1
EXHIBIT 10.8.1
10.8.1
APPENDIX III --
Form of Trust Indenture
2
_____________________________________________________
TRUST INDENTURE
Relating to United States Government Guaranteed
Ship Financing Obligations
Between
TRAILER BRIDGE, INC.
Shipowner
AND
STATE STREET BANK AND TRUST COMPANY
Indenture Trustee
Dated as of June 23, 1997
_________________________________________________________
3
TRUST INDENTURE
Relating to United States Government Guaranteed
Ship Financing Obligations
Between
TRAILER BRIDGE, INC.
Shipowner
AND
STATE STREET BANK AND TRUST COMPANY
Indenture Trustee
Dated as of June 23, 1997
TABLE OF CONTENTS TO SPECIAL PROVISIONS OF THE INDENTURE (1)
Page
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE FIRST
Incorporation of General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE SECOND
The Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE THIRD
Certain Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Mandatory Sinking Fund Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) [Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(c) Optional Redemptions of Bonds at Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------------------
(1) This Table of Contents is not a part of the Indenture and has no bearing upon the interpretation of any of its terms
and provisions.
i
4
ARTICLE FOURTH
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE FIFTH
Additions, Deletions and Amendments to Exhibit 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1
(a) Concerning Section 2.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) Concerning Section 2.12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Concerning Payment of the Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Concerning Selection of Bonds to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Concerning References to 3.09(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Concerning Home Office Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(g) Concerning Section 7.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(h) Concerning Section 10.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(i) Concerning Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(j) Concerning Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(k) Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 and 11
EXHIBITS TO TRUST INDENTURE
---------------------------
SCHEDULE A Schedule of Definitions to Trust Indenture
EXHIBIT 1 General Provisions of the Indenture
Incorporated by Reference
EXHIBIT 2 Forms of Bond, Guarantee and Trustee's
Authentication Certificate
EXHIBIT 3 Authorization Agreement
EXHIBIT 4 Form of Secretary Supplemental Indenture
ii
5
TRUST INDENTURE
SPECIAL PROVISIONS
THIS TRUST INDENTURE, dated as of June 23, 1997 (said Trust Indenture,
as the same may be amended, modified or supplemented from time to time as
permitted hereunder, herein called the "Indenture"), between (i)Trailer Bridge,
Inc., a Delaware corporation (herein called the "Shipowner"), and (ii) State
Street Bank and Trust Company, a Massachusetts trust company (said Bank, any
successor or assign hereunder, herein called the "Indenture Trustee").
RECITALS:
A. As provided in Article Fourth hereof, the terms defined in Schedule
A to this Indenture shall have the respective meanings stated in said Schedule;
B. The Shipowner has duly executed this Indenture, and duly authorized
the issuance hereunder of $10,515,000 aggregate principal amount of its bonds
pursuant to Section 2.03 of Exhibit 1 to this Indenture (herein together with
any bonds issued in respect thereof pursuant to Sections 2.09, 2.10, 2.12 and
3.10(b) of said Exhibit 1, called the "Bonds" or the "Obligations") designated
"United States Government Guaranteed Ship Financing Bonds, 1997 Series;" the
Obligations will bear interest at 7.07% per annum and mature on September 30,
2022;
C. The Obligations will be issued by the Shipowner to aid in the
financing of the cost of construction of two 408'9" x 100' container deck
barges;
D. Under the Authorization Agreement in the form set forth as Exhibit
3 hereto, the Secretary, on behalf of the United States, has agreed and will
agree to execute on each of the Obligations to be issued, a Guarantee of the
payment of the unpaid interest to the date of such payment on, and the unpaid
balance of the principal of, such Obligation under the provisions of Title XI
of the Act, and the Indenture Trustee is authorized to cause the Guarantees,
bearing the facsimile signature of the Secretary, and the facsimile seal of the
United States Department of Transportation, to be imprinted on the Obligations,
and to authenticate and deliver the Obligations and the Guarantees issued on
the Closing Date, such agreements and authorizations being subject to the
conditions set forth in the Authorization Agreement;
E. Pursuant to Section 1104(b)(5) of the Act, the Secretary has
determined that the interest to be borne by the Obligations (exclusive of
charges for the guarantee fee and service charges, if any) at the rate
specified in the form thereof set forth in Exhibit 2 hereto is reasonable; and
F. All actions necessary have been taken in order (1) to make the
Obligations, when
1
6
executed by the Shipowner, authenticated by the Indenture Trustee and issued
under the Indenture, the valid, binding and legal obligations of the Shipowner
in accordance with their terms, (2) to make the Guarantees to be endorsed on
the Obligations, when executed by the Secretary, authenticated by the Indenture
Trustee and delivered under this Indenture, the valid, binding and legal
obligations of the United States in accordance with their terms, and (3) to
make this Indenture the valid, binding and legal agreement of the parties
hereto in accordance with its terms.
NOW THEREFORE, in consideration of the premises, of the mutual
covenants herein contained, of the purchase of the Obligations by the Holders
thereof, and of other good and valuable consideration, the receipt and adequacy
of which the parties hereby acknowledge, and for the equal and proportionate
benefit of all the present and future Holders of the Obligations, the parties
hereto agree as follows:
ARTICLE FIRST
INCORPORATION OF GENERAL PROVISIONS
This Indenture shall consist of two parts: the Special Provisions and
the General Provisions attached hereto as Exhibit 1, made a part of this
Indenture and incorporated herein by reference.
ARTICLE SECOND
THE BONDS
(a) The Bonds issued hereunder shall be designated "United States
Government Guaranteed Ship Financing Bonds, 1997 Series," and shall be in the
form of Exhibit 2 to this Indenture; and, the aggregate principal amount of
Bonds which may be issued under this Indenture shall not exceed $10,515,000
except as provided in Sections 2.09, 2.10, 2.12 and 3.10(b) of Exhibit 1
hereto.
(b) The Bonds shall be in the denominations of $1,000 or any integral
multiple thereof.
(c) The Shipowner shall at the date of the Closing maintain in
Jacksonville, Florida an office or agency for the purposes specified in Section
5.03 of Exhibit 1 to this Indenture.
(d) The Indenture Trustee shall at the date of the Closing have its
Corporate Trust Office in the City of Boston, Commonwealth of Massachusetts.
2
7
(e) The Bonds shall mature on September 30, 2022.
ARTICLE THIRD
CERTAIN REDEMPTIONS
(a) Mandatory Sinking Fund Redemptions. The Bonds are subject to
redemption at a Redemption Price equal to 100% of the principal amount thereof,
together with interest accrued thereon to the applicable sinking fund
Redemption Date, through the operation of a mandatory sinking fund providing
for the semi-annual redemption on March 30 and September 30 of each year,
commencing March 30, 1998, of $210,300 principal amount of Bonds (or such
lesser principal amount of Bonds as shall then be outstanding), which amount
represents two percent (2%) of the Original Principal Amount of Obligations,
plus interest accrued thereon to the Redemption Date. On September 30, 2022
there shall become due and payable, and the Shipowner shall pay, the balance of
the unpaid principal amount of Bonds then outstanding, together with all
interest accrued thereon to such date.
Notwithstanding the foregoing provisions of this subsection (a), if
the principal amount of Outstanding Bonds shall be reduced by reason of any
redemption pursuant to Sections 3.04 or 3.05 of Exhibit 1 to this Indenture,
the principal amount of Bonds to be redeemed pursuant to this subsection (a) on
each subsequent mandatory sinking fund Redemption Date for such Bonds shall be
reduced by an amount equal to the principal amount of such Bonds retired by
reason of such redemption pursuant to Sections 3.04 or 3.05 of Exhibit 1 hereto
divided by the number of mandatory sinking fund Redemption Dates (including the
Stated Maturity of such Bonds) scheduled thereafter (subject to such increase
as shall be necessary so that the total principal amount of Bonds to be
redeemed on any such sinking fund redemption date shall be an integral multiple
of $1,000; provided that, the entire unpaid principal amount of the Outstanding
Bonds shall be paid not later than September 30, 2022. The Shipowner shall, in
accordance with Section 3.02(d) of Exhibit 1 hereto, promptly after each
redemption pursuant to said Section 3.04, furnish to the Secretary, the
Indenture Trustee and each Holder of an Obligation a revised table of sinking
fund payments reflecting the reductions made pursuant to this subsection (a) as
a result of such redemption.
In lieu of making all or any part of any such mandatory sinking fund
redemption of Bonds, the Shipowner may, at its option, with the prior written
consent of the Secretary, receive credit for Bonds not previously so credited
or applied to reduce the principal amount of Bonds Outstanding, (i) redeemed by
the Shipowner pursuant to the optional redemption provision provided for in
subsection (c) of this Article or purchased or acquired by the Shipowner (other
than by redemption) and delivered to the Indenture Trustee for cancellation
pursuant to Section 2.13 of Exhibit 1 hereto. The Bonds so credited or applied
shall be credited or applied, as the case
3
8
may be, by the Indenture Trustee, at 100% of the principal amount thereof. If
the Shipowner shall elect to receive credit or application as aforesaid in lieu
of making all or part of any mandatory sinking fund redemption, it shall
deliver to the Indenture Trustee, at least 40 days but not more than 60 days
prior to the due date for such mandatory sinking fund redemption, a Request (i)
specifying the principal amount of Bonds so optionally redeemed or otherwise
acquired, and so to be credited or applied, as the case may be, and (ii)
stating that no such Bonds have theretofore been made the basis of any such
credit or application as aforesaid, and that none of such Obligations are
subject to the terms of any agreement or contract between the Secretary, the
Shipowner and/or any other person restricting the Shipowner's right to apply
any such Obligations as a credit pursuant to the terms of this subsection (a),
together with the Bonds (uncancelled) for which such credit or application is
so requested (unless such Bonds shall theretofore have been delivered to the
Indenture Trustee).
(b) [Reserved]
(c) Optional Redemptions of Bonds at Premium. At its option, the
Shipowner may redeem the Bonds, in whole at any time, at the redemption prices
as specified in the Bonds, together with interest accrued thereon to the date
fixed for redemption; provided that, no such redemption shall be made prior to
March 30, 2008, directly or indirectly with the proceeds of, or in anticipation
of, borrowing by or for the account of the Shipowner if such borrowing has an
effective interest cost (calculated in accordance with generally accepted
financial practice) of less than the rate of interest borne by the Bonds. If
the Shipowner shall elect to make any such optional redemption, the Shipowner
shall, at least 30 days but not more than 60 days prior to the date fixed for
redemption, deliver to the Indenture Trustee a Request stating that the
Shipowner intends to exercise its rights as above set forth to make such
optional redemption and specifying the Redemption Date, and the principal
amount of Bonds which the Shipowner intends to redeem on such date (which shall
not be less than all the Bonds outstanding). In the case of any redemption
pursuant to this subsection (c) prior to March 30, 2008, the Shipowner shall
deliver to the Indenture Trustee, at the time of delivery of said Request, an
Officer's Certificate stating that such redemption shall comply with the
proviso relating to such redemption prior to such date.
ARTICLE FOURTH
DEFINITIONS
For all purposes of this Indenture, unless otherwise expressly
provided or unless the context otherwise requires:
(1) All references herein to Articles, Sections or other subdivisions,
unless
4
9
otherwise specified, refer to the corresponding Articles,
Sections and other subdivisions of this Indenture;
(2) The terms "hereof," "herein," "hereby," "hereto,"
"hereunder" and "herewith" refer to this Indenture;
(3) The terms used herein and defined in Schedule A
to this Indenture shall have the respective meanings stated in
said Schedule.
ARTICLE FIFTH
ADDITIONS, DELETIONS AND AMENDMENTS TO EXHIBIT 1
The following additions, deletions and amendments are hereby made to
Exhibit 1 to this Indenture.
(a) Concerning Section 2.04. The Shipowner and the Indenture Trustee
shall not enter into any Supplemental Indenture, and the Indenture Trustee
shall not enter into any supplement to the Authorization Agreement, pursuant to
Section 2.04 of Exhibit 1 to this Indenture, except to provide for the issuance
of additional Obligations of any series and Stated Maturity theretofore issued,
or of one or more additional series for the purpose of aiding in financing or
refinancing the construction, reconstruction or reconditioning of one or more
of the Vessels, or to refund Obligations issued for such purpose.
(b) Concerning Section 2.12. With respect to clause (1) of the proviso
to Section 2.12 of Exhibit 1 to the Indenture, a written agreement of indemnity
which is satisfactory in form and substance to the Secretary, the Shipowner,
and the Indenture Trustee, executed and delivered by an institutional Holder
having a combined capital and surplus of at least one hundred million dollars
($100,000,000) shall be considered sufficient indemnity to the Secretary, the
Shipowner, and the Indenture Trustee in connection with the execution,
authentication and delivery of any new Obligations or the making of any payment
as contemplated by said Section 2.12.
(c) Concerning Payment of the Obligations. Notwithstanding anything to
the contrary in Exhibit 1 hereto, the Obligations to be issued hereunder shall
be payable as to principal, premium (if any), and interest, at an office or
agency maintained by the Shipowner for such purpose at the Corporate Trust
Office of the Indenture Trustee, or at the option of the Shipowner, as to
payments of principal, premium (if any), or interest by check mailed by such
Corporate Trust Office to the addresses of the Obligees as such addresses shall
appear in the Obligation Register, subject in any event to the provisions
hereof concerning home office payment. The Indenture Trustee agrees that within
30 days from the date of any payment of principal or interest when the
5
10
same shall become due and payable by reason of maturity or redemption, a
Responsible Officer in the Corporate Trust Office of the Indenture Trustee
shall ascertain to his satisfaction that checks in payment of such amounts have
been mailed by such Corporate Trust Office to the addresses of the Obligees as
provided above, if payment is to be made by check, or if payment is to be made
by wire transfer, or by credit to an account maintained by the Obligee with the
Indenture Trustee, that such funds have been wired or credited, or if payment
is to be made at the Corporate Trust Office, that funds were held by the
Indenture Trustee for such payment on the date the payment was due. The
Indenture Trustee shall have no obligation to determine whether such checks or
payments were received by the Obligees.
(d) Concerning Selection of Bonds to be Redeemed. Notwithstanding the
provisions of Section 3.07(b) of Exhibit 1 to this Indenture, (i) if less than
all the Bonds are to be optionally redeemed under any of the provisions
contained or referred to in Article Third hereof or Article III of Exhibit 1,
the Indenture Trustee shall select for redemption Bonds of the Stated Maturity
or Stated Maturities, and (ii) if less than all the Bonds of a particular
Stated Maturity are to be redeemed under any provisions contained or referred
to in Article Third hereof or Article III of Exhibit I to this Indenture, the
Indenture Trustee shall select the particular Bonds and/or portions ($1,000 or
any integral multiple thereof) of Bonds to be redeemed on the Redemption Date
by allocating the principal amount to be redeemed among the Holders of Bonds of
such Stated Maturity in proportion to the respective principal amount of Bonds
of such Stated Maturity registered in their respective names.
(e) Concerning Section 3.08(a). Section 3.08 (a) of Exhibit 1 is
amended by adding the following after the word "Register": "provided, however,
that the requirement in this Section 3.08(a) to include the Redemption Price in
such notice may be satisfied by stating (i) the principal amount of Obligations
being redeemed, (ii) that the Shipowner is obligated to pay such amount,
together with accrued interest at the interest rate borne by the Obligations to
the Redemption Date and the Redemption Premium, and (iii) that the Shipowner
shall calculate the Redemption Premium and furnish such calculation, together
with a reasonably detailed summary thereof, to the Indenture Trustee and each
Holder not later than the second Business Day preceding the Redemption Date."
(f) Concerning References to Section 3.09(b). All cross-references to
Section 3.09(b) made in Exhibit 1 hereto shall be deemed to refer to Section
3.10(b) of Exhibit 1 hereto.
(g) Concerning Home Office Payment. Notwithstanding any terms of
this Indenture or the Obligations to the contrary, the Shipowner may enter into
an agreement with any Holder of an Obligation providing for payment to such
Holder by certified or official bank check, or at the request of such Holder, by
credit to an account maintained by the Holder with the Indenture Trustee, or by
wire transfer of the principal of and the premium (if any), and interest on such
6
11
Obligation or any part thereof at a place other than the place or places
specified in such Obligation as the place for such payment, and for the making
of notation (if any), of such payment on such Obligation by such Holder, or by
an agent of the Shipowner or of the Indenture Trustee without presentation of
such Obligation. The Shipowner will furnish to the Indenture Trustee a copy of
each such agreement. The Indenture Trustee hereby consents to such agreement
contained in Section 7 of the Bond Purchase Agreement dated as of the Closing
Date, between the Shipowner and the Purchasers named in Schedule 1 thereto, and
hereby acknowledges receipt of a copy thereof.
(h) Concerning Section 7.02. The amount "$3,000,000" in Section 7.02
of Exhibit 1 hereto is hereby deleted, and there is substituted therefor the
amount "$100,000,000."
(i) Concerning Section 10.01. Paragraph (2) of Section 10.01 of
Exhibit 1 to this Indenture is deleted, and the following substituted in lieu
thereof:
"(2) to evidence the succession pursuant to Article VIII of
another corporation or entity to the Shipowner or any
assumption of all or a part of the Obligations pursuant to
Article VIII;"
(j) Concerning Notices. Subject to the provisions of Section 13.01 of
Exhibit 1 to this Indenture, any notice, request, demand, direction, consent,
waiver, approval or other communication to be given to a party hereto or the
Secretary, shall be deemed to have been sufficiently given or made when
addressed to:
The Indenture Trustee as: State Street Bank and Trust Company
Corporate Trust Xxxxxxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The Shipowner as: Trailer Bridge, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx XxXxxx
The Secretary as: SECRETARY OF TRANSPORTATION
c/o Maritime Administrator
Department of Transportation
000 Xxxxxxx Xxxxxx, XX
7
12
Washington, D.C. 20590
(k) Concerning Applicable Law. This Indenture and each Obligation
shall be governed by the laws of the State of New York, and to the extent
applicable, the federal laws of the United States.
(l) Execution in Counterparts. This Indenture may be executed in any
number of counterparts. All such counterparts shall be deemed to be originals,
and shall constitute but one and the same instrument.
8
13
IN WITNESS WHEREOF, this Trust Indenture has been duly executed by the
parties hereto as of the day and year first above written.
TRAILER BRIDGE, INC.
Shipowner
[SEAL] By: Xxxx XxXxxx
-----------
STATE STREET BANK AND TRUST
COMPANY
Indenture Trustee
By: Xxxxxx X. Xxxxxxx
-----------------
Vice President
[SEAL]
9
00
XXXXX XX XXX XXXX )
) SS:
COUNTY OF NEW YORK )
On this 20 day of June, 1997 before me personally appeared Xxxx
XxXxxx, who being by me duly sworn, did depose and say that he resides at 00
Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000; that he is Chairman of TRAILER
BRIDGE, INC., that he knows the seal of said Corporation; that the seal affixed
to said instrument is such corporation's seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
In testimony whereof, I have hereunto set my hand and seal this 20 day
of June, 1997.
Xxxxxxx X. Xxxxxxx, Xx.
-----------------------
NOTARY PUBLIC
State of New York
02604837705
Comm. Expires 7/31/97
(Notarial Stamp and Seal)
10
15
COMMONWEALTH OF MASSACHUSETTS)
) SS:
COUNTY OF SUFFOLK )
Be it known this 17 day of June, 1997 personally appeared
before me Xxxxxx X. Xxxxxxx, who after being duly sworn, deposed and said that
he is a Vice President of STATE STREET BANK AND TRUST COMPANY, the
Massachusetts Trust Company which is described in and executed within the
instrument hereto annexed, that he/she knows the seal of said trust company,
that the seal affixed to said instrument is said trust company's seal, that it
was so affixed and that he/she signed the instrument hereto annexed by order of
the Board of Directors of the said STATE STREET BANK AND TRUST COMPANY, and
that he/she signed his/her name thereto by like authority, and acknowledged the
annexed instrument to be the free act and deed of the said STATE STREET BANK
AND TRUST COMPANY.
In testimony whereof, I have hereunto set my hand and seal this 17 day
of June, 1997.
Xxxxxxxx X. Xxxxx
-----------------
NOTARY PUBLIC
Xxxxxxxx X. Xxxxx
Notary Public
My Commission Expires June 20, 1997
(Notarial Stamp and Seal)
11
16
Document 5
EXHIBIT 1 to Trust Indenture--
General Provisions
Incorporated into
the Trust Indenture
by Reference
17
EXHIBIT 1
GENERAL PROVISIONS OF THE INDENTURE
INCORPORATED BY REFERENCE
TABLE OF CONTENTS
TO
EXHIBIT 1*
Page
ARTICLE I. DEFINITIONS; OFFICER'S CERTIFICATE AND OPINIONS OF COUNSEL..........................................1
SECTION 1.01. Definitions........................................................................................1
SECTION 1.02. Officer's Certificate and Opinions of Counsel......................................................1
ARTICLE II. THE OBLIGATIONS.....................................................................................2
SECTION 2.01. Designation of Obligations.........................................................................2
SECTION 2.02. Issue, Form, Principal Amount, Maturity,
Interest, Place of Payment, Denominations,
and Redemption of Obligations..................................................................2
SECTION 2.03. Issuance of Obligations of
Initial Series.................................................................................3
SECTION 2.04. Additional Obligations;
Obligations of Additional Series...............................................................3
SECTION 2.05. Legends on Obligations.............................................................................4
SECTION 2.06. Dates of Obligations; Interest Rights..............................................................4
SECTION 2.07. Execution of Obligations...........................................................................4
SECTION 2.08. Authentication of Obligations and
Guarantees.....................................................................................4
SECTION 2.09. Temporary Obligations..............................................................................5
SECTION 2.10. Registration, Transfer and Exchange................................................................5
SECTION 2.11. Who Treated as Owners..............................................................................6
SECTION 2.12. Lost, Stolen, Destroyed or
Mutilated Obligations..........................................................................6
SECTION 2.13. Reacquired Obligations, Cancellation
and Disposition of Obligations.................................................................7
ARTICLE III. REDEMPTION OF OBLIGATIONS...........................................................................7
SECTION 3.01. Redemptions Suspended During Default...............................................................7
-----------------
*This Table of Contents is not a part of the Indenture and has no bearing upon
the interpretation of its terms and provisions.
SECTION 3.02. Redemptions........................................................................................8
i
18
(a) Redemptions with Premium...................................................................8
(b) Redemptions without Premium................................................................8
(c) Sinking Fund Redemptions...................................................................8
(d) Adjustment of Redemption Payments..........................................................8
SECTION 3.03. Terminal Mandatory Redemption......................................................................9
SECTION 3.04. Redemptions to Comply with Provisions of
1104(b)(2) of the Act..........................................................................9
SECTION 3.05. Redemption After Total Loss, Requisition
of Title, Seizure or Forfeiture of
Vessel or Termination of Certain
Contracts......................................................................................9
SECTION 3.06. Redemption After Assumption by the
Secretary......................................................................................9
SECTION 3.07. Determination of Obligations to be
Redeemed......................................................................................10
SECTION 3.08. Notices of Redemption.............................................................................10
SECTION 3.09. Deposit of Redemption Moneys......................................................................11
SECTION 3.10. Payment of Redemption Price.......................................................................11
ARTICLE IV. CASH HELD BY INDENTURE TRUSTEE OR PAYING AGENTS....................................................11
SECTION 4.01. Generally.........................................................................................11
SECTION 4.02. Paying Agents Other Than Indenture Trustee........................................................12
SECTION 4.03. Unclaimed Amounts.................................................................................12
SECTION 4.04. Application of Funds..............................................................................13
ARTICLE V. REPRESENTATIONS AND AGREEMENTS OF SHIPOWNER........................................................13
SECTION 5.01. Authorization, Execution and
Delivery of Indenture.........................................................................13
SECTION 5.02. Payment and Procedure for Payment of
Obligations...................................................................................13
SECTION 5.03. Offices or Agencies of Shipowner..................................................................13
ARTICLE VI. INDENTURE DEFAULTS AND REMEDIES....................................................................14
SECTION 6.01. What Constitutes "Indenture Defaults".............................................................14
SECTION 6.02. Demand for Payment of Guarantees..................................................................14
SECTION 6.03. Appointment of Indenture Trustee and
Holders of Outstanding Obligations as
Attorneys-in-Fact.............................................................................15
SECTION 6.04. Termination and Payment of the Guarantees.........................................................15
SECTION 6.05. Rights of Indenture Trustee After
Indenture Default.............................................................................17
SECTION 6.06. (a) Obligees' Right to Direct Indenture
Trustee After Indenture Default...............................................................17
ii
19
(b) Limitations on Obligees Right to Xxx.....................................................17
(c) Unconditional Right of Obligees to
Xxx for Principal (and Premium, if
any) and Interest........................................................................18
SECTION 6.07. Undertaking for Costs.............................................................................18
SECTION 6.08. Recision of Payments..............................................................................19
SECTION 6.09. Assumption of Obligations of Secretary............................................................19
ARTICLE VII. THE INDENTURE TRUSTEE..............................................................................20
SECTION 7.01. Acceptance of Trusts..............................................................................20
SECTION 7.02. Eligibility of Indenture Trustee..................................................................20
SECTION 7.03. Rights and Duties of Indenture Trustee............................................................20
SECTION 7.04. Compensation, Expenses and Indemnification of Indenture Trustee...................................23
SECTION 7.05. Resignation and Removal of Indenture
Trustee......................................................................................24
SECTION 7.06. Appointment of Successor Indenture
Trustee......................................................................................24
SECTION 7.07. Effect of Appointment of Successor
Indenture Trustee............................................................................24
SECTION 7.08. Merger, Consolidation and Sale
of Indenture Trustee.........................................................................25
ARTICLE VIII. CONSOLIDATION, MERGER AND SALE BY SHIPOWNER........................................................25
SECTION 8.01. Consolidation, Merger or Sale
by Shipowner.................................................................................25
SECTION 8.02. Sale of Vessel by the Secretary...................................................................26
ARTICLE IX. ACTS OF OBLIGEES...................................................................................26
SECTION 9.01. Acts of Obligees..................................................................................27
ARTICLE X. SUPPLEMENTAL INDENTURES............................................................................27
SECTION 10.01. Permissible Without Action by Obligees...........................................................27
SECTION 10.02. Protection of Indenture Trustee..................................................................28
SECTION 10.03. Reference in Obligations
to Supplemental Indentures.......................................................................28
SECTION 10.04. Waivers and Supplemental Indentures
with Consent of Obligees.........................................................................28
SECTION 10.05. Consent of Secretary.............................................................................29
SECTION 10.06. Continued Validity of the Guarantees.............................................................29
ARTICLE XI. PERFORMANCE OF OBLIGATIONS TO SECRETARY............................................................30
SECTION 11.01. Performance of Obligations to Secretary..........................................................30
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE............................................................30
iii
20
SECTION 12.01. Satisfaction and Discharge
of Indenture.................................................................................30
ARTICLE XIII. MISCELLANEOUS......................................................................................30
SECTION 13.01. Notices and Demands..............................................................................30
SECTION 13.02. Waivers of Notice................................................................................31
SECTION 13.03. Benefit of Indenture.............................................................................31
SECTION 13.04. Execution of Counterparts........................................................................31
SECTION 13.05. Table of Contents; Titles and Headings...........................................................31
SECTION 13.06. Integration with Special Provisions of
the Indenture................................................................................31
SECTION 13.07. Immunity of Incorporators, Stockholders,
Officers and Directors.......................................................................31
SECTION 13.08 Applicable Law...................................................................................32
iv
21
EXHIBIT 1
GENERAL PROVISIONS OF THE INDENTURE
INCORPORATED BY REFERENCE
ARTICLE I
DEFINITIONS; OFFICER'S CERTIFICATES
AND OPINIONS OF COUNSEL
SECTION 1.01. Definitions. For all purposes of this Indenture, the
terms used herein shall have the meanings specified in the Special Provisions
hereof, including without limitation Schedule A to this Indenture.
SECTION 1.02. Officer's Certificates and Opinions of Counsel. (a)
Each Officer's Certificate or Opinion of Counsel with respect to compliance
with a covenant or condition provided for herein (or waiver thereof) shall
include:
(1) A statement that the Person or Persons making such
certificate or rendering such opinion has or have read such covenant
or condition;
(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 Person or Persons,
he or they have made or caused to be made such examination or
investigation as is necessary to enable him or them to express an
informed opinion as to whether or not such covenant or condition has
been complied with (or compliance therewith has been waived); and
(4) A statement as to whether or not, in the opinion of such
Person or Persons, such condition or covenant has been complied with
(or such compliance has been waived).
(b) An Opinion of Counsel may be based (insofar as it relates to
factual matters, information with respect to which is in the possession of any
Person) upon a certificate or opinion of or representations in writing signed
by an officer or officers of such Person or by such Person, as the case may be,
and may be based upon an Opinion of Counsel signed by another counsel.
An Opinion of Counsel may state that said opinion is subject to the
execution and delivery of designated instruments if copies of such instruments
in form approved by such
1
22
counsel are delivered to the Indenture Trustee prior to or concurrently with
the delivery of said opinion.
(c) A certificate or opinion of a Person or Persons other than counsel
may be based, insofar as it relates to legal matters, upon an Opinion of
Counsel, unless the Person or Persons signing such certificate or opinion knew
that such Opinion of Counsel was erroneous or, in the exercise of reasonable
care, should have known that the same was erroneous.
(d) If the Indenture requires or permits the execution of any document by
officers, counsel or other Persons, such document may be executed in
counterparts by different officers, counsel or other Persons, all of which
shall form one instrument.
(e) If the signer of any document is required to be approved by the
Indenture Trustee, the acceptance of such document by the Indenture Trustee
shall be sufficient and conclusive evidence of such approval.
(f) The fact that the delivery of any document is a condition precedent
to any action required or permitted hereby shall not preclude the withdrawal,
revocation, rescission, modification or amendment of such document at any time
prior to such action, and, in the event of any such withdrawal, revocation or
rescission, such document shall be disregarded for all purposes of this
Indenture.
ARTICLE II
THE OBLIGATIONS
SECTION 2.01. Designation of Obligations. The Obligations of each series
shall be designated as stated in the Special Provisions hereof or in the
Supplemental Indenture establishing such series.
SECTION 2.02. Issue, Form, Principal Amount, Maturity, Interest, Place of
Payment, Denominations and Redemption of Obligations. (a) Upon or after the
execution and delivery of this Indenture the aggregate principal amount of
Obligations of the series and Stated Maturity or Maturities permitted by the
Special Provisions hereof may be executed by the Shipowner, authenticated by
the Indenture Trustee, and delivered as provided herein.
(b) The Obligations of each series and Stated Maturity to be issued
hereunder, the Guarantees of the United States to be endorsed thereon and the
Indenture Trustee's authentication certificates to be endorsed thereon shall,
in the case of the initial series of Obligations, be in the form or forms set
forth in Exhibit 2 to the Special Provisions hereof or, in the case of
Obligations of any additional series, in the form or forms set forth in the
Supplemental Indenture establishing such series, and said Obligations shall:
(1) be limited to the respective principal amounts stated in the
Special Provisions hereof or in the Supplemental Indenture
establishing such series;
2
23
(2) bear interest from the date specified in Section 2.06 at the rate
or rates per annum stated in such Obligations;
(3) Mature in the amount or amounts and at the time or time stated
therein;
(4) be payable as to principal (and any premium thereon if premium in
case of redemption prior to Stated Maturity is provided for therein), in
any coin or currency of the United States which at the time of payment is
legal tender for public and private debts, at an office or agency
maintained from time to time by the Shipowner for such purpose as provided
in Section 5.03 at the place or places stated in the Special Provisions
hereof and payable as to interest as aforesaid or, at the option of the
Shipowner, by check mailed by such office or agency to the addresses of
the Obligees as such addresses shall appear in the Obligation Register;
(5) be issued in the denominations provided in the Special Provisions
hereof or in the Supplemental Indenture establishing such series; and
(6) be subject to redemption to the extent and as provided in Article
(c) If the Maturity of any Obligation or an Interest Payment Date for any
Obligation shall be a day other than a Business Day, then such payment may be
made on the next succeeding Business Day, with the same force and effect as if
made on the nominal date for such payment, and no interest shall accrue thereon
for the period after said nominal date (whether or not such next succeeding
Business Day occurs in a succeeding month).
SECTION 2.03. Issuance of Obligations of Initial Series. At any time and
from time to time after the execution and delivery of this Indenture, the
Shipowner may deliver to the Indenture Trustee Obligations of the initial
series issuable under this Indenture duly executed by the Shipowner as
hereinafter provided, accompanied by a Request of the Shipowner, and thereupon
the Indenture Trustee shall authenticate such Obligations, after endorsing
thereon and authenticating the Guarantees of the United States in accordance
with the Authorization Agreement, and shall deliver such Obligations and
Guarantees in accordance with such Request. Each such Request shall specify the
principal amounts, interest rates and Stated Maturities of the Obligations to
be authenticated and the names and addresses of the Persons in whose name the
Obligations are to be registered.
SECTION 2.04. Additional Obligations; Obligations of Additional Series. At
any time or from time to time, the Shipowner may, with the approval of the
Secretary, issue additional Obligations of any series and Stated Maturity
theretofore issued or of one or more additional series, which shall (i) be in
such principal amount, and (in the case of Obligations of any additional
series) mature on such dates, bear interest at such rate or rates, be in such
form or forms and have such other terms and provisions, as shall be set forth
in a Supplemental Indenture providing for the issue thereof and (ii) be
guaranteed by the United States under Title XI of the Act pursuant to a
supplement to the Authorization Agreement.
3
24
SECTION 2.05. Legends on Obligations. Any Obligation may have imprinted or
stamped thereon any legend, consistent herewith, which is prescribed by the
Shipowner and approved by the Indenture Trustee, and, except for endorsements
permitted by the second paragraph of Section 2.10(c), by the Secretary.
SECTION 2.06. Dates of Obligations; Interest Rights. Each Obligation of
any series shall be dated the date of its authentication and except as
otherwise provided in this Section, shall bear interest from the Interest
Payment Date for Obligations of such series next preceding the date of such
Obligation to which interest on the Obligations of such series has been paid,
unless (i) the date of such Obligation is the date to which interest on the
Obligations of such series has been paid, in which case from the date of such
Obligation, or (ii) no interest has been paid on the Obligations of such series
since the original issue date (as defined below) of such Obligation, in which
case from such original issue date. The term "original issue date" of an
Obligation shall mean (a) in the case of an Obligation issued on original
issue, the date of such Obligation, or (b) in the case of an Obligation not
issued on original issue, the date of the Obligation (or portion thereof)
issued on original issue for which such Obligation was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
SECTION 2.07. Execution of Obligations. The Obligations shall from time to
time be executed on behalf of the Shipowner by a Responsible Officer thereof
(whose signature may be a facsimile), and its corporate seal (which may be a
facsimile) shall be affixed thereto or imprinted thereon and attested by its
secretary, an assistant secretary or an assistant trust officer (whose
signature may be a facsimile).
If any officer of the Shipowner whose signature (facsimile or otherwise)
appears on any Obligation shall cease to be such officer before such Obligation
shall have been authenticated by the Indenture Trustee or delivered, such
Obligation nevertheless may be authenticated, issued and delivered with the
same force and effect as though the person or persons whose signature or
signatures (facsimile or otherwise) appear on such Obligation had not ceased to
be such officer or officers of the Shipowner.
SECTION 2.08. Authentication of Obligations and Guarantees. No Obligation
or the Guarantee of the United States thereon shall be valid unless such
Obligation shall bear thereon an authentication certificate, manually executed
by the Indenture Trustee in accordance with the terms and conditions of the
Authorization Agreement, substantially in the form or forms referred to in
Section 2.02(b). Such authentication certificate, so executed, on any
Obligation shall be conclusive evidence, and the only competent evidence, that
such Obligation and such Guarantee have been duly executed, authenticated and
delivered hereunder.
SECTION 2.09. Temporary Obligations. There may be issued from time to time
in lieu of (or in exchange for) any definitive Obligation or Obligations one or
more temporary Obligations of like series and Stated Maturity, with a Guarantee
of the United States endorsed thereon and authenticated by the Indenture
Trustee, substantially of the same tenor as the definitive Obligations in lieu
of (or in exchange for) which they are issued, with or without the
4
25
specification of any Redemption Price or Prices. Such temporary Obligation or
Obligations may be in such authorized denomination or denominations as shall be
stated in a Request of the Shipowner delivered to the Indenture Trustee prior
to the authentication thereof, which Request shall specify the aggregate
principal amounts and the series and Stated Maturities of such temporary
Obligations.
If definitive Obligations are not ready for delivery, the Holder of any
temporary Obligation may, at the Corporate Trust Office, with the consent of
the Shipowner, exchange the same for a temporary Obligation or Obligations of
like series, tenor, interest accrual date and Stated Maturity of authorized
denominations for the same aggregate principal amount upon the surrender for
cancellation of such temporary Obligation or Obligations.
When definitive Obligations are ready for delivery, the Holder of any
temporary Obligation may, at the Corporate Trust Office, exchange the same
without charge for a definitive Obligation or Obligations of like series,
tenor, interest accrual date and Stated Maturity of authorized denominations
for the same aggregate principal amount.
SECTION 2.10. Registration, Transfer and Exchange. (a) The Shipowner shall
cause the Indenture Trustee to keep an Obligation Register for the registration
of ownership, transfers and exchanges of Obligations, at the Corporate Trust
Office.
(b) Any Obligation may be transferred at the Corporate Trust Office, by
surrender of such Obligation for cancellation, accompanied by an instrument of
transfer in form satisfactory to the Shipowner and the Indenture Trustee, duly
executed by the registered Obligee or his duly authorized attorney, and
thereupon the Shipowner shall execute, and the Indenture Trustee shall
authenticate and deliver in the name of the transferee or transferees, a new
Obligation or Obligations, and the Guarantee or Guarantees of the United States
thereon, in authorized denominations of like series, tenor, interest accrual
date and Stated Maturity and for the same aggregate principal amount.
(c) The Shipowner shall not be required to register transfers or make
exchanges of (1) Obligations for a period of 15 days immediately prior to (A)
an Interest Payment Date or (B) any selection of Obligations to be redeemed,
(2) Obligations after demand for payment of the Guarantees and prior to the
payment thereof or rescission of such demand pursuant to Section 6.02(a), or
(3) any Obligation which has been selected for redemption in whole or in part.
If any Obligation surrendered for transfer or exchange has been selected
for redemption in whole or in part, there may be endorsed on any Obligation or
Obligations issued therefor an appropriate notation of such fact.
(d) Any Obligation shall be exchangeable for a like principal amount of
Obligations of the same series, tenor, interest accrual date and Stated
Maturity but of different authorized denominations. Obligations to be exchanged
shall be surrendered at the Corporate Trust Office, and the Shipowner shall
execute, and the Indenture Trustee shall authenticate and deliver in
5
26
exchange therefor, the Obligation or Obligations, and the Guarantee or
Guarantees of the United States thereon, requested by the Obligee in accordance
with this paragraph (d).
(e) As a condition precedent to any transfer or exchange of Obligations,
the Shipowner may (except upon an exchange of temporary for definitive
Obligations) require the payment of a sum sufficient to reimburse it for any
taxes or other governmental charges that may be imposed with respect thereto
and a sum not exceeding $2.00 for each Obligation delivered upon any such
transfer or exchange.
SECTION 2.11. Who Treated as Owners. The Shipowner, the Indenture Trustee,
the Secretary, and any office or agency for the payment of principal of (and
premium, if any) or interest on the Obligations may deem and treat the Person
in whose name any Obligation is registered in the Obligation Register as the
absolute owner of such Obligation for all purposes, and neither the Shipowner,
the Indenture Trustee, the Secretary, nor any such office or agency shall be
affected by any notice to the contrary, whether such Obligation shall be past
due or not. All payments of or on account of principal (and premium, if any) or
interest, or pursuant to the Guarantee endorsed on such Obligation, to such
registered Obligee shall be valid and effectual to satisfy and discharge the
liability of the Shipowner and the Secretary to the extent of the sum or sums
so paid, except as otherwise provided in Section 6.08.
SECTION 2.12. Lost, Stolen, Destroyed or Mutilated Obligations. Upon
receipt by the Shipowner and the Indenture Trustee of evidence satisfactory to
them of the loss, theft, destruction or mutilation of any Outstanding
Obligation and the ownership thereof, the Shipowner may execute, and upon
request of the Shipowner, the Indenture Trustee shall, but subject to all
limitations imposed by the Authorization Agreement and only to the extent
authorized thereby, authenticate and deliver, a new Obligation, and the
Guarantee of the United States thereon, of like series, tenor, interest accrual
date, principal amount and Stated Maturity (which may bear such notation as may
be required by the Indenture Trustee or by usage or by the rules of any stock
exchange upon which the Obligations are then listed and which shall bear a
serial number different from the serial number of the lost, stolen, destroyed
or mutilated Obligation) in lieu of such lost, stolen, destroyed or mutilated
Obligation and, similarly, upon receipt by the Shipowner and the Indenture
Trustee of evidence satisfactory to them of the loss, theft, destruction or
mutilation of any Obligation which has or is about to become due and payable,
the Indenture Trustee may deem the applicant with respect thereto to be the
owner of said Obligation for the purpose of receiving payment on account
thereof of principal (and premium, if any) upon maturity or interest or the
payment of the Guarantee thereof; provided that, as conditions precedent to the
execution, authentication and delivery of any new Obligation in place of said
Obligation or to any payment contemplated by this Section, (1) the Shipowner,
the Indenture Trustee and the Secretary shall receive indemnity satisfactory to
the Shipowner, the Indenture Trustee and the Secretary, (2) the Shipowner shall
be reimbursed for all reasonable expenses (including any fees or expenses of
the Indenture Trustee) incident thereto, and (3) said Obligation shall (unless
the same shall have been lost, stolen or destroyed) be surrendered.
6
27
Obligations issued pursuant to this Section and the Guarantees endorsed
thereon shall constitute original contractual obligations of the Shipowner and
the United States, respectively, whether or not the lost, stolen or destroyed
Obligations be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other
Outstanding Obligations issued hereunder.
The provisions of this Section 2.12 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of lost, stolen, destroyed or mutilated Obligations.
SECTION 2.13. Reacquired Obligations; Cancellation and Disposition of
Obligations. In the event the Shipowner shall reacquire any Obligations
(whether by purchase or otherwise), such Obligations shall forthwith be
delivered to the Indenture Trustee for cancellation. Except as provided in
Section 3.09(b), all Obligations surrendered for the purpose of payment,
redemption, transfer, exchange, or substitution, or (if permitted in the
Special Provisions hereof or the Supplemental Indenture establishing any
additional series of Obligations) in discharge in whole or in part of any
sinking fund payment shall, if surrendered to the Shipowner or any Paying
Agent, be delivered to the Indenture Trustee for cancellation, or, if
surrendered to the Indenture Trustee, shall be cancelled by it. No Obligation
shall be authenticated in lieu of or in exchange for any Obligation cancelled
as provided in this Section, except as may be expressly permitted by this
Indenture. Obligations cancelled by the Indenture Trustee shall be delivered or
disposed of as directed by a Request of the Shipowner.
ARTICLE III
REDEMPTION OF OBLIGATIONS
SECTION 3.01. Redemptions Suspended During Default. Notwithstanding the
following provisions of this Article III, neither the Shipowner nor the
Indenture Trustee shall redeem any Obligations, except pursuant to Section 3.04
or 3.06 during the continuance of any Indenture Default or event which with the
lapse of time could constitute a Payment Default, except that, where the
mailing of notice of redemption of any Obligations shall have theretofore been
made, the Indenture
7
