As filed with the Securities and Exchange Commission on May 12, 2010
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DHT HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
_______________________
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Republic of the Marshall Islands
(State or other jurisdiction of incorporation or organization)
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26 New Street
St. Helier, Jersey JE2 3RA
Channel Islands
+44 (0) 1534 639759
(Address and telephone number of
registrant’s principal executive offices)
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N/A
(I.R.S. Employer
Identification Number)
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_______________________
C T Corporation
111 Eighth Avenue
New York, New York 10011
(212) 550-9100
(Name, address and telephone
number of agent for service)
With copies to:
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Erik R. Tavzel, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
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_______________________
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount to be
registered(1)
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Proposed maximum
offering price per
unit(2)
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Proposed maximum
aggregate offering
price(1)(3)
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Amount of
registration fee
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Common stock, par value $.01 per share
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Preferred stock, par value $.01 per share
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Debt securities
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Total
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100% | $ | 200,000,000 | $ | 14,260 | ||||||||
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There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock and such indeterminate principal amount of debt securities as will have an aggregate initial offering price not to exceed $200 million, or if any securities are issued in any foreign currency units, the equivalent thereof in foreign currencies. This registration statement shall also cover any additional securities to be offered or issued from stock splits, stock dividends, recapitalizations or similar transactions. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed $200 million, less the aggregate do
llar amount of all securities previously issued hereunder. The securities being registered also include such indeterminate principal amount of debt securities and such indeterminate number of shares of preferred stock and common stock as may be issued upon conversion of, or in exchange for, any other debt securities or preferred shares that provide for conversion or exchange.
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(2)
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The proposed maximum aggregate offering price for each class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of securities pursuant to General Instruction II.C. of Form F-3 under the Securities Act of 1933, as amended.
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(3)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o) of Regulation C under the Securities Act of 1933, as amended.
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion.
Preliminary Prospectus dated May 12, 2010.
Prospectus
$200,000,000
Through this prospectus, we may periodically offer:
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our common stock;
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our preferred stock; and
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our debt securities.
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We may from time to time offer and sell the securities directly or through agents, underwriters or broker-dealers at prices and on terms to be determined at the time of sale. These sales may be made on The New York Stock Exchange or other national security exchanges on which our common stock is then traded, in the over-the-counter market or in negotiated transactions. See the section entitled “Plan of Distribution” on page 10 of this prospectus. To the extent required, the names of any agent, underwriter or broker-dealer and applicable commissions or discounts and any other required information with respect to any particular offer will be set forth in a prospectus supplement, which will accompany this prospectus. The prices and other terms of the securities that we will offer will be determined at the
time of their offering and will be described in a prospectus supplement. A prospectus supplement may also add, update or change information contained in this prospectus.
Our common stock is listed on The New York Stock Exchange under the symbol “DHT.”
Investing in our securities involves risk. Before buying any securities you should carefully read the section entitled “Risk Factors” on page 8 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2010.
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You should rely only on the information contained in this prospectus. We have not authorized anyone to provide you with additional or different information. We are not making an offer of these securities in any jurisdiction or state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the cover of this prospectus.
This prospectus is part of a registration statement we have filed with the Securities Exchange Commission, or the “Commission,” using a shelf registration process. Under the shelf registration process, we may, from time to time, sell the securities described in this prospectus in one or more offerings up to a total dollar amount of $200 million. This prospectus provides you with a general description of the securities that may be offered by us. Each time we sell securities, we are required to provide you with this prospectus, as well as a prospectus supplement containing specific information about the terms of the securities being offered. That prospectus supplement may include additional risk factors or other special considerations applicable to those particular securities. Any prospectus supplement m
ay also add, update or change information in this prospectus. If there is any inconsistency between the information contained in this prospectus and any prospectus supplement, you should rely on the information contained in that particular prospectus supplement. You should read both this prospectus and any prospectus supplement, together with all additional information described in the section entitled “Where You Can Find Additional Information” on page 32 of this prospectus.
This prospectus does not contain all the information provided in the registration statement we have filed with the Commission. For further information about us or the securities offered hereby, you should refer to that registration statement, which you can obtain from the Commission as described in the section entitled “Where You Can Find Additional Information” on page 32 of this prospectus.
Before investing in our securities, you should carefully read this prospectus, any accompanying prospectus supplement and the documents incorporated by reference for a more complete understanding of our business and this offering. You should pay special attention to the section entitled “Risk Factors” on page 8 of this prospectus, as well as our financial statements and the related notes.
Unless we specify otherwise, all references and data in this prospectus to our “business,” our “vessels” and our “fleet” refer to the seven vessels comprising our initial fleet (the “initial vessels”) that we acquired simultaneously with the closing of our initial public offering, or “IPO,” on October 18, 2005 and the two Suezmax tankers that we acquired subsequent to our IPO. Unless we specify otherwise, all references in this prospectus to “we,” “our,” “us” and “our company” refer to DHT Holdings, Inc. and its subsidiaries. All references in this prospectus to “DHT Maritime” refer to DHT Maritime, Inc. Our company’s functional currency is the U.S. dollar. All of our re
venues and most of our operating costs are in U.S. dollars. All references in this prospectus to “$” and “dollars” refer to U.S. dollars.
Our Company
We operate a fleet of crude oil tankers. As of March 31, 2010, our fleet consisted of three very large crude carriers, or “VLCCs,” which are tankers ranging in size from 200,000 to 320,000 deadweight tons, or “dwt,” two Suezmax tankers, or “Suezmaxes,” which are tankers ranging in size from 130,000 to 170,000 dwt, and four Aframax tankers, or “Aframaxes,” which are tankers ranging in size from 80,000 to 120,000 dwt. Our fleet principally operates on international routes and had a combined carrying capacity of 1,656,921 dwt and an average age of approximately ten years as of March 31, 2010, compared with an average age of approximately 9.7 years for the world crude tanker fleet.
We acquired our seven initial vessels from subsidiaries of Overseas Shipholding Group, Inc., or “OSG,” on October 18, 2005 in exchange for cash and shares of our common stock and have time chartered these vessels back to certain subsidiaries of OSG. In addition, on December 4, 2007 and January 28, 2008, we acquired our two Suezmaxes, the Overseas Newcastle and the Overseas London, respectively, in exchange for cash and have bareboat chartered these vessels to certain subsidiaries of OSG.
Our strategy is to charter our vessels primarily pursuant to multi-year charters so as to take advantage of the stable cash flow associated with long-term charters. In addition, the majority of our charter arrangements include a profit sharing component that gives us the opportunity to earn additional hire when vessel earnings exceed the basic hire amounts set forth in the charters. As of March 31, 2010, seven of the nine vessels were operated in the Tankers International Pool, the Suezmax International Pool and the Aframax International Pool and we expect our potential to earn additional hire will benefit from the higher utilization rates realized by these pools. In a pooling arrangement, the net revenues generated by all of the vessels in a pool are aggregated and distributed to pool members pursuant to a pre-ar
ranged weighting system that recognizes each vessel’s earnings capacity based on its cargo capacity, speed and consumption, and actual on-hire performance.
On October 18, 2005, we agreed to time charter our initial vessels to subsidiaries of OSG for terms of five to six and one-half years. Each time charter for our initial vessels may be renewed by the charterer on one or more successive occasions for periods of one, two or three years, up to an aggregate of five, six or eight years, depending on the vessel, from the initial expiration date. On November 26, 2008, we entered into an agreement with OSG whereby OSG exercised its option to extend the charters for the initial vessels upon expiry of the vessels’ initial charter periods. For two of the vessels, the charters were extended at the base rate for 18 months after the initial charter periods expire in October 2010. For five of the vessels, the charters were extended for 12 months following the expiry of the
initial charter periods between April 2011 and April 2012 at a base rate for the extension periods which will be the base rate stipulated in the charter agreements or, if the one year time charter rate is lower, a base rate which is no more than $5,000 per day below the base rate stipulated in the charter agreements. When a time charter is renewed, the charter terms providing for profit sharing will remain in effect and the charterer, at the time of exercise, will have the option to select a basic charter rate that is equal to (i) 5% above the published one-, two- or three-year time charter rate (corresponding to the extension length) for the vessel’s class, as decided by a shipbrokers’ panel (subject to specified floors, for certain of our vessels for the declared extension period), or (ii) the basic hire rate set forth in the applicable charter. The shipbrokers’ panel will be The Association of Shipbrokers and Agents Tanker Broker Panel, or the “Broker Panel,” or ano
ther panel of brokers mutually acceptable to us and the charterer.
Upon delivery to us of our Suezmax, the Overseas Newcastle, on December 4, 2007, the vessel was bareboat chartered to a subsidiary of OSG for a term of seven years at a basic bareboat charter rate of $26,300 per day for the first three years of the charter term, and $25,300 per day for the last four years of the charter term. In addition to the bareboat charter rate, we will, through the profit sharing element of the charter agreement, earn 33% of the vessel’s earnings above the time charter equivalent rate of $35,000 per day for the first three years of the charter term and above $34,000 per day for the last four years of the charter term, calculated on a four quarter rolling average. At the end of the seven year charter term, OSG has the right to acq
uire the vessel for $77 million.
Upon delivery to us of our other Suezmax, the Overseas London, on January 28, 2008, the vessel was bareboat chartered to a subsidiary of OSG for a term of ten years at a basic bareboat charter rate of $26,600 per day for the term of the charter. There is no profit sharing element under this bareboat charter. OSG has the right to acquire the vessel at the end of the eighth, ninth and tenth year of the charter term at a price of $71 million, $67 million and $60 million, respectively. If OSG elects to exercise its purchase option, we will, in addition to the purchase option price, receive an amount equal to 40% of the difference between the market price of the vessel at the time the purchase option is exercised and the purchase option price.
DHT Maritime was incorporated under the name of Double Hull Tankers, Inc. in April 2005 under the laws of the Marshall Islands. In June 2008, the stockholders voted to approve an amendment to DHT Maritime’s articles of incorporation to change its name to DHT Maritime, Inc. On February 12, 2010, DHT Holdings, Inc. was incorporated under the laws of the Marshall Islands. On March 1, 2010, DHT Maritime effected a series of transactions, or the “2010 Transactions,” that resulted in DHT Holdings, Inc. becoming the publicly held parent company of DHT Maritime. As a result, DHT Holdings, Inc. became the successor issuer to DHT Maritime pursuant to Rule 12g-3(a) of the Securities Exchange Act of 1934, as amended, or “Exchange Act.” In connection with the 2010 Transactions, each stockholder of
DHT Maritime common stock on March 1, 2010 received one share of DHT Holdings, Inc. common stock for each share of DHT Maritime common stock held by such stockholder on such date. Following the 2010 Transactions, shares of DHT Maritime no longer trade on The New York Stock Exchange, or “NYSE.” Instead, shares of DHT Holdings, Inc. common stock now trade on the NYSE under the ticker symbol “DHT,” which is the same ticker symbol of DHT Maritime. Our principal executive offices are located at 26 New Street, St. Helier, Jersey, Channel Islands, JE2 3RA and our telephone number at that address is +44 (0) 1534 639759. Our website address is www.dhtholdings.com. The information on our website is not a part of this prospectus.
Our Fleet
We purchased our three VLCCs and four Aframaxes from subsidiaries of OSG in connection with our IPO. Our three VLCCs, due to their large size, principally operate on long-haul routes from the Middle East or West Africa to the Far East, Northern Europe, the Caribbean and the U.S. Gulf, trading through the Tankers International Pool. Although our four Aframaxes are also designed for global trading, two of our Aframaxes typically trade through the Aframax International Pool in the Atlantic Basin on shorter-haul routes between Northern Europe, the Caribbean, the United States and the Mediterranean Sea. Our remaining two Aframaxes are employed in OSG’s lightering trade, primarily in the U.S. Gulf. The two Suezmaxes principally operate on routes from West Africa to the U.S. Gulf, and in the Atlantic Basin on
routes between Northern Europe, the Caribbean, the United States and the Mediterranean.
The following table presents certain information concerning our seven initial vessels and their associated time charters, each of which commenced on October 18, 2005:
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Vessel
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Type
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Approximate Dwt
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Year
Built
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Term of
Initial
Charter
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2010
Basic Charter Rate(1)
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Term of Extension Periods
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Maximum Aggregate Extension
Term
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(years)
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($/day)
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(years)
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(years)
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Overseas Ann
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VLCC
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309,327 | 2001 | 6½ | $ | 37,800 |
1, 2 or 3
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7 | |||||||||||||||
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Overseas Chris
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VLCC
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309,285 | 2001 | 6 | 37,800 |
1, 2 or 3
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7 | ||||||||||||||||
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Overseas Regal
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VLCC
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309,966 | 1997 | 5½ | 37,800 |
1, 2 or 3
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5 | ||||||||||||||||
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Overseas Cathy
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Aframax
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112,028 | 2004 | 6¼ | 25,100 |
1, 2 or 3
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7 | ||||||||||||||||
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Overseas Sophie
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Aframax
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112,045 | 2003 | 5¾ | 25,100 |
1, 2 or 3
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7 | ||||||||||||||||
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Overseas Rebecca
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Aframax
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94,873 | 1994 | 5 | 19,100 |
1, 2 or 3
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3½ | ||||||||||||||||
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Overseas Ania
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Aframax
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94,848 | 1994 | 5 | 19,100 |
1, 2 or 3
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3½ | ||||||||||||||||
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(1) Amounts represent basic hire charter rates, which increase annually by amounts that vary by vessel class and year.
The following table presents certain information concerning our two Suezmaxes and their associated bareboat charters, each of which commenced upon delivery of the vessels on December 4, 2007 and January 28, 2008, respectively:
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Vessel
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Type
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Dwt
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Year
Built
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Delivery
Date
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Term of Bareboat
Charter
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(years)
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Overseas Newcastle
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Suezmax
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164,626
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2001
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Dec. 2007
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7
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Overseas London
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Suezmax
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152,923
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2000
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Jan. 2008
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10
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Our Charters
We have time chartered our three VLCCs and four Aframaxes to subsidiaries of OSG for remaining charter terms ranging between two and three years. In addition, OSG has extension options ranging from three to seven years. We have bareboat chartered each of our Suezmaxes to subsidiaries of OSG for terms of seven years and ten years, respectively, which commenced upon delivery of the vessels in early December 2007 and late January 2008, respectively. The daily base charter rate for each of our vessels, which we refer to as basic hire, is payable to us monthly in advance.
With respect to our seven initial vessels, the charterers and OSG International, Inc., or “OIN,” the charterers’ parent company, have agreed to pay us, in addition to the basic hire, an additional payment, quarterly in arrears, which we refer to as “additional hire.” The additional hire payable, if any, in respect of any given quarter will be equal to 40% of the excess, if any, of the aggregate charter hire earned (or deemed earned in the event that a vessel is operated in the spot market outside a pool) by the charterers on all of our vessels above the aggregate basic hire paid by the charterers to us in respect of all of our vessels during the calculation period. Revenue is calculated on an aggregate fleetwide basis, and depends on whether our vessels are operated in a po
ol:
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if a vessel is operated in a pool, revenue earned by that vessel equals the share of actual pool net earnings allocated to the charterer, as determined by a formula administered by the pool manager; and
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if a vessel is operated outside of a pool:
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for periods that the charterer subcontracts the vessel under a time charter, revenue earned by that vessel equals the time charter hire earned by the charterer, net of specified fees incurred by the charterer; and
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for periods that the charterer does not subcontract the vessel in the time charter market, revenue deemed to be earned by that vessel is based on average spot market rates, which are rates for the immediate chartering of a vessel (usually for a single voyage), determined by a shipbrokers’ panel for a series of routes commonly served by vessels of the same class.
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A pool constitutes a collection of similar vessels under various ownerships that are placed for operation under one administrator, which we refer to as the “pool manager.” The pool manager markets the vessels as a single, cohesive fleet and collects, or pools, their net earnings prior to distributing them to the individual owners under a pre-arranged weighting system that recognizes each vessel’s earnings capacity based on its cargo capacity, speed and consumption, and actual on-hire performance. Pools offer their participants more opportunities to enter into multi-legged charters and contracts of affreightment, which can reduce non-earning days through scheduling efficiencies.
The three VLCCs in our fleet currently participate in the Tankers International Pool, in which OSG and eight other tanker companies participate. As of March 31, 2010, the Tankers International Pool consisted of 41 VLCCs and V Pluses, making it one of the world’s largest VLCC fleets. Two of the four Aframaxes in our fleet currently participate in the Aframax International Pool, the world’s second largest Aframax fleet, which, as of March 31, 2010, operated 41 Aframaxes and has 11 members, including OSG (which is the pool manager).
With respect to the Overseas Newcastle, one of our Suezmaxes, the charterer has agreed to pay us, in addition to the basic hire, additional hire equal to 33% of the average revenue that the vessel earns for the charterer (averaged on a rolling four quarter basis) in excess of the time charter equivalent rate of $35,000 per day for the first three years of the charter term and above $34,000 per day for the last four years of the charter term. We do not receive any additional hire in respect of the Overseas London, our other Suezmax.
Technical Management of Our Fleet
In connection with each of our VLCCs and Aframaxes, we have entered into ship management agreements with Tanker Management, a wholly-owned subsidiary of OSG, with effect from January 16, 2009, which we refer to as the “ship management agreements.” Under the ship management agreements, Tanker Management is responsible for performing the technical management of these vessels, including crewing, maintenance, ordinary repairs and scheduled drydockings. In exchange for these services, we pay Tanker Management the actual cost of operating and drydocking of the vessel as well as an annual fixed management fee. The ship management agreements are cancelable by us or Tanker Management for any reason at any time upon 90 days’ prior written notice to the other. If a ship management agreement is terminat
ed, we will be required to pay a termination fee of $45,000 per vessel to cover costs of the manager associated with termination. We will also be required to obtain the consent of the applicable charterer and our lenders before we appoint a new manager; provided, however, such consent may not be unreasonably withheld. Our two Suezmaxes are on bareboat charters to subsidiaries of OSG. We do not incur any operating costs associated with these vessels, since under a bareboat charter arrangement the charterer is responsible for paying all costs of operating the vessel, including voyage, vessel expenses and the cost of drydocking.
Dividend Policy
We did not pay any quarterly dividends to holders of our common stock in the first quarter of 2010 or the last three quarters of 2009. Our board of directors may review and amend our dividend policy from time to time in accordance with any future growth of our fleet or for other reasons.
Our Credit Facility
We are a holding company and have no significant assets other than the equity interests in our subsidiaries. DHT Maritime’s subsidiaries own all of our vessels, and payments under our charters are made to DHT Maritime’s subsidiaries. On October 18, 2005, DHT Maritime and its subsidiaries entered into a $401 million secured credit facility with The Royal Bank of Scotland, or “RBS,” for a term of ten years, with no principal amortization for the first five years. This secured credit facility initially consisted of a $236 million term loan, a $150 million vessel acquisition facility and a $15 million working capital facility. The secured credit facility is secured by mortgages on all of our vessels, assignments of earnings and insurances and pledges over DHT Maritime’s bank accounts. DHT
Maritime is the borrower under the secured credit facility and each of DHT Maritime’s vessel owning subsidiaries has guaranteed its performance thereunder.
DHT Maritime borrowed the entire amount available under the term loan upon the completion of our IPO to fund a portion of the purchase price for the seven initial vessels that we acquired from certain subsidiaries of OSG. On November 29, 2007, DHT Maritime amended the secured credit facility to increase the total commitment thereunder by $19 million to $420 million. Under the terms of the amended secured credit facility, the previous $15 million working capital facility and $150 million vessel acquisition facility were cancelled and replaced with a new $184 million vessel acquisition facility, which was used to fund the entire purchase price of our two Suezmaxes, the Overseas Newcastle and the Overseas London
. Following delivery of the Overseas London on January 28, 2008, the acquisition facility was fully drawn.
In October 2008, DHT Maritime repaid $75 million under the secured credit facility. In June 2009, DHT Maritime repaid a further $50 million under the secured credit facility and in March 2010, DHT Maritime prepaid $28 million under the secured credit facility in connection with the 2010 Transactions. Following these repayments, the secured credit facility is repayable with $0.25 million in July 2012, $4.0 million in October 2012 and January 2013, $4.4 million in April 2013, 16 quarterly payments from July 2013 to April 2017 of $9.1 million and a final payment of $108.1 million in July 2017.
Borrowings under the initial $236 million term loan bear interest at an annual rate of LIBOR plus a margin of 0.70%. Borrowings under the vessel acquisition portion of the secured credit facility bear interest at an annual rate of LIBOR plus a margin of 0.85%. To reduce our exposure to fluctuations in interest rates, we entered into an interest rate swap on October 18, 2005 pursuant to which we fixed the interest rate for five years on the full amount of the term loan at 5.60%. On October 16, 2007, we fixed the interest rate for five years on $100 million of the outstanding debt at a rate of 5.95% through a swap agreement with respect to $92.7 million effective as of December 4, 2007 and a further $7.3 million effective as of January 18, 2008. In June 2009 and in connection with the 2010 Transactions, we terminate
d $42 million and $35 million notional amount under such swap agreement, respectively. We were required to pay a $1.5 million fee in connection with the arrangement of the secured credit facility (which we funded with a portion of the net proceeds from our IPO). We were required to pay an arrangement fee of $95,000 in October 2007 in connection with the increase in the secured credit facility from $401 million to $420 million.
We have identified a number of risk factors which you should consider before buying the securities described in this prospectus. These risk factors are incorporated by reference into this prospectus from our most recent annual report on Form 20-F filed with the Commission. For further details, see the section entitled “Where You Can Find Additional Information” on page 32 of this prospectus. In addition, you should carefully consider any risks set forth under the heading “Risk Factors” in the accompanying prospectus supplement before investing in the securities offered by this prospectus. If the events discussed in the risk factors referred to above occur, our business, financial condition, results of operations or cash flows could be materially and adversely affected. In such a case, the m
arket price of our common stock could decline and you may lose all or part of your investment. The risks referred to above are not the only ones that may exist. Additional risks not currently known by us or risks that we deem immaterial may also impair our business operations.
Unless we specify otherwise in any prospectus supplement, we intend to use the net proceeds from the sale of securities offered by this prospectus for general corporate purposes, which may include, without limitation, vessel acquisitions, business acquisitions or other strategic alliances, reduction of outstanding borrowings, capital expenditures and working capital.
Our consolidated ratio of earnings to fixed charges for each of the periods indicated is set forth below. We have derived the ratios of earnings to fixed charges from our historical consolidated financial statements. For the 290 days from January 1, 2005 to October 17, 2005 the consolidated financial statements represent the predecessor combined carve-out financial statements of the seven subsidiaries of OSG that owned the vessels comprising our initial fleet. The predecessor combined carve-out financial statements are not indicative of the results we would have achieved had we operated as an independent public company for any period presented. The ratio should be read in conjunction with our consolidated financial statements, including the notes thereto, and the other financial information included or incorporate
d by reference herein. Our ratio of earnings to fixed charges for the three months ended March 31, 2010 and the two fiscal years ended December 31, 2008 and 2009 has been calculated in accordance with International Financial Reporting Standards, or “IFRS,” as issued by the International Accounting Standards Board. For all prior periods, this ratio has been calculated in accordance with U.S. Generally Accepted Accounting Principles, or “U.S. GAAP,” which differ in certain respects from IFRS.
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For the Year Ended December 31,
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For the Period
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For the Three Months Ended
March 31, 2010
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2009
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2008
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2007
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2006
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Oct. 18 - Dec. 31, 2005
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Jan. 1 - Oct. 17, 2005
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Ratio of Earnings to Fixed Charges
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* | 1.82 | 2.92 | 2.90 | 3.56 | 4.30 | 13.14 | |||||||||||||||||||||
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*For the three months ended March 31, 2010, earnings were insufficient to cover fixed charges by approximately $2.2 million.
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We have computed the ratio of earnings to fixed charges set forth above by dividing earnings by fixed charges. For the purpose of determining the ratio of earnings to fixed charges, earnings include pre-tax income from continuing operations plus fixed charges. Fixed charges consist of interest on all indebtedness and cost of swap termination but excluding fair value gain/loss on derivative financial instruments. For a more detailed calculation of the ratio of earnings to fixed charges, see Exhibit 12.1 to the registration statement.
As of the date of this prospectus, we have no preference shares outstanding and have not declared or paid any dividends on preference shares for the periods set forth above.
We may offer and sell, from time to time, some or all of the securities covered by this prospectus up to a total of $200 million. Registration of the securities covered by this prospectus does not mean, however, that those securities necessarily will be offered or sold.
We may sell the securities covered by this prospectus from time to time, in one or more transactions, at market prices prevailing at the time of sale, at prices related to market prices, at a fixed price or prices subject to change, at varying prices determined at the time of sale or at negotiated prices, by a variety of methods, including the following:
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on The New York Stock Exchange or any other national securities exchange or U.S. inter-dealer system of a registered national securities association on which our common stock may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in privately negotiated transactions;
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in an exchange distribution in accordance with the rules of the applicable exchange;
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as settlement of short sales entered into after the date of the prospectus;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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through broker-dealers, who may act as agents or principals;
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through sales “at the market” to or through a market-maker;
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in a block trade, in which a broker-dealer will attempt to sell a block as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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through one or more underwriters on a firm commitment or best-efforts basis;
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directly to one or more purchasers;
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through agents;
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in options transactions;
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over the internet;
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any other method permitted pursuant to applicable law; or
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in any combination of the above.
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In effecting sales, brokers or dealers engaged by us may arrange for other brokers or dealers to participate. Broker-dealer transactions may include:
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purchases of the securities by a broker-dealer as principal and resales of the securities by the broker-dealer for its account pursuant to this prospectus;
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ordinary brokerage transactions; or
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transactions in which the broker-dealer solicits purchasers.
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In addition, we may sell any securities covered by this prospectus in private transactions or under Rule 144 of the Securities Act of 1933, as amended, or “Securities Act,” rather than pursuant to this prospectus.
In connection with the sale of securities covered by this prospectus, broker-dealers may receive commissions or other compensation from us in the form of commissions, discounts or concessions. Broker-dealers may also receive compensation from purchasers of the securities for whom they act as agents or to whom they sell as principals or both. Compensation as to a particular broker-dealer may be in excess of customary commissions or in amounts to be negotiated. In connection with any underwritten offering, underwriters may receive compensation in the form of discounts, concessions or commissions from us or from purchasers of the securities for whom they act as agents. Underwriters may sell the securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commiss
ions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Any underwriters, broker-dealers, agents or other persons acting on our behalf that participate in the distribution of the securities may be deemed to be “underwriters” within the meaning of the Securities Act, and any profit on the sale of the securities by them and any discounts, commissions or concessions received by any of those underwriters, broker-dealers agents or other persons may be deemed to be underwriting discounts and commissions under the Securities Act.
In connection with the distribution of the securities covered by this prospectus or otherwise, we may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of our securities in the course of hedging the positions they assume with us. We may also sell securities short and deliver the securities offered by this prospectus to close out our short positions. We may also enter into option or other transactions with broker-dealers or other financial institutions, which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prosp
ectus, as supplemented or amended to reflect such transaction. We may also from time to time pledge our securities pursuant to the margin provisions of our customer agreements with our brokers. Upon our default, the broker may offer and sell such pledged securities from time to time pursuant to this prospectus, as supplemented or amended to reflect such transaction.
At any time a particular offer of the securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions or other items constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the Commission to reflect the disclosure of additional information with respect to the distribution of the securities co
vered by this prospectus. In order to comply with the securities laws of certain states, if applicable, the securities sold under this prospectus may only be sold through registered or licensed broker-dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from registration or qualification requirements is available and is complied with.
In connection with an underwritten offering, we would execute an underwriting agreement with an underwriter or underwriters. Unless otherwise indicated in the revised prospectus or applicable prospectus supplement, such underwriting agreement would provide that the obligations of the underwriter or underwriters are subject to certain conditions precedent, and that the underwriter or underwriters with respect to a sale of the covered securities will be obligated to purchase all of the covered securities, if any such securities are purchased. We may grant to the underwriter or underwriters an option to purchase additional securities at the public offering price, less any underwriting discount, as may be set forth in the revised prospectus or applicable prospectus supplement. If we grant any such option, the terms of
that option will be set forth in the revised prospectus or applicable prospectus supplement.
Pursuant to a requirement by the Financial Industry Regulatory Authority, or “FINRA,” the maximum commission or discount to be received by any FINRA member or independent broker-dealer may not be greater than 8% of the gross proceeds received by us for the sale of any securities being registered pursuant to SEC Rule 415 under the Securities Act.
Underwriters, agents, brokers or dealers may be entitled, pursuant to relevant agreements entered into with us, to indemnification by us against certain civil liabilities, including liabilities under the Securities Act that may arise from any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state a material fact in this prospectus, any supplement or amendment hereto, or in the registration statement of which this prospectus forms a part, or to contribution with respect to payments which the underwriters, agents, brokers or dealers may be required to make.
We will bear all costs relating to all of the securities being registered under the registration statement of which this prospectus is a part.
A description of our common stock can be found in our Registration Statement on Form 8-A, filed with the Commission on October 7, 2005.
The material terms of any series of preferred stock that we offer, together with any material U.S. federal income tax considerations relating to such preferred stock, will be described in a prospectus supplement.
Our articles of incorporation authorize our board of directors to establish one or more series of preferred stock and to determine the terms of and rights attaching to such preferred stock, including with respect to, among other things, dividends, conversion, voting, redemption, liquidation, designation and the number of shares constituting any such series. The issuance of shares of preferred stock may have the effect of discouraging, delaying or preventing a change of control of us or the removal of our management. The issuance of shares of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of shares of our common stock.
We may offer unsecured general obligations or secured obligations, which may be senior (the “senior debt securities”) or subordinated (the “subordinated debt securities”). The senior debt securities and subordinated debt securities are together referred to in this prospectus as the “debt securities.” Any debt securities offered pursuant to this prospectus may be convertible debt securities. The debt securities may be issued from time to time in one or more series, under one or more indentures, the form of which is attached as an exhibit to the registration statement of which this prospectus forms a part, each dated as of a date on or prior to the issuance of the debt securities to which it relates. If we issue subordinated debt securities, the terms and provisions of
those securities will be set forth in a supplemental indenture. When we refer to an “indenture” in this prospectus, we are referring to the applicable indenture entered into between us and the trustee to be named in such indenture, as supplemented by any supplemental indenture. The indentures will be filed either as exhibits to an amendment to the registration statement of which this prospectus forms a part or a prospectus supplement, or as exhibits to reports filed under the Exchange Act that will be incorporated by reference into the registration statement of which this prospectus forms a part or a prospectus supplement. Each indenture will be subject to and governed by the Trust Indenture Act of 1939, or “Trust Indenture Act.” If we issue any subordinated debt securities, the description of those securities and the subordinated indenture will be set forth in the related prospectus supplement.
The following description of the terms of the debt securities sets forth certain general terms and provisions. The statements below are not complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable indenture and any applicable U.S. federal income tax considerations, as well as any applicable modifications of, or additions to, the general terms of the debt securities described below, which modifications and additions may be contained in the applicable prospectus supplement or supplemental indenture. Accordingly, for a complete description of the terms of a particular issue of debt securities, the general description of the debt securities set forth below should be read in conjunction with the applicable prospectus supplement and indenture, as amended o
r supplemented from time to time.
General
The indenture will not limit the aggregate principal amount of debt securities which may be issued. The debt securities may be issued in one or more series. Unless otherwise provided in a prospectus supplement, the senior debt securities will have the same rank as all our other unsubordinated indebtedness. Each series of subordinated debt securities may be senior or junior to, or rank pari passu with, our other subordinated obligations and will be entitled to payment only after payment on our senior indebtedness.
If we decide to issue any debt securities pursuant to this prospectus, we will describe in a prospectus supplement the terms of the debt securities being offered, including the following:
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the title, aggregate principal amount and authorized denominations;
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the issue price, expressed as a percentage of the aggregate principal amount;
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the maturity date;
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the interest rate or the method for determining the interest rate, if any;
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if the offered debt securities provide for interest payments, the date from which interest will accrue, the dates on which interest will be payable, the date on which payment of interest will commence and the regular record dates for interest payment dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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any optional or mandatory sinking fund provisions or conversion or exchangeability provisions;
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the date, if any, after which and the price or prices at which the offered debt securities may be optionally redeemed or must be mandatorily redeemed, and any other terms and provisions of optional or mandatory redemptions;
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the denominations in which offered debt securities of the series will be issuable;
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if other than the full principal amount, the portion of the principal amount of offered debt securities of the series which will be payable upon acceleration or provable in bankruptcy;
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any events of default not set forth in this prospectus;
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the currency or currencies, including composite currencies, in which principal, premium and interest will be payable, if other than the currency of the United States of America;
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if principal, premium or interest is payable, at our election or at the election of any holder, in a currency other than that in which the offered debt securities of the series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the election may be made;
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whether interest will be payable in cash or additional securities at our or the holder’s option and the terms and conditions upon which such election may be made;
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if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price in the currency of the United States of America for purposes of determining the voting rights of holders of those debt securities under the applicable indenture;
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if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the offered debt securities of the series are stated to be payable, the manner in which the amounts will be determined;
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whether the indenture will provide for any covenants, including covenants restricting our ability to pay dividends or incur additional indebtedness;
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whether the offered debt securities will be issued in the form of global securities or certificates in registered or bearer form;
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the identity of the depository for global securities;
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the terms of the subordination of any series of subordinated debt;
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any listing on any securities exchange or quotation system;
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additional provisions, if any, related to defeasance and discharge of the offered debt securities;
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whether payments on the offered debt securities will be made without withholding or deduction for any taxes or other governmental charges in effect on the date of issuance of the debt securities or imposed in the future;
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the amount of discount or premium, if any, with which such debt securities will be issued;
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a discussion of any material U.S. federal income tax considerations applicable to the debt securities; and
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additional terms, preferences, rights or limitations of, or restrictions on, the debt securities.
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Some or all of the debt securities may be issued as discounted debt securities, bearing no interest or interest at a rate which at the time of issuance is below market rates, to be sold at a substantial discount below the stated principal amount. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate securities. U.S. federal income tax consequences and other special considerations applicable to any such securities will be described in the applicable prospectus supplement.
We expect most debt securities to be issued in fully registered form without coupons, in denominations of $1,000 and any integral multiple thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, the debt securities may be transferred or exchanged at the principal corporate trust office of the applicable trustee. No service charge will be made for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with these debt securities.
Global Securities
We expect that the following provisions will generally apply to depository arrangements for any portion of a series of debt securities to be represented by a global security. Any additional or different terms of the depository arrangement will be described in the applicable prospectus supplement.
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified in the applicable prospectus supplement and registered in the name of the depository or a nominee for the depository. In such a case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by the global security or securities. Unless and until it is exchanged in whole or in part for the individual debt securities in definitive certificated form, a global security may not be transferred except as a whole by the depository for such global security to a nominee of such depository, or by a
nominee of such depository to such depository or another nominee of such depository, or by such depository or any such nominee to a successor of such depository or a nominee of such successor, and except in the circumstances described in the applicable prospectus supplement.
Upon the issuance of any global security, and the deposit of such global security with or on behalf of the depository for such global security, the depository will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual debt securities represented by such global security to the accounts of institutions that have accounts with such depository or its nominee. The accounts to be credited will be designated by the underwriters or agents engaging in the distribution of the debt securities or by us if the debt securities are offered and sold directly by us. Ownership of beneficial interests in a global security will be limited to participating institutions or persons that may hold interests through such participating institutions. Ownership of beneficial interests b
y participating institutions in a global security will be shown on, and the transfer of such beneficial interests will be effected only through, records maintained by the depository for such global security or by its nominee. Ownership of beneficial interests in a global security by persons that hold such interests through participating institutions will be shown on, and the transfer of such beneficial interests within the participating institutions will be effected only through, records maintained by those participating institutions. The laws of some jurisdictions may require that purchasers of securities take physical delivery of such securities in certificated form. Such limitations and laws may impair the ability to transfer beneficial interests in a global security.
So long as the depository for a global security, or its nominee, is the registered owner of such global security, such depository or its nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by such global security for all purposes under the applicable indenture. Except as otherwise provided in the applicable indenture and prospectus supplement, and except as specified below, owners of beneficial interests in a global security will not be entitled to have debt securities of the series represented by such global security registered in their names, will not receive or be entitled to receive physical delivery of any debt securities of such series in certificated form and will not be considered the owners or holders thereof for any purposes under the indenture. Acc
ordingly, each person owning a beneficial interest in a global security must rely on the procedures of the depository and, if such person is not a participating institution, on the procedures of the participating institution through which such person owns its interest, to exercise any rights of a holder under the indenture.
The depository may grant proxies and otherwise authorize participating institutions to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a holder is entitled to give or take under the applicable indenture. We understand that, under existing industry practices, if we request any action of holders or any owner of a beneficial interest in a global security desires to give any notice or take any action a holder is entitled to give or take under the applicable indenture, the depository would authorize the participating institutions to give the notice or take the action, and participating institutions would authorize beneficial owners owning through such participating institutions to give the notice or take the action or would otherwise act upon the instructions of
beneficial owners owning through them.
Unless otherwise provided in the applicable prospectus supplement, payments of principal, premium and interest on individual debt securities represented by a global security registered in the name of a depository or its nominee will be made by us to such depository or its nominee, as the case may be, as the registered owner of such global security.
We expect that the depository for any debt securities represented by a global security, or its nominee, upon receipt of any payment of principal, premium or interest, will credit participating institutions’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global security as shown on the records of the depository or its nominee. We also expect that payments by participating institutions to owners of beneficial interests in a global security held through such participating institutions will be governed by standing instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street names.” Such payments will be the responsibility of su
ch participating institutions. None of us, the trustee for the debt securities or any agent of ours or the trustees will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global security, or for maintaining, supervising or reviewing any records relating to such beneficial interests.
Unless otherwise specified in the applicable prospectus supplement or indenture, a global security of any series will be exchangeable for certificated debt securities of the same series only if:
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the depository for such global securities notifies us that it is unwilling or unable to continue as depository or such depository ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depository is not appointed by us within 90 days of such event;
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we in our sole discretion determine that the global security shall be exchangeable for certificated debt securities; or
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there shall have occurred and be continuing an event of default under the applicable indenture with respect to the debt securities of that series.
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If definitive debt securities are issued, an owner of a beneficial interest in the global security will be entitled to physical delivery of individual debt securities in certificated form of the series represented by that global security equal in principal amount to their beneficial interest, and to have the debt securities in certificated form registered in their name.
Covenants
The covenants, if any, that will apply to a particular series of debt securities will be set forth in the indenture relating to such series of debt securities and described in a prospectus supplement. These covenants may limit or restrict, among other things:
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the ability of us or our subsidiaries to incur either secured or unsecured debt, or both;
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our ability to make certain payments, dividends, redemptions or repurchases;
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our ability to create dividend and other payment restrictions affecting our subsidiaries;
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our ability to make investments;
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mergers and consolidations by us or our subsidiaries;
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sales of assets by us;
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our ability to enter into transactions with affiliates;
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our ability to incur liens; and
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our ability to enter into sale and leaseback transactions.
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You should carefully read the applicable prospectus supplement and indenture for a description of the specific covenants applicable to the series of debt securities being offered.
Modification of the Indenture
Modifications and amendments of the indenture as it applies to a series of debt securities may be made without notice to any holder but with the written consent of the holders of a majority in principal amount of the then outstanding debt securities of such series.
However, no such modification or amendment may, without the consent of the holder of each outstanding debt security affected thereby:
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reduce the principal amount of debt securities whose holders must consent to an amendment, modification, supplement or waiver;
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reduce the rate of or extend the time of payment for interest on any debt security;
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reduce the principal amount or extend the stated maturity of any debt security;
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reduce the amount payable upon the redemption of any debt security or add redemption provisions to any debt security;
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make any debt security payable in money other than that stated in the indenture or the debt security; or
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impair the right to institute suit for the enforcement of any payment with respect to the debt securities.
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Without the consent of any holder, we and the trustee may amend or supplement the indenture to surrender any right or power conferred upon us by the indenture, to add further covenants, restrictions, conditions or provisions for the protection of holders, to cure any ambiguity, omission, defect or inconsistency, to provide for the assumption by a successor of our obligations under the indenture as permitted thereunder, to provide for the issuance of additional debt securities in accordance with the limitations set forth in the indenture or to make any other change that does not adversely affect the rights of any holder.
Events of Default
Each of the following constitutes an event of default with respect to a series of debt securities:
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our failure to pay interest (including additional interest, if applicable) on any debt securities within 30 days of when such amount becomes due and payable;
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default in any payment of principal amount or redemption price with respect to any debt security when such amount becomes due and payable;
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default in the performance of any applicable covenant or agreement with respect to the debt securities or the applicable indenture which continues for 60 days after we receive notice of such default;
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default under any debt for money borrowed by us or any subsidiary that results in acceleration of the maturity of such debt, or failure to pay any such debt at maturity, in an aggregate amount in excess of a minimum amount set forth in the applicable indenture, without such debt having been discharged or acceleration having been rescinded or annulled within 10 days after we receive notice of such default;
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any judgment or judgments for the payment of money (to the extent not insured by a reputable and creditworthy insurer that has not contested coverage with respect to the underlying claim) in an aggregate amount in excess of a minimum amount set forth in the applicable indenture that shall be rendered against us or any subsidiary and that shall not be waived, satisfied or discharged for any period of 60 consecutive days during which a stay of enforcement shall not be in effect; and
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certain events of bankruptcy, insolvency or reorganization affecting us or any of our significant subsidiaries.
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There may be such other or different events of default as described in the applicable prospectus supplement and indenture with respect to any class or series of offered debt securities.
A default under the third bullet point above is not an event of default until the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities of such series then outstanding notify us of the default and we do not cure such default within the time specified after receipt of such notice. Such notice must specify the default, demand that it be remedied and state that such notice is a “Notice of Default.”
We will deliver to the trustee, within 30 days after the occurrence thereof, written notice in the form of an officers’ certificate of any event that with the giving of notice or the lapse of time or both would become an event of default, its status and what action we are taking or propose to take with respect thereto.
If an event of default (other than an event of default resulting from certain events involving bankruptcy, insolvency or reorganization with respect to us) shall have occurred and be continuing, the trustee or the registered holders of not less than 25% in aggregate principal amount of the debt securities of such series then outstanding may declare, by notice to us in writing (and to the trustee, if given by holders of such debt securities) specifying the event of default, to be immediately due and payable the principal amount of all the debt securities in such series then outstanding, plus accrued but unpaid interest to the date of acceleration. In case an event of default resulting from certain events of bankruptcy, insolvency or reorganization with respect to us shall occur, such amount with respect to all the
debt securities shall be due and payable immediately without any declaration or other act on the part of the trustee or the holders of the debt securities. After any such acceleration, but before a judgment or decree based on acceleration is obtained by the trustee, the registered holders of a majority in aggregate principal amount of the debt securities of such series then outstanding may, under certain circumstances, rescind and annul such acceleration and waive such event of default if all events of default, other than the nonpayment of accelerated principal, premium or interest, have been cured or waived as provided in the indenture.
In addition, the holders of at least a majority in principal amount of the then outstanding debt securities of a series may waive an existing default and its consequences under the indenture, except a default in the payment of principal or interest and in respect of certain covenants and provisions of the indenture which cannot be amended without the consent of the holder of each outstanding debt security in a series.
Subject to the provisions of the indenture relating to the duties of the trustee, in case an event of default shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of the debt securities, unless such holders shall have offered to the trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense. Subject to such provisions for the indemnification of the trustee, the holders of a majority in aggregate principal amount of the debt securities then outstanding will 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 t
he debt securities.
No holder of debt securities will have any right to institute any proceeding with respect to the indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, unless:
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such holder has previously given to the trustee written notice of a continuing event of default;
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the registered holders of at least 25% in aggregate principal amount of the debt securities of such series then outstanding have made a written request and offered indemnity to the trustee reasonably satisfactory to it to institute such proceeding as trustee; and
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the trustee shall not have received from the registered holders of a majority in aggregate principal amount of the debt securities of such series then outstanding a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days.
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However, such limitations do not apply to a suit instituted by a holder of any debt security for enforcement of payment of the principal of, and premium, if any, or interest on, such debt security on or after the respective due dates expressed in such debt security.
If a default with respect to the debt securities occurs and is continuing and is known to the trustee, the trustee must mail to each holder notice of the default within 90 days after it occurs. The trustee may withhold the notice if and so long as a committee of its trust officers in good faith determines that withholding notice is in the interest of the holders of the debt securities.
We are required to furnish to the trustee, within 120 days after the end of each fiscal year, a statement of an officer regarding compliance with the indenture. Within 30 days after the occurrence of any default or event of default, we are required to deliver to the trustee written notice in the form of an officer’s certificate a statement specifying our status and what actions we are taking or propose to take with respect thereto.
Defeasance and Discharge
We may terminate at any time all our obligations with respect to any series of debt securities and the applicable indenture, which we refer to in this prospectus as “legal defeasance,” except for certain obligations, including those respecting the defeasance trust, to replace mutilated, destroyed, lost or stolen debt securities and to maintain a registrar and paying agent in respect of the debt securities. In addition, we may also terminate at any time our obligations with respect to any series of debt securities with respect to certain covenants that are described in the applicable indenture, which we refer to in this prospectus as “covenant defeasance,” except for certain covenants, including the covenant to make payments in respect of the principal, premium, if any, and interest on the d
ebt securities. In the event covenant defeasance occurs, certain events (not including nonpayment, bankruptcy, receivership, reorganization and insolvency events) described under “—Events of Default” will no longer constitute events of default with respect to the debt securities. We may exercise the legal defeasance option notwithstanding our prior exercise of the covenant defeasance option.
If we exercise our legal defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default with respect thereto. If we exercise the covenant defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default specified in the third bullet point under “—Events of Default.”
The legal defeasance option or the covenant defeasance option with respect to a series of debt securities may be exercised only if:
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we irrevocably deposit in trust with the trustee money or U.S. Government obligations or a combination thereof for the payment of principal of and interest on such debt securities to maturity;
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we deliver to the trustee a certificate from a nationally recognized firm of independent registered public accountants expressing their opinion that the payments of principal and interest when due on the deposited U.S. Government obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the debt securities to maturity;
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123 days pass after the deposit is made and during the 123-day period no default described in the sixth bullet point under “—Events of Default” occurs with respect to us or any other person making such deposit which is continuing at the end of the period;
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no default or event of default has occurred and is continuing on the date of such deposit;
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such deposit does not constitute a default under any other agreement or instrument binding us;
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we deliver to the trustee an opinion of counsel to the effect that the trust resulting from the deposit does not require registration under the Investment Company Act of 1940;
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in the case of the legal defeasance option, we deliver to the trustee an opinion of counsel stating that:
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we have received from the Internal Revenue Service, or the “IRS,” a ruling; or
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since the date of the indenture there has been a change in the applicable U.S. federal income tax law, to the effect, in either case, that, and based thereon such opinion of counsel shall confirm that, the holders of such debt 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 time as would have been the case if such defeasance had not occurred;
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in the case of the covenant defeasance option, we deliver to the trustee an opinion of counsel to the effect that the holders of such debt 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; and
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we deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent to the defeasance and discharge of such debt securities have been complied with as required by the indenture.
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A prospectus supplement will further describe the provisions, if any, of any particular series of offered debt securities permitting a discharge defeasance.
Discharge of the Indenture
When (i) we deliver to the trustee all outstanding debt securities of a series (other than debt securities replaced because of mutilation, loss, destruction or wrongful taking) for cancellation or (ii) all outstanding debt securities of a series have become due and payable, whether at maturity or as a result of the mailing of a notice of redemption, and we irrevocably deposit with the trustee funds sufficient to pay at maturity or upon redemption all outstanding debt securities of a series, including interest thereon, and if in either case we pay all other sums related to such debt securities payable under the indenture by us, then the indenture shall, subject to certain surviving provisions, cease to be of further effect as to all outstanding debt securities of such series. The trustee shall acknowledge
satisfaction and discharge of the indenture with respect to such series of debt securities on our demand accompanied by an officers’ certificate and an opinion of counsel.
Regarding the Trustee
Except during the continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee will exercise such rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The indenture and provisions of the Trust Indenture Act that are incorporated by reference therein contain limitations on the rights of the trustee, should it become one of our creditors, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. The trustee is permitted to engage in other transactions with us or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined in the indenture or in the Trust Indenture Act), it must eliminate such conflict or resign.
No Recourse
None of our directors, officers, employees, stockholders or affiliates, as such, will have any liability for any of our obligations under the debt securities or the indenture. Each holder will waive and release all such liability subject to any liability imposed by the Securities Act or the Trust Indenture Act.
Provisions Applicable Only To Subordinated Debt Securities
As set forth in a prospectus supplement, the subordinated debt securities may be senior or junior to, or rank pari passu with, our other subordinated obligations and will be subordinated to all of our existing and future senior indebtedness, as may be defined in the applicable prospectus supplement.
The consolidated financial statements of DHT Maritime, Inc. appearing in DHT Holdings, Inc.’s Annual Report on Form 20-F for the year ended December 31, 2009 and the effectiveness of DHT Maritime’s internal control over financial reporting as of December 31, 2009 have been audited by Ernst & Young AS, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
The validity of the securities offered by this prospectus and certain other matters relating to Marshall Islands law will be passed upon for us by Reeder & Simpson P.C. Certain other legal matters relating to United States law will be passed upon for us by Cravath, Swaine & Moore LLP, New York, New York.
DHT Holdings, Inc. is a Marshall Islands corporation and our principal executive offices are located outside the United States in Jersey, the Channel Islands. A majority of our directors and officers reside outside the United States. In addition, a substantial portion of our assets and the assets of our directors and officers are located outside the United States. As a result, you may have difficulty serving legal process within the United States upon us or any of these persons. You may also have difficulty enforcing, both in and outside the United States, judgments you may obtain in United States courts against us or these persons in any action, including actions based upon the civil liability provisions of United States federal or state securities laws. Furthermore, it is uncertain whether the courts of the Mars
hall Islands would enter judgments in original actions brought in those courts predicated on U.S. federal or state securities laws.
The following is a discussion of the material Marshall Islands and U.S. federal income tax considerations relevant to the acquisition, ownership and disposition of our common stock. This discussion does not purport to deal with the tax consequences of owning common stock to all categories of investors, some of which (such as financial institutions, regulated investment companies, real estate investment trusts, tax-exempt organizations, insurance companies, persons holding our common stock as part of a hedging, integrated, conversion or constructive sale transaction or a straddle, traders in securities that have elected the mark-to-market method of accounting for their securities, persons liable for alternative minimum tax, persons who are investors in pass-through entities, dealers in securities or currencies
and investors whose functional currency is not the United States dollar) may be subject to special rules.
WE RECOMMEND THAT YOU CONSULT YOUR OWN TAX ADVISORS CONCERNING THE OVERALL TAX CONSEQUENCES ARISING IN YOUR OWN PARTICULAR SITUATION UNDER UNITED STATES FEDERAL, STATE, LOCAL OR FOREIGN LAW OF THE OWNERSHIP OF OUR COMMON STOCK.
Marshall Islands Tax Considerations
The following are the material Marshall Islands tax consequences of our activities to us and stockholders of our common stock. We are incorporated in the Marshall Islands. Under current Marshall Islands law, we are not subject to tax on income or capital gains, and no Marshall Islands withholding tax will be imposed upon payments of dividends by us to our stockholders.
U.S. Federal Income Tax Considerations
This discussion is based on the Internal Revenue Code of 1986, as amended, or the “Code,” Treasury regulations issued thereunder, published administrative interpretations of the IRS and judicial decisions as of the date hereof, all of which are subject to change at any time, possibly on a retroactive basis.
Taxation of Operating Income: In General
Our vessel-owning subsidiaries have elected to be treated as disregarded entities for U.S. federal income tax purposes. As a result, for purposes of the discussion below, our subsidiaries are treated as branches rather than as separate corporations.
Unless exempt from U.S. federal income taxation under the rules contained in Section 883 of the Code (discussed below), a foreign corporation is subject to U.S. federal income taxation on its shipping income that is treated as derived from sources within the United States, referred to as “United States source shipping income.” For these purposes “shipping income” means any income that is derived from the use of vessels, from the hiring or leasing of vessels for use on a time, voyage or bareboat charter basis, from the participation in a pool, partnership, strategic alliance, joint operating agreement, code sharing arrangement or other joint venture it directly or indirectly owns or participates in that generates such income, or from the performance of services directly relat
ed to those uses. For tax purposes, United States source shipping income includes (i) 50% of shipping income that is attributable to transportation that begins or ends, but that does not both begin and end, in the United States and (ii) 100% of shipping income that is attributable to transportation that both begins and ends in the United States.
Shipping income attributable to transportation exclusively between non-United States ports will be considered to be 100% derived from sources outside the United States. Shipping income derived from sources outside the United States will not be subject to any United States federal income tax.
In the absence of exemption from tax under Section 883, our gross United States source shipping income would be subject to a 4% tax imposed without allowance for deductions, as described below. We have not, nor do we believe we will, engage in transportation that produces income which is considered to be 100% from sources within the United States.
Exemption of operating income from U.S. federal income taxation
Under Section 883 of the Code and the regulations thereunder, we will be exempt from U.S. federal income taxation on our United States source shipping income if:
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we are organized in a foreign country, or the “country of organization,” that grants an “equivalent exemption” to corporations organized in the United States; and
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either
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(A) more than 50% of the value of our stock is owned, directly or indirectly, by individuals who are “residents” of our country of organization or of another foreign country that grants an “equivalent exemption” to corporations organized in the United States, referred to as the “50% Ownership Test,” or
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(B) our stock is “primarily and regularly traded on an established securities market” in our country of organization, in another country that grants an “equivalent exemption” to United States corporations, or in the United States, referred to as the “Publicly-Traded Test.”
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The Marshall Islands, the jurisdiction where we and our ship-owning subsidiaries are incorporated, grants an “equivalent exemption” to United States corporations. Therefore, we will be exempt from U.S. federal income taxation with respect to our United States source shipping income if either the 50% Ownership Test or the Publicly-Traded Test is met. Because shares of our common stock are traded on the NYSE, it is difficult to satisfy the 50% Ownership Test due to the widely-held ownership of our stock.
As to the Publicly-Traded Test, the regulations under Code Section 883 provide, in pertinent part, that stock of a foreign corporation will be considered to be “primarily traded” on an established securities market in a country if the number of shares of each class of stock that is traded during any taxable year on all established securities markets in that country exceeds the number of shares in each such class that is traded during that year on established securities markets in any other single country. We believe that our common stock, which is, and will continue to be, the sole class of our issued and outstanding stock, is, and will continue to be, “primarily traded” on the NYSE, which is an established securities market for these purposes.
The Publicly-Traded Test also requires our common stock to be “regularly traded” on an established securities market. Under the regulations, our common stock is considered to be “regularly traded” on an established securities market if one or more classes of our stock representing more than 50% of our outstanding shares, by both total combined voting power of all classes of stock entitled to vote and total value, are listed on the market, referred to as the “listing threshold.” The regulations further require that with respect to each class of stock relied upon to meet the listing threshold, (i) such class of stock is traded on the market, other than in minimal quantities, on at least 60 days during the taxable year or 1/6 of the days in a short taxable year; and
(ii) the aggregate number of shares of such class of stock traded on such market during the taxable year is at least 10% of the average number of shares of such class of stock outstanding during such year (as appropriately adjusted in the case of a short taxable year). We believe we satisfy, and will continue to satisfy, the trading frequency and trading volume tests. However, even if we do not satisfy both tests, the regulations provide that the trading frequency and trading volume tests will be deemed satisfied if our common stock is traded on an established market in the United States and such stock is regularly quoted by dealers making a market in such stock. We believe this is and will continue to be the case.
Notwithstanding the foregoing, a class of our stock will not be considered to be “regularly traded” on an established securities market for any taxable year in which 50% or more of the vote and value of the outstanding shares of such class are owned, actually or constructively under certain stock attribution rules, on more than half the days during the taxable year by persons who each own 5% or more of the value of such class of our outstanding stock, referred to as the “5 Percent Override Rule.”
In order to determine the persons who actually or constructively own 5% or more of our stock, or “5% Stockholders,” we are permitted to rely on those persons that are identified on Schedule 13G and Schedule 13D filings with the Commission as having a 5% or more beneficial interest in our common stock. In addition, an investment company identified on a Schedule 13G or Schedule 13D filing which is registered under the Investment Company Act of 1940, as amended, will not be treated as a 5% Stockholder for such purposes.
In the event the 5 Percent Override Rule is triggered, the 5 Percent Override Rule will nevertheless not apply if we can establish that among the closely-held group of 5% Stockholders, there are sufficient 5% Stockholders that are considered to be “qualified stockholders” for purposes of Section 883 to preclude non-qualified 5% Stockholders in the closely-held group from owning 50% or more of each class of our stock for more than half the number of days during the taxable year.
We believe that we have satisfied and will continue to satisfy the Publicly-Traded Test and that the 5 Percent Override Rule has not been and will not be applicable to us. However, no assurance can be given that this will be the case in the future.
In any year that the 5 Percent Override Rule is triggered with respect to us, we are eligible for the exemption from tax under Section 883 only if we can nevertheless satisfy the Publicly-Traded Test (which requires, among other things, showing that the exception to the 5 Percent Override Rule applies) or if we can satisfy the 50% Ownership Test. In either case, we would have to satisfy certain substantiation requirements regarding the identity of our stockholders in order to qualify for the Section 883 exemption. These requirements are onerous and there is no assurance that we would be able to satisfy them.
To the extent the benefits of Section 883 are unavailable, our United States source shipping income, to the extent not considered to be “effectively connected” with the conduct of a United States trade or business, as described below, would be subject to a 4% tax imposed by Section 887 of the Code on a gross basis, without the benefit of deductions. Since under the sourcing rules described above, no more than 50% of our shipping income would be treated as being United States source shipping income, the maximum effective rate of U.S. federal income tax on its shipping income would never exceed 2% under the 4% gross basis tax regime.
To the extent the benefits of the Section 883 exemption are unavailable and our United States source shipping income is considered to be “effectively connected” with the conduct of a United States trade or business, as described below, any such “effectively connected” United States source shipping income, net of applicable deductions, would be subject to the U.S. federal corporate income tax currently imposed at rates of up to 35%. In addition, we may be subject to the 30% “branch profits” tax on earnings effectively connected with the conduct of such trade or business, as determined after allowance for certain adjustments, and on certain interest paid or deemed paid attributable to the conduct of our United States trade or business.
Our United States source shipping income would be considered “effectively connected” with the conduct of a United States trade or business only if:
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we had, or were considered to have, a fixed place of business in the United States involved in the earning of United States source shipping income; and
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substantially all of our United States source shipping income was attributable to regularly scheduled transportation, such as the operation of a vessel that followed a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
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We do not have, nor will we permit circumstances that would result in our having, any vessel sailing to or from the United States on a regularly scheduled basis. Based on the foregoing and on the expected mode of our shipping operations and other activities, we believe that none of our United States source shipping income is or will be “effectively connected” with the conduct of a United States trade or business.
United States taxation of gain on sale of vessels
Regardless of whether we qualify for exemption under Section 883, we will not be subject to U.S. federal income taxation with respect to gain realized on a sale of a vessel, provided the sale is considered to occur outside of the United States under U.S. federal income tax principles. In general, a sale of a vessel will be considered to occur outside of the United States for this purpose if title to the vessel, and risk of loss with respect to the vessel, pass to the buyer outside of the United States. It is expected that any sale of a vessel will be considered to occur outside of the United States.
U.S. Federal Income Taxation of “United States Holders”
As used herein, the term “United States Holder” means a beneficial owner of common stock that:
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is an individual United States citizen or resident, a United States corporation or other United States entity taxable as a corporation, an estate the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a court within the United States is able to exercise primary jurisdiction over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust;
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owns our common stock as a capital asset; and
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owns less than 10% of our common stock for U.S. federal income tax purposes.
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If a partnership holds our common stock, the tax treatment of a partner will generally depend upon the status of the partner and upon the activities of the partnership. If you are a partner in a partnership holding our common stock, we suggest that you consult your tax advisor.
Distributions
Subject to the discussion of passive foreign investment companies, or “PFICs,” below, any distributions made by us with respect to our common stock to a United States Holder will generally constitute dividends to the extent of our current or accumulated earnings and profits, as determined under United States federal income tax principles. Distributions in excess of such earnings and profits will be treated first as a nontaxable return of capital to the extent of the United States Holder’s tax basis in his common stock on a dollar-for-dollar basis and thereafter as capital gain. Because we are not a United States corporation, United States Holders that are corporations will not be entitled to claim a dividends received deduction with respect to any distributions they receive from us. Dividend
s paid with respect to our common stock will generally be treated as “passive income” for purposes of computing allowable foreign tax credits for United States foreign tax credit purposes.
Dividends paid on our common stock to a United States Holder who is an individual, trust or estate (a “United States Non-Corporate Holder”) will generally be treated as “qualified dividend income” that is taxable to such United States Non-Corporate Holder at a preferential tax rate of 15% (for payments made in taxable years beginning before this preferential tax rate expires on January 1, 2011) provided that (i) the common stock is readily tradable on an established securities market in the United States (such as the NYSE); (ii) we are not a PFIC for the taxable year during which the dividend is paid or the immediately preceding taxable year (see discussion below); (iii) the United States Non-Corporate Holder has owned the common stock for more than 60 days in the 121-day period beginn
ing 60 days before the date on which the common stock becomes ex-dividend and (iv) the United States Non-Corporate Holder is not under an obligation to make related payments with respect to positions in substantially similar or related property. Special rules may apply to any “extraordinary dividend”—generally, a dividend in an amount which is equal to or in excess of 10% of a stockholder’s adjusted basis in a share of common stock—paid by us. If we pay an “extraordinary dividend” on our common stock that is treated as “qualified dividend income,” then any loss derived by a United States Non-Corporate Holder from the sale or exchange of such common stock will be treated as long-term capital loss to the extent of such dividend.
There is no assurance that any dividends paid on our common stock will be eligible for the 15% preferential tax rate in the hands of a United States Non-Corporate Holder. Moreover, it is unclear whether the 15% preferential tax rate on dividends will be extended before January 1, 2011 or, in the alternative, whether it will expire on such date. Any dividends that we pay from earnings and profits which are not eligible for this preferential tax rate will be taxed at ordinary income rates in the hands of a United States Non-Corporate Holder.
In addition, even if we are not a PFIC, under proposed legislation, dividends of a corporation incorporated in a country without a “comprehensive income tax system” paid to United States Non-Corporate Holders would not be eligible for the 15% tax rate. Although the term “comprehensive income tax system” is not defined in the proposed legislation, we believe this rule would apply to us because we are incorporated in the Marshall Islands.
Sale, exchange or other disposition of common stock
Provided that we are not a PFIC for any taxable year, a United States Holder generally will recognize taxable gain or loss upon a sale, exchange or other disposition of our common stock in an amount equal to the difference between the amount realized by the United States Holder from such sale, exchange or other disposition and the United States Holder’s tax basis in such stock. Such gain or loss will be treated as long-term capital gain or loss if the United States Holder’s holding period is greater than one year at the time of the sale, exchange or other disposition. Such capital gain or loss will generally be treated as United States source income or loss, as applicable, for United States foreign tax credit purposes. Long-term capital gains of United States Non-Corporate Holders are eligible for
reduced rates of taxation. A United States Holder’s ability to deduct capital losses against ordinary income is subject to certain limitations.
PFIC status and significant tax consequences
Special U.S. federal income tax rules apply to a United States Holder that holds stock in a foreign corporation classified as a PFIC for U.S. federal income tax purposes. In particular, United States Non-Corporate Holders will not be eligible for the 15% tax rate on qualified dividends. In general, we will be treated as a PFIC with respect to a United States Holder if, for any taxable year in which such holder held our common stock, either:
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at least 75% of our gross income for such taxable year consists of “passive income” (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
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at least 50% of the average value of our assets during such taxable year consists of “passive assets” (i.e., assets that produce, or are held for the production of, passive income).
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Income earned, or deemed earned, by us in connection with the performance of services would not constitute passive income. By contrast, rental income would generally constitute “passive income” unless we were treated under specific rules as deriving our rental income in the active conduct of a trade or business.
We believe that it is more likely than not that we are not currently a PFIC and will not be a PFIC. In this regard, we intend to treat the gross income we derive or are deemed to derive from our time chartering activities as services income, rather than rental income. Accordingly, we believe that our income from our time chartering activities does not constitute “passive income,” and that the assets we own and operate in connection with the production of that income do not constitute passive assets.
We believe there is legal authority supporting this position, consisting of case law and IRS pronouncements concerning the characterization of income derived from time charters as service income for other tax purposes. However, the existing legal authorities do not specifically relate to the statutory provisions governing PFICs and do not relate to circumstances substantially similar to our own. In the context of a different set of rules under the Code, the U.S. Court of Appeals for the Fifth Circuit has held that, contrary to the position of the IRS in that case, income received under a time charter of vessels should be treated as rental income rather than services income. Even though the IRS took the contrary position in that case, in recent unofficial guidance the IRS cited the Fifth Circuit decision favor
ably to support the conclusion that income received under a time charter of vessels engaged in the exploration for, or exploitation of, natural resources should be characterized as leasing or rental income. If the IRS were to apply the reasoning of this unofficial guidance to our shipping operations, the gross income we derive or are deemed to derive from our time chartering activities would be treated as rental income, and we would probably be a PFIC. As a result, the IRS or a court could disagree with our position that we are not currently a PFIC. No assurance can be given that this result will not occur. In addition, although we intend to conduct our affairs in a manner to avoid, to the extent possible, being classified as a PFIC with respect to any taxable year, we cannot assure you that the nature of our operations will not change in the future, or that we can avoid PFIC status in the future.
Under recently enacted legislation, if we were to be treated as a PFIC for any taxable year after 2010, a United States Holder would be required to file an annual report with the IRS for that year with respect to such holder’s common stock. In addition, as discussed more fully below, a United States Holder would be subject to different taxation rules depending on whether the United States Holder made an election to treat us as a “Qualified Electing Fund,” which election is referred to as a “QEF election.” As an alternative to making a QEF election, a United States Holder should be able to make a “mark-to-market” election with respect to our common stock, as discussed below.
Taxation of United States Holders making a timely QEF election
If we were a PFIC and a United States Holder made a timely QEF election, which United States Holder is referred to as an “Electing Holder,” the Electing Holder would report each year for United States federal income tax purposes its pro rata share of our ordinary earnings and our net capital gain (which gain shall not exceed our earnings and profits for the taxable year), if any, for our taxable year that ends with or within the taxable year of the Electing Holder, regardless of whether or not distributions were received from us by the Electing Holder. Any such ordinary income would not be eligible for the preferential tax rates applicable to qualified dividend income as discussed above. The Electing Holder’s adjusted tax basis in the common stock would be increased to reflect taxed but undi
stributed earnings and profits. Distributions of earnings and profits that had been previously taxed would, pursuant to this election, result in a corresponding reduction in the adjusted tax basis in the common stock and would not be taxed again once distributed. An Electing Holder would not, however, be entitled to a deduction for its pro rata share of any losses that we incurred with respect to any year. An Electing Holder would generally recognize capital gain or loss on the sale, exchange or other disposition of our common stock. A United States Holder would make a QEF election with respect to any year that we are a PFIC by filing one copy of IRS Form 8621 with his U.S. federal income tax return. If we were treated as a PFIC for any taxable year, we would provide each United States Holder with all necessary information in order to make the QEF election described above. Even if a United States Holder makes a QEF election for one of our taxable years, if we were a PFIC for a prior taxable year during which
the holder was a stockholder and for which the holder did not make a timely QEF election, different and more adverse tax consequences would apply.
Taxation of United States Holders making a “mark-to-market” election
Alternatively, if we were treated as a PFIC for any taxable year and, as we believe, our stock is treated as “marketable stock,” a United States Holder would be allowed to make a “mark-to-market” election with respect to our common stock, provided the United States Holder completes and files IRS Form 8621 in accordance with the relevant instructions and related Treasury regulations. If that election is made, the United States Holder generally would include as ordinary income in each taxable year the excess, if any, of the fair market value of the common stock at the end of the taxable year over such holder’s adjusted tax basis in the common stock. The United States Holder would also be permitted an ordinary loss in respect of the excess, if any, of the United States Holder’
s adjusted tax basis in the common stock over its fair market value at the end of the taxable year, but only to the extent of the net amount previously included in income as a result of the mark-to-market election. A United States Holder’s tax basis in his common stock would be adjusted to reflect any such income or loss amount. Gain realized on the sale, exchange or other disposition of our common stock would be treated as ordinary income, and any loss realized on the sale, exchange or other disposition of the common stock would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains previously included by the United States Holder in income.
Taxation of United States Holders not making a timely QEF or “mark-to-market” election
Finally, if we were treated as a PFIC for any taxable year, a United States Holder who does not make either a QEF election or a “mark-to-market” election for that year, referred to as a “Non-Electing Holder,” would be subject to special rules with respect to (i) any excess distribution (i.e., the portion of any distributions received by the Non-Electing Holder on our common stock in a taxable year in excess of 125% of the average annual distributions received by the Non-Electing Holder in the three preceding taxable years, or, if shorter, the Non-Electing Holder’s holding period for the common stock), and (ii) any gain realized on the sale, exchange or other disposition of our common stock. Under these special rules:
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the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for the common stock;
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the amount allocated to the current taxable year and any taxable year prior to the first taxable year in which we were a PFIC during the Non-Electing Holder’s holding period would be taxed as ordinary income; and
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the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
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These penalties would not apply to a qualified pension, profit sharing or other retirement trust or other tax-exempt organization that did not borrow money or otherwise utilize leverage in connection with its acquisition of our common stock. If we were a PFIC and a Non-Electing Holder who was an individual died while owning our common stock, such holder’s successor generally would not receive a step-up in tax basis with respect to such stock. Certain of these rules would apply to a United States Holder who made a QEF election for one of our taxable years if we were a PFIC in a prior taxable year during which the holder was a stockholder and for which the holder did not make a QEF election.
U.S. Federal Income Taxation of “Non-United States Holders”
A beneficial owner of common stock (other than a partnership) that is not a United States Holder is referred to herein as a “Non-United States Holder.”
Dividends on common stock
Non-United States Holders generally will not be subject to U.S. federal income tax or withholding tax on dividends received from us with respect to our common stock, unless that dividend income is effectively connected with the Non-United States Holder’s conduct of a trade or business in the United States. If the Non-United States Holder is entitled to the benefits of a United States income tax treaty with respect to those dividends, that income is taxable only if it is attributable to a permanent establishment maintained by the Non-United States Holder in the United States.
Sale, exchange or other disposition of common stock
Non-United States Holders generally will not be subject to U.S. federal income tax or withholding tax on any gain realized upon the sale, exchange or other disposition of our common stock, unless:
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the gain is effectively connected with the Non-United States Holder’s conduct of a trade or business in the United States (and, if the Non-United States Holder is entitled to the benefits of an income tax treaty with respect to that gain, that gain is attributable to a permanent establishment maintained by the Non-United States Holder in the United States); or
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the Non-United States Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
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If the Non-United States Holder is engaged in a United States trade or business for U.S. federal income tax purposes, the income from the common stock, including dividends and the gain from the sale, exchange or other disposition of the stock, that is effectively connected with the conduct of that trade or business will generally be subject to regular U.S. federal income tax in the same manner as discussed in the previous section relating to the taxation of United States Holders. In addition, if you are a corporate Non-United States Holder, your earnings and profits that are attributable to the effectively connected income, which are subject to certain adjustments, may be subject to an additional branch profits tax at a rate of 30%, or at a lower rate as may be specified by an applicable income tax treaty.
Backup Withholding and Information Reporting
In general, dividend payments or other taxable distributions made within the United States to you will be subject to information reporting requirements if you are a United States Non-Corporate Holder. Such payments or distributions may also be subject to backup withholding tax if you are a United States Non-Corporate Holder and you:
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fail to provide an accurate taxpayer identification number;
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are notified by the IRS that you have failed to report all interest or dividends required to be shown on your federal income tax returns; or
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in certain circumstances, fail to comply with applicable certification requirements.
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Non-United States Holders may be required to establish their exemption from information reporting and backup withholding by certifying their status on IRS Form W-8BEN, W-8ECI or W-8IMY, as applicable.
If you are a Non-United States Holder and you sell our common stock to or through a United States office of a broker, the payment of the proceeds is subject to both United States backup withholding and information reporting unless you certify that you are a non-United States person, under penalties of perjury, or you otherwise establish an exemption. If you sell our common stock through a non-United States office of a non-United States broker and the sales proceeds are paid to you outside the United States, then information reporting and backup withholding generally will not apply to that payment. However, United States information reporting requirements, but not backup withholding, will apply to a payment of sales proceeds, even if that payment is made to you outside the United States, if you sell our common
stock through a non-United States office of a broker that is a United States person or has some other contacts with the United States. Such information reporting requirements will not apply, however, if the broker has documentary evidence in its records that you are a non-United States person and certain other conditions are met, or you otherwise establish an exemption.
Backup withholding tax is not an additional tax. Rather, you generally may obtain a refund of any amounts withheld under backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
We have filed with the Commission a registration statement on Form F-3 under the Securities Act with respect to the offer and sale of securities pursuant to this prospectus. This prospectus, filed as a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules thereto in accordance with the rules and regulations of the Commission and no reference is hereby made to such omitted information. Statements made in this prospectus concerning the contents of any contract, agreement or other document filed as an exhibit to the registration statement are summaries of all of the material terms of such contracts, agreements or documents, but do not repeat all of their terms. Reference is made to each such exhibit for a more complete descrip
tion of the matters involved and such statements shall be deemed qualified in their entirety by such reference. The registration statement and the exhibits and schedules thereto filed with the Commission may be inspected, without charge, and copies may be obtained at prescribed rates, at the public reference facility maintained by the Commission at its principal office at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference facility by calling 1-800-SEC-0330. The Commission also maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. For further information pertaining to the securities offered by this prospectus and DHT Holdings, Inc., reference is made to the registration statement.
We are subject to the information and periodic reporting requirements of the Exchange Act and we file periodic reports and other information with the Commission. These periodic reports and other information are available for inspection and copying at the Commission’s public reference facilities and the web site of the Commission referred to above. As a “foreign private issuer,” we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements to stockholders, but we are required to furnish certain proxy statements to stockholders under NYSE rules. Those proxy statements are not expected to conform to Schedule 14A of the proxy rules promulgated under the Exchange Act. In addition, as a “foreign private issuer,” we are exempt from the rules u
nder the Exchange Act relating to short swing profit reporting and liability.
The Commission allows us to “incorporate by reference” information that we file with it. This means that we can disclose important information to you by referring you to those filed documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the Commission prior to the termination of this offering will also be considered to be part of this prospectus and will automatically update and supersede previously filed information, including information contained in this document.
We incorporate by reference the documents listed below and any future filings made with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act: (i) the Annual Report on Form 20-F for the year ended December 31, 2009, filed with the Commission on March 25, 2010, which contains audited consolidated financial statements for the most recent fiscal year for which those statements have been filed and (ii) the Registration Statement on Form 8-A, filed with the Commission on October 7, 2005.
We are also incorporating by reference all subsequent annual reports on Form 20-F that we file with the Commission and certain reports on Form 6-K that we furnish to the Commission after the date of this prospectus (if they state that they are incorporated by reference into this prospectus) until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated. In all cases, you should rely on the later information over different information included in this prospectus or the prospectus supplement.
We will provide, free of charge upon written or oral request, to each person to whom this prospectus is delivered, including any beneficial owner of the securities, a copy of any or all of the information that has been incorporated by reference into this prospectus, but which has not been delivered with the prospectus. Requests for such information should be made to us at the following address:
26 New Street
St. Helier
Jersey JE2 3RA
Channel Islands
Phone +44 (0) 1534 639759
Email info@dhtankers.com
You should assume that the information appearing in this prospectus and any accompanying prospectus supplement, as well as the information we previously filed with the Commission and incorporated by reference, is accurate as of the dates on the front cover of those documents only. Our business, financial condition and results of operations and prospects may have changed since those dates.
This prospectus contains certain forward-looking statements and information relating to us that are based on beliefs of our management as well as assumptions made by us and information currently available to us. When used in this document, words such as “believe,” “intend,” “anticipate,” “estimate,” “project,” “forecast,” “plan,” “potential,” “will,” “may,” “should” and “expect” and similar expressions are intended to identify forward-looking statements, but are not the exclusive means of identifying such statements. These statements reflect our current views with respect to future events and are based on assumptions and subject to risks and uncertainties. Given these unce
rtainties, you should not place undue reliance on these forward-looking statements. We may also from time to time make forward-looking statements in our periodic reports that we will file with the Commission, other information sent to our security holders, and other written materials. We caution that assumptions, expectations, projections, intentions and beliefs about future events may and often do vary from actual results and the differences can be material. The reasons for this include the risks, uncertainties and factors described under the section of this prospectus entitled “Risk Factors” on page 8 of this prospectus.
These forward-looking statements represent our estimates and assumptions only as of the date of this prospectus and are not intended to give any assurance as to future results. Factors that might cause results to differ include, but are not limited to, the following:
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future payments of dividends and the availability of cash for payment of dividends;
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future operating or financial results, including with respect to the amount of basic hire and additional hire that we may receive;
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statements about future, pending or recent acquisitions, business strategy, areas of possible expansion and expected capital spending or operating expenses;
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statements about tanker industry trends, including charter rates and vessel values and factors affecting vessel supply and demand;
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expectations about the availability of vessels to purchase, the time which it may take to construct new vessels or vessels’ useful lives;
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expectations about the availability of insurance on commercially reasonable terms;
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DHT Maritime’s and its subsidiaries’ ability to repay the secured credit facility;
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our ability to obtain additional financing and to obtain replacement charters for our vessels;
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assumptions regarding interest rates;
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changes in production of or demand for oil and petroleum products, either globally or in particular regions;
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greater than anticipated levels of newbuilding orders or less than anticipated rates of scrapping of older vessels;
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changes in trading patterns for particular commodities significantly impacting overall tonnage requirements;
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changes in the rate of growth of the world and various regional economies;
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risks incident to vessel operation, including discharge of pollutants; and
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unanticipated changes in laws and regulations.
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We undertake no obligation to publicly update or revise any forward-looking statements contained in this prospectus, whether as a result of new information, future events or otherwise, except as required by law. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus might not occur, and our actual results could differ materially from those anticipated in these forward-looking statements.
34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Our bylaws provide that we shall, subject to the limitations contained in the Marshall Islands Business Corporation Act, as amended from time to time, indemnify all persons whom we may indemnify pursuant thereto.
The form of underwriting agreement, which is filed as Exhibit 1.1 to this registration statement, provides that the underwriters to be named therein agree to indemnify us and hold us harmless, together with each of our directors, officers and controlling persons from and against certain liabilities, including liabilities arising under the Securities Act of 1933, as amended, or “Securities Act.” This form of underwriting agreement also provides that such underwriters will contribute to amounts paid or payable by such indemnified persons as a result of certain liabilities under the Securities Act.
Item 9. Exhibits.
The exhibits listed in the following table have been filed as part of this registration statement.
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Number
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Exhibit Description
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1.1
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Form of Underwriting Agreement (for equity securities)
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1.2
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Form of Underwriting Agreement (for debt securities)*
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4.1
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Form of Debt Securities Indenture
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5.1
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Opinion of Reeder & Simpson P.C.
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8.1
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Tax Opinion of Cravath, Swaine & Moore LLP
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12.1
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Computation of Ratio of Earnings to Fixed Charges
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21.1
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List of Subsidiaries of DHT Holdings, Inc.
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23.1
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Consent of Ernst & Young AS
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23.2
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Consent of Reeder & Simpson P.C. (contained in Exhibit 5.1)
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23.3
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Consent of Cravath, Swaine & Moore LLP (contained in Exhibit 8.1)
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24.1
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Powers of Attorney (included on signature page)
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25.1
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Statement of Eligibility of Trustee**
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___________________
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*
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To be filed as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a report of the registrant filed pursuant to the Securities Exchange Act of 1934 and incorporated herein by reference.
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**
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture of Act of 1939.
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Item 10. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement, unless the information required to be included is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended, that is part of this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calcula
tion of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
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(4)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(5)
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933, as amended, need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (5) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933, as amended, or Rule 3-19 under the Securities Act of 1933, as amended, if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the Form F-3.
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(6)
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That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement.
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securitie
s in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(7)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities:
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The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(8)
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That, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(9)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(10)
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To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Oslo, Norway, on May 12, 2010.
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DHT HOLDINGS, INC.
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By:
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/s/ Eirik Ubøe
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(Principal Financial and Accounting Officer)
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Eirik Ubøe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to he done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Randee Day
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Acting Chief Executive Officer and
Director (Principal Executive Officer)
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May 12, 2010
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RANDEE DAY
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/s/ Eirik Ubøe
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Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer) |
May 12, 2010
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EIRIK UBØE
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/s/ Erik Lind
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Chairman and Director
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May 12, 2010
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ERIK LIND
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/s/ Rolf Wikborg
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Director
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May 12, 2010
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ROLF WIKBORG
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/s/ Einar Michael Steimler
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Director
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May 12, 2010
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EINAR MICHAEL STEIMLER
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/s/ Donald J. Puglisi
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Authorized Representative in the
United States |
May 12, 2010
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DONALD J. PUGLISI
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Managing Director
Puglisi & Associates
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39
Exhibit 1.1
DHT HOLDINGS, INC.
___________ Shares
Common Stock
($0.01 par value per Share)
UNDERWRITING AGREEMENT
___________, 2010
UNDERWRITING AGREEMENT
___________, _____
[Recipients]
Ladies and Gentlemen:
DHT Holdings, Inc., a Marshall Islands corporation (the “Company”), proposes to issue and sell to the underwriters named in Schedule A hereto (the “Underwriters”) for whom you are acting as representatives (the “Representatives”), an aggregate of ___________ shares (the “Firm Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the Company and, solely for the purpose of
covering over-allotments proposes to grant to the Underwriters the option to purchase up to an additional ___________ shares of Common Stock (the “Additional Shares”). The Firm Shares and the Additional Shares are hereinafter collectively sometimes referred to as the “Shares.” The Shares are described in the Prospectus (as hereinafter defined). As used in this Agreement, the term “business day” means a day on which The New York Stock Exchange (the “NYSE”) is open for trading and the terms “herein,” “hereof” and “hereto” refer in each case to this Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of this Agreement.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3 (File No. 333-___________) under the Act, including a base prospectus, relating to securities to be sold by the Company, including the Shares. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiv
eness for purposes of Section 11 of the Act, as such section applies to the Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof, (ii) all material then incorporated by reference therein and any information deemed to be part of the registration statement at the Effective Time pursuant to Rule 430A, 430B or Rule 430C under the Act, and (iii) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act (a “Rule 462(b) Registration Statement”). Except where the context otherwise requires, the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission and furnished to the Underwriters prior to the execution of this Agreement, is referred to herein as the “Base Prospectus,” and the Base Prospectus, as supplemented by the final prospectus supplement specifically relating to the offer and sale of the Shares, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Act, is referred to herein as the “Prospectus.” Except where the context otherwise requires, the term “Preliminary Prospectus” shall refer to the Base Prospectus, as supplemented by any preliminary prospectus supplement specifically relating to the offer and sale of the Shares and furnished to the Underwriters prior to the execution
of this Agreement or, if the Base Prospectus shall not have been supplemented by such a preliminary prospectus supplement, such term shall refer to the Base Prospectus. For the purposes of this Agreement, any “issuer free writing prospectus” (as defined in Rule 433 under the Act) relating to the Shares is referred to as an “Issuer Free Writing Prospectus.” The Underwriters have not, and the Company has not, offered or sold and will not offer or sell, without the consent of the Company (in the case of the Underwriters) or the consent of the Underwriters (in the case of the Company), any Shares by means of any Issuer Free Writing Prospectus or “free writing prospectus” (as defined in the Rule 405 under the Act) that is or would be re
quired to be filed by the Underwriters with the Commission pursuant to Rule 433 under the Act, other than an Issuer Free Writing Prospectus listed on Schedule B hereto (each, a “Permitted Free Writing Prospectus”). The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the foregoing shall not restrict the Company from making any filings required in order to comply with its reporting obligations under the Securities Exchange Act of 1934, as amended (the “1934 Act”), or the rules and regulations of the Commission thereunder (the “1934 Act Regulations”).
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and subject to the terms and conditions set forth herein, the Company agrees to issue and sell to the respective Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase from the Company, the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto, subject to adjustment in accordance with Section 9 hereof, in each case at a purchase price of $___________ per share. The
Company has been advised that the Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. The Underwriters may from time to time increase or decrease the public offering price after the public offering to such extent as it may determine.
In addition, upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Company hereby grants to the several Underwriters the option to purchase, and the Underwriters shall have the right to purchase, severally and not jointly, from the Company, ratably in accordance with the number of Firm Shares to be purchased by each of them, all or such portion of the Additional Shares as may be necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the same purchase price per share to be paid by the Underwriters for the Firm Shares. This option may be exercised by the Representatives on behalf of the several Underwriters at any time and from time to time on or before the thirtieth day following the date of the Prospectus, by written notice to the Comp
any. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised and the date and time when the Additional Shares are to be delivered (any such date and time being herein referred to as an “additional time of purchase”); provided, however, that no additional time of purchase shall be earlier than the “time of purchase” (as hereinafter defined) or earlier than the second business day after the date on which the option shall have been exercised nor later than the tenth business day after the date on which the option shall have been exercised. If the option is exercised as to all or any portion of the Additional Shares, each Underwriter, severally and not jointly, agrees to purchase that proportion of the total number of Additional Shares then being purchased which bears the same proportion to the aggregate number of Additional Shares then being purchased as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as you may determine to eliminate fractional shares), subject to adjustment in accordance with Section 9 hereof.
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2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be made to the Company by Federal Funds wire transfer against delivery of the certificates for the Firm Shares to the Underwriters through the facilities of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on ___________, 2010, unless another time shall be agreed to by the Underwriters and the Company o
r unless postponed in accordance with the provisions of Section 9 hereof. The time at which such payment and delivery are to be made is sometimes referred to herein as the “time of purchase.” Electronic transfer of the Firm Shares shall be made to the Underwriters at the time of purchase in such names and in such denominations as the Underwriters shall specify.
If an additional time of purchase is the same as the time of purchase, payment of the purchase price for any Additional Shares then being purchased by the Underwriters shall be made at the time of purchase to the Company by Federal Funds wire transfer against delivery of the certificates for such Additional Shares to the Underwriters through the facilities of DTC for the respective accounts of the Underwriters. If an additional time of purchase is after the time of purchase, payment of the purchase price for any Additional Shares then being purchased by the Underwriters shall be made at such additional time of purchase to the Company by Federal Funds wire transfer against delivery of the certificates for such Additional Shares to the Underwriters through the facilities of DTC for the respective accounts of the Underwriters. Electronic
transfer of any Additional Shares purchased shall in each case be made in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 7 hereof with respect to the purchase of the Shares shall be made at the offices of ___________ at ___________, at 9:00 A.M., New York City time, at or prior to the time of purchase for the Firm Shares or the additional time of purchase for the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants to and agrees with the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with respect to any Rule 462(b) Registration Statement, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of this Agreement; no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus nor any similar order directed to any document incorporated by reference in the Preliminary Prospectus or the Prospectus, or the effectiveness of the Registration Statement, has been issued, and no proceedings for such purpose have been instituted or, to the Company’s knowledge, are contemplated by the Commission;
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(b) the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at the time of purchase and, if applicable, any additional time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus, if any, complied, at the time it was file
d with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; each Preliminary Prospectus (including the documents incorporated by reference therein) and any amendment or supplement thereto, as of its date and the date it was filed with the Commission, and the most recent Preliminary Prospectus (including the documents incorporated by reference therein), as then amended or supplemented (the “Pricing Prospectus”), as of_________ [A.M.] [P.M.] (Eastern time) on the date hereof (the “Applicable Time”), in each case when read together with the then issued Issuer Free Writing Prospectuses, if any, and the information included on Schedule C hereto, did 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; the Prospectus will comply, as of its date, the date that it is filed with the Commission, the time of purchase and, if applicable, any additional time of purchase and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase or, if applicable, any additional time of purchase, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or
will the Prospectus, as then amended or supplemented, 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; each Issuer Free Writing Prospectus, when read together with the Pricing Prospectus, any other Issuer Free Writing Prospectuses then issued and the information included on Schedule C hereto, as of the Applicable Time, did 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; provided, however, that the Company makes no representation or warranty in this Section 3(b) with respect to any statement contai
ned in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters to the Company expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such Issuer Free Writing Prospectus;
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(c) the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the date of the Prospectus and at the closing time (and, if any Additional Shares are purchased, the additional closing time with respect to such Additional Shares) did not and 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;
(d) the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares other than the Preliminary Prospectus and the Permitted Free Writing Prospectuses, if any; the Company is not and will continue not to be an “ineligible issuer” (as defined in Rule 405 under the Act) for the purposes of Rules 164 and Rule 433 under the Act in connection with the offer or sale of the Shares; and the Company has complied, and will comply, with the requirements of Rules 164 and Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including in respect of timely filing with t
he Commission, legending and record-keeping;
(e) the Company has an authorized and outstanding capitalization as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; all of the issued and outstanding shares of capital stock of the Company, including the Shares, have been duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all applicable federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right; and the Shares are duly listed and admitted and authorized for trading on the NYSE;
(f) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Marshall Islands, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus and to execute and deliver this Agreement;
(g) the Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, results of operations or prospects of the Company and the subsidiaries of the Company named in Schedule D hereto (the “Subsidiaries”) taken as a whole (a “Material Adve
rse Effect”);
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(h) the Company has no “subsidiaries” (as defined under the Act) other than the Subsidiaries; the Company owns, directly or indirectly, all of the issued and outstanding capital stock of each of the Subsidiaries; other than the capital stock of the Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation or have any equity interest in any firm, partnership, joint venture, association or other entity; complete and correct copies of the articles of incorporation and bylaws of the Company and each Subsidiary and all amendments and restatements thereto have been delivered to the Underwriters or their counsel, and, except as set forth in the exhibits to the Registration Statement, n
o changes therein will be made on or after the date hereof or on or before the time of purchase and, if applicable, any additional time of purchase; each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Marshall Islands, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Prospectus and the Prospectus; each Subsidiary is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect; each Subsidiary is in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where th
e failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect; all of the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable, have been issued in compliance with all applicable federal and state securities laws, were not issued in violation of any preemptive right, resale right, right of first refusal or similar right and are owned by the Company subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding;
(i) the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Prospectus and the Prospectus; the certificates for the Shares comply with the applicable requirements of the Company’s articles of incorporation and bylaws, any applicable laws and the rules of the NYSE; and the holders of the Shares will not be subject to personal liability for the debt or other obligations of the Company by reason of being such holders;
(j) this Agreement has been duly authorized, executed and delivered by the Company;
(k) neither the Company nor any of the Subsidiaries is in breach or violation of or in default under (nor has any event occurred which with notice, lapse of time or both would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its respective articles of incorporation or bylaws, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties may
be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE) or (v) any decree, judgment or order applicable to the Company or any of the Subsidiaries or any of their respective properties, except in the case of the foregoing clauses (ii), (iii), (iv) and (v) above as would not, individually or in the aggregate, have a Material Adverse Effect;
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(l) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant to) (i) the articles of incorporation or bylaws of the Company or any of the Subsidiaries, (ii)
any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NYSE) or (v) any decree, judgment or order applicable to the Company or any of the Subsidiaries or any of their respective properties, except in the case of the foregoing clauses (ii), (iii), (iv) and (v) as would not, individually or in the aggregate, have a Material Adverse Effect;
(m) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization, other non-governmental regulatory authority (including, without limitation, the NYSE), is required in connection with the execution, delivery and performance of this Agreement or the consummation by the Company of the transactions contemplated hereby, other than registration of the Shares under the Act, which has been effected (or, with respect to a Rule 462(b) Registration Statement, will be effected in accordance herewith), any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Unde
rwriters or under the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and such approvals, authorizations, consents, orders or filings that have been obtained or made and are in full force and effect;
(n) except as expressly set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares of any other capital stock or other equity interests of the Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock or shares of any other capital stock of or other equity interests in the Company and (iii) no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effecti
veness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; except as expressly set forth in the Registration Statement, the Pricing Prospectus and the Prospectus, no person has the right, contractual or otherwise, to cause the Company to register under the Act any shares of Common Stock or shares of any other capital stock of or other equity interests in the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise;
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(o) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and approvals from other persons, in order to conduct its respective business as described in the Registration Statement, the Pricing Prospectus and the Prospectus, except where the failure to have such licenses, authorizations, consents and approvals or to have made such filings would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is in violation of, or in default under, or has received notice of any proceedings relating to re
vocation or modification of any such license, authorization, consent or approval or any filing required under any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries, except where such violation, default, revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect;
(p) all legal or governmental proceedings, affiliate transactions, off-balance sheet transactions (including, without limitation, transactions related to, and the existence of, “variable interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46), contracts, licenses, agreements, properties, leases or documents required to be described in the Registration Statement, the Pricing Prospectus or the Prospectus or the documents incorporated by reference therein or to be filed as an exhibit to the Registration Statement have been so described or filed as required;
(q) there are no actions, suits, claims, investigations or proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of the Subsidiaries or any of their respective directors or officers is or would be a party, or of which any of their respective properties, including any vessel named in Schedule D hereto (each, a “Vessel”), is or would be subject, at law
or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority, except any such action, suit, claim, investigation or proceeding which (i) would not result in a judgment, decree or order having, individually or in the aggregate, a Material Adverse Effect and would not prevent the consummation of the transactions contemplated hereby or (ii) is required to be disclosed in the Registration Statement and is so disclosed therein;
(r) Ernst & Young AS, whose audit reports on the consolidated financial statements of the Company as of December 31, 2009 and 2008 (the “Company Financial Statements”) are included in the Registration Statement, the Pricing Prospectus and the Prospectus, are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board;
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(s) the 2009 Company Financial Statements included in the Registration Statement, the Pricing Prospectus and the Prospectus, together with the related notes thereto, present fairly in all material respects the consolidated statement of financial position, the related consolidated statements of income, comprehensive income, change in shareholders’ equity and cash flows of the Company as of the dates indicated, and the consolidated results of operations and cash flows of the Company for the periods specified and have been prepared in compliance with the requirements of the Act and the 1934 Act, and in accordance with International Financial Reporting Standards (“IFRS”) as issued by International Accounting Standards Board applied on a consistent basis during the periods involved; all pro forma financial statements or data included in the Registration Statement, the Pricing Prospectus or the Prospectus and indicated as being such comply with the requirements of Regulation S-X of the Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data; the other historical financial and related statistical data set forth in the Registration Statement, the Pricing Prospectus or the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements an
d books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included in the Registration Statement, the Pricing Prospectus or the Prospectus (including, without limitation, as required by Rules 3-12 or 3-05 or Article 11 of Regulation S-X under the Act) that are not included as required; neither the Company nor any of the Subsidiaries has any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus;
(t) subsequent to the time of execution of this Agreement or, if earlier, the respective dates as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus (in each case excluding any amendments or supplements thereto made after the execution of this Agreement), there has not been (i) any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, results of operations or prospects of the Company and the Subsidiaries taken as a whole, (ii) any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iii) any change
in the capital stock or outstanding indebtedness of the Company or any Subsidiary or (iv) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company;
(u) the Company has obtained for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of its directors and officers named in Schedule E hereto;
(v) the Company is a “foreign private issuer” (as defined in Rule 405) of the Act;
(w) the Company is not and, after giving effect to the offer and sale of the Shares and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will not be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”) or a “passive foreign investment company” or a “controlled foreign corporation,” as such terms are defined in the Internal Revenue Code of 1986, as amended (the “<
font style="DISPLAY: inline; TEXT-DECORATION: underline">Internal Revenue Code”);
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(x) the Company and each of the Subsidiaries has good and marketable title to all property (real and personal), if any, described in the Registration Statement, the Pricing Prospectus or the Prospectus as being owned by each of them, free and clear of all liens, claims, security interests or other encumbrances with such exceptions as are not material and do not interfere with the intended use to be made of such property by the Company or its Subsidiaries as described in the Registration Statement, the Pricing Prospectus and the Prospectus; and all the property described in the Registration Statement, the Pricing Prospectus or the Prospectus as being held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the intended use to be made of such property by the Company or its Subsidiaries as described in the Registration Statement, the Pricing Prospectus and the Prospectus;
(y) the Company and the Subsidiaries own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), trade names, service names, copyrights, trade secrets and other proprietary information described in the Registration Statement, the Pricing Prospectus or the Prospectus as being owned or licensed by them or which are necessary for the conduct of their respective businesses as currently conducted or as proposed to be conducted, except where the failure to own, license or have such rights would not, individually or in the aggregate, have a Material Adverse Effect (collectively, “Intellectual Property”
;); (i) there are no third parties who have or, to the Company’s knowledge, will be able to establish rights to any Intellectual Property, except for, and to the extent of, the ownership rights of the owners of any Intellectual Property that is licensed to the Company; (ii) to the Company’s knowledge, there is no infringement by third parties of any Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or cla
im; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company or any Subsidiary infringes or otherwise violates any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (vi) to the Company’s knowledge, there is no patent or patent application that contains claims that interfere with the issued or pending claims of any of the Intellectual Property; (viii) to the Company’s knowledge, there is no prior art that may render any patent application owned by the Company or any Subsidiary of the Intellectual Property unpatentable that has not been disclosed to the U.S. Patent and Trademark Office;
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(z) neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice; except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge, threatened against the Company or any of the Subsidiaries before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or, to the Company’s knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened against the Company or any of the Subsidiaries and (C) no union representation dispute currently existing concerning the emp
loyees of the Company or any of the Subsidiaries, and (ii) to the Company’s knowledge, (A) no union organizing activities are currently taking place concerning the employees of the Company or any of the Subsidiaries and (B) there has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee Retirement Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder concerning the employees of the Company or any of the Subsidiaries;
(aa) each of the Company and the Subsidiaries and their respective properties, assets and operations is in compliance with, and each of the Company and the Subsidiaries holds all permits, authorizations and approvals required under, Environmental Laws (as hereinafter defined), except to the extent that failure to so comply or to hold such permits, authorizations or approvals would not, individually or in the aggregate, have a Material Adverse Effect; there are no past, present or, to the Company’s knowledge, reasonably anticipated future events, conditions, circumstances, actions, omissions or plans that could reasonably be expected to give rise to any material costs or liabilities to the Company or any Subsidiary under, or to materially interfere with or prevent compliance by the Company
or any Subsidiary with, Environmental Laws; except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i) has received any notice that it is the subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any pending or, to the Company’s knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any written indemnification or settlement agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials (as hereinafter defined) (as used herein, “Environmental Law” means any applicable federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license, authorizatio
n or other binding requirement or common law (including any applicable regulations and standards adopted by the International Maritime Organization) relating to health, safety or the protection, cleanup or restoration of the environment or natural resources, and “Hazardous Materials” means any material (including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that in relevant form and concentration is regulated by or may give rise to liability under any Environmental Law);
(bb) the Subsidiaries have arranged for the technical manager of the Vessels (the “Technical Manager”) to conduct a periodic review of the effect of the Environmental Laws on their respective businesses, operations and properties for the purposes of identifying and evaluating associated costs and liabilities (including, without limitation, any capital or operating expenditures required for cleanup or compliance with the Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties);
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(cc) all income and other material tax returns required to be filed by the Company or any of the Subsidiaries have been filed, and all taxes and other material assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been timely paid, other than those being contested in good faith and for which adequate reserves have been provided;
(dd) the Company and the Subsidiaries maintain or have caused the Technical Manager to maintain for its or their benefit, insurance or a membership in a mutual protection and indemnity association covering its properties, operations, personnel and businesses as deemed adequate by the Company; such insurance or membership insures or will insure against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Vessels and, in the case of insurance or a membership maintained by or for the benefit of the Company and the Subsidiaries, their businesses; any such insurance or membership maintained by or for the benefit of the Company and its Subsidiaries is and will be fully in force at the time of purchase and, if applicable, any additional tim
e of purchase; there are no material claims by the Company or any Subsidiary under any insurance policy or instrument as to which any insurance company or mutual protection and indemnity association is denying liability or defending under a reservation of rights clause; neither the Company nor any of the Subsidiaries is currently required to make any material payment, or is aware of any facts that would require the Company or any Subsidiary to make any material payment, in respect of a call by, or a contribution to, any mutual protection and indemnity association; and neither the Company nor any Subsidiary has reason to believe that it will not be able to renew or cause to be renewed for its benefit any such insurance or membership in a mutual protection and indemnity association as and when such insurance or membership expires or is terminated;
(ee) since the date of the last audited Company Financial Statements included in the Registration Statement, the Pricing Prospectus and the Prospectus, (i) there has not been a material partial loss or total loss of or to any of the Vessels, whether actual or constructive, (ii) no Vessel has been arrested or requisitioned for title or hire and (iii) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its respective business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree;
(ff) none of the contracts or agreements filed as an exhibit to the Registration Statement have been terminated, amended, modified, supplemented or waived; neither the Company nor any Subsidiary has sent or received any communication regarding the termination, amendment, modification, supplementation or waiver of, or an intention to terminate, amend, modify, supplement or waive, or not to consummate any transaction contemplated by, any such contract or agreement; and no such termination, amendment, modification, supplementation or waiver, or intention to terminate, amend, modify, supplement or waive, or not to consummate any transaction contemplated by, any such contract or agreement has been threatened by the Company or any Subsidiary or, to the Company’s knowledge, any other
party to any such contract or agreement;
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(gg) the Company and each of the Subsidiaries 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 authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(hh) the Company has established and maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the 1934 Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Company’s auditors and the Board of Directors of the Company have been advised of: (i) any significant deficiencies and material weaknesses in the design or operation of internal controls which are reasonably likely
to adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; to date, the Company’s auditors have not identified any material weaknesses in internal controls; since the date of the most recent evaluation of such disclosure controls and procedures, there have been no changes in internal controls or in other factors within control of the Company that have materially affected, or are reasonably likely to materially affect, the Company’s internal controls; and the Company, the Subsidiaries and their respective officers and directors, in their capacities as such, are each in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder that are applicable to the Company, the Subsidiaries or such officers and directors, including Sect
ion 402 related to loans and Sections 302 and 906 related to certifications;
(ii) the Company has not, directly or indirectly, including through any Subsidiary, extended credit, arranged to extend credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer of the Company, or to or for any family member or affiliate of any director or executive officer of the Company;
(jj) each “forward-looking statement” (within the meaning of Section 27A of the Act or Section 21E of the 1934 Act) contained in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been made with a reasonable basis and has been disclosed in good faith;
(kk) all statistical or market-related data included in the Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required;
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(ll) neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries 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 “Foreign Corrupt Practices Act”), including, without limitation, making use of the mails 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 Foreign Corrupt Practices Act) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the Foreign Corrupt Practices Act; and the Company, the Subsidiaries and, to the Company’s knowledge, the affiliates of the Company have conducted their businesses in compliance with the Foreign Corrupt Practices Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(mm) the operations of the Company, the Subsidiaries and the Vessels 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, rules and regulations of all jurisdictions and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency that, in each case, are applicable to the Company, any of the Subsidiaries and any of the Vessels (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 or non-governmenta
l authority involving the Company, any of the Subsidiaries or any of the Vessels with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened;
(nn) neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is currently subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department;
(oo) no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company, except as described in the Registration Statement, the Pricing Prospectus and the Prospectus; all dividends and other distributions declared and payable on the shares of Common Stock of the Company and on the capital stock of each Subsidiary may under the current laws and regulations of the Marshall Islands be paid in United States dollars and freely transferred out of the Marshall Islands; and all suc
h dividends and other distributions are not subject to withholding or other taxes under the current laws and regulations of the Marshall Islands and are otherwise free and clear of any withholding or other tax and may be declared and paid 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 or any stock exchange authorities in the Marshall Islands;
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(pp) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or by the Registration Statement, the Pricing Prospectus and the Prospectus;
(qq) neither the Company nor any of the Subsidiaries nor, to the Company’s knowledge, any of their respective directors, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(rr) to the Company’s knowledge, there are no affiliations or associations between (i) any member of FINRA and (ii) the Company or any of the Company’s officers, directors or 5% or greater securityholders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date the Registration Statement was initially filed with the Commission, except as set forth in the Registration Statement, the Pricing Prospectus and the Prospectus; and
(ss) the Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Shares.
In addition, any certificate signed by any officer of the Company and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Company, as to matters covered thereby, to the Underwriters.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); a
nd to promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
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(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the date of this Agreement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or ame
ndments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Pros
pectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or a
ny Issuer Free Writing Prospectus, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
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(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonabl
y object in writing; and to promptly notify the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would 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 are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments o
r supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuan
t to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
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(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that
are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sale
s to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (
16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
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(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
5. Covenant to Pay Costs. The Company agrees to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the qualification of the Shares for offering and sale under
state or foreign laws and the determination of their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters incurred in connection with such qualifications and determinations) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (iv) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NYSE and any registration thereof under the 1934 Act, (v) any filing for review of the public offering of the Shares by FINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vi) the fees and disbursements of any transfer agent or registrar for the Shares, (vii) unless otherwise agreed in writing, any presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospecti
ve investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with any road show and (ix) the performance of the Company’s other obligations hereunder.
6. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any reason, the Company agrees that it shall, in addition to paying the amounts described in Section 5 hereof, reimburse the Underwriters for all of their properly documented out-of-pocket expenses, including the reasonable fees and disbursements of their counsel.
7. Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company on the date hereof and at the time of purchase and, if applicable, any additional time of purchase, the performance by the Company of each of their respective obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to the Underwriters at the time of purchase and, if applicable, any additional time of purchase an opinion of Cravath, Swaine & Moore LLP, special United States counsel for the Company, addressed to the Underwriters and dated the time of purchase or the additional time of purchase, as the case may be, substantially in the form set forth in Exhibit B hereto.
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(b) The Company shall furnish to the Underwriters at the time of purchase and, if applicable, any additional time of purchase a negative assurance letter of Cravath, Swaine & Moore LLP, special United States counsel for the Company, addressed to the Underwriters and dated the time of purchase or the additional time of purchase, as the case may be, substantially in the form set forth in Exhibit C hereto.
(c) The Company shall furnish to the Underwriters at the time of purchase and, if applicable, any additional time of purchase an opinion of Cravath, Swaine & Moore LLP, special United States counsel for the Company, as to certain tax matters, addressed to the Underwriters and dated the time of purchase or the additional time of purchase, as the case may be, substantially in the form set forth in Exhibit D hereto.
(d) The Company shall furnish to the Underwriters at the time of purchase and, if applicable, any additional time of purchase an opinion of Reeder & Simpson, P.C., Marshall Islands counsel for the Company, addressed to the Underwriters and dated the time of purchase or the additional time of purchase, as the case may be, substantially in the form set forth in Exhibit E hereto.
(e) The Underwriters shall have received from Ernst & Young AS letters dated, respectively, the date of this Agreement, the time of purchase and, if applicable, any additional time of purchase and addressed to the Underwriters, in the forms heretofore approved by the Representatives.
(f) The Underwriters shall have received at the time of purchase and, if applicable, any additional time of purchase the favorable opinion and negative assurance letter of ___________, counsel for the Underwriters, dated the time of purchase or the additional time of purchase, as the case may be, in form and substance satisfactory to the Representatives.
(g) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Underwriters reasonably object in writing.
(h) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second full business day after the date of this Agreement and any Rule 462(b) Registration Statement required by the Act in connection with the offer and sale of the Shares shall have been filed and become effective no later than 10:00 P.M., New York City time, on the date of this Agreement.
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(i) Prior to and at the time of purchase and, if applicable, any additional time of purchase, (i) no stop order of the Commission preventing or suspending the use of any Preliminary Prospectus or Issuer Free Writing Prospectus, or the effectiveness of the Registration Statement, shall have been issued, and no proceedings for such purpose shall have been instituted; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Pricing Prospectus and all supplements and amendments thereto, when read together with the then issued Issuer Free Writing Prospectuses, if any, and
the information included on Schedule C hereto, shall 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; (iv) the Prospectus and all supplements and amendments thereto shall 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; and (v) the Issuer Free Writing Prospectuses, if any, when read together with the Pricing Prospectus and the information included on Schedule C hereto, shall 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 wh
ich they were made, not misleading.
(j) Between the time of execution of this Agreement and the time of purchase or additional time of purchase, if applicable, (i) there shall not have occurred or become known any material adverse change, or any development involving a prospective material adverse change, in the business, properties, financial condition, results of operations or prospects of the Company and the Subsidiaries taken as a whole and (ii) no transaction which is material and adverse to the Company and the Subsidiaries taken as a whole shall have been entered into by the Company or any of the Subsidiaries.
(k) The Company will, at the time of purchase and, if applicable, any additional time of purchase, deliver to the Underwriters a certificate of its Chief Executive Officer and its Chief Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit F hereto.
(l) The Representatives shall have received each of the signed Lock-Up Agreements referred to in Section 3(u) hereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase.
(m) The Company shall have furnished to the Underwriters such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Pricing Prospectus, the Prospectus and any Issuer Free Writing Prospectus as of the time of purchase and, if applicable, any additional time of purchase as the Underwriters may reasonably request.
(n) The Shares shall be listed and admitted and authorized for trading on the NYSE.
(o) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
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(p) Each Vessel shall be owned directly by a Subsidiary free and clear of all liens, claims, security interests or other encumbrances, except such as are described in the Registration Statement, the Pricing Prospectus and the Prospectus and such as are not material and do not interfere with the intended use to be made of such Vessel as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
8. Effective Date of Agreement; Termination. This Agreement shall become effective when the parties hereto have executed and delivered this Agreement. The obligations of the Underwriters hereunder shall be subject to termination in the absolute discretion of the Representatives if (x) since the time of execution of this Agreement or the earlier respective dates as of which information is given in the Registration Statement, the Pricing Prospectus, the Prospectus and any Permitted Free Writing Prospectus, there has been any material adverse change or any development involving a prospective material adverse change in the business, properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole which would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case excluding any amendments or supplements thereto made after the execution of this Agreement) or (y) since the time of execution of this Agreement, there shall have occurred: (i) a suspension or material limitation in trading in securities generally on the NYSE or NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) an outbreak or escalatio
n of hostilities or acts of terrorism involving the United States or a declaration by the United States of a national emergency or war (it being understood that, with respect to matters relating to the current conflicts in Afghanistan and Iraq occurring within Afghanistan and Iraq, respectively, this clause (iv) shall apply only to an escalation of hostilities or a declaration by the United States of a national emergency or a war which has not heretofore been declared); or (v) any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, (in each case excluding any amendments or
supplements thereto made after the execution of this Agreement) or (z) since the time of execution of this Agreement, there shall have occurred any downgrading, or any notice or announcement shall have been given or made of (i) any intended or potential downgrading or (ii) any watch, review or possible change that does not indicate an affirmation or improvement in the rating accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) under the Act.
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If the Representatives elect to terminate this Agreement as provided in this Section 8, the Company shall be notified promptly in writing. If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is not carried out because the Company shall be unable to comply with any of the terms of this Agreement, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 5, 6 and 9 hereof), and the Underwriters shall be under no obligation or liability to the Company under this Agreement (except to the extent provided in Section 9 hereof) or to one another hereunder.
9. Increase in Underwriters’ Commitments. Subject to Sections 7 and 8 hereof, if any Underwriter (the “Defaulting Underwriter”) shall default in its obligation to take up and pay for the Shares to be purchased by it hereunder and if the aggregate number of Shares which the Defaulting Underwriter shall have agreed but failed to take up and pay for does not exceed 10% of the total number of Shares, each non-defaulting Underwriter (each, a “Non-Defaulting Underwriter” and collectively, the “Non-Defaulting Underwriters”) shall take up and pay for (in addition to the aggregate number of Shares such Non-Defaulting Underwriter is obligated to purchase pursuant to Section 1 hereof) such Non-Defaulting Underwriter’s pro rata share (based on the number of Shares that such Non-Defaulting Underwriter agreed to purchase pursuant to Section 1 hereof) of the Shares agreed but failed to be taken up and paid for by the Defaulting Underwriter.
Without relieving the Defaulting Underwriter from its obligations hereunder, the Company agrees with the Non-Defaulting Underwriters that it will not sell any Shares hereunder unless all of the Shares are purchased by the Non-Defaulting Underwriters (or by substituted Underwriters selected by the Non-Defaulting Underwriters with the approval of the Company or selected by the Company with the approval of the Non-Defaulting Underwriters).
If a new Underwriter or Underwriters are substituted by the Non-Defaulting Underwriters for the Defaulting Underwriter in accordance with the foregoing provision, the Non-Defaulting Underwriters or the Company shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any necessary changes in the Registration Statement and the Prospectus and other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any underwriter substituted under this Section 9 with like effect as if such substituted underwriter had originally been named as an Underwriter in Schedule A hereto.
If the aggregate number of Shares which the Defaulting Underwriter agreed to purchase but failed to take up and pay for exceeds 10% of the total number of Shares which the Underwriters agreed to purchase hereunder, and if neither the Non-Defaulting Underwriters nor the Company shall make arrangements within the five business day period stated above for the purchase of all the Shares which the Defaulting Underwriter agreed to purchase hereunder but failed to take up and pay for, this Agreement shall terminate without further act or deed and without any liability on the part of the Company to the Non-Defaulting Underwriters and without any liability on the part of any Non-Defaulting Underwriter to the Company. Nothing in this paragraph, and no action taken hereunder, shall in any way relie
ve the Defaulting Underwriter from any liability in respect of any default of such Defaulting Underwriter under this Agreement.
23
10. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its partners, directors and officers, and any person who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Underwriters or any such person may incur under the Act, the 1934 Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or in the Registration Statement as amended
by any post-effective amendment thereof by the Company) or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning the Underwriters furnished in writing by or on behalf of the Underwriters to the Company expressly for use in, the Registration Statement or arises out of or is based upon any omission or alleged omission to state a material fact in the Registration Statement in connection with such information, which material fact was not contained in such information and which material fact was required to be stated in such Registration Statement or was necessary to make such information not misleading or (ii) any untrue statement or alleged untrue statement of a ma
terial fact included in any Prospectus (the term Prospectus for the purpose of this Section 10 being deemed to include any Preliminary Prospectus, the Prospectus and any amendments or supplements to the foregoing), in any Issuer Free Writing Prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the Company, which “issuer information” is required to be, or is, filed with the Commission, or in any Prospectus together with any combination of one or more Issuer Free Writing Prospectuses, if any, or arises out of or is based upon any omission or alleged omission 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, except, with respect to such Prospectus or Issuer Free Writing Prospectus, insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and
in conformity with information concerning such Underwriter furnished in writing by or on behalf of such Underwriter to the Company expressly for use in, such Prospectus or Issuer Free Writing Prospectus or arises out of or is based upon any omission or alleged omission to state a material fact in such Prospectus or Issuer Free Writing Prospectus in connection with such information, which material fact was not contained in such information and which material fact was necessary in order to make the statements in such information, in the light of the circumstances under which they were made, not misleading.
24
(b) Each Underwriter agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any such person may incur under the Act, the 1934 Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter to the Company expressly for use in, the Registration Statement (or in the Registration Statement as amended by any post-effective amendment thereof by the Company), or arises out of or is based upon any omission or alleged omission to state a material fact in such Registration Statement in connection with such information, which material fact was not contained in such information and which material fact was required to be stated in such Registration Statement or was necessary to make such information not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information concerning such Underwriter furnished in writing by or on behalf of such Underwriter to the Company expressly for use in, a Prospectus or any Issuer Free Writing Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in such Prospectus or Issuer Free Writing Prospectus in connection with such infor
mation, which material fact was not contained in such information and which material fact was necessary in order to make the statements in such information, in the light of the circumstances under which they were made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against a person (an “indemnified party”) in respect of which indemnity may be sought against the Company or the Underwriters (as applicable, the “indemnifying party”) pursuant to subsection (a) or (b) of this Section 10, such indemnified party shall promptly notify such indemnifying party in writing of the institution of such Proceeding and such indemnifying party shall assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to such indemnifi
ed party and payment of all fees and expenses; provided, however, that the omission to so notify such indemnifying party shall not relieve such indemnifying party from any liability which such indemnifying party may have to any indemnified party or otherwise. The indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such Proceeding or the indemnifying party shall not have, within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding or such indemnified party or parties shall have reasonably concluded, based on the advice of counsel, that there may be
defenses available to it or them which are different from, additional to or in conflict with those available to such indemnifying party (in which case such indemnifying party shall not have the right to direct the defense of such Proceeding on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by such indemnifying party and paid as incurred (it being understood, however, that such indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). The indemnifying party shall not be liable for any settlement of any Proceeding effected without its written consent but, if settled with its written consent, such indemnifying party agrees to indemnify and hold harmless the indemnified party or parties from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second sentence of this Section 10(c), then the indemnifying party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 business days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have fully reimbursed the indemnified party in accordance with such request prior to the date of such settlement and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which any indemnified party is or c
ould have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
25
(d) If the indemnification provided for in this Section 10 is unavailable to an indemnified party under subsections (a) or (b) of this Section 10 or insufficient to hold an indemnified party harmless in respect of any losses, damages, expenses, liabilities or claims referred to therein, then each applicable indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above 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, damages, expenses, liabilities or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company, and the total underwriting discounts and commissions received by the Underwriters, bear to the aggregate public offering price of the Shares. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omissi
on relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to in this subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the provisions of this Section 10, (i) the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by the Underwriters and distributed to the public were offered to the public exceeds the amount of any damage which the Underwriters have otherwise been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission and (ii) the Company shall no
t be required to contribute any amount in excess of the product of (x) the aggregate number of Shares sold by the Company hereunder and (y) the purchase price per Share set forth in Section 1 hereof. 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.
26
(f) The indemnity and contribution agreements contained in this Section 10 and the covenants, warranties and representations of the Company contained in this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Underwriters, their partners, directors or officers or any person (including each partner, officer or director of such person) who controls the Underwriters within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, or by or on behalf of the Company, their respective directors or officers or any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, and shall survive any termination of this Agreement or the issuance and delivery of the Shares pursua
nt hereto. The Company and the Underwriters agree promptly to notify each other of the commencement of any Proceeding against it and, in the case of the Company, against any of their officers or directors in connection with the issuance and sale of the Shares, or in connection with the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
11. Information Furnished by the Underwriters. The statements set forth in the Prospectus under “Underwriting” in the ___________ paragraph under the subheading ___________ constitute the only information furnished by or on behalf of the Underwriters as such information is referred to in Section 3 and Section 10 hereof.
12. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to ___________ and, if to the Company, shall be sufficient in all respects if delivered or sent to the Company at the offices of the Company at 26 New Street, St. Helier, Jersey JE2 3RA, Attention: Chief Financial Officer, with a copy to Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, Attention: Erik R. Tavzel.
13. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company consents to the jurisdiction of such courts and personal service with respect thereto. The Company consents to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Agreement is brought by any third party against any Underwriter or any indemnified party. The Underwrit
ers and the Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) each waive all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction of which the Company is or may be subject, by suit upon such judgment. The Company hereby appoints, without power of revocation, CT Corporation, located at 111 Eighth Avenue, 13th Floor, New York, NY 10011, as its agent to accept and acknowledge on its behalf of any and all process which may be served in any action, proceeding or counterclaim in any way relating to or arising out of this Agreement.
27
15. Parties at Interest. The Agreement herein set forth has been and is made solely for the benefit of the Underwriters and the Company and to the extent provided in Section 10 hereof the controlling persons, partners, directors and officers referred to in such Section, and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and the Company and their successors and assigns and any successor or assign of any substantial portion of the Company’s or any of the Underwriters’ respective businesses and/or assets.
18. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters are acting solely as the underwriters in connection with the purchase and sale of the Company’s securities. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, stockholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Company’s securities
either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions, and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Company’s securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connec
tion with the transactions contemplated by this Agreement or any matters leading up to such transactions.
[The Remainder of This Page Intentionally Left Blank; Signature Pages Follow]
28
If the foregoing correctly sets forth the understanding among the Company and the Underwriters, please so indicate in the space provided below for that purpose, whereupon this Agreement and the Underwriter’s acceptance shall constitute a binding agreement among the Company and the Underwriters.
| Very truly yours, | |||
| DHT HOLDINGS, INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Accepted and agreed as of the date first written above, on behalf of themselves and the other Underwriters named in Schedule A: | |||||
|
By:
|
|||||
|
By:
|
|
|
|||
|
Name
|
|
||||
|
Title
|
|
||||
SCHEDULE A
LIST OF UNDERWRITERS
|
Name of Underwriter
|
Number of shares of
common stock
|
|
|
Total......................................................................................
|
SCHEDULE B
PERMITTED FREE WRITING PROSPECTUSES
[•]
SCHEDULE C
CERTAIN INFORMATION
[•]
SCHEDULE D
SUBSIDIARIES AND VESSELS
|
Subsidiary
|
Vessel Owned
|
||
|
DHT Maritime, Inc.
|
(none)
|
|
|
|
Ann Tanker Corporation
|
OverseasAnn | ||
|
Chris Tanker Corporation
|
OverseasChris | ||
|
Regal Unity Tanker Corporation
|
OverseasRegal | ||
|
Cathy Tanker Corporation
|
OverseasCathy | ||
|
Sophie Tanker Corporation
|
OverseasSophie | ||
|
Rebecca Tanker Corporation
|
OverseasRebecca | ||
|
Ania Aframax Corporation
|
OverseasAnia | ||
|
London Tanker Corporation
|
OverseasLondon | ||
|
Newcastle Tanker Corporation
|
OverseasNewcastle |
|
|
SCHEDULE E
PERSONS REQUIRED TO DELIVER LOCK-UP AGREEMENTS
|
1.
|
Erik A. Lind
|
|
2.
|
Randee Day
|
|
3.
|
Rolf A. Wikborg
|
|
4.
|
Einar Michael Steimler
|
|
5.
|
Eirik Ubøe
|
|
6.
|
Tom Kjeldsberg
|
EXHIBIT A
LOCK-UP AGREEMENT
___________, ____
___________
___________
___________
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) to be entered into among DHT Holdings, Inc. a Marshall Islands corporation (the “Company”), and you, as representatives (the “Representatives”) of the underwriters named in Schedule A to the Underwriting Agreement (the “Underwriters”), with respect to the public offering (the “Offering”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”).
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that, for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and including, the date that is 90 days after the date of the final prospectus relating to the Offering, the undersigned will not, without the prior written consent of the Representatives, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or file (or participate in the filing of) a registration statement with the Securities and Exchange Commission (the “Com
mission”) in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act”) with respect to, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or other
wise or (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii). The foregoing sentence shall not apply to (a) the registration of or sale to the Underwriters (as defined in the Underwriting Agreement) of any Common Stock pursuant to the Offering and the Underwriting Agreement, (b) bona fide gifts, provided the recipient thereof agrees in writing with the Underwriters to be bound by the terms of this Lock-Up Agreement or (c) dispositions to any trust for the direct or indirect benefit of the undersigned and/or the immediate family of the undersigned, provided that such trust agrees in writing with the Underwriters to be bound by the terms of this Lock-Up Agreement. For purposes of this paragraph, “immediate family” shall mean the undersigned and the spouse, any lineal descendent, father, mother, brother or sister of the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require registration of Common Stock in connection with the filing of a registration statement relating to the Offering. The undersigned further agrees that, for the Lock-Up Period, the undersigned will not, without the prior written consent of the Representatives, make any demand for, or exercise any right with respect to, the registration of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or
material event occurs.
In addition, the undersigned hereby waives any and all preemptive rights, participation rights, resale rights, rights of first refusal and similar rights that the undersigned may have in connection with the Offering or with any issuance or sale by the Company of any equity or other securities before the Offering, except for any such rights as have been heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken, and hereby covenants that the undersigned will not, directly or indirectly, take, any action designed, or which has constituted or will constitute or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of shares of Common Stock.
If for any reason the Underwriting Agreement shall be terminated prior to the “time of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated and the undersigned shall be released from its obligations hereunder.
| You very truly, | |||
| Name: | |||
EXHIBIT B
OPINION OF CRAVATH, SWAINE & MOORE LLP
SPECIAL UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT C
NEGATIVE ASSURANCE LETTER OF CRAVATH, SWAINE & MOORE LLP
SPECIAL UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT D
TAX OPINION OF CRAVATH, SWAINE & MOORE LLP
SPECIAL UNITED STATES COUNSEL TO THE COMPANY
EXHIBIT E
OPINION OF REEDER & SIMPSON P.C.
MARSHALL ISLANDS COUNSEL TO THE COMPANY
EXHIBIT F
OFFICERS’ CERTIFICATE
Exhibit 4.1
DHT
HOLDINGS, INC.
FORM
OF INDENTURE
Dated
as of
[ ]
[ ]
Trustee
Page
| SECTION 1.01. | Definitions | 1 |
| SECTION 1.02. | Other Definitions | 6 |
| SECTION 1.03. | Incorporation by Reference of Trust Indenture Act | 6 |
| SECTION 1.04. | Rules of Construction | 7 |
i
ii
iii
iv
CROSS-REFERENCE
TABLE*
| Trust Indenture Act Section |
Indenture
Section
|
| 310 |
(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
Not
Applicable
|
|
|
(a)(4)
|
Not
Applicable
|
|
|
(a)(5)
|
7.10
|
|
|
(b)
|
7.10
|
|
|
(c)
|
Not
Applicable
|
|
| 311 |
(a)
|
7.11
|
|
(b)
|
7.11
|
|
|
(c)
|
Not
Applicable
|
|
| 312 |
(a)
|
2.06
|
|
(b)
|
10.03
|
|
|
(c)
|
10.03
|
|
| 313 |
(a)
|
7.06
|
|
(b)(1)
|
Not
Applicable
|
|
|
(b)(2)
|
7.06
|
|
|
(c)
|
7.06
|
|
|
(d)
|
7.06
|
|
| 314 |
(a)
|
4.02;4.03
|
|
(b)
|
Not
Applicable
|
|
|
(c)(1)
|
10.04
|
|
|
(c)(2)
|
10.04
|
|
|
(c)(3)
|
Not
Applicable
|
|
|
(d)
|
Not
Applicable
|
|
|
(e)
|
10.05
|
|
|
(f)
|
Not
Applicable
|
|
| 315 |
(a)
|
7.01
|
|
(b)
|
7.05
|
|
|
(c)
|
7.01
|
|
|
(d)
|
7.01
|
|
|
(e)
|
6.11
|
|
| 316 |
(a)
(last
sentence)
|
2.10
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
Not
Applicable
|
|
|
(b)
|
6.07
|
|
|
(c)
|
2.13
|
|
| 317 |
(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.05
|
|
| 318 |
(a)
|
10.01
|
|
(b)
|
Not
Applicable
|
|
|
(c)
|
10.01
|
*This
Cross-Reference Table does not constitute part of the Indenture and shall not
have any bearing on the interpretation of any of its terms or
provisions.
INDENTURE
dated as of [ ], between DHT
HOLDINGS, INC., a Marshall Islands corporation, and
[ ],
as trustee.
The
Company and the Trustee agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the securities issued under this
Indenture (the “Securities”):
DEFINITIONS AND
INCORPORATION BY REFERENCE
For all
purposes under this Indenture and any supplemental indenture hereto, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following meanings:
“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 purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), when used with respect to any Person, shall mean the
power to direct or cause the direction of the management or policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or co-registrar.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.
“Board of
Directors” means the Board of Directors of the Company, or any authorized
committee of the Board of Directors.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered to the
Trustee.
“Business
Day” means any day other than a Legal Holiday.
“Capital
Stock” means, with respect to any Person, any shares or other equivalents
(however designated) of any class of corporate stock or partnership interests or
any other participations, rights, warrants, options or other interests in the
nature of an equity interest in such Person, including preferred stock,
including any debt security convertible or exchangeable into such equity
interest.
“Clearstream”
means Clearstream Banking, société anonyme, or any successor
thereto.
“Commodity
Price Protection Agreement” means, in respect of a Person, any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity
prices.
“Company”
means DHT Holdings, Inc., and any and all successors thereto.
“Company
Order” means a written order signed in the name of the Company by two Officers,
one of whom must be the Company’s principal executive officer, principal
financial officer or principal accounting officer.
“Corporate
Trust Office of the Trustee” shall be the address of the Trustee specified in
Section 10.02 hereof or such other address as to which the Trustee may give
notice to the Company.
“Currency
Exchange Protection Agreement” means, in respect of a Person, any foreign
exchange contract, currency swap agreement, currency option or other similar
agreement or arrangement designed to protect such Person against fluctuations in
currency exchange rates.
“Debt”
means, with respect to any Person (without duplication):
(a) the
principal of and premium (if any) in respect of any obligation of such Person
for money borrowed, and any obligation evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible or
liable;
(b) all
obligations of such Person as lessee under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles
and leases of Property made as part of any sale and leaseback transaction
entered into by such Person;
(c) all
obligations of such Person issued or assumed as the deferred purchase price of
Property, all conditional sale obligations of such Person and all obligations of
such Person under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business);
(d) all
obligations of such Person for the reimbursement of any obligor on any letter of
credit, banker’s acceptance or similar credit transaction;
(e) all
obligations of the type referred to in clauses (a) through (d) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(f) all
obligations of the type referred to in clauses (a) through (d) of other Persons
secured by any Lien on any Property of such Person (whether or not such
obligation is assumed by such Person); and
(g) to
the extent not otherwise included in this definition, obligations pursuant to
any Interest Rate Agreement, Currency Exchange Protection Agreement, Commodity
Price Protection Agreement or any other similar agreement or arrangement of such
Person.
“Default”
means any event that is, or after notice or passage of time or both would be, an
Event of Default.
“Definitive
Security” means a certificated Security registered in the name of the Holder
thereof and issued in accordance with Section 2.08 hereof.
“Depositary”
means, with respect to the Securities issuable or issued in whole or in part in
global form, the Person specified in Section 2.15 hereof as the Depositary
with respect to the Securities, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable provision
of this Indenture.
“Dollar”
means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and
private debt.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any
successor thereto.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than
the government of the United States of America.
“Global
Security,” when used with respect to any Series of Securities issued
hereunder, means a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Order, which shall
be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all the outstanding Securities of such Series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest and which shall bear
the legend as prescribed by Section 2.15(c) hereof.
“Global
Security Legend” means the legend set forth in Section 2.15(c) hereof,
which is required to be placed on all Global Securities issued under this
Indenture.
“Guarantee”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof), of all or any
part of any Debt. The term “Guarantor” shall mean any Person Guaranteeing any
obligation.
“Holder”
means a Person in whose name a Security is registered on the Registrar’s
books.
“IFRS”
means International Financial Reporting Standards, as issued by the
International Accounting Standards Board.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Interest
Payment Date” when used with respect to any Series of Securities, means the date
specified in such Securities for the payment of any installment of interest on
those Securities.
“Interest
Rate Agreement” means, for any Person, any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement designed to protect against fluctuations in interest
rates.
“Lien”
means, with respect to any Property of any Person, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property (including any capital lease obligation,
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing or any sale and leaseback
transaction).
“Maturity,”
when used with respect to any Security or installment of principal thereof,
means the date on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
“Officers’
Certificate” means a certificate signed on behalf of the Company by two Officers
of the Company, one of whom must be the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
that meets the requirements of Sections 10.04 and 10.05
hereof.
“Opinion
of Counsel” means an opinion from legal counsel, that meets the requirements of
Sections 10.04 and 10.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the
Trustee.
“Original
Issue Discount Security” means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.02
hereof.
“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and,
with respect to the Depository Trust Company, shall include Euroclear and
Clearstream).
“Person”
means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other
entity.
“Property”
means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible,
including Capital Stock in, and other securities of, any other
Person.
“Responsible
Officer” with respect to the Trustee, means any Vice President, Assistant Vice
President, Assistant Treasurer or any other officer of the Trustee assigned by
the Trustee to administer its corporate trust matters and who customarily
performs functions similar to those performed by such Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such Person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for administration
of this Indenture.
“SEC”
means the Securities and Exchange Commission.
“Securities”
has the meaning assigned to it in the preamble to this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02
hereof.
“Significant
Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.
“Stated
Maturity,” when used with respect to any Security, means the date specified in
such Security as the fixed date on which an amount equal to the principal amount
of such Security is due and payable.
“Subsidiary”
of any Person means any corporation, limited liability company, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of 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 at the time
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.
“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb),
and the rules and regulations thereunder as in effect on the date on which this
Indenture is qualified under the TIA, except as provided in Section 9.03
hereof.
“Trustee”
means the party named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.
“U.S.
Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer’s option.
“U.S.
Person” means a U.S. person as defined in Rule 902(k) under the Securities
Act.
“Voting
Stock” of any Person means all classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and normally
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof.
|
Term
|
Defined in Section
|
|
|
“Additional
Amounts”
|
4.07
|
|
|
“Covenant
Defeasance”
|
8.03
|
|
|
“Custodian”
|
6.01
|
|
|
“Event
of
Default”
|
6.01
|
|
|
“Legal
Defeasance”
|
8.02
|
|
|
“Legal
Holiday”
|
10.08
|
|
|
“Paying
Agent”
|
2.05
|
|
|
“Registrar”
|
2.05
|
|
|
“Relevant
Taxing Jurisdiction”
|
4.07
|
|
|
“Service
Agent”
|
2.05
|
|
|
“Surviving
Person”
|
5.01
|
|
|
“Taxes”
|
4.07
|
SECTION
1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of
the TIA, which are incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
“indenture
securities” means the Securities;
“indenture
security Holder” means a Holder of a Security;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the Securities means the Company and any successor obligor upon the
Securities.
All other
terms used in this Indenture that are defined by the TIA, defined by the TIA’s
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
SECTION 1.04. Rules
of
Construction. Unless the context otherwise
requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with IFRS;
(3) “or”
is not exclusive;
(4) words
in the singular include the plural, and in the plural include the
singular;
(5) provisions
apply to successive events and transactions; and
(6) references
to sections of or rules under the Securities Act shall be deemed to include
substitute, replacement or successor sections or rules adopted by the SEC from
time to time.
THE
SECURITIES
SECTION 2.01. Rules
in
Series. The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board Resolution,
supplemental indenture or Officers’ Certificate may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters.
SECTION 2.02. Establishment of
Terms of Series of Securities. At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the
Series generally, in the case of Subsection 2.02(a) hereof and either as to
such Securities within the Series or as to the Series generally in the case of
Subsections 2.02(b) through 2.02(w) hereof) by a Board Resolution, a
supplemental indenture or an Officers’ Certificate pursuant to authority granted
under a Board Resolution:
(a) the title
of the Securities of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
(b) the
ranking of the Securities of the Series relative to other Debt of the Company
and the terms of any subordination provisions;
(c) any limit
upon the aggregate principal amount of the Securities of the Series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series);
(d) the date
or dates on which the principal and premium of the Securities of the Series are
payable;
(e) the rate
or rates (which may be fixed or variable) at which the Securities of the Series
shall bear interest, if any, or the method of determining such rate or rates,
the date or dates from which such interest, if any, shall accrue, the Interest
Payment Dates on which such interest, if any, shall be payable or the method by
which such dates will be determined, the record dates for the determination of
Holders thereof to whom such interest is payable (in the case of Securities in
registered form), and the basis upon which such interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(f) the
currency or currencies, including composite currencies in which Securities of
the Series shall be denominated, if other than Dollars, the place or places, if
any, in addition to or instead of the Corporate Trust Office of the Trustee (in
the case of Securities in registered form) or the principal New York office of
the Trustee (in the case of Securities in bearer form), where the principal,
premium and interest with respect to Securities of such Series shall be payable
or the method of such payment, if by wire transfer, mail or other
means;
(g) the price
or prices at which, the period or periods within which, and the terms and
conditions upon which, Securities of the Series may be redeemed, in whole or in
part at the option of the Company or otherwise;
(h) the form
of the Securities of the Series and whether Securities of the Series are to be
issued in registered form or bearer form or both and, if Securities are to be
issued in bearer form, whether coupons will be attached to them, whether
Securities of the Series in bearer form may be exchanged for Securities of the
Series issued in registered form, and the circumstances under which and the
places at which any such exchanges, if permitted, may be made;
(i) if any
Securities of the Series are to be issued in bearer form or as one or more
Global Securities representing individual Securities of the Series in bearer
form, whether certain provisions for the payment of additional interest or tax
redemptions shall apply; whether interest with respect to any portion of a
temporary Security of the Series in bearer form payable with respect to any
Interest Payment Date prior to the exchange of such temporary Security in bearer
form for definitive Securities of the Series in bearer form shall be paid to any
clearing organization with respect to the portion of such temporary Security in
bearer form held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and the terms upon which a
temporary Security in bearer form may be exchanged for one or more definitive
Securities of the Series in bearer form;
(j) the
obligation, if any, of the Company to redeem, purchase or repay the Securities
of the Series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices at which, the period or
periods within which, and the terms and conditions upon which, Securities of the
Series shall be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligations;
(k) the
terms, if any, upon which the Securities of the Series may be exchanged for any
of the Company’s common stock or other equity interests, and the terms and
conditions upon which such exchange shall be effected, including the initial
exchange price or rate, the exchange period and any other additional
provisions;
(l) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be
issuable;
(m) if the
amount of principal, premium or interest with respect to the Securities of the
Series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts will be determined;
(n) if the
principal amount payable at the Stated Maturity of Securities of the Series will
not be determinable as of any one or more dates prior to such Stated Maturity,
the amount that will be deemed to be such principal amount as of any such date
for any purpose, including the principal amount thereof which will be due and
payable upon any Maturity other than the Stated Maturity and which will be
deemed to be outstanding as of any such date (or, in any such case, the manner
in which such deemed principal amount is to be determined), and if necessary,
the manner of determining the equivalent thereof in Dollars;
(o) the
applicability of or any changes or additions to the defeasance and discharge
provisions of Article Eight hereof;
(p) if other
than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.02 hereof;
(q) the
terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Securities of the Series of any properties, assets, moneys, proceeds,
securities or other collateral, including whether certain provisions of the TIA
are applicable and any corresponding changes to provisions of this Indenture as
then in effect;
(r) any
addition to or change in the Events of Default which applies to any Securities
of the Series and any change in the right of the Trustee or the requisite
Holders of such Series of Securities to declare the principal amount of,
premium, if any, and interest on such Series of Securities due and payable
pursuant to Section 6.02 hereof;
(s) if the
Securities of the Series shall be issued in whole or in part in the form of a
Global Security, the terms and conditions, if any, upon which such Global
Security may be exchanged in whole or in part for other individual Definitive
Securities of such Series, the Depositary for such Global Security and the form
of any legend or legends to be borne by any such Global Security in addition to
or in lieu of the Global Securities Legend;
(t) any
Trustee, authenticating agent, Paying Agent, transfer agent, Service Agent or
Registrar;
(u) the
applicability of, and any addition to or change in, the covenants (and the
related definitions) set forth in Articles Four and Five hereof which apply to
Securities of the Series;
(v) with
regard to Securities of the Series that do not bear interest, the dates for
certain required reports to the Trustee;
(w) the terms
applicable to Original Issue Discount Securities, including the rate or rates at
which original issue discount will accrue; and
(x) any other
terms of Securities of the Series (which terms shall not be prohibited by the
provisions of this Indenture).
All
Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers’ Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.
SECTION
2.03. Denominations; Provisions for
Payment. The Securities shall be issuable, except as otherwise
provided with respect to any series of Securities pursuant to Section 2.02
hereof, as registered Securities in the denominations of one thousand Dollars
($1,000) or any integral multiple thereof, subject to Sections 2.02(f) and
2.02(l) hereof. The Securities of any Series shall bear interest payable on the
dates and at the rate specified with respect to that Series. Unless otherwise
provided as contemplated by Section 2.02 hereof with respect to Securities
of any Series, the principal of and the interest on the Securities of any
Series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in Dollars. Such payment shall be made at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the date
of its authentication. Unless otherwise provided as contemplated by Section 2.02
hereof, interest on the Securities shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Securities of that Series
shall be paid to the Person in whose name said Security (or one or more
predecessor Securities) is registered at the close of business on the regular
record date for such interest installment.
Unless
otherwise set forth in a Board Resolution, a supplemental indenture or an
Officers’ Certificate establishing the terms of any Series of Securities
pursuant to Section 2.02 hereof, the term “regular record date” as used in
this Section with respect to Securities of any Series with respect to any
Interest Payment Date for such Series shall mean (i) either the fifteenth
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.02 hereof shall
occur, if such Interest Payment Date is the first day of a month or
(ii) the first day of the month in which an Interest Payment Date
established for such Series pursuant to Section 2.02 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a Series delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such Series shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Security.
SECTION
2.04. Execution and Authentication. One or
more Officers shall sign the Securities for the Company by manual or facsimile
signature. If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid. A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent. The signature shall
be conclusive evidence that the Security has been authenticated under this
Indenture. The Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage.
The
Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the
Trustee of a Company Order. Such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate.
The
aggregate principal amount of Securities of any Series outstanding at any time
may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.02 hereof, except as provided
in Section 2.09 hereof.
Prior to
the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.02 hereof) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or
Officers’ Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series
or of Securities within that Series, (b) an Officers’ Certificate complying
with Sections 10.04 and 10.05 hereof, and (c) an Opinion of Counsel
complying with Sections 10.04 and 10.05 hereof.
The
Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken; or (b) if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
determine that such action would expose the Trustee to personal liability to
Holders of any then outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.05. Registrar and
Paying Agent. So long as Securities of any Series
remaining outstanding, the Company agrees to maintain an office or agency in the
Borough of Manhattan, the City and State of New York (or any other place or
places specified with respect to such Series pursuant to Section 2.02
hereof), where Securities of such Series may be presented or surrendered for
payment (“Paying
Agent”), where Securities of such Series may be presented for
registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served (“Service Agent”). The
Registrar shall keep a register with respect to each Series of Securities and to
their transfer and exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or address, of each
office or agency, Registrar, Paying Agent or Service Agent. If at any time the
Company shall fail to maintain any such required office or agency, Registrar,
Paying Agent or Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The
Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents 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
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.02 hereof for Securities of any
Series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the name or
address of any such co-registrar, additional paying agent or additional service
agent. The term “Registrar” includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Service Agent” includes any
additional service agent.
The
Company hereby appoints the Trustee as the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that
Series are first issued.
SECTION
2.06. Paying Agent to Hold Money in Trust. The
Company shall require each Paying Agent, other than the Trustee, to agree in
writing that the Paying Agent will hold in trust, for the benefit of Holders of
any Series of Securities, or the Trustee, all money held by the Paying Agent for
the payment of principal of or interest on the Series of Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. Notwithstanding anything in this Section to
the contrary, (i) the agreement to hold sums in trust as provided in this
Section 2.06 is subject to the provisions of Section 8.06 hereof, and
(ii) 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
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 and conditions 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 (if other than the Company or a Subsidiary) shall be released
from all further liability with respect to the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of Holders of any Series of Securities all
money held by it as Paying Agent.
SECTION
2.07. Holder
Lists. (a) The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of each Series of Securities and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least ten days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Holders of each Series of Securities.
(b) The
Trustee may destroy any list furnished to it as provided in Section 2.07(a)
hereof upon receipt of a new list so furnished.
SECTION 2.08. Transfer and
Exchange. When
Securities of a Series are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of the same Series, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.12, 3.06 or 9.05 hereof).
Neither
the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series during the period beginning at
the opening of business fifteen days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption and
ending at the close of business on the day of such mailing, or (b) to
register the transfer or exchange of Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in
part.
All
Securities presented or surrendered for exchange or registration of transfer, as
provided in this Section, shall be accompanied (if so required by the Company or
the Registrar) by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Registrar, duly executed by the Holder or by
such Holder’s duly authorized attorney in writing.
The
provisions of this Section 2.08 are, with respect to any Global Security,
subject to Section 2.15 hereof.
SECTION
2.09. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
If there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security (without surrender thereof except in the case of
a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, and, in case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the
issuance of any new Security pursuant to this Section 2.09, 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 of any Series issued pursuant to this Section 2.09 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The
provisions of this Section 2.09 are exclusive and shall preclude (to the
extent lawful) any and all other rights and remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary, with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities,
negotiable instruments or other securities.
SECTION
2.10. Outstanding Securities. The Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this
Section 2.10 as not outstanding.
If a
Security is replaced pursuant to Section 2.09 hereof, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the
Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A
Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security.
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, the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.02 hereof.
SECTION
2.11. Treasury Securities. In determining
whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent
or waiver, Securities of a Series owned by the Company or an Affiliate of the
Company shall be disregarded and deemed not to be outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver
only Securities of a Series that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 2.12. Temporary
Securities. Until Definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon a Company Order. Temporary Securities shall be substantially in
the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee upon request shall authenticate Definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary Securities shall have the same rights
under this Indenture as the Definitive Securities.
SECTION
2.13. Cancellation. The Company at any time
may deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for transfer, exchange, payment, replacement or
cancellation and shall dispose of such canceled Securities according to its
normal operating procedures (subject to the record retention requirement of the
Exchange Act) and deliver a certificate of such disposition to the Company. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
SECTION
2.14. Defaulted Interest. If the Company
defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable
on the defaulted interest, to the persons who are Holders of the Series on a
subsequent special record date. The Company shall fix the record date and
payment date. At least 30 days before the record date, the Company shall mail to
the Trustee and to each Holder of the Series a notice that states the record
date, the payment date and the amount of interest to be paid. The Company may
pay defaulted interest in any other lawful manner.
SECTION
2.15. Global Securities.
(a) Terms of
Securities. A Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate shall establish whether the Securities of a
Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depositary for such Global Security or
Securities.
(b) Transfer and
Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.08 hereof and in addition thereto, any Global
Security shall be exchangeable pursuant to Section 2.08 hereof for
Securities registered in the names of Holders other than the Depositary for such
Security or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depositary within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable or (iii) an Event
of Default with respect to the Securities represented by such Global Security
shall have occurred and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as the Depositary shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
Except as
provided in this Section 2.15(b), a Global Security may only be transferred
in whole but not in part (i) by the Depositary with respect to such Global
Security to a nominee of such Depositary, (ii) by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or (iii) by the
Depositary or any such nominee to a successor Depositary or a nominee of such a
successor Depositary.
(c) Legend. Any
Global Security issued hereunder shall bear a legend in substantially the
following form:
“THIS
SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.04 OF THE INDENTURE, (B) THIS SECURITY MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.15(B) OF THE INDENTURE, (C) THIS SECURITY
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.13 OF THE
INDENTURE AND (D) EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.15(B) OF THE
INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY (X)
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”
(d) Payments. Notwithstanding
the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 2.02 hereof, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder
thereof.
(e) Consents, Declaration and
Directions. Except as provided in Section 2.15(d) hereof,
the Company, the Trustee and any Agent shall treat a person as the Holder of
such principal amount of outstanding Securities of such Series represented by a
Global Security as shall be specified in a written statement of the Depositary
with respect to such Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the Holders pursuant
to this Indenture.
SECTION
2.16. CUSIP Numbers. The Company in issuing
the Securities may use “CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience
to Holders; provided that neither
the Company nor the Trustee shall have any responsibility for any defect in the
“CUSIP” number that appears on any Security, check, advice of payment or
redemption notice, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other elements of identification printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee of any change in CUSIP
numbers.
SECTION
2.17. Benefits of Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give or be construed
to give to any Person, other than the parties hereto and the holders of the
Securities, any legal or equitable right, remedy or claim under or in respect of
this Indenture, or under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the Holders of the Securities.
REDEMPTION AND
PREPAYMENT
SECTION
3.01. Notices to Trustee. The Company may,
with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of
Securities or any part thereof prior to the Stated Maturity thereof at such time
and on such terms as provided for in such Series of Securities. If a Series of
Securities is redeemable and the Company wants or is obligated to redeem prior
to the Stated Maturity thereof all or part of the Series of Securities pursuant
to the terms of such Securities, it shall notify the Trustee of the redemption
date and the principal amount of Securities of the Series to be redeemed and the
redemption price. The Company shall give such notice to the Trustee at least 30
but no more that 60 days before the redemption date (or such shorter notice
as may be acceptable to the Trustee).
SECTION
3.02. Selection of Securities to be
Redeemed. Unless otherwise indicated for a particular Series
of Securities by a Board Resolution, a supplemental indenture or an Officers’
Certificate, if less than all of the Securities are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Securities to
be redeemed or purchased as follows:
(1) if the
Securities are listed on any national securities exchange, in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities are listed; or
(2) if the
Securities are not listed on any national securities exchange, on a pro rata
basis, by lot or by such other method as the Trustee shall deem fair and
appropriate.
Unless
otherwise indicated for a particular Series of Securities by a Board Resolution,
a supplemental indenture or an Officers’ Certificate, no Securities of $1,000 of
principal amount or less will be redeemed in part. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption. The
Trustee shall make the selection at least 25 days but not more than 60 days
before the redemption date from outstanding Securities of a Series not
previously called for redemption.
If any
Security is to be redeemed in part only, the notice of redemption that relates
to such Security shall state the portion of the principal amount of that
Security to be redeemed. A new Security in principal amount equal to the
unredeemed portion of the original Security presented for redemption will be
issued in the name of the Holder thereof upon cancellation of the original
Security. Securities called for redemption become irrevocably due on the date
fixed for redemption at the applicable redemption price, plus accrued and unpaid
interest to the redemption date. On and after the redemption date, unless the
Company defaults in making the applicable redemption payment, interest ceases to
accrue or accrete on Securities or portions of them called for
redemption.
SECTION
3.03. Notice of Redemption. Unless otherwise
provided for a particular Series of Securities by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Securities are to be redeemed at its registered address.
The
notice shall identify the Securities to be redeemed and shall
state:
(1) the
redemption date;
(2) the
redemption price or the appropriate calculation of the redemption price, which
in each case will include interest accrued and unpaid to the date fixed for
redemption;
(3) if any
Security is being redeemed in part, the portion of the principal amount of such
Security to be redeemed and that, after the redemption date upon surrender of
such Security, a new Security or Securities in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original
Security;
(4) the name
and address of the Paying Agent;
(5) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(6) that,
unless the Company defaults in making such redemption payment, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the
paragraph of the Securities and/or provision of this Indenture or any
supplemental indenture pursuant to which the Securities called for redemption
are being redeemed;
(8) the CUSIP
number, if any, printed on the Securities being redeemed; and
(9) that no
representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Securities.
At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; 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 required
by this Section 3.03.
SECTION
3.04. Effect of Notice of Redemption. Once
notice of redemption is mailed in accordance with Section 3.03 hereof,
Securities called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Failure
to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION
3.05. Deposit of Redemption Price. Prior to
10:00 a.m. (New York City time) on the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary of the Company is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of, and accrued interest on,
all Securities to be redeemed on that date, other than Securities or portions of
Securities called for redemption that have been delivered by the Company to the
Trustee for cancellation. The Trustee or the Paying Agent shall as promptly as
practicable return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Securities to be redeemed. If
such money is then held by the Company in trust and is not required for such
purpose it shall be discharged from such trust.
If the
Company complies with the provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue on the Securities or the
portions of Securities called for redemption. If a Security is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Security was registered at the close of business on such record date.
If any Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and, to the extent lawful, on any interest
not paid on such unpaid principal, in each case at the rate provided in the
Securities.
SECTION 3.06. Securities
Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Company shall execute and, upon the Company’s written
request, the Trustee shall authenticate for the Holder (at the Company’s
expense) a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
COVENANTS
SECTION
4.01. Payment of Securities. The Company
covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually make all payments in respect of each Series of
Securities on the dates and in the manner provided in such Series of Securities
and this Indenture. Such payments shall be considered made on the date due if on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to make all payments with respect to such Securities
then due.
SECTION
4.02. SEC
Reports. Unless otherwise indicated in a Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, notwithstanding that
the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, so long as any Securities are outstanding, the
Company shall furnish to the Trustee and the Holders copies of such annual
reports and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act subject to such Sections, at the
times specified for the filing of such information, documents and reports under
such Sections. 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 constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates). The Company also shall
comply with the other provisions of TIA § 314(a).
SECTION
4.03. Compliance Certificate. The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company an Officers’ Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company they would
normally have knowledge of any Default and whether or not the signers know of
any Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
propose to take with respect thereto. The Company also shall comply with TIA
§ 314(a)(4).
SECTION
4.04. Further Instruments and Acts. The
Company shall execute and deliver to the Trustee such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION
4.05. Corporate Existence. Subject to
Article Five hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect:
(1) its
limited liability company, corporate, partnership or other existence in
accordance with its organizational documents (as the same may be amended from
time to time) and
(2) the
rights (charter and statutory), licenses and franchises of the Company; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Securities.
SECTION
4.06. Calculation of Original Issue
Discount. The Company shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on
outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
SECTION
4.07. Additional Amounts. If, following any
transactions permitted by Section 5.01 hereof, the Surviving Person is organized
other than under the laws of the United States of America, any State thereof or
the District of Columbia, all payments made by the Surviving Person under or
with respect to the Securities shall 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”) imposed or
levied by or on behalf of the government of the Surviving Person’s country of
incorporation or any political subdivision or any authority or agency therein or
thereof having power to tax, or within any other jurisdiction in which the
Surviving Person is organized or is otherwise resident for tax purposes or any
jurisdiction from or through which payment is made (each a “Relevant Taxing
Jurisdiction”), unless the Surviving Person is required to withhold or
deduct Taxes by law or by the interpretation or administration
thereof.
If the
Surviving Person is so required to withhold or deduct any amount for or on
account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made
under or with respect to the Securities, the Surviving Person shall pay such
additional amounts (“Additional Amounts”)
as may be necessary so that the net amount received by the Holders (including
Additional Amounts) after such withholding or deduction will not be less than
the amount the Holders 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 existence of any present or
former connection between the relevant Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over the relevant
Holder, if the relevant Holder is an estate, nominee, trust or corporation) and
the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or
the ownership or holding outside of the Surviving Person’s country of
incorporation of such Security); or (2) any estate, inheritance, gift, sales,
excise, transfer, personal property tax or similar tax, assessment or
governmental charge; nor shall the Surviving Person be required to pay
Additional Amounts (a) if the payment could have been made without such
deduction or withholding if the beneficiary of the payment had presented the
Security for payment within 30 days after the date on which such payment or such
Security 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 Security been presented on the
last day of such 30-day period), or (b) with respect to any payment of principal
of (or premium, if any, on) or interest on such Security to any Holder who is a
fiduciary or partnership or any 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 a partnership or the beneficial owner of such
payment would not have been entitled to the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the actual Holder of such
Security.
Upon
request, the Surviving Person shall provide the Trustee with official receipts
or other documentation satisfactory to the Trustee evidencing the payment of the
Taxes with respect to which Additional Amounts are paid.
Whenever
in this Indenture, a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate, or in any Security there is mentioned, in any context:
(1) the payment of principal; (2) purchase prices in connection with a
purchase of Securities; (3) interest; or (4) any other amount payable
on or with respect to any of the Securities, such reference shall be deemed to
include payment of Additional Amounts provided for in this Section 4.07 to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
The
obligations described under this Section 4.07 shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Company or any
Surviving Person is organized or any political subdivision or taxing authority
or agency thereof or therein.
SUCCESSOR
COMPANIES
SECTION
5.01. Merger, Consolidation or Sale of
Assets. Unless otherwise provided for a particular Series of
Securities by a Board Resolution, a supplemental indenture or an Officers’
Certificate, the Company shall not merge, consolidate or amalgamate with or into
any other Person (other than a merger of a wholly owned Subsidiary of the
Company into the Company) or sell, transfer, assign, lease, convey or otherwise
dispose of all or substantially all of its Property in one transaction or series
of related transactions unless:
(a) the
surviving Person (the “Surviving Person”)
(if other than the Company) or the Person to which such sale, transfer,
assignment, lease, conveyance or disposition is made expressly assumes, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such Person, the due and punctual payment of the
principal of, and premium, if any, and interest on, all the Securities of all
Series outstanding, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
to be performed by the Company;
(b) in the
case of a sale, transfer, assignment, lease, conveyance or other disposition of
all or substantially all the Property of the Company, such Property shall have
been transferred as an entirety or virtually as an entirety to one Person and/or
such Person’s Subsidiaries;
(c) immediately
before and immediately after giving effect to such transaction or series of
related transactions, no Default or Event of Default shall have occurred and be
continuing; and
(d) the
Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers’ Certificate and
an Opinion of Counsel, each stating that such transaction and the supplemental
indenture, if any, in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
For
purposes of this Section 5.01, the sale, transfer, assignment, lease,
conveyance or other disposition of all the Property of one or more Subsidiaries
of the Company, which Property, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all the Property of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all the Property of the Company.
SECTION
5.02. Surviving Person
Substituted. (a) In case of any such consolidation,
amalgamation, merger, sale, conveyance, assignment, transfer, lease or other
disposition and upon the assumption by the successor entity, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of, premium, if any,
and interest on all of the Securities of all series outstanding and the due and
punctual performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to
Section 2.02 hereof to be performed by the Company with respect to each
series, such successor entity shall succeed to and be substituted for and may
exercise every right and power of the Company under this Indenture with the same
effect as if it had been named as the Company herein, and thereupon the
predecessor entity shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case
of any such consolidation, amalgamation, merger, sale, conveyance, assignment,
transfer, lease or other disposition such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
(c) Nothing
contained in this Indenture or in any of the Securities shall prevent the
Company from merging into itself or acquiring by purchase or otherwise all or
any part of the Property of any other Person (whether or not affiliated with the
Company).
DEFAULTS AND
REMEDIES
SECTION
6.01. Events of Default. Unless otherwise
indicated for a particular Series of Securities by a Board Resolution, a
supplemental indenture hereto, or an Officers’ Certificate, each of the
following constitutes an “Event of Default”
with respect to each Series of Securities:
(1) default
in the payment of the principal or redemption price with respect to any Security
of such Series when such amount becomes due and payable;
(2) default
in the payment of interest (including additional interest, if any) when due on
the Securities of such Series within 30 days of when such amount becomes due and
payable;
(3) the
Company fails to comply with any of its covenants or agreements in the
Securities of such Series or this Indenture (other than a failure that is
subject to the foregoing clauses (1) or (2)) and such failure continues for
60 days after the notice specified below;
(4) Debt of
the Company or any Subsidiary of the Company is not paid within any applicable
grace period after final maturity or is accelerated by the holders thereof
because of a default and the total amount of such Debt unpaid or accelerated
exceeds $25.0 million or its foreign currency equivalent at the time
without such Debt having been discharged or acceleration having been rescinded
or annulled within 10 days after receipt by the Company of notice of the default
by the Trustee or Holders of not less than 25% in aggregate principal amount of
the Securities of such Series then outstanding;
(5) the
Company or any Significant Subsidiary of the Company pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences
a voluntary case;
(B) consents
to the entry of an order for relief against it in an involuntary
case;
(C) consents
to the appointment of a Custodian of it or for any substantial part of its
Property; or
(D) makes a
general assignment for the benefit of its creditors;
or takes
any comparable action under any foreign laws relating to
insolvency;
(6) a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is for
relief against the Company or any Significant Subsidiary of the Company in an
involuntary case;
(B) appoints
a Custodian of the Company or any Significant Subsidiary of the Company or for
any substantial part of its Property; or
(C) orders
the winding up or liquidation of the Company or any Significant Subsidiary of
the Company;
or any
similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days; or
(7) any
judgment or judgments for the payment of money (to the extent not insured by a
reputable and creditworthy issuer that has not contested coverage with respect
to the underlying claim) in an aggregate amount in excess of $25.0 million
or its foreign currency equivalent at the time is entered against the Company or
any Subsidiary of the Company and that shall not be waived, satisfied or
discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect.
The
foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is 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.
The term
“Custodian”
means, for the purposes of this Article Six, any receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy
Law.
A Default
under clause (3) is not an Event of Default until the Trustee or the
Holders of at least 25% in principal amount of the outstanding Securities notify
the Company of the Default and the Company does not cure such Default within the
time specified after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a “Notice of
Default.”
The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any Event of
Default and any event which with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION
6.02. Acceleration. (a) If an Event
of Default with respect to any Series of Securities at the time outstanding
(other than an Event of Default specified in Section 6.01(5) or (6) hereof
with respect to the Company) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the outstanding
Securities of that Series by notice to the Company in writing (and to the
Trustee, if given by Holders of such Securities of such Series), may declare the
principal amount of (or, in the case of Original Issue Discount Securities of
that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest on all the Securities of that
Series to be due and payable. Upon such a declaration, such amounts shall be due
and payable immediately. If an Event of Default specified in
Section 6.01(5) or (6) hereof with respect to the Company occurs, the
principal amount of (or, in the case of Original Issue Discount Securities of
that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest on all the Securities of each
Series of Security 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.
(b) At any
time after the principal of the Securities of any Series of Securities shall
have been so declared due and payable (or have become immediately due and
payable), and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Holders of a
majority in principal amount of the Securities of that Series then outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences, and waive such Event of Default,
if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that Series and the principal of (and premium, if any, on) any and all
Securities of that Series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that Series to the date of such payment or deposit) and the amount payable to
the Trustee pursuant to Section 7.07 hereof, and (ii) any and all
Events of Default under the Indenture with respect to such Series of Securities,
other than the nonpayment of principal (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms
of such Security) on Securities of that Series that shall not have become due by
their terms, shall have been remedied or waived as provided in Section 6.04
hereof. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION
6.03. Other
Remedies. If an Event of Default with respect to any
Series of Securities occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of the principal amount of (or, in the
case of Original Issue Discount Securities of that Series, the portion thereby
specified in the terms of such Security), premium, if any, and accrued and
unpaid interest on the Securities of that Series or to enforce the performance
of any provision of the Securities of that Series or this
Indenture.
The
Trustee may institute and maintain a suit or legal proceeding even if it does
not possess any of the Securities of a Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default with respect to any Series
of Securities shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION
6.04. Waiver of Past Defaults. The Holders of
a majority in principal amount of the Securities of any Series by notice to the
Trustee may waive an existing Default and its consequences except (i) a
Default in the payment of the principal amount of (or, in the case of Original
Issue Discount Securities of that Series, the portion thereby specified in the
terms of such Security), premium, if any, and accrued and unpaid interest on a
Security of that Series, or (ii) a Default in respect of a provision that
pursuant to Section 9.02 hereof cannot be amended without the consent of
each Holder of that Series affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION
6.05. Control by Majority. The Holders of a
majority in principal amount of the outstanding Securities of any Series may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee with respect to that Series. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or, subject to
Section 7.01 hereof, that the Trustee determines is unduly prejudicial to
the rights of any other Holder of that Series or that would subject the Trustee
to personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnity satisfactory to it against all losses and
expenses caused by taking or not taking such action.
SECTION
6.06. Limitation on Suits. Except to enforce
the right to receive payment of the principal amount of (or, in the case of
Original Issue Discount Securities, the portion thereby specified in the terms
of such Security), premium, if any, and accrued and unpaid interest on a
Security of any Series when due, no Holder of a Security of that Series may
pursue any remedy with respect to this Indenture or the Securities of that
Series unless:
(i) the
Holder previously gave the Trustee written notice stating that an Event of
Default with respect to that Series is continuing;
(ii) the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities of that Series make a written request to the Trustee to pursue the
remedy;
(iii) such
Holder or Holders of that Series offer to the Trustee indemnity satisfactory to
it to the Trustee against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(v) the
Holders of a majority in aggregate principal amount of the outstanding
Securities of that Series do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Holder
of Securities of any Series may not use this Indenture to prejudice the rights
of another Holder of that Series or to obtain a preference or priority over
another Holder of that Series (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders).
SECTION
6.07. Rights of Holders to Receive
Payment. Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of the principal amount of
(or, in the case of Original Issue Discount Securities, the portion thereby
specified in the terms of such Security), premium, if any, and accrued and
unpaid interest on the Securities held by such Holder, on or after their
Maturity, or to bring suit for the enforcement of any such payment on or after
their Maturity, shall not be impaired or affected without the consent of such
Holder.
SECTION
6.08. Collection Suit by Trustee. If an Event
of Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.07 hereof.
SECTION
6.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Holders allowed in any judicial proceedings relative to the Company, its
creditors or its Property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee pursuant to Section 7.07 hereof.
SECTION
6.10. Priorities. If the Trustee collects any
money or Property pursuant to this Article Six with respect to any Series
of Securities, it shall pay out the money or Property in the following
order:
FIRST: to
the Trustee for amounts due pursuant to Section 7.07 hereof;
SECOND: to
Holders for amounts due and unpaid on the Securities of that Series for the
principal amount of (or, in the case of Original Issue Discount Securities of
that Series, the portion thereby specified in the terms of such Security),
premium, if any, and accrued and unpaid interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
of that Series for the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms
of such Security), premium, if any, and accrued and unpaid interest,
respectively; and
THIRD: to
the Company.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section. At least 15 days before such record date, the Trustee
shall mail to each Holder and the Company a notice that states the record date,
the payment date and amount to be paid.
SECTION
6.11. Undertaking for Costs. 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, a court in
its discretion may require the filing, by any party litigant in the suit, of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 hereof or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities of any Series.
SECTION
6.12. Waiver of Stay or Extension Laws. The
Company (to the extent it may lawfully do so) shall at any time insist upon,
plead, or in any manner whatsoever claim to take the benefit or advantage of,
any 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 (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been
enacted.
TRUSTEE
SECTION
7.01. Duties of Trustee. (a) If an
Event of Default has occurred and is continuing with respect to any Series of
Securities, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise thereof
as a prudent Person would exercise or use under the circumstances in the conduct
of such Person’s own affairs.
(b) Except
during the continuance of an Event of Default with respect to any Series of
Securities:
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of that
Series, as modified or supplemented by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in the
absence of bad faith on its part, the Trustee may, with respect to Securities of
that Series, 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.
However, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The
Trustee may not be relieved from liability for its own grossly negligent action,
its own negligent failure to act or its own willful misconduct, except
that:
(1) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.
(f) Money
held in trust by the Trustee need not be segregated from funds except to the
extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the provisions of the TIA.
SECTION
7.02. Rights of Trustee. (a) The
Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officers’
Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided, however, that the
Trustee’s conduct does not constitute willful misconduct or gross
negligence.
(e) The
Trustee may consult with counsel of its choice, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(f) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.
(g) The
Trustee shall not be deemed to have notice of any Default or Event of Default
with respect to the Securities of any Series unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references such Securities and this
Indenture.
(h) 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, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act hereunder.
(i) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by the Trustee in
compliance with such request or direction.
(j) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(k) The
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(l) In no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
(m) The
Trustee may request that the Company deliver a certificate setting forth the
names of individuals or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.
SECTION
7.03. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.
SECTION
7.04. Trustee’s Disclaimer. The Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture, in the
Securities, or in any document executed in connection with the sale of the
Securities, other than those set forth in the Trustee’s certificate of
authentication.
SECTION
7.05. Notice of Defaults. If a Default with
respect to Securities of any Series occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Holder of that Series notice of the Default within 90 days after it
occurs. The Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Holders.
SECTION
7.06. Reports by Trustee to Holder. Unless
otherwise specified in the applicable Board Resolution, supplemental indenture
hereto or Officers’ Certificate, commencing
[ ],
2010 and as promptly as practicable after each subsequent
[ ],
for so long as Securities remain outstanding, the Trustee shall mail to each
Holder a brief report dated as of such reporting date that complies with
§ 313(a) of the TIA. The Trustee shall also comply with § 313(b) of
the TIA.
A copy of
each report at the time of its mailing to Holders shall be filed with the SEC
and each stock exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee in writing whenever the Securities become
listed on any stock exchange and of any delisting thereof.
SECTION
7.07. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time such compensation for its services as
the Company and the Trustee shall from time to time agree in writing. The
Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee’s agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys’ fees and expenses)
incurred by or in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided, however, that any
failure so to notify the Company shall not relieve the Company of its indemnity
obligations hereunder. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by an indemnified party through
such party’s own willful misconduct, negligence or bad faith.
To secure
the Company’s payment obligations in this Section 7.07, the Trustee shall
have a lien prior to the Securities on all money or Property held or collected
by the Trustee other than money or Property held in trust to pay the principal
of and interest and any additional payments on particular
Securities.
The
Company’s payment obligations pursuant to this Section 7.07 shall survive
the satisfaction or discharge of this Indenture or the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(5) or (6) hereof with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION
7.08. Replacement of Trustee. The Trustee may
resign at any time with respect to the Securities of any Series by so notifying
the Company. The Holders of a majority in principal amount of the Securities of
any Series may remove the Trustee and may appoint a successor Trustee with
respect to such Series of Securities. The Company shall remove the Trustee
if:
(a) the
Trustee fails to comply with Section 7.10 hereof;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
receiver or other public officer takes charge of the Trustee or its Property;
or
(d) the
Trustee otherwise becomes incapable of acting.
If the
Trustee resigns, is removed by the Company or by the Holders of a majority in
principal amount of the Securities of any Series and such Holders do not
reasonably promptly appoint a successor Trustee or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of that
Series of Securities. The retiring Trustee shall promptly transfer all Property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07 hereof.
If a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in principal
amount of the Securities of that Series may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the
Trustee fails to comply with Section 7.10 hereof, any Holder of that Series
of Securities may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations pursuant to Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
SECTION
7.09. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
In case
at the time such successor or successors by merger, conversion or consolidation
to the Trustee shall succeed to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and if at that time any
of the Securities shall not have been authenticated, any such successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION
7.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA § 310(a). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA § 310(b); provided, however, that there
shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
SECTION
7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA § 311(a),
excluding any creditor relationship listed in TIA § 311(b). A Trustee who
has resigned or has been removed shall be subject to TIA § 311(a) to the
extent indicated.
LEGAL DEFEASANCE, COVENANT
DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION
8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of
Directors evidenced by a resolution set forth in an Officers’ Certificate, at
any time, elect to have either Section 8.02 or 8.03 hereof be applied to
all outstanding Securities of any Series upon compliance with the conditions set
forth below in this Article Eight.
SECTION
8.02. Legal Defeasance and Discharge. Upon the
Company’s exercise pursuant to Section 8.01 hereof of the option applicable
to this Section 8.02, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Securities of
that Series on the date the conditions set forth below are satisfied
(hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Securities, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:
(a) the
Company’s obligations with respect to such Securities of that Series under
Article Two;
(b) the
Company’s agreements set forth in Sections 5.01 and 5.02 hereof;
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith under Article Two and Article
Seven (including, but not limited to, the rights of the Trustee and the duties
of the Company pursuant to Section 7.07 hereof, which shall survive despite the
satisfaction in full of all obligations hereunder); and
(d) this
Article Eight.
Subject
to compliance with this Article Eight, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option pursuant
to Section 8.03 hereof.
SECTION
8.03. Covenant Defeasance. Upon the Company’s
exercise pursuant to Section 8.01 hereof of the option applicable to this
Section 8.03 with respect to any Series of Securities, the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under any covenants made applicable to
the Series of Securities which are subject to defeasance under the terms of a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate
with respect to the outstanding Securities of that Series on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
“Covenant
Defeasance”), and the Securities of that Series shall thereafter be
deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Securities of that Series, 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 covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such 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 pursuant to Section 6.01 hereof, but, except
as specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby. In addition, upon the Company’s exercise pursuant to
Section 8.01 hereof of the option applicable to this Section 8.03
hereof with respect to any Series of Securities, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Section 6.01(3)
hereof (solely with respect to the covenants described in Section 4.02 hereof)
shall not constitute an Event of Default with respect to such
Securities.
SECTION
8.04. Conditions to Legal or Covenant
Defeasance. The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding
Securities:
In order
to exercise either Legal Defeasance or Covenant Defeasance with respect to any
Series of Securities:
(1) the
Company must irrevocably deposit in trust with the Trustee money or U.S.
Government Obligations or a combination thereof for the payment of principal of
and interest on the Securities of such Series to the Stated Maturity or
redemption, as the case may be;
(2) the
Company shall have delivered to the Trustee a certificate from a nationally
recognized firm of independent registered public accountants expressing their
opinion that the payments of principal and interest when due on the deposited
U.S. Government Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities of such Series to the
Stated Maturity or redemption, as the case may be;
(3) 123 days
pass after the deposit is made and during the 123-day period no Default
specified in Section 6.01(5) or (6) hereof with respect to the Company occurs
that is continuing at the end of the period;
(4) no
Default or Event of Default with respect to that Series of Securities shall have
occurred and be continuing on the date of such deposit (other than a Default or
Event of Default with respect to that Series of Securities resulting from the
borrowing of funds to be applied to such deposit);
(5) such
deposit does not constitute a default under any other agreement binding on the
Company;
(6) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit does not require registration under
the Investment Company Act of 1940, as amended;
(7) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the date
of this Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of such Series of Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred;
(8) in the
case of the Covenant Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such Series of
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred;
and
(9) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Securities as contemplated by this Article Eight have been
complied with.
SECTION
8.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. Subject to
Section 8.06 hereof, all money and noncallable U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Securities of
the 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 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, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or noncallable U.S. Government
Obligations deposited pursuant to Section 8.04 hereof or the principal and
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 the outstanding
Securities of that Series.
Anything
in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any
money or noncallable U.S. Government Obligations held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered pursuant to
Section 8.04(2) hereof), are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION
8.06. Repayment to Company. 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, premium, if any, or interest on any
Security and remaining unclaimed for two years after such principal, and
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or, if then held by the Company, shall be discharged from
such trust; and the Holder of such Security shall thereafter 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,
shall at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION
8.07. Reinstatement. If the Trustee or Paying
Agent is unable to apply any Dollars or noncallable U.S. Government Obligations
in accordance with Section 8.02 or 8.03 hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
SECTION
8.08. Satisfaction and Discharge of
Indenture. If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Securities of a Series
theretofore authenticated (other than any Securities that shall have been
destroyed, lost or stolen and that shall have been replaced or paid as provided
in Section 2.09 hereof and Securities for whose payment money and/or U.S.
Government Obligations have theretofore been deposited in trust or segregated
and held in trust by the Company and thereupon repaid to the Company or
discharged from such trust, as provided in Section 8.06 hereof); or
(b) all such Securities of a particular Series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company must irrevocably deposit
with the Trustee, in trust, for the benefit of the Holders of that Series of
Securities, cash in United States Dollars, noncallable U.S. Government
Obligations, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay at maturity or upon redemption all Securities of that Series not
theretofore delivered to the Trustee for cancellation, including principal of,
premium, if any, and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall also pay
or cause to be paid all other sums payable hereunder with respect to such Series
by the Company, and shall have delivered to the Trustee an Opinion of Counsel
and an Officers’ Certificate, each stating that all conditions precedent
relating to the satisfaction and discharge of this Indenture with respect to
such Series have been complied with, then this Indenture shall thereupon cease
to be of further effect with respect to such Series except for:
(i)
(a) the Company’s obligations with respect to such Securities of that
Series under Article Two;
(b) the
Company’s agreements set forth in Sections 5.01 and 5.02 hereof;
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith (including, but not limited to,
the rights of the Trustee and the duties of the Company pursuant to Section 7.07
hereof, which shall survive despite the satisfaction in full of all obligations
hereunder); and
(d) this
Article Eight,
each of
which shall survive until the Securities of such Series have been paid in full
(thereafter, the Company’s obligations in Section 7.07 hereof only shall
survive).
Upon the
Company’s exercise of this Section 8.08, the Trustee, on demand of the Company
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such Series of Securities.
AMENDMENTS
SECTION
9.01. Without Consent of Holders. The Company
and the Trustee may amend or supplement this Indenture or the Securities without
the consent of any Holder:
(1) to
evidence the succession of another Person to the Company pursuant to
Article Five and the assumption by such successor of the Company’s covenants,
agreements and obligations in this Indenture and in the Securities;
(2) to
provide for the issuance of additional Securities in accordance with the
limitations set forth herein;
(3) to
surrender any right or power conferred upon the Company by this Indenture, to
add to the covenants of the Company such further covenants, restrictions,
conditions or provisions for the protection of the Holders of all or any Series
of Securities as the Board of Directors of the Company shall consider to be for
the protection of the Holders of such Securities, and to make the occurrence, or
the occurrence and continuance, of a default in respect of any such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default under this Indenture; provided, however, that with
respect to any such additional covenant, restriction, condition or provision,
such amendment may provide for a period of grace after default, which may be
shorter or longer than that allowed in the case of other Defaults, may provide
for an immediate enforcement upon such Default, may limit the remedies available
to the Trustee upon such Default or may limit the right of Holders of a majority
in aggregate principal amount of the Securities of any Series to waive such
default;
41
(4) to cure
any ambiguity or correct or supplement any provision contained in this
Indenture, in any supplemental indenture or in any Securities that may be
defective or inconsistent with any other provision contained
therein;
(5) to
convey, transfer, assign, mortgage or pledge any Property to or with the
Trustee, or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not adversely affect the interests of any
Holders of Securities of any Series;
(6) to modify
or amend this Indenture in such a manner as to permit the qualification of this
Indenture or any supplemental indenture hereto under the TIA as then in
effect;
(7) to add or
to change any of the provisions of this Indenture to provide that Securities in
bearer form may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal or premium with respect to Securities
in registered form or of principal, premium or interest with respect to
Securities in bearer form, or to permit Securities in registered form to be
exchanged for Securities in bearer form, so as to not adversely affect the
interests of the Holders or any coupons of any Series in any material respect or
permit or facilitate the issuance of Securities of any Series in uncertificated
form;
(8) to secure
the Securities;
(9) to make
any change that does not adversely affect the rights of any Holder;
(10) to add
to, change, or eliminate any of the provisions of this Indenture with respect to
one or more Series of Securities, so long as any such addition, change or
elimination not otherwise permitted under this Indenture shall (A) neither
apply to any Security of any Series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor modify
the rights of the Holders of any such Security with respect to the benefit of
such provision or (B) become effective only when there is no such Security
outstanding;
(11) to
evidence and provide for the acceptance of appointment by a successor or
separate 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 this Indenture by more than one
Trustee; or
(12) to
establish the form or terms of Securities and coupons of any Series pursuant to
Article Two hereof.
SECTION
9.02. With Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities of any Series without
notice to any Holder but with the written consent of the Holders of at least a
majority in principal amount of the Securities of each Series then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Securities) affected by such amendment. However, without the consent of
each Holder affected, an amendment may not:
(1) reduce
the principal amount of Securities whose Holders must consent to an amendment,
modification, supplement or waiver;
(2) reduce
the rate of or extend the time for payment of interest on any
Security;
(3) reduce
the principal of or change the Stated Maturity of any Security;
(4) reduce
the amount payable upon the redemption of any Security or add redemption
provisions to any Security;
(5) make any
Security payable in money other than that stated in this Indenture or the
Security; or
(6) make any
change in Sections 4.07, 6.04 or 6.07 hereof or in the foregoing amendment
and waiver provisions.
It shall
not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent approves the substance thereof. After an amendment under this
Section becomes effective, the Company shall mail to all affected Holders a
notice briefly describing such amendment. The failure to give such notice to all
such Holders, or any defect therein, shall not impair or affect the validity of
an amendment under this Section.
SECTION
9.03. Compliance with Trust Indenture
Act. Every amendment or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION
9.04. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of
a Security shall bind the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent or waiver
as to such Holder’s Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Holder. An amendment or waiver becomes effective once both (i) the
requisite number of consents have been received by the Company or the Trustee
and (ii) such amendment or waiver has been executed by the Company and the
Trustee.
The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 120 days after such
record date.
SECTION
9.05. Notation on or Exchange of
Securities. If an amendment changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION
9.06. Trustee to Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article Nine if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.02
hereof) shall be fully protected in relying upon, an Officers’ Certificate and
an Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
SECTION
9.07. Payment
for Consent. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders, ratably, that so consent, waive or agree to
amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
MISCELLANEOUS
SECTION
10.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION
10.02. Notices. Any notice or communication
shall be in writing and delivered in person or mailed by first-class mail
addressed as follows:
If to the
Company:
DHT
Holdings, Inc.
26 New
Street
St
Helier, Jersey JE2 3RA
Channel
Islands
If to the
Trustee:
[ ]
Attn: [ ]
Telecopy: [ ]
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication mailed to a Holder shall be mailed to the Holder at the
Holder’s address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time
prescribed.
Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION
10.03. Communication by Holders with Other
Holders. Holders may communicate pursuant to TIA § 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA § 312(c).
SECTION
10.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to
the Trustee to take or refrain from taking any action under this Indenture, the
Company shall furnish to the Trustee:
(1) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.
SECTION
10.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a
statement that the individual making such certificate or opinion has read such
covenant or condition;
45
(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 covenant or condition has been complied with;
and
(4) a
statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
SECTION
10.06. Acts of Holders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by 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;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact
and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to such officer the execution thereof. Where such execution is by a
signer acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The
ownership of bearer securities may be proved by the production of such bearer
securities or by a certificate executed by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the bearer
securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such bearer securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any bearer security continues until
(i) another such certificate or affidavit bearing a later date issued in
respect of the same bearer security is produced, (ii) such bearer security
is produced to the Trustee by some other Person, (iii) such bearer security
is surrendered in exchange for a registered security or (iv) such bearer
security is no longer outstanding. The ownership of bearer securities may also
be proved in any other manner which the Trustee deems sufficient.
(d) The
ownership of registered securities shall be proved by the register maintained by
the Registrar.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) If the
Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. 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 record at the close of
business on such record date shall be deemed to be Holders for the purposes 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 on such record date
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.
(g) The
Depositary, as a Holder, may appoint agents and otherwise authorize Participants
to give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a Holder is entitled to give or take under the
Indenture.
SECTION
10.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by
or a meeting of Holders. The Registrar and the Paying Agent may make reasonable
rules for their functions.
SECTION
10.08. Legal Holidays. A “Legal Holiday” is a
Saturday, Sunday or other day on which banking institutions in New York State
are authorized or required by law to close. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a record
date is a Legal Holiday, the record date shall not be affected.
SECTION
10.09. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY. EACH OF THE COMPANY AND THE TRUSTEE 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 INDENTURE, THE
NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION
10.10. No
Recourse Against Others. A director, officer, employee or
shareholder, as such, of any Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. This waiver and release shall be part of the consideration for the
issuance of the Securities.
SECTION 10.11. Successors. All
agreements of the Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION
10.12. Multiple Originals. The parties may
sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy
of the Indenture is enough to prove this Indenture.
SECTION
10.13. Table of Contents; Headings. The table
of contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION
10.14. Severability. If any provision in this
Indenture is deemed unenforceable, it shall not affect the validity or
enforceability of any other provision set forth herein, or of the Indenture as a
whole.
48
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as
of the date first written above.
| DHT HOLDINGS, INC., | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| [ ], | |||
| as Trustee | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
49
Exhibit
5.1
REEDER
& SIMPSON PC
ATTORNEYS
AT LAW
|
P.O. Box
601
RRE Commercial
Center
Majuro, MH
96960
|
Telephone:
011-692-625-3602
Facsimile:
011-692-625-3602
Email:
dreeder@ntamar.net
r.simpson@simpson.gr
|
May 12,
2010
Ladies
and Gentlemen:
Re: DHT Holdings, Inc.
(“Company”)
Ladies
and Gentlemen:
We are
licensed to practice law in the Republic of the Marshall Islands (the “RMI”), and
are members in good standing of the bar of the RMI. We are acting as
special RMI counsel to the Company, a RMI corporation, in connection with the
registration by the Company of $200,000,000 aggregate initial public offering
price of its (i) shares of common stock, par value US$0.01 per share (the “Common
Stock”), (ii) shares of preferred stock, par value US$0.01 per share (the
“Preferred
Stock”), and (iii) senior or subordinated debt securities (the “Debt
Securities”), or any combination thereof, under the Securities Act of
1933, as amended (the “Securities
Act”), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale, on a Registration Statement on Form
F-3 filed with the Securities and Exchange Commission (the “Commission”),
and all amendments thereto (such registration statement as so amended, being
hereinafter referred to as the “Registration
Statement”).
In
connection with our opinion, we have examined electronic copies, certified or
otherwise identified to our satisfaction, of the Registration Statement and the
exhibits attached thereto and such other documents, corporate records and other
instruments as we have deemed necessary or appropriate for the purposes of this
opinion. We have also made such examinations of matters of laws as we
deemed necessary in connection with the opinion expressed herein.
We
express no opinion as to matters governed by, or the effect or applicability of
any laws of any jurisdiction other than the laws of the RMI which are in effect
as the date hereof. This opinion speaks as of the date hereof, and it
should be recognized that changes may occur in the laws of the RMI after the
date of this letter which may affect the opinions set forth
herein. We assume no obligation to advise the parties, their counsel,
or any other party seeking to rely upon this opinion, of any such changes,
whether or not material, or of any other matter which may hereinafter be brought
to our attention.
1
Based
upon and subject to the assumptions, qualifications and limitations herein, we
are of the opinion that the Common Stock and the Preferred Stock have been duly
authorized, and when the Common Stock and the Preferred Stock is issued, sold
and paid for as contemplated in the prospectus included in the Registration
Statement, will be validly issued, fully paid and non-assessable and that the
Debt Securities will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
terms.
We hereby
consent to the filing of this opinion with the Commission as an exhibit to the
Registration Statement. We also consent to the reference to our firm
under the caption “Legal
Matters” in the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Sincerely,
/s/Dennis J. Reeder
Dennis J.
Reeder
Reeder
& Simpson PC
2
Exhibit 8.1
May 12, 2010
Ladies and Gentlemen:
We have acted as special United States counsel to DHT Holdings, Inc., a company incorporated under the laws of the Marshall Islands (the “Company”), in connection with the registration by the Company of up to an aggregate of US $200,000,000 of securities which may include common shares, preferred shares and debt securities under the Securities Act of 1933, as amended (the “Securities Act”), on a Registration Statement on Form F-3 filed with the Securities and Exchange Commission (the “Commission”), and all amendments thereto (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”).
In rendering our opinion, we have reviewed the Registration Statement and have examined such records, representations, documents, certificates or other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. In this examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, or photostatic copies, and the authenticity of the originals of such copies. In making our examination of documents executed, or to be executed, by the parties indicated therein, we have assumed that each party, including the Company, is duly organized and existing under
the laws of the applicable jurisdiction of its organization and had, or will have, the power, corporate or other, to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by each party indicated in the documents and that such documents constitute, or will constitute, valid and binding obligations of each party.
2
In rendering our opinion, we have considered the applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), regulations promulgated thereunder by the U.S. Department of Treasury (the “Regulations”), pertinent judicial authorities, rulings of the U.S. Internal Revenue Service, and such other authorities as we have considered relevant, in each case as in effect on the date hereof. It should be noted that the Code, Regulations, judicial decisions, administrative interpretations and other authorities are subject to change at any time, possibly with retroactive effect. It should also be noted that (as discussed in the Registration Statement) there is no direct legal authority addressing certain of the issues relevant to our opinion – in particular,
the issue regarding whether the Company is currently a passive foreign investment company. A material change in any of the materials or authorities upon which our opinion is based could affect the conclusions set forth herein. There can be no assurance, moreover, that any opinion expressed herein will be accepted by the Internal Revenue Service, or if challenged, by a court.
Based upon the foregoing, although the discussion in the Registration Statement under the heading “Tax Considerations – U.S. Federal Income Tax Considerations” does not purport to discuss all possible United States federal income tax consequences of the acquisition, ownership and disposition of Company common stock, we hereby confirm that the statements of law (including the qualifications thereto) under such heading represent our opinion of the material United States federal income tax consequences of the acquisition, ownership and disposition of Company common stock, subject to certain assumptions expressly described in the Registration Statement under such heading.
We express no other opinion, except as set forth above. We disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or subsequent changes in applicable law. Any changes in the facts set forth or assumed herein may affect the conclusions stated herein.
We hereby consent to the filing of this opinion with the Commission as Exhibit 8.1 to the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
|
Very truly yours,
|
|
| /s/ Cravath, Swaine & Moore LLP |
DHT Holdings, Inc.
26 New Street
St. Helier, Jersey JE2 3RA
Channel Islands
O
Exhibit 12.1
Ratio of Earnings to Fixed Charges
| For the Year Ended December 31, | For the Period | |||||||||||||||||||||||||||
|
Period ($000)
|
For the Three Months Ended March 31, 2010
|
2009
|
2008
|
2007
|
2006
|
Oct. 18 – Dec. 31,
2005
|
Jan. 1 – Oct. 17,
2005
|
|||||||||||||||||||||
| IFRS | U.S. GAAP | |||||||||||||||||||||||||||
|
Earnings:
|
||||||||||||||||||||||||||||
|
Net Income
|
$ | (2,209) | $ | 16,846 | $ | 42,148 | $ | 27,463 | $ | 35,750 | $ | 9,469 | $ | 43,641 | ||||||||||||||
|
Fixed Charges
|
7,643 | 20,582 | 21,904 | 14,457 | 13,957 | 2,872 | 3,596 | |||||||||||||||||||||
|
Total Earnings
|
$ | 5,434 | $ | 37,428 | $ | 64,052 | $ | 41,920 | $ | 49,707 | $ | 12,341 | $ | 47,237 | ||||||||||||||
|
Fixed Charges:
|
||||||||||||||||||||||||||||
|
Interest including amortization of debt issuance cost
|
$ | 7,643 | $ | 20,582 | $ | 21,904 | $ | 14,457 | $ | 13,957 | $ | 2,872 | $ | 3,596 | ||||||||||||||
|
Total Fixed Charges
|
$ | 7,643 | $ | 20,582 | $ | 21,904 | $ | 14,457 | $ | 13,957 | $ | 2,872 | $ | 3,596 | ||||||||||||||
|
Ratio of Earnings to Fixed Charges
|
* | 1.82 | 2.92 | 2.90 | 3.56 | 4.30 | 13.14 | |||||||||||||||||||||
*For the three months ended March 31, 2010, earnings were insufficient to cover fixed charges by approximately $2.2 million.
Exhibit 21.1
Subsidiaries
of DHT Holdings, Inc.
|
Name
|
Jurisdiction
|
|
DHT
Maritime, Inc.
|
Marshall
Islands
|
|
Ania
Aframax Corporation
|
Marshall
Islands
|
|
Ann
Tanker Corporation
|
Marshall
Islands
|
|
Cathy
Tanker Corporation
|
Marshall
Islands
|
|
Chris
Tanker Corporation
|
Marshall
Islands
|
|
London
Tanker Corporation
|
Marshall
Islands
|
|
Newcastle
Tanker Corporation
|
Marshall
Islands
|
|
Rebecca
Tanker Corporation
|
Marshall
Islands
|
|
Regal
Unity Corporation
|
Marshall
Islands
|
|
Sophie
Tanker Corporation
|
Marshall
Islands
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement on Form F-3 and related Prospectus of DHT Holdings, Inc. (the “Company”) for the registration of up to $200,000,000 of common stock, preferred stock and debt securities and to the incorporation by reference therein of our reports dated March 25, 2010, with respect to the consolidated financial statements of DHT Maritime, Inc., and the effectiveness of internal control over financial reporting of DHT Maritime, Inc., included in the Company’s Annual Report (Form 20-F) for the year ended December 31, 2009, f
iled with the Securities and Exchange Commission.
/s/ Ernst & Young AS
Oslo, Norway
May 11, 2010