositing of this Indenture or any other agreement or instrument, (ii) the acquisition or maintenance of any insurance or (iii) the payment or discharge of any tax, assessment, or other governmental
charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral;
(18) to help
fight the funding of terrorism and money laundering activities, the Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Trustee. The Trustee may ask for
the name, address, tax identification number and other information that shall allow the Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Trustee may also ask for formation documents such
as articles of incorporation, an offering memorandum, or other identifying documents to be provided. The parties to this Indenture agree that they shall provide the Trustee with such information as the Trustee may reasonably request;
(19) in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture or any
related documents because of circumstances beyond the Trustee’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any
applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident, earthquake, terrorism,
fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or
prohibit the providing of the services contemplated by this Indenture or any related documents, or the unavailability of communications or computer facilities, the failure of
45
equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes
beyond the Trustee’s control whether or not of the same class or kind as specified above;
(20) in respect of this Indenture, the
Trustee shall have no duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such
instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission and the Trustee shall not be liable for any losses, liabilities, costs or expenses incurred or
sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic
methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or
information, and the risk of interception and misuse by third parties;
(21) delivery of reports, information and documents to the Trustee
is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on Officers’ Certificates); and
(22) The Trustee shall be fully justified in failing or refusing to take any action under this Indenture or any other related document if such
action (i) would, in the reasonable opinion of the Trustee, in good faith (which may be based on the advice or opinion of counsel), be contrary to applicable law, this Indenture or any other related document, or (ii) is not provided for in
this Indenture or any other related document. The Trustee shall not be required to take any action under this Indenture or any related document if taking such action (i) would subject the Trustee to a tax in any jurisdiction where it is not
then subject to a tax, or (i) would require the Trustee to qualify to do business in any jurisdiction where it is not then so qualified.
(23) In order to comply with applicable tax laws, rules and regulations (“
Applicable Law
”) related to this Indenture or any
indenture supplemental hereto, the Company agrees: (i) to provide to the Trustee sufficient information about such parties and/or transactions (including any modification to the terms of such transactions) so it can determine whether it has any
tax related obligations under Applicable Law, (ii) that the Trustee shall be entitled to make any withholding or deduction from payments this Indenture or any indenture supplemental hereto to the extent necessary to comply with Applicable Law
for which it shall not have any liability, and (iii) to hold harmless the Trustee for any losses it may suffer due to the actions it takes to comply with such Applicable Law. The terms of this section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee hereunder.
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Section 6.3. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives written notice of a default with respect to the Securities of any series,
the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 7.3(3), notice of such default hereunder, unless such default shall have been cured or waived;
provided
,
however
, that, except in the case of a default in the payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security 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 trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the best interest of the Holders of Securities. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication shall be taken as the statements
of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form
T-1
supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of
the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have if it were not
the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.6. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing with the Company.
Section 6.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay
to the Trustee from time to time reasonable compensation for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
47
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture or arising out of or in connection with the acceptance or administration of the trust or trusts hereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or bad faith (as conclusively determined
by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review); and
(3) to indemnify the Trustee and
its agents, officers, directors and employees for, and to hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee’s negligence or bad faith (as conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review).
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities of
any series 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 or interest on or any Additional Amounts with respect to Securities.
To the extent permitted by law, any compensation or expense incurred by the Trustee after a default specified in or pursuant to
Section 5.1 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 6.7 shall include any predecessor Trustee but the negligence or bad
faith of any Trustee shall not affect the rights of any other Trustee under this Section 6.7.
The provisions of this
Section 6.7 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and shall apply with equal force and effect to the Trustee in its capacity as Authenticating Agent, Paying Agent or
Security Registrar.
Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a company organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, that is eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000, and that is subject to supervision or examination by Federal or state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 6.9. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee pursuant to Section 6.10.
(2) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.8 and shall fail to resign after written request therefor by the Company or
any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the
Company, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a
bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such
series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of such series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable requirements of Section 6.10. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon
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its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner
required by Section 6.10, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(6) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
(7) In no event shall any retiring Trustee be liable for the compensation, acts or omissions of
any successor Trustee hereunder.
Section 6.10. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute
and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 10.3, shall duly assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 6.7.
(2) Upon the
appointment hereunder of any successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (iii) 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
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herein or in such supplemental indenture shall constitute such Trustees
co-trustees
of the same trust, that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall have no further
responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates and subject to Section 10.3 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for in Section 6.7.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall
be qualified and eligible under this Article.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding by sale or otherwise to all or substantially all of the corporate trust business of the Trustee shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.12. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment or pursuant to Section 3.6, and
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Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each
Authenticating Agent must be acceptable to the Company and, except as provided in or pursuant to this Indenture, shall at all times be a Corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding by sale or otherwise to all or substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the
Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay each
Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.
The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to each Authenticating Agent.
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If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant
to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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as Trustee
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Dated:
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By:
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as Authenticating Agent
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By:
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Authorized Officer
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If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which
writing need not be accompanied by or contained in an Officer’s Certificate by the Company), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or cause to be furnished to the Trustee,
(1) semi-annually with respect to Securities of each series not later than May 1 and November 1 of the year or upon such other dates
as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable
date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided
,
however
, that so long as the Trustee is the Security Registrar no such list shall be required to be
furnished.
Section 7.2. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
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Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that none of the Company, the Trustee, any Paying Agent or any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with
Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing with the first September 15 following the first issuance of Securities
pursuant to Section 3.1, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such September 15 with respect to
any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) and (b) of the Trust Indenture Act at the times specified
therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act.
Section 7.4. Reports by Company.
So long as any Securities covered by this Indenture are outstanding, the Company shall (i) file with the Commission within the time
periods prescribed by its rules and regulations and applicable to the Company; and (ii) furnish to the Trustee and the holders of the Securities within 15 days after the date on which the Company would be required to file the same with the
Commission pursuant to its rules and regulations (giving effect to any grace period provided by Rule
12b-25
under the Exchange Act), all quarterly and annual financial information to the extent required of the
Company to be contained in Forms
20-F,
10-Q
and
10-K
and, with respect to the annual consolidated financial statements only, a
report thereon by the Company’s independent auditors. The Company shall not be required to file any report or other information with the Commission if the Commission does not permit such filing, although such reports will be required to be
furnished to the Trustee. Documents filed by the Company with the Commission via the EDGAR system will be deemed to have been furnished to the Trustee and the Holders of the Securities as of the time such documents are filed via EDGAR.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).
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ARTICLE 8
CONSOLIDATION, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other Person (whether or not affiliated with the Company), or sell, assign,
convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Company), and the Company shall not permit any other Person (whether or not affiliated with
the Company) to consolidate with or merge into the Company or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to the Company; unless:
(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company as
an entirety or substantially as an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof, the District of Columbia or the Republic of The Marshall Islands and shall expressly assume,
by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the successor Person and delivered to the Trustee the due and punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Securities and the performance of every obligation in this Indenture and the Outstanding Securities on the part of the Company to be performed or observed and shall provide for conversion or exchange rights
in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default or event which, after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.2. Successor Person
Substituted for Company.
Upon any consolidation by the Company with or merger of the Company into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
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every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; and thereafter, except in the case of a lease,
the predecessor Person shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company (when authorized by or pursuant to a Board Resolution) and the Trustee (upon
Company Order), at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company,
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender any right or power herein conferred upon the Company; or
(3) [Reserved];
(4) to
establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
(5) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10; or
(6) to cure any ambiguity or to
correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities of any series then Outstanding in any material respect; or
(7) to add to, delete from or revise
the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to Article 4, provided that any such action shall not adversely affect the interests of any Holder of an Outstanding Security of such series or any other Outstanding Security in any
material respect; or
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(10) to secure the Securities; or
(11) to make provisions with respect to conversion or exchange rights of Holders of Securities of any series then Outstanding; or
(12) to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any Securities then Outstanding.
Section 9.2. Supplemental Indentures With
Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture including consents obtained in connection with a tender offer or exchange offer, by Act of said Holders delivered to the Company and the Trustee, the Company (when authorized by or pursuant to a
Company’s Board Resolution) and the Trustee (upon Company Order) may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture or of the Securities of such series;
provided
,
however
, that no such supplemental indenture, without the consent of the
Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any Security, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts with respect thereto, or
any premium payable upon the redemption thereof or otherwise, or change the obligation of the Company to pay Additional Amounts pursuant to the terms hereof (except as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or
reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or the amount thereof provable in bankruptcy pursuant to
Section 5.4, change the redemption provisions or adversely affect the right of repayment at the option of any Holder as contemplated by Article 13, or change the Place of Payment, Currency in which the principal of, any premium or interest
on, or any Additional Amounts with respect to any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of repayment at the option of the Holder, on or after the date for repayment), or
(2) reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 15.4 for quorum or voting, or
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(3) modify any of the provisions of this Section, Section 5.13 or Section 10.8, except
to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or
(4) change the ranking of the Outstanding Securities of any series, or
(5) make any change that adversely affects the right to convert or exchange any Security into or for securities of the Company or other
securities (whether or not issued by the Company), cash or property in accordance with its terms.
A supplemental indenture which changes
or eliminates any covenant or other provision of this Indenture which shall have been included expressly and solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trust created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate each stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent to the execution of such supplemental indenture have been fulfilled. The Trustee may, but 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.
Section 9.4. Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
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Section 9.6. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.7. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit to the Holders of Outstanding Securities of any series affected thereby a notice setting forth the substance of such supplemental indenture.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, Any Premium, Interest and Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the Securities of each series that it will duly and punctually pay the
principal of, any premium and interest on and any Additional Amounts with respect to the Securities of such series in accordance with the terms thereof and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of Securities an Office or Agency where Securities of such series may be
presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or exchange,
and where notices and demands to or upon the Company in respect of the Securities of such series relating thereto and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such Office or Agency. If at any time the Company shall fail to maintain any such required Office or Agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that the Trustee shall not serve as an agent or office for
the purpose of service of process on behalf of the Company.
The Company may also from time to time designate one or more other Offices or
Agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an Office or Agency in each Place of Payment for Securities of any series for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other Office or Agency. Unless otherwise provided in or pursuant to this Indenture, the Company hereby designates as the Place of Payment for each series of Securities the Borough of
Manhattan, The City of New York, and initially appoints the Corporate Trust Office of the Trustee as the Office or Agency of the
59
Company in the Borough of Manhattan, The City of New York for such purpose. The Company may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for
the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to Section 3.1, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one exchange rate agent.
Section 10.3. Money for Securities Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before
each due date of the principal of, any premium or interest on or Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it shall, on or prior to 10:00 a.m. New York City time
on the Business Day prior to each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of such series, deposit with any Paying Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled
thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to
Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any
payment of principal, any premium or interest on or any Additional Amounts with respect to the Securities of such series; and
(3) at any
time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of any series and remaining unclaimed for two years after such principal or any such premium or interest or any such
Additional Amounts shall have become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment for such series or to be
mailed to Holders of Registered Securities of such series, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing nor shall it be
later than two years after such principal and any premium or interest or Additional Amounts shall have become due and payable, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company agrees to pay to the Holder of any such Security
Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any
series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise provided
in or pursuant to this Indenture or the Securities of the applicable series, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer’s Certificate
instructing the Trustee and such
61
Paying Agent or Paying Agents whether such payment of principal of and premium, if any, or interest on the Securities of such series shall be made to Holders of Securities of such series without
withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such series. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if
any, required to be withheld on such payments to such Holders of Securities, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officer’s Certificate furnished pursuant to this Section 10.4.
Section 10.5. [Reserved.]
Section 10.6. [Reserved.]
Section 10.7.
Corporate Existence.
Subject to Article 8, the Company shall do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights (charter and statutory) and franchises;
provided
,
however
, that the foregoing shall not obligate the Company to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof is not disadvantageous in any material respect to any Holder.
Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 10.7 with respect to
the Securities of any series or in any other covenant provided for the benefit of such series pursuant to section 3.1 or 9.1 if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
Section 10.9. Company Statement as to Compliance; Notice of Certain Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officer’s Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during such year and of its performance under this Indenture has been made under his or her
supervision, and
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(b) to the best of his or her knowledge, based on such review, (i) the Company has complied
with all the conditions and covenants imposed on it under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him or her and the nature and
status thereof, and (ii) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
(2) The Company shall deliver to the Trustee, within thirty days after the occurrence thereof, written
notice of any Event of Default or any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (4) of Section 5.1, and the status thereof and what actions the Company is taking or proposes to
take in respect thereof.
(3) The Trustee shall have no duty to monitor the Company’s compliance with the covenants contained in this
Article 10.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers’ Certificates).
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Redemption of Securities of any series at the option of the Company as permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.
Section 11.2. Election to
Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of (i) less than all of the Securities of any series or (ii) all of the Securities of any series, with the same issue date, interest rate or formula, Stated Maturity and
other terms, the Company shall, at least 60 days but not more than 75 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed.
Section 11.3. Selection by Trustee of Securities to be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if less than all of the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption: (i) by lot or such other similar
method in accordance with applicable procedures of the Depository (if the
63
Securities are global notes), or (ii) if there are no such requirements of the Depository, on a pro rata basis and in compliance with any applicable stock exchange rules;
provided
,
however
, that no such partial redemption shall reduce the portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant
hereto.
The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the Securities of any series, if any Security selected for partial redemption
is converted into other securities of the Company or exchanged for securities of another issuer in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose
of such selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.6, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2)
the Redemption Price (or the formula for calculating it),
(3) if less than all Outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
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(5) that, on the Redemption Date, the Redemption Price shall become due and payable upon each
such Security or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) [Reserved],
(9)
[Reserved],
(10) in the case of Securities of any series that are convertible into Common Stock of the Company or exchangeable for other
securities, the conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate and the place or places where such Securities
may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of such
Securities, if any (or any other numbers used by a Depository to identify such Securities).
A notice of redemption published as
contemplated by Section 1.6 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to
be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company;
provided
,
however
, that the Company shall have delivered to the
Trustee, at least 45 days prior to the Redemption Date, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in this Section 11.4.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Business Day prior to any Redemption Date, the Company shall deposit, with respect to the
Securities of any series called for redemption pursuant to Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in the applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.1 or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date.
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Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date;
provided
,
however
, that, except as
otherwise specified in or pursuant to this Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.7. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING
FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture.
The minimum
amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities
of such series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series and this Indenture.
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Section 12.2. Satisfaction of Sinking Fund Payments With Securities.
The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the
Company), and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, provided that such series of Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this
Section 12.2, the principal amount of Securities of such series to be redeemed in order to satisfy the remaining sinking fund payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,
provided
,
however
, that the Trustee or such Paying Agent shall at the request of the Company
from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 75 days and not more than 90 days prior to each sinking fund payment date for any series of Securities, the Company shall deliver
to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.
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ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series, and such Holder shall provide the Trustee and the Company with prior written notice of its election to have such Securities repaid. The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 3.9, shall not operate as a payment, redemption or satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee with a directive that such Securities be cancelled. Notwithstanding anything to the contrary contained in this Section 13.1, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before the close of business
on the repayment date an amount not less than the repayment price payable by the Company on repayment of such Securities, and the obligation of the Company to pay the repayment price of such Securities shall be satisfied and discharged to the extent
such payment is so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 14.1. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series or pursuant to this
Indenture or the Securities, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate
to the date of such action, determination of rights or distribution) as the Company may specify in a written notice to the Trustee. Notwithstanding anything contained herein to the contrary, any issuance of Securities denominated in a currency other
than Dollars must be acceptable to the applicable Depository and prior to the issuance of any Securities denominated in a currency other than Dollars the Company must obtain the prior written consent of the Trustee.
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ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 15.1, to be
held at such time and at such place in the Borough of Manhattan, The City of New York. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 15.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 1.6)
or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough
of Manhattan, The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section.
Section 15.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its agents and counsel and any representatives of the Company
and its counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for any meeting
of Holders of Securities of such series. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as determined
69
by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any reconvened meeting, such reconvened meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the adjournment of such reconvened meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 15.2(1), except that such notice need
be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that
series;
provided
,
however
, that, except as limited by the proviso to Section 9.2, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
Section 15.5.
Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.4 and the appointment of any proxy shall be proved in the manner specified in Section 1.4. Such
regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.4 or other proof.
(2) Holders of Securities representing 10% shall appoint a temporary chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(2), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
70
(3) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of Securities of such series held or represented by him;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes
cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 15.2
and, if applicable, Section 15.4. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
[
Intentionally left blank
]
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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SEASPAN CORPORATION
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Attest:
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By:
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/s/ David Spivak
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Name:
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David Spivak
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Title:
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Chief Financial Officer
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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/s/ Teresa Wyszomierski
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Name:
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Teresa Wyszomierski
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Title:
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Vice President
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Signature page to Indenture
EXHIBIT A
[If the Holder of this Security is a depository, such as The Depository Trust Company (“DTC”) or a nominee of DTC, this Security is
a Global Security and insert the following two legends:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THE SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),]
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF [CEDE & CO. OR IN] SUCH [OTHER] NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITORY] [DTC] (AND ANY PAYMENT IS MADE TO [CEDE & CO. OR TO] SUCH [OTHER] ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITORY] [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.]
[Insert any applicable
legend(s) required by the Internal Revenue Code]
SEASPAN CORPORATION
[Designation of Series]
SEASPAN
CORPORATION, a Marshall Islands corporation (hereinafter called the “Company”, which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay
to , or registered assigns, the principal sum of Dollars
($ )
on , [
If the Security is to bear interest prior to
Maturity, insert
— , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on and in each year,
commencing ,] [
If the Security is to bear interest at a fixed rate, insert
— at the rate
of % per annum] [
If the Security is to bear interest at an adjustable rate, insert
— at a rate per annum computed or determined in accordance
with the provisions below], until the principal hereof is paid or made available for payment [
If applicable, insert
—, and (to the extent that the payment of such interest shall be legally enforceable) at the rate
of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment and such interest
shall be payable on demand]. [
If applicable, insert
— Interest on this Security shall be computed on the basis of a
360-day
year of twelve
30-day
months. If
any Interest Payment Date or the maturity date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or the maturity date, as the case may be, to such next Business Day.] The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue or having been such holder, and may be paid to the Person in whose
A-1
name this Security (or one or more Predecessor Securities) is registered at the close of business on a subsequent special record date (which shall be at least 10 days before the payment date) for
the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to the Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture.
[
If the Security is not to bear interest prior to Maturity, insert
— The principal of this Security shall not bear interest except
in the case of a default in payment of principal upon acceleration or redemption or at the Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate
of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment
to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate
of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment
to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
Payment of
the principal of and [
If applicable, insert
— any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in The Borough of Manhattan, The City of New York, in such coin or currency
of the United States of America as at the time of payment is legal tender for payment of public and private debts [
If applicable, insert
— ;
provided
,
however
, that, at the option of the Company, interest may be paid by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register;] [
If applicable, insert
—
provided
,
further
, that payment to [DTC or] any [successor] depository may be made by wire transfer to the account designated by [DTC or] such [successor] depository in writing].
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of October 10, 2017 (herein called, together with all indentures supplemental thereto, the “Indenture”), between the Company and The Bank of New York Mellon, as Trustee (herein
called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face
hereof [, initially limited (subject to exceptions provided in the Indenture) to the aggregate principal amount of $ ].
[
If the Security is not an Original Issue Discount Security, insert
— If an Event of Default with respect to the Securities shall
occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.]
[
If the Security is an Original Issue Discount Security, insert
— If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [
insert formula for determining the
amount
]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and
interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
[
If applicable, insert
— The Securities may not be redeemed prior to the Stated Maturity.]
[
If applicable, insert
— The Securities are not subject to any sinking fund.]
[
If applicable, insert
— The Securities are subject to redemption [(l) [If applicable, insert — on in any year commencing
with the year and ending with the year through operation of
the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)]] [
If applicable, insert
— at any time [on or
after ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): if
redeemed on or before , % and if redeemed during the
12-month
period beginning of the years indicated at the Redemption Prices indicated below:
A-2
and thereafter at a Redemption Price equal to % of the principal amount, together in
the case of any such redemption [If applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date;
provided
,
however
, that installments of interest on this Security
whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[
If applicable, insert
— The Securities are subject to redemption
(1) on in any year commencing with the year and ending with the
year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: if redeemed during the
12-month
period beginning of the years indicated below:
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Year
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Redemption Price
for Redemption
through Operation
of the Sinking Fund
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Redemption Price for
Redemption Otherwise
than through Operation
of the Sinking Fund
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and thereafter at a Redemption Price equal to % of the principal amount, together in
the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date;
provided
,
however
, that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[
If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior
to , redeem any Securities as contemplated by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by
the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[
If applicable,
insert
— The sinking fund for the Securities provides for the redemption on in each year, beginning with the
year and ending with the year , of [not less than]
$ [(“mandatory sinking fund”) and not more than
$ ] aggregate principal amount of the Securities of this series. [The Securities acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made in the [describe order].]]
[
If applicable, insert
— Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60
days prior to the Redemption Date, all as provided in the Indenture.]
[
If applicable, insert
— In the event of redemption of
this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions permitting, with certain exceptions as therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the Securities of each series issued under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
A-3
Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series
at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Securities and of any Securities issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security, at the times, place and rate, and in the coin or currency, herein and
in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth therein and in this Security, the
transfer of this Security may be registered on the Security Register upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for that purpose in any place where the
principal of and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form in the
denominations of $ or any integral multiple thereof. As provided in the Indenture and subject to certain limitations set forth in the Indenture, and in
this Security, the Securities are exchangeable for a like aggregate principal amount of Securities of this series in different authorized denominations, as requested by the Holders surrendering the same.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith, other than in certain cases provided in the Indenture.
Prior
to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
[
If
applicable, insert
— The Indenture contains provisions whereby (i) the Company may be discharged from its obligations with respect to the Securities (subject to certain exceptions) or (ii) the Company may be released from its
obligations under specified covenants and agreements in the Indenture, in each case if the Company irrevocably deposits with the Trustee money or Government Obligations, or a combination thereof, in an amount sufficient, without consideration of any
reinvestment, to pay and discharge the entire indebtedness on all Securities of this series, and satisfies certain other conditions, all as more fully provided in the Indenture.]
This Security shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or
instruments entered into and, in each case, performed in said State.
All terms used in this Security without definition that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
[
Remainder of Page Intentionally Left Blank
]
A-4
Unless the Certificate of Authentication hereon has been executed by or on behalf of the Trustee
under the Indenture by the manual signature of one of its authorized officers, this Security shall not be entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the 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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Dated:
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By:
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Name:
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Title:
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Authorized Officer
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A-5
Exhibit 4.2
EXECUTION VERSION
This
FIRST SUPPLEMENTAL INDENTURE (this “
First Supplemental Indenture
”), dated as of October 10, 2017, between SEASPAN CORPORATION, a corporation duly organized and existing under the laws of the Republic of The Marshall Islands
(the “
Company
”), and THE BANK OF NEW YORK MELLON, as trustee (the “
Trustee
”).
RECITALS
WHEREAS, the Company and the Trustee have heretofore executed and delivered an indenture, dated as of October 10, 2017 (the
“
Indenture
”), providing for the issuance by the Company from time to time of its Securities to be issued in one or more series;
WHEREAS, Sections 2.1, 3.1 and 9.1 of the Indenture provide, among other things, that the Company and the Trustee may, without the consent of
Holders, enter into indentures supplemental to the Indenture to provide for specific terms applicable to any series of Securities;
WHEREAS, the Company intends by this First Supplemental Indenture to create and provide for the issuance of a new series of Securities to be
designated as the “7.125% Notes due 2027” (the “
Notes
”);
WHEREAS, pursuant to Section 9.1(4) of the
Indenture, the Trustee and the Company are authorized to execute and deliver this First Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder of Securities; and
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, issued upon the
terms and subject to the conditions set forth hereinafter and in the Indenture and delivered as provided in the Indenture against payment therefor, valid, binding and legal obligations of the Company according to their terms, and all actions
required to be taken by the Company under the Indenture to make this First Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
(a) All capitalized terms used herein and not otherwise defined below shall have the meanings ascribed thereto in the Indenture.
(b) The following are definitions used in this First Supplemental
Indenture, and to the extent that a term is defined both herein and in the Indenture, the definition in this First Supplemental Indenture shall govern with respect to the Notes.
“
Cash and Cash Equivalents
” means, as of a given date, the Company’s cash and cash equivalents as determined in
accordance with U.S. GAAP.
“
Continuing Director
” means a director who either was a member of the Board of Directors on
the issue date of the Notes or who becomes a member of the Board of Directors subsequent to that date and whose election, appointment or nomination for election by the Company’s stockholders is duly approved by a majority of the continuing
directors on the Board of Directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors in which such individual is named as nominee for
director.
“
Credit Facility
” means, with respect to the Company or any Subsidiary of the Company, any debt or commercial
paper facilities with banks or other lenders providing for revolving credit or term loans or any agreement treated as a finance or capital lease in accordance with U.S. GAAP.
“
Cross Default
” means, a default by the Company under any Credit Facility if such default:
(a) is caused by a failure to pay principal of, or interest or premium, if any, on outstanding indebtedness under such Credit Facility (other
than
non-recourse
indebtedness of any Subsidiary of the Company) prior to the expiration of the grace period for payment of such indebtedness set forth in such Credit Facility (“
payment
default
”); or
(b) results in the acceleration of such indebtedness prior to its maturity;
and, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under
which there has been a payment default or the maturity of which has been so accelerated, aggregates $25 million or more.
“
Default
” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“
Immaterial Subsidiary
” means any Subsidiary of the Company that is not a Significant Subsidiary.
“
Intangible Assets
” means, in respect of the Company as of a given date, the intangible assets of the Company of the types,
if any, presented in the Company’s consolidated balance sheet.
2
“
Net Worth
” means, as of a given date, the result of, without duplication:
(a) Total Assets, less
(b)
Intangible Assets, less
(c) Total Borrowings (without giving effect to any fair value adjustments pursuant to FASB’s Accounting
Standards Codification 820).
“
Non-Recourse
Liabilities
” means, in respect of the
Company or any Subsidiary thereof as of a given date, the
non-recourse
liabilities as described in subparts (a)-(h) of the definition of Total Borrowings that neither the Company nor any other Subsidiary
thereof provides any credit support of any kind to or is directly or indirectly liable as a guarantor or otherwise, other than a pledge of the equity interests in the
Non-
Recourse Subsidiary.
“
Non-Recourse
Subsidiary
” means any Subsidiary of the Company that has only
Non-Recourse
Liabilities or other liabilities as to which neither the Company nor any other Subsidiary thereof provides any credit support of any kind to or is directly or indirectly liable as a guarantor or
otherwise, other than a pledge of the equity interests in the
Non-Recourse
Subsidiary.
“
Permitted Holders
” means any of (a) Kyle Washington, Kevin Washington, Gerry Wang, Dennis Washington or any of their
estates, spouses, and/or descendants; (b) any trust for the benefit of the persons listed in (a) above; or (c) an Affiliate of any of the persons listed in (a) or (b) above.
“
Restricted Payment
” means any dividend or other distribution (whether in cash, securities or other property) with respect to
any shares of any class of capital stock of or other ownership interests in the Company or any Subsidiary of the Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock of or other ownership interests in the Company or any Subsidiary of the Company or any option, warrant or other right to acquire any
such shares of capital stock of or other ownership interests in the Company or any Subsidiary of the Company.
“
Significant
Subsidiaries
” or “
Significant Subsidiary
” means the “significant subsidiaries” or any “significant subsidiary” of the Company, as defined in Rule
1-02(w)
of
Regulation
S-X
under the Securities Act of 1933, as amended.
“
Total Assets
”
means, in respect of the Company on a consolidated basis, as of a given date the aggregate of the following, without duplication:
(a) all
of the assets of the Company of the types presented on its consolidated balance sheet; less
(b) Cash and Cash Equivalents; less
3
(c)
Non-Recourse
Liabilities; and less
(d) assets under any vessel construction or ship purchase agreement (including novation and assignment and assumption agreements) that the
Company is required to record on its books under U.S. GAAP even though the Company is no longer the legal owner of the vessel or legally obligated to take delivery of the vessel.
“
Total Borrowings
” means, in respect of the Company on a consolidated basis, as of a given date the aggregate of the
following, without duplication:
(a) the outstanding principal amount of any moneys borrowed; plus
(b) the outstanding principal amount of any acceptance under any acceptance credit; plus
(c) the outstanding principal amount of any bond, note, debenture or other similar instrument; plus
(d) the book values of indebtedness under a lease, charter, hire purchase agreement or other similar arrangement which would, in accordance
with U.S. GAAP, be treated as a finance or capital lease; plus
(e) the outstanding principal amount of all moneys owing in connection
with the sale or discounting of receivables (otherwise than on a
non-recourse
basis or which otherwise meet any requirements for
de-recognition
under U.S. GAAP); plus
(f) the outstanding principal amount of any indebtedness arising from any deferred payment agreements arranged primarily as a method of
raising finance or financing the acquisition of an asset (except trade payables); plus
(g) any fixed or minimum premium payable on the
repayment or redemption of any instrument referred to in clause (c) above; plus
(h) the outstanding principal amount of any
indebtedness of any person of a type referred to in the above clauses of this definition which is the subject of a guarantee given by the Company to the extent that such guaranteed indebtedness is determined and given a value in respect of the
Company on a consolidated basis in accordance with US GAAP; less
(i) Cash and Cash Equivalents; less
(j)
Non-Recourse
Liabilities.
Notwithstanding the foregoing, “Total Borrowings” shall not include any of the following:
(a) indebtedness or obligations arising from derivative transactions, such as protecting against interest rate or currency fluctuations; and
4
(b) indebtedness under any vessel construction or ship purchase agreement (including novation and
assignment and assumption agreements) that the Company is required to record on its books under U.S. GAAP even though the Company is no longer the legal owner of the vessel or legally obligated to take delivery of the vessel.
“
U.S. GAAP
” means generally accepted accounting principles in the United States of America.
“
Voting Stock
” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to
vote generally in the election of the board of directors of such Person.
For purposes of the foregoing definitions and the covenants set
forth in Article V of this First Supplemental Indenture, any accounting term, phrase, calculation, determination or treatment used, required or referred to is to be construed in accordance with U.S. GAAP in effect as of December 31, 2016.
Section 1.02.
Other Definitions
.
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Term
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Defined in Section
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“
Additional Amounts
”
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7.01(a)
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“
Change of Control
”
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4.01(a)
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“
Change of Control Purchase Date
”
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4.01(a)
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“
Change of Control Purchase Price
”
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4.01(a)
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“
Interest Payment Date
”
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2.04(c)
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“
Maturity Date
”
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2.04(b)
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“
Regular Record Date
”
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2.04(c)
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“
Specified Tax Jurisdiction
”
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7.01(a)
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“
Taxes
”
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7.01(a)
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Section 1.03.
Incorporation by Reference of Trust Indenture Act
.
This First Supplemental Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and
made a part of this First Supplemental Indenture. The following Trust Indenture Act terms have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Notes.
5
“indenture security holder” means a Holder.
“indenture to be qualified” means this First Supplemental Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this First Supplemental Indenture that are defined by the Trust Indenture Act, defined by Trust
Indenture Act reference to another statute or defined by Commission rules promulgated under the Trust Indenture Act have the meanings assigned to them by such definitions.
ARTICLE II
APPLICATION
OF SUPPLEMENTAL INDENTURE
AND CREATION, FORMS, TERMS AND CONDITIONS OF NOTES
Section 2.01.
Application of this First Supplemental Indenture
. Notwithstanding any other provision of this First Supplemental
Indenture, the provisions of this First Supplemental Indenture, including the covenants set forth herein, are expressly and solely for the benefit of the Holders of the Notes. The Notes constitute a separate series of Securities as provided in
Section 3.1 of the Indenture.
Section 2.02.
Creation of the Notes
. In accordance with Section 3.1 of the Indenture,
the Company hereby creates the Notes as a separate series of its Securities issued pursuant to the Indenture. The Notes shall be issued initially in an aggregate principal amount of up to $92,000,000.
Section 2.03.
Global Notes
. The Notes shall each be issued in the form of a global Security, duly executed by the Company and
authenticated by the Trustee, which shall be deposited with the Trustee as custodian for the Depository and registered in the name of “Cede & Co.,” as the nominee of the Depository. The Depository Trust Company initially shall
serve as Depository for the Notes. So long as the Depository, or its nominee, is the registered owner of a global Security, the Depository or its nominee, as the case may be, shall be considered the sole owner or Holder of the Notes represented by
such global Security for all purposes under the Indenture and under such Notes. Ownership of beneficial interests in such global Security shall be shown on, and transfers thereof will be effective only through, records maintained by the Depository
or its nominee (with respect to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests of beneficial owners).
6
Section 2.04.
Terms and Conditions of the Notes
.
The Notes shall be governed by all the terms and conditions of the Indenture, as supplemented by this First Supplemental Indenture. In
particular, the following provisions shall be terms of the Notes:
(a)
Title and Conditions of
the Notes
. The title of the Notes shall be as specified in the Recitals; and the aggregate principal amount of the Notes shall be unlimited.
(b)
Stated Maturity
. The Notes shall mature, and the principal of the Notes shall be due and
payable in Dollars to the Holders thereof, together with all accrued and unpaid interest thereon, on October 30, 2027 (the “
Maturity Date
”).
(c)
Payment of Principal and Interest; Additional Amounts
. The Notes shall bear interest at
7.125% per annum, from and including October 10, 2017, or from the most recent Interest Payment Date (as defined hereafter) on which interest has been paid or provided for until the principal thereof becomes due and payable, and on any overdue
principal. Interest shall be calculated on the basis of a
360-day
year comprised of twelve
30-day
months. Interest on the Notes shall be payable quarterly in arrears in
Dollars on January 30, April 30, July 30 and October 30 of each year, commencing on January 30, 2018 (each such date, an “
Interest Payment Date
” for the purposes of the Notes issued under this First
Supplemental Indenture). Payments of interest shall be made to the Person in whose name a Note (or predecessor Note) is registered at the close of business on January 15, April 15, July 15 or October 15 (whether or not that date
is a Business Day), as the case may be, immediately preceding such Interest Payment Date (each such date, a “
Regular Record Date
” for the purposes of the Notes issued under this First Supplemental Indenture). All payments in respect
of the Notes shall include Additional Amounts as and to the extent set forth in Article VII of this First Supplemental Indenture.
(d)
Registration and Form; Denomination
. The Notes shall be issuable as registered securities as
provided in Section 2.03 of this Article II. The form of the Notes shall be as set forth in Exhibit A attached hereto, which is incorporated herein by reference. The Notes shall be issued and may be transferred only in minimum
denomination of $25.00 and integral multiples of $25.00 in excess thereof.
(e)
Legal Defeasance
and Covenant Defeasance
. The provisions for legal defeasance in Section 4.2(2) of the Indenture, and the provisions for covenant defeasance in Section 4.2(3) of the Indenture, shall be applicable to the Notes. If the Company shall
effect a covenant defeasance of the Notes pursuant to Section 4.2(3) of the Indenture, (1) the Company shall cease to have any obligation to comply with the covenants and agreements set forth in Articles IV and V of this First
Supplemental Indenture and Section 7.4 of the Indenture and (2) the Events of Default set forth in Sections 6.01(a) and 6.01(b) of this First
7
Supplemental Indenture (but only with respect to Significant Subsidiaries), the Event of Default set forth in Section 6.02(c) of this First Supplemental Indenture and the Event of Default
set forth in Section 5.1(8) of the Indenture and Section 6.02(b) of this First Supplemental Indenture, shall no longer constitute Events of Default for purposes of the Notes.
(f)
Further Issuance
. Notwithstanding anything to the contrary contained herein or in the
Indenture, the Company may, from time to time, without the consent of or notice to the Holders, create and issue further securities having the same interest rate, maturity and other terms (except for the issue date, the public offering price and the
first Interest Payment Date) as, ranking equally and ratably with, the Notes. Additional Notes issued in this manner shall be consolidated with and shall form a single series with the previously outstanding Notes and shall be fungible with the Notes
for United States federal income tax purposes. No such additional securities may be issued if an Event of Default has occurred and is continuing with respect to the Notes.
(g)
Redemption
. The Notes will be redeemable by the Company at its option prior to maturity as
set forth in Sections 3.01 and 3.02 of this First Supplemental Indenture.
(h)
Sinking
Fund
. The Notes are not entitled to any sinking fund.
(i)
Other Terms and Conditions
.
The Notes shall have such other terms and conditions as provided in the form thereof attached as Exhibit A hereto.
ARTICLE III
REDEMPTION
Section 3.01.
Optional Redemption for Changes in Withholding Taxes
. The Company may redeem the Notes, at its option, at any time
in whole but not in part, upon not less than 30 nor more than 60 days’ notice (which notice will be irrevocable), at a Redemption Price equal to 100% of the outstanding principal amount of Notes, plus accrued and unpaid interest (if any) to,
but not including, the applicable Redemption Date and all Additional Amounts (if any) then due and which will become due on the applicable Redemption Date (subject to the right of Holders of record on the relevant record date to receive interest due
on the relevant Interest Payment Date and Additional Amounts (if any) in respect thereof), in the event that the Company determines in good faith that the Company has become or would become obligated to pay, on the next date on which any amount
would be payable with respect to the Notes, Additional Amounts and such obligation cannot be avoided by taking reasonable measures available to the Company (including making payment through a paying agent located in another jurisdiction), as a
result of:
(1) a change in or an amendment to the laws (including any regulations or rulings promulgated thereunder) of
any Specified Tax Jurisdiction affecting taxation, which change or amendment is announced or becomes effective on or after the date of the Indenture; or
8
(2) any change in or amendment to any official position of
a taxing authority in any Specified Tax Jurisdiction regarding the application, administration or interpretation of such laws, regulations or rulings (including a holding, judgment or order by a court of competent jurisdiction), which change or
amendment is announced or becomes effective on or after the date of the Indenture.
Notwithstanding the foregoing, no such notice of
redemption may be given earlier than 60 days prior to the earliest date on which the Company would be obligated to pay Additional Amounts if a payment in respect of the Notes were then due. Before the Company publishes, mails or delivers notice of
redemption of the Notes as described above, the Company will deliver to the Trustee and Paying Agent (a) an Officer’s Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Company to so redeem have occurred and (b) an opinion of a nationally recognized independent legal counsel that the Company has or will become obligated to pay Additional Amounts as a result of
the circumstances referred to in clause (1) or (2) of the preceding paragraph.
The Trustee and Paying Agent will accept and will be
entitled to conclusively rely upon the Officer’s Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, in which case they will be conclusive and binding on the Holders.
Except to the extent inconsistent with the foregoing, all provisions of Article II of the Indenture shall apply to any redemption
pursuant to this Section 3.01.
Section 3.02.
Optional Redemption
. The Company may redeem the Notes at its option, in
whole or in part, at any time on or after October 10, 2020, upon not less than 30 nor more than 60 days’ prior notice, at a Redemption Price equal to 100% of their principal amount, plus accrued and unpaid interest to, but not including, the
Redemption Date. Article 11 of the Indenture shall apply to any such redemption of the Notes.
Section 3.03.
Open Market
Repurchases
. Notwithstanding any provision hereunder or in the Indenture to the contrary, the Company and its Affiliates may purchase Notes from investors who are willing to sell from time to time, either in the open market at prevailing prices
or in private transactions at negotiated prices. Notes that the Company or any of its Affiliates purchase may, at the Company’s discretion, be held, resold or canceled.
9
ARTICLE IV
CHANGE OF CONTROL
Section 4.01.
Change of Control
.
(a) If a Change of Control occurs at any time, Holders will have the right, at their option, to require
the Company to purchase for cash any or all of the Notes, or any portion of the principal amount thereof, that is equal to $25 or an integral multiple of $25. The price the Company is required to pay (the “
Change of Control Purchase
Price
”) is equal to 101% of the principal amount of the Notes to be purchased plus accrued and unpaid interest to but excluding the Change of Control Purchase Date (unless the Change of Control Purchase Date is after a record date and on or
prior to the interest payment date to which such record date relates, in which case the Company will instead pay the full amount of accrued and unpaid interest to the Holder on such record date and the Change of Control Purchase Price will be equal
to 101% of the principal amount of the Notes to be purchased). The “
Change of Control Purchase Date
” will be a date specified by the Company that is not less than 20 or more than 35 calendar days following the date of the Change of
Control notice as described below. Any Notes purchased by the Company will be paid for in cash. A “
Change of Control
” will be deemed to have occurred at the time after the Notes are originally issued if
(1) any “Person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than one or more Permitted Holders, is or becomes the “Beneficial Owner” (as defined in
Rules 13d-3
and
13d-5
under the Exchange Act, except that
for purposes of this clause (1) such Person shall be deemed to have “Beneficial Ownership” of all shares that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company;
(2) the merger or consolidation of the Company with or into another Person or the merger of another
Person with or into the Company, or the sale of all or substantially all the assets of the Company (determined on a consolidated basis) to another Person other than (i) a transaction in which the survivor or transferee is a Person that is
controlled by the Permitted Holders or (ii) a transaction following which, in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the Company immediately prior to such
transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person in such
merger or consolidation transaction immediately after such transaction and in substantially the same proportion as before the transaction; or
10
(3) “Continuing Directors” cease to constitute
at least a majority of the Board of Directors.
(b) On or before the 20th day after the occurrence
of a Change of Control, the Company will provide to all Holders and the Trustee and Paying Agent a notice of the occurrence of the Change of Control and of the resulting purchase right. Such notice shall state, among other things: (i) the
events causing a Change of Control; (ii) the date of the Change of Control; (iii) the last date on which a Holder may exercise the repurchase right; (iv) the Change of Control Purchase Price; (v) the Change of Control Purchase
Date; (vi) the name and address of the Paying Agent; and (vii) the procedures that Holders must follow to require the Company to purchase their Notes.
(c) Simultaneously with providing such notice, the Company will publish a notice containing this
information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(d) To exercise the Change of Control purchase right, Holders must deliver, on or before the Business
Day immediately preceding the Change of Control Purchase Date, the Notes to be purchased, duly endorsed for transfer, together with a written purchase notice and the form entitled “Option of Holder to Elect Purchase” on the reverse side of
the Notes duly completed, to the Paying Agent. The purchase notice must state: (i) if certificated, the certificate numbers of the Notes to be delivered for purchase or if not certificated, the notice must comply with appropriate Depository
procedures; (ii) the portion of the principal amount of Notes to be purchased, which must be $25 or a multiple thereof; and (iii) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the
Indenture.
(e) Holders may withdraw any purchase notice (in whole or in part) by a written notice
of withdrawal delivered to the Paying Agent prior to the close of business on the Business Day immediately preceding the Change of Control Purchase Date. The notice of withdrawal shall state: (i) the principal amount of the withdrawn Notes;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, the notice must comply with appropriate Depository procedures; and (iii) the principal amount, if any, which remains
subject to the purchase notice.
(f) On each Change of Control Purchase Date, the Company will, to
the extent lawful, (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the applicable Change of Control offer made by the Company, (ii) deposit with the Paying Agent at least one Business Day prior to the
Change of Control Purchase Date an amount equal to the Change of Control
11
Purchase Price in respect of all Notes or portions of Notes properly tendered pursuant to the applicable Change of Control offer made by the Company and (iii) deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. If the Paying Agent holds money or securities sufficient to pay
the Change of Control Purchase Price of the Notes on the Change of Control Purchase Date, then: (i) the Notes will cease to be outstanding and interest will cease to accrue (whether or not book-entry transfer of the Notes is made or whether or
not the Notes are delivered to the Paying Agent); and (ii) all other rights of the Holder will terminate (other than the right to receive the Change of Control Purchase Price).
(g) In connection with any purchase offer pursuant to a Change of Control purchase notice, the Company
will, if required, comply with the provisions of the tender offer rules under the Exchange Act that may then be applicable and file a Schedule TO or any other required schedule under the Exchange Act. To the extent that the provisions of any
such securities laws or regulations conflict with the Change of Control provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of
Control provisions of the Notes by virtue of such conflicts.
(h) No Notes may be purchased at the
option of Holders upon a Change of Control if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date.
ARTICLE V
COVENANTS
The covenants set forth in this Article V shall be applicable to the Company in addition to the covenants in Article X of
the Indenture, which shall in all respects be applicable in respect of the Notes.
Section 5.01.
Limitation on Borrowings
.
The Company shall not permit Total Borrowings to equal or exceed 75% of Total Assets.
Section 5.02.
Limitation on Minimum Net Worth
.
The Company shall ensure that its Net Worth always exceeds four hundred and fifty million dollars ($450,000,000).
12
Section 5.03.
Reports
.
During the period that any Cross Default exists, at the request of any Holder, the Company shall provide, to the extent that it is not
prevented or restricted from doing so by the provisions of any relevant Credit Facility, to such Holder any report or other information that is provided to any lender or other financier under the Credit Facility giving rise to the Cross Default. As
a condition to the receipt of such report or other information, such Holder must agree not to disclose such report or information to any third party or to purchase or sell any of the Company’s securities on the basis of any material, nonpublic
information included in such report or other information.
Section 5.04.
Restricted Payments
.
The Company will not, nor will the Company permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, except (a) the Company may make Restricted Payments payable solely in equity interests issued by the Company and not in cash, (b) a Subsidiary of the Company may make Restricted Payments in cash to the Company or
another Subsidiary of the Company and in each case to other owners of the equity of such Subsidiary on a pro rata basis and (c) the Company may make any other Restricted Payments in cash in accordance with applicable law so long as after giving
effect thereto no Default has occurred and is continuing and no Default will result therefrom.
Section 5.05.
Line of
Business
.
The primary business of the Company and its Subsidiaries, taken as a whole, shall be the direct or indirect ownership,
management, operation, leasing or chartering of container vessels and containers and any business incidental thereto.
Section 5.06.
Fundamental Changes
.
The Company will not, nor will the Company permit any of its Subsidiaries (other than an Immaterial
Subsidiary) to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with the Company or its Subsidiaries, or sell, transfer, lease (other than leases and charters in the ordinary course of
business) or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of the assets of the Company, or all or any substantial part of the stock of any of the Subsidiaries of the Company (in each case,
whether owned on the date of the Indenture or thereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
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(1)
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any Subsidiary may merge into the Company in a transaction in which the Company is the surviving corporation;
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(2)
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any Subsidiary may merge into any other Subsidiary in a transaction in which the consolidated ownership interest percentage in the surviving Subsidiary is no less than the consolidated ownership interest percentage in
either predecessor entity;
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(3)
|
any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Company or to another Subsidiary;
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(4)
|
any Subsidiary may liquidate or dissolve if the Board of Directors determines in good faith that such liquidation or dissolution is in the best interest of the Company and is not materially disadvantageous to the
Holders;
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(5)
|
the Company and any Subsidiary may sell, transfer or otherwise dispose of any of the Company or its Subsidiaries’ assets (in the ordinary course of business or otherwise) in any transaction or series of
transactions so long as (A) the aggregate market value of all assets so sold, transferred, leased or otherwise disposed of under this clause (5) during any fiscal year does not exceed 25% of the aggregate market value of all of the Company
and its Subsidiaries’ assets on the last day of the immediately preceding fiscal year and (B) the Company receives, or the relevant Subsidiary receives, consideration at the time of such sale, transfer, lease or other disposition at least
equal to the fair market value (including as to the value of all
non-cash
consideration), as determined in good faith by the Board of Directors, of the assets subject to such sale, transfer, lease or other
disposition;
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(6)
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the Company and any of its Subsidiaries may enter into any sale, transfer or disposition that is followed by the leasing back of the asset sold, transferred or disposed of; and
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(7)
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so long as no Default or Change of Control would result therefrom, the Company and any of its Subsidiaries may acquire the assets or interests of any Person, by way of merger or consolidation, so long as, after taking
into account such acquisition, container vessels and any assets used in any business incidental thereto (which may include the ownership, management and leasing of containers) constitute at least 51% of the Company’s consolidated total assets.
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Section 5.07.
Compliance Measurement
.
Compliance with the covenants in this Article V shall be measured on the last day of each of the Company’s fiscal quarters,
commencing December 31, 2017. Within 60 days after the end of the first three fiscal quarters each fiscal year and within 120 days after the end of each fiscal year, the Company shall deliver to the Trustee an Officer’s Certificate confirming
compliance with each of the covenants in this Article V. Each such Officer’s Certificate will be made available to the Holders of the Notes upon request to the Trustee. The Company shall mail, within 10 Business Days of the discovery
thereof, to all Holders of the Notes and Trustee, notice of any Default in compliance with the covenants in this Article V.
14
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01.
Modifications of Certain Events of Default
. The Events of Default in Article V of the Indenture shall be
applicable to the Notes, except that the following Events of Default in this Section 6.01 supersede in their entirety the Events Default set forth in Sections 5.1(5), 5.1(6) and 5.1(7) of the Indenture:
(a) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company or any Significant Subsidiary in an
involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company or any Significant Subsidiary to be insolvent, or approving
a petition seeking reorganization, arrangement, adjustment or composition of the Company or any Significant Subsidiary and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and
non-appealable
order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the Company or any Significant Subsidiary of any substantial part of the property of the Company or any Significant Subsidiary or ordering the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary;
(b) the commencement by the Company or any
Significant Subsidiary of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company or any Significant
Subsidiary to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by
the Company or any Significant Subsidiary of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company or any Significant Subsidiary or relief under any applicable law, or the consent by the
Company or any Significant Subsidiary to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or any Significant Subsidiary or any
substantial part of the property of the Company or any Significant Subsidiary or the making by the Company or any Significant Subsidiary of an assignment for the benefit of creditors, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; and
15
(c) any Indebtedness of the Company (other than the
Securities) with an aggregate principal amount outstanding, individually or in the aggregate, of at least $25,000,000 shall not have been paid when due and upon the demand of its holders and within any applicable grace period after final maturity
(or when otherwise due by acceleration or otherwise).
Section 6.02.
Additional Events of Default
. In addition to the Events
of Default in Article V of the Indenture, as amended by Section 6.01 of this First Supplemental Indenture, the following shall be Events of Default with respect to the Notes:
(a) failure by the Company to perform or comply with the provisions of Article VIII of the Indenture
relating to mergers and similar events; and
(b) failure by the Company to provide notice of a
Change of Control or to repurchase Notes tendered for repurchase following the occurrence of a Change of Control in conformity with the covenant set forth in Article IV of this First Supplemental Indenture.
ARTICLE VII
ADDITIONAL
AMOUNTS
Section 7.01.
Additional Amounts
.
(a) All payments made by or on behalf of the Company under or with respect to the Notes will be made
free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter
“
Taxes
”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of the government of the Republic of Marshall
Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any
jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a “
Specified Tax Jurisdiction
”), will at any time be required to be made from any payments made under or
with respect to the Notes. The Company will pay such additional amounts (the “
Additional Amounts
”) as may be necessary so that the net amount received in respect of such payments by a Holder (including Additional Amounts) after such
withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted;
provided
,
however
, that the foregoing obligation to pay Additional Amounts does not apply to:
(1) any Taxes that would not have been so imposed but for the Holder or beneficial owner of the
Notes having any present or former connection with the Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of payment in respect of the Notes);
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(2) any estate, inheritance, gift, sales, excise,
transfer, personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes
payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of the failure of the Holder or beneficial owner of the Notes to
complete, execute and deliver to the Company any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be
delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a
written request therefor by the Company;
(5) any Taxes that would not have been so imposed but for
the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly
provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such
30-day
period);
(6) any Taxes imposed on or with respect to any payment by the Company to the Holder if such Holder is a
fiduciary or partnership or Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have
been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes that are required to be deducted or withheld on a payment pursuant to European Council
Directive 2003/48/EC or any law implementing, or introduced in order to conform to, such directive; or
(8) any combination of items (1) through (7) above.
(b) If the Company becomes aware that it will be obligated to pay Additional Amounts with respect to any
payment under or with respect to the Notes, the Company will deliver to the Trustee and Paying Agent at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment
date, in which case the Company will notify the Trustee and Paying Agent promptly thereafter but in no event later
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than two Business Days prior to the date of payment) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officer’s
Certificate shall also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officer’s
Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount
deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not
obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of
the Notes.
(d) Whenever in the Indenture or this First Supplemental Indenture there is referenced,
in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or any other amount payable under, or with respect to, the Notes, such reference will be deemed to include payment of Additional Amounts as
described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the
full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for
which the Company would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by
the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or
property taxes, charges or similar levies that arise in any Specified Tax Jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Indenture or any other document or instrument in relation thereof, or the receipt of
any payments with respect to the Notes, and the Company will indemnify the Holders for any such taxes paid by such Holders.
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Section 7.02.
Obligations to Survive
. The obligations described in Section 7.01
of this First Supplemental Indenture will survive any termination, defeasance or discharge of the Indenture and will apply
mutatis mutandis
to any jurisdiction in which any successor person to the Company is organized or any political
subdivision or authority or agency thereof or therein.
ARTICLE VIII
MISCELLANEOUS
Section 8.01.
Ratification of Indenture
.
This First Supplemental Indenture is executed and shall be constructed as an indenture supplement to the Indenture, and as supplemented and
modified hereby, the Indenture is in all respects ratified and confirmed, and the Indenture and this First Supplemental Indenture shall be read, taken and constructed as one and the same instrument.
Section 8.02.
Trust Indenture Act Controls
.
If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be
included in this First Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 8.03.
Notices
.
All notices and other communications shall be given as provided in the Indenture.
Section 8.04.
Governing Law
.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE OR INSTRUMENTS ENTERED INTO AND, IN EACH CASE, PERFORMED IN THE STATE OF NEW YORK.
Section 8.05.
Successors
.
All covenants and agreements in this First Supplemental Indenture and the Notes by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 8.06.
Counterparts
.
This First Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute
but one and the same instrument.
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Section 8.07.
Headings
.
The Article and Section headings of this First Supplemental Indenture are for convenience only and shall not affect the construction hereof.
Section 8.08.
Trustee Not Responsible for Recitals
The recitals contained herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture or of the Notes, except
that the Trustee represents that it is duly authorized to execute and deliver this First Supplemental Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form
T-1
supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of
the Notes or the proceeds thereof.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly executed
as of the date first written above.
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COMPANY:
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SEASPAN CORPORATION
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By:
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/s/ David Spivak
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Name:
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David Spivak
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Title:
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Chief Financial Officer
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Signature page to First Supplemental Indenture
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TRUSTEE:
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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/s/ Teresa Wyszomierski
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Name:
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Teresa Wyszomierski
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Title:
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Vice President
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Signature page to First Supplemental Indenture
EXHIBIT A
FORM OF NOTE
THIS NOTE IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS 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.
CUSIP NO. 81254U403
ISIN NO. US81254U4031
SEASPAN CORPORATION
7.125% SENIOR NOTE DUE 2027
SEASPAN CORPORATION, a Marshall Islands corporation (hereinafter called the “
Company
”, which
term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to [●] / [insert if Global Security: Cede & Co.], or registered assigns, the principal sum [of $[●]
([●] DOLLARS)] [insert if Global Security: set forth on Schedule I annexed hereto] on October 30, 2027, and to pay interest thereon from October 10, 2017 or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, quarterly on January 30, April 30, July 30 and October 30 in each year, commencing January 30, 2018, at the rate of 7.125% per annum, until the principal hereof is paid or made available for payment.
Interest on this Note shall be computed on the basis of a
360-day
year of twelve
30-day
months. If any Interest Payment Date or the Maturity
Exhibit A - Page 1
Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to such next Business Day. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be January 15, April 15,
July 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but not punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant Regular Record Date by virtue or having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a subsequent special record date (which shall be at least 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to the Holders of Notes of this
series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note
(including, without limitation, any purchase price relating to a Change of Control) will be made at the office or agency of the Company maintained for that purpose in The Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and private debts;
provided
,
however
, that, at the option of the Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register;
provided
,
further
, that payment to DTC or any successor depository may be made by wire transfer to the account designated by DTC or such successor depository in
writing.
This Note is one of a duly authorized issue of securities of the Company designated as its 7.125% Notes due 2027 (herein called
the “
Notes
”), issued and to be issued in one or more series under an Indenture, dated as of October 10, 2017 (the “
Base Indenture
”), between the Company and The Bank of New York Mellon, as Trustee (herein
called the “
Trustee
”, which term includes any successor trustee under the Indenture), as supplemented by the First Supplemental Indenture, dated October 10, 2017, between the Company and the Trustee (the “
First
Supplemental Indenture
” and, together with the Base Indenture, the “
Indenture
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
Exhibit A - Page 2
The Notes are redeemable by the Company at its option prior to maturity as set forth in Sections
3.01 and 3.02 of the First Supplemental Indenture.
The Notes are not subject to any sinking fund.
Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to purchase all or a portion of
such Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of purchase.
The Indenture contains provisions permitting, with certain exceptions as therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the Notes of each series issued under the Indenture at any time by the Company and the Trustee with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Notes at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes of any series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Notes issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note, at the times, place and rate, and in the coin or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth therein and in this Note, the transfer of this Note may be
registered on the Security Register upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for that purpose in any place where the principal of and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form in the denominations of $25 or any integral multiple thereof. As provided in the Indenture and
subject to certain limitations set forth in the Indenture, and in this Note, the Notes are exchangeable for a like aggregate principal amount of Notes of this series in different authorized denominations, as requested by the Holders surrendering the
same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith, other than in certain cases provided in the Indenture.
Exhibit A - Page 3
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged from its obligations with
respect to the Notes (subject to certain exceptions) or (ii) the Company may be released from its obligations under specified covenants and agreements in the Indenture, in each case if the Company irrevocably deposits with the Trustee money or
Government Obligations, or a combination thereof, in an amount sufficient, without consideration of any reinvestment, to pay and discharge the entire indebtedness on all Notes of this series, and satisfies certain other conditions, all as more fully
provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of the State of New York applicable
to agreements made or instruments entered into and, in each case, performed in said State.
All terms used in this Note without definition
that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[
Remainder of Page Intentionally Left
Blank
]
Exhibit A - Page 4
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the date set forth below.
Date:
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Exhibit A - Page 5
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
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THE BANK OF NEW YORK MELLON,
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as Trustee
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By:
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Authorized Signatory
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Exhibit A - Page 6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
the within Security and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said
Security on the books of the Company, with full power of substitution in the premises.
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NOTICE:
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THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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Signature Guarantee:
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit A - Page 7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.01
of the First Supplemental Indenture,
check the box:
☐
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.01 of the First Supplemental Indenture, state the amount in principal amount:
$
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Dated:
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Your Signature:
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(Sign exactly as your name appears on the other side of this Note.)
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Signature Guarantee:
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(Signature must be guaranteed)
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar,
which requirements include membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit A - Page 8
SCHEDULE OF TRANSFERS AND EXCHANGES
The initial principal amount of this Global Security is $[●] [(● DOLLARS)]. The following increases or decreases in principal
amount of this Global Security have been made:
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Date of
Exchange
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Amount of
Decrease in
Principal
Amount of this
Global Security
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Amount of
Increase in
Principal Amount
of this Global
Security
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Principal Amount
of this Global
Security following
such Decrease or
Increase
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Signature of
Authorized
Signatory of
trustee or
Custodian
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Exhibit A – Schedule
I