Exhibit 4.4
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FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 2005
TO
INDENTURE
Dated December 7, 2004
BETWEEN
OMI CORPORATION
AND
HSBC BANK USA, NATIONAL ASSOCIATION
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 2005, between
OMI CORPORATION, a corporation duly organized and existing under the laws of the
Republic of the ▇▇▇▇▇▇▇▇ Islands (the "Company"), having its principal office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association (the "Trustee"), as Trustee under
the Indenture, as defined below. Defined terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Indenture.
WHEREAS, the Company has heretofore executed and delivered to
the Trustee a certain Indenture dated as of December 7, 2004 (the "Indenture"),
providing for the issuance of the Company's 2.875% Convertible Senior Notes due
2024 in the aggregate principal amount of $250,000,000 (the "Securities");
WHEREAS, Section 10.01(d) of the Indenture provides that if a
Holder of Securities elects to convert its Securities pursuant to Section
10.01(c) thereof and certain other conditions are satisfied, the Conversion Rate
for any such Securities surrendered for conversion shall be increased by a
certain number of Additional Shares, such number of Additional Shares being
determined by reference to the table attached as SCHEDULE A to the Indenture;
WHEREAS, the Company has been advised by ▇▇▇▇▇▇▇▇▇ & Company,
Inc. that the form of SCHEDULE A attached to the Indenture did not properly
reflect market expectation and should be revised and the Company has agreed to
such revision;
WHEREAS, this First Supplemental Indenture may be entered into
pursuant to the provisions of Section 9.01 of the Indenture without the consent
of the Holders of the Securities; and
WHEREAS, all acts and things necessary to make this First
Supplemental Indenture a valid, binding and legal instrument of the Company have
been duly performed and fulfilled by the Company, and the execution and delivery
hereof by the Company have been in all respects duly authorized by the Company.
NOW, THEREFORE, in consideration of the premises and for the
purposes set forth herein and in consideration of One Dollar duly paid by the
Trustee to the Company, the receipt of which is hereby acknowledged, the Company
hereby covenants and agrees with the Trustee, for the benefit of the Holders
from time to time of the Securities, as follows:
ARTICLE I
AMENDMENT TO THE INDENTURE
Section 1.01 SCHEDULE A to the Indenture shall be and hereby is
amended, replaced and restated in its entirety in the form of SCHEDULE A
attached hereto.
Section 1.02 The last paragraph of Section 10.01(d) shall be and hereby
is amended, replaced and restated in its entirety to read as follows:
Notwithstanding the foregoing, in no event will the total number of
shares of Common Stock issuable upon conversion exceed 48.4355 shares per $1,000
principal amount of Securities or 12,108,875 shares of Common Stock in the
aggregate, whichever is less (in each case as adjusted on the same basis as the
Conversion Rate is adjusted pursuant to Section 10.04), subject to adjustments
in the same manner as the Conversion Rate as set forth in Section 10.04.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01 This First Supplemental Indenture is executed and accepted
by the parties hereto, subject to all the terms and conditions set forth in the
Indenture, as fully to all intents and purposes as if the terms and conditions
of the Indenture were set forth herein in full. As supplemented by this First
Supplemental Indenture, the Indenture is in all respects ratified and confirmed,
and the Indenture and this First Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
Section 2.02 This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 2.03 The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made solely by the Company and the Subsidiary Guarantors.
Section 2.04 Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture. For all purposes of this
First Supplemental Indenture, except as otherwise herein expressly provided or
unless the context otherwise requires, the words "herein," "hereof" and "hereby"
and other words of similar import used in this First Supplemental Indenture
refer to this First Supplemental Indenture as a whole and not to any particular
section hereof.
Section 2.05 This First Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 2.06 The Section headings herein are for convenience only and
shall not affect the construction thereof.
2
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
OMI CORPORATION
By
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
3
SCHEDULE A
The following table sets forth the number of Additional Shares to be received
per $1,000 principal amount of Securities.
STOCK PRICE
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EFFECTIVE DATE $20.98 $23.08 $25.18 $27.27 $29.37 $31.47 $33.57 $35.67 $37.76 $39.86 $41.96 $52.45 $62.94 $73.43 $83.92
-------------------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
December 1, 2004 ... 15.50 13.10 11.14 9.62 8.32 7.33 6.55 5.94 5.31 4.90 4.38 2.98 2.17 1.69 1.36
December 1, 2005 ... 15.72 13.18 11.17 9.54 8.22 7.16 6.34 5.66 5.08 4.58 4.16 2.73 1.96 1.50 1.20
December 1, 2006 ... 15.86 13.18 11.07 9.37 7.99 6.89 6.05 5.35 4.76 4.25 3.83 2.42 1.69 1.26 1.00
December 1, 2007 ... 15.90 13.07 10.84 9.06 7.62 6.49 5.62 4.90 4.30 3.80 3.38 2.03 1.35 0.98 0.76
December 1, 2008 ... 15.81 12.78 10.42 8.55 7.05 5.88 4.99 4.27 3.68 3.18 2.78 1.52 0.95 0.66 0.50
December 1, 2009 ... 15.53 12.26 9.73 7.74 6.17 4.97 4.07 3.35 2.78 2.32 1.94 0.89 0.48 0.31 0.23
December 1, 2010 ... 15.13 11.41 8.60 6.42 4.75 3.49 2.60 1.93 1.42 1.04 0.75 0.12 0.00 0.00 0.00
December 1, 2011 ... 15.13 10.80 7.18 4.13 1.52 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00