Senior Notes due 2018
Exhibit
4.4
[Face of Note]
CUSIP
____________
ISIN______________
__%
Senior Notes due 2018
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No.
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$____________
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OVERSEAS
SHIPHOLDING GROUP, INC.
promises
to pay to __________________ or
registered assigns,
the
principal sum of __________________________________________________________
DOLLARS on __________, 2018.
Interest
Payment Dates: _______________ and _______________
Record
Dates: _______________ and _______________
Dated: _______________,
20__
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OVERSEAS
SHIPHOLDING GROUP, INC.
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By:
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Name:
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Title:
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[Back of
Security]
__%
Senior Notes due 2018
[INCLUDE IF SECURITY IS A
GLOBAL SECURITY — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY
OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[INCLUDE IF SECURITY IS A
GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY IS THE UNITED STATES DEPOSITARY
— UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE & CO., AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized
terms used herein have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.
(1) Interest. Overseas
Shipholding Group, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at ___% per annum from
________________, 20__ until maturity. The Company will
pay interest semi-annually in arrears on _______________ and _______________ of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each, an “Interest Payment
Date”). Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date (other than the authentication of the Securities
originally issued under the Indenture), interest shall accrue from such next
succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be _____________, 20__. The
Company will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of the rate then in
effect to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) Method of
Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the __________ or __________ next
preceding the Interest Payment Date, even if such Securities are canceled after
such record date and on or before such Interest Payment Date, except as provided
in the Indenture with respect to defaulted interest. The Securities
will be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders; provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium on, all Global Securities and
all other Securities the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
(3) Paying
Agent and Registrar. Initially, The Bank of New York Mellon
Trust, N.A., the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
(4) Indenture. The
Company issued the Securities under an Indenture dated as of March [__], 2010
(the “Indenture”)
between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the TIA. The Securities are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of such
terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Securities are unsecured obligations
of the Company The Indenture does not limit the aggregate principal
amount of Securities that may be issued thereunder.
(5) Optional
Redemption.
(a) At
any time and from time to time prior to [_________], 2013, the Company, at its
option, may redeem up to 35% of the aggregate principal amount of the Securities
issued under the Indenture with the net cash proceeds of one or more Qualified
Equity Offerings at a Redemption Price equal to [___]% of the principal amount
of the Securities to be redeemed, plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that
(1) at
least 65% of the aggregate principal amount of Securities issued under this
Indenture remains outstanding immediately after the occurrence of such
redemption; and
(2) the
redemption occurs within 60 days of the date of the closing of any such
Qualified Equity Offering.
(b) At
the Company’s option, the Company may redeem the Securities in whole or in part
at any time and from time to time prior to maturity upon not less than 30 nor
more than 60 days’ prior notice at a Redemption Price equal to the greater of
(i) 100% of the principal amount of the Securities to be redeemed
and (ii) the sum of the present values of the remaining scheduled payments
of principal and interest on the Securities to be redeemed (excluding the
portion of any such interest accrued to the Redemption Date) discounted to
the Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Yield (as defined below), plus
50 basis points, plus, in each case, accrued and unpaid
interest to the Redemption Date.
(6) Mandatory
Redemption. The Company is
not be required to make mandatory redemption or sinking fund payments with
respect to the Securities.
(7) Repurchase
at the Option of Holder. If there is a Change of
Control Trigger Event, the Company will be required to make a Change of Control
Offer as set forth in the Indenture to each Holder to repurchase all or any part
of each Holder’s Securities at a purchase price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon to
the date of purchase, subject to the rights of Holders on the relevant record
date to receive interest due on the relevant interest payment date.
(8) Notice of
Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Securities are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Securities or a satisfaction or
discharge of the Indenture.
(9) Denominations,
Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $2,000 and integral multiples of $1,000 in
excess thereof. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of
any Note or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Company need
not exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
(10) Persons
Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
(11) Amendment,
Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Securities including Additional Securities, if any, voting as a
single class, and any existing Default or Event or Default or compliance with
any provision of the Indenture or the Securities may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then
outstanding Securities including Additional Securities, if any, voting as a
single class.
Without
the consent of any Holder of a Note, the Indenture or the Securities may be
amended or supplemented to (i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to or in place of
certificated Securities; to provide for the assumption of the Company’s
obligations to Holders in the case of a merger or consolidation or sale of all
or substantially all of the Company’s assets, as applicable; to make any change
that would provide any additional rights or benefits to Holders (including
granting of security for the benefit of Holders) or that does not adversely
affect the legal rights under the Indenture of any such Holder; to comply with
requirements of the SEC in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act; to conform the text of this Indenture
or the Securities to any provision of the “Description of Notes” section of the
Prospectus Supplement to the extent that such provision was intended by the
Company to be a verbatim recitation of a provision of the Indenture or the
Securities; or to provide for the issuance of Additional Securities in
accordance with this Indenture.
(12) Defaults
and Remedies. The Events of Default include those specified in
Section 5.01 of the Indenture. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities may declare all the Securities to be
due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities will become due and payable immediately
without further action or notice. Holders may not enforce the
Indenture or the Securities except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Securities notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal or interest or premium, if any,) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate
principal amount of the then outstanding Securities by notice to the Trustee
may, on behalf of the Holders of all of the Securities, rescind an acceleration
or waive any existing Default or Event of Default and its consequences under the
Indenture except a continuing Default or Event of Default in the payment of
interest or premium, if any, on, or the principal of, the
Securities.
(13) Trustee
Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
(14) No
Recourse Against Others. A director, officer, employee,
incorporator or stockholder of the Company, as such, will not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration
for the issuance of the Securities.
(15) Authentication. This
Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
(16) Abbreviations. Customary
abbreviations may be used in the name of a Holder or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
(17) CUSIP
Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities, and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.
(18) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE
USED TO CONSTRUE THE INDENTURE, THIS NOTE 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.
The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
Overseas
Shipholding Group, Inc.
000 Xxxxx
Xxxxxx, 0xx
Xxxxx
New York,
NY 10017
Attention: General
Counsel
Assignment
Form
To assign
this Note, fill in the form below:
(I) or
(we) assign and transfer this Note
to:_________________________________________________________________
(Insert assignee’s legal
name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print or
type assignee’s name, address and zip code)
and
irrevocably
appoint___________________________________________________________________________
to
transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your
Signature:________________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
Option
of Holder to Elect Purchase
If you
want to elect to have this Note purchased by the Company pursuant to Section
10.09 of the Indenture, check the following box below:
o Section
10.09
If you
want to elect to have only part of the Note purchased by the Company pursuant to
Section 10.09 of the Indenture, state the amount you elect to have
purchased:
$_______________
Date: _______________
Your
Signature:_______________________________________
(Sign
exactly as your name appears on the face of this Note)
Tax
Identification No.:__________________________________
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
Schedule
of Exchanges of Interests in the Global Note *
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
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Date of Exchange
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Amount of decrease in
Principal Amount
[at maturity] of
this Global Note
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Amount of increase in
Principal Amount
[at maturity] of
this Global Note
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Principal Amount
[at maturity] of this
Global Note following
such decrease
(or increase)
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Signature of authorized
officer of Trustee or
Custodian
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*
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This schedule should be
included only if the Note is issued in global
form.
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