EXHIBIT 4(a)
==============================
NCL CORPORATION LTD.
AND
JPMORGAN CHASE BANK,
AS TRUSTEE
10-5/8% Senior Notes due 2014
===============
INDENTURE
Dated as of July 15, 2004
===============
==============================
1
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions and Incorporation by Reference............................................................ 1
SECTION 1.1. Definitions.............................................................................. 1
SECTION 1.2. Other Definitions........................................................................ 35
SECTION 1.3. Incorporation by Reference of Trust Indenture Act........................................ 37
SECTION 1.4. Rules of Construction.................................................................... 37
ARTICLE II
The Securities........................................................................................ 38
SECTION 2.1. Form, Dating and Terms................................................................... 38
SECTION 2.2. Execution and Authentication............................................................. 44
SECTION 2.3. Registrar and Paying Agent............................................................... 46
SECTION 2.4. Paying Agent to Hold Money in Trust...................................................... 46
SECTION 2.5. Securityholder Lists..................................................................... 46
SECTION 2.6. Transfer and Exchange.................................................................... 47
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Securities.......................................... 50
SECTION 2.8. Outstanding Securities................................................................... 50
SECTION 2.9. Temporary Securities..................................................................... 51
SECTION 2.10. Cancellation............................................................................ 51
SECTION 2.11. Payment of Interest; Defaulted Interest................................................. 52
SECTION 2.12. Computation of Interest................................................................. 53
SECTION 2.13. CUSIP Numbers........................................................................... 53
ARTICLE III
Covenants............................................................................................. 53
SECTION 3.1. Payment of Securities; Payment of Additional Amounts..................................... 53
SECTION 3.2. SEC Reports.............................................................................. 55
SECTION 3.3. Limitation on Indebtedness............................................................... 56
SECTION 3.4. Limitation on Restricted Payments........................................................ 62
SECTION 3.5. Limitation on Liens...................................................................... 67
SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries................. 67
SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock....................................... 70
SECTION 3.8. Limitation on Affiliate Transactions..................................................... 74
SECTION 3.9. Change of Control........................................................................ 75
SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries.......................... 77
SECTION 3.11. Limitation on Sale/Leaseback Transactions............................................... 77
SECTION 3.12. Maintenance of Properties and Insurance................................................. 78
SECTION 3.13. Limitation on Lines of Business......................................................... 78
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SECTION 3.14. Maintenance of Office or Agency......................................................... 78
SECTION 3.15. Corporate Existence..................................................................... 79
SECTION 3.16. Payment of Taxes and Other Claims....................................................... 79
SECTION 3.17. Payments for Consent.................................................................... 79
SECTION 3.18. Compliance Certificate.................................................................. 80
SECTION 3.19. Further Instruments and Acts............................................................ 80
SECTION 3.20. Statement by Officers as to Default..................................................... 80
ARTICLE IV
Successor Person...................................................................................... 80
SECTION 4.1. Merger and Consolidation................................................................. 80
SECTION 4.2. Reflagging of Vessels.................................................................... 81
ARTICLE V
Redemption of Securities.............................................................................. 81
SECTION 5.1. Optional Redemption; Optional Tax Redemption............................................. 81
SECTION 5.2. Applicability of Article................................................................. 83
SECTION 5.3. Election to Redeem; Notice to Trustee.................................................... 83
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed........................................ 83
SECTION 5.5. Notice of Redemption..................................................................... 83
SECTION 5.6. Deposit of Redemption Price.............................................................. 85
SECTION 5.7. Securities Payable on Redemption Date.................................................... 85
SECTION 5.8. Securities Redeemed in Part.............................................................. 85
ARTICLE VI
Defaults and Remedies................................................................................. 85
SECTION 6.1. Events of Default........................................................................ 85
SECTION 6.2. Acceleration............................................................................. 88
SECTION 6.3. Other Remedies........................................................................... 89
SECTION 6.4. Waiver of Past Defaults.................................................................. 89
SECTION 6.5. Control by Majority...................................................................... 89
SECTION 6.6. Limitation on Suits...................................................................... 89
SECTION 6.7. Rights of Holders to Receive Payment..................................................... 90
SECTION 6.8. Collection Suit by Trustee............................................................... 90
SECTION 6.9. Trustee May File Proofs of Claim......................................................... 90
SECTION 6.10. Priorities.............................................................................. 90
SECTION 6.11. Undertaking for Costs................................................................... 91
ARTICLE VII
Trustee............................................................................................... 91
SECTION 7.1. Duties of Trustee........................................................................ 91
SECTION 7.2. Rights of Trustee........................................................................ 92
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SECTION 7.3. Individual Rights of Trustee............................................................. 93
SECTION 7.4. Trustee's Disclaimer..................................................................... 93
SECTION 7.5. Notice of Defaults....................................................................... 93
SECTION 7.6. Reports by Trustee to Holders............................................................ 94
SECTION 7.7. Compensation and Indemnity............................................................... 94
SECTION 7.8. Replacement of Trustee................................................................... 95
SECTION 7.9. Successor Trustee by Merger.............................................................. 96
SECTION 7.10. Eligibility; Disqualification........................................................... 96
SECTION 7.11. Preferential Collection of Claims Against Company....................................... 96
ARTICLE VIII
Discharge of Indenture; Defeasance.................................................................... 96
SECTION 8.1. Discharge of Liability on Securities; Defeasance......................................... 96
SECTION 8.2. Conditions to Defeasance................................................................. 97
SECTION 8.3. Application of Trust Money............................................................... 99
SECTION 8.4. Repayment to Company..................................................................... 99
SECTION 8.5. Indemnity for U.S. Government Obligations................................................ 99
SECTION 8.6. Reinstatement............................................................................ 99
ARTICLE IX
Amendments............................................................................................ 100
SECTION 9.1. Without Consent of Holders............................................................... 100
SECTION 9.2. With Consent of Holders.................................................................. 101
SECTION 9.3. Compliance with Trust Indenture Act...................................................... 102
SECTION 9.4. Revocation and Effect of Consents and Waivers............................................ 102
SECTION 9.5. Notation on or Exchange of Securities.................................................... 102
SECTION 9.6. Trustee To Sign Amendments............................................................... 102
ARTICLE X
Miscellaneous......................................................................................... 103
SECTION 10.1. Trust Indenture Act Controls............................................................ 103
SECTION 10.2. Notices................................................................................. 103
SECTION 10.3. Communication by Holders with other Holders............................................. 104
SECTION 10.4. Certificate and Opinion as to Conditions Precedent...................................... 104
SECTION 10.5. Statements Required in Certificate or Opinion........................................... 104
SECTION 10.6. When Securities Disregarded............................................................. 104
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar............................................ 105
SECTION 10.8. Legal Holidays.......................................................................... 105
SECTION 10.9. Governing Law........................................................................... 105
SECTION 10.10. No Recourse Against Others............................................................. 105
SECTION 10.11. Successors............................................................................. 105
SECTION 10.12. Multiple Originals..................................................................... 105
SECTION 10.13. Qualification of Indenture............................................................. 105
SECTION 10.14. Table of Contents; Headings............................................................ 105
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EXHIBIT A Form of the Unregistered Note
EXHIBIT B Form of the Registered Note
EXHIBIT C Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors
EXHIBIT D Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ` ............................................................. 7.10
(a)(2) ............................................................. 7.10
(a)(3) ............................................................. N.A.
(a)(4) ............................................................. N.A.
(b) ............................................................. 7.8; 7.10
(c) ............................................................. N.A.
311(a) ............................................................. 7.11
(b) ............................................................. 7.11
(c) ............................................................. N.A.
312(a) ............................................................. 2.5
(b) ............................................................. 13.3
(c) ............................................................. 13.3
313(a) ............................................................. 7.6
(b)(1) ............................................................. N.A.
(b)(2) ............................................................. 7.6
(c) ............................................................. 7.6
(d) ............................................................. 7.6
314(a) ............................................................. 3.2; 3.19; 13.2
(b) ............................................................. N.A.
(c)(1) ............................................................. 13.4
(c)(2) ............................................................. 13.4
(c)(3) ............................................................. N.A.
(d) ............................................................. N.A.
(e) ............................................................. 13.5
315(a) ............................................................. 7.1
(b) ............................................................. 7.5; 13.2
(c) ............................................................. 7.1
(d) ............................................................. 7.1
(e) ............................................................. 6.11
316(a)(last sentence) ............................................................. 13.6
(a)(1)(A) ............................................................. 6.5
(a)(1)(B) ............................................................. 6.4
(a)(2) ............................................................. N.A.
(b) ............................................................. 6.7
317(a)(1) ............................................................. 6.8
(a)(2) ............................................................. 6.9
(b) ............................................................. 2.4
318(a) ............................................................. 13.1
N.A. means Not Applicable.
vi
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
vii
INDENTURE dated as of July 15, 2004, between NCL CORPORATION
LTD., a Bermuda corporation (the "Company") and JPMORGAN CHASE BANK, a New York
banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (i) the
Company's 10-5/8% Senior Notes due 2014, issued on the date hereof (the "Initial
Securities"), (ii) if and when issued, an unlimited principal amount of
additional 10-5/8% Senior Notes due 2014 in a non-registered offering or 10-5/8%
Senior Notes due 2014 in a registered offering of the Company that may be
offered from time to time subsequent to the Issue Date (the "Additional
Securities") and (iii) if and when issued, the Company's 10-5/8% Senior Notes
due 2014 that may be issued from time to time in exchange for Initial Securities
or any Additional Securities in an offer registered under the Securities Act as
provided in the Registration Rights Agreement (as hereinafter defined the
"Exchange Securities," and together with the Initial Securities and Additional
Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness (i) of a Person or
any of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or (ii) assumed in connection with the acquisition of Vessels or
other assets from such Person, in each case whether or not Incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition. Acquired Indebtedness
shall be deemed to have been Incurred, with respect to clause (i) of the
preceding sentence, on the date such Person becomes a Restricted Subsidiary and,
with respect to clause (ii) of the preceding sentence, on the date of
consummation of such acquisition of Vessels or other assets.
"Additional Assets" means:
(1) any property or assets (other than Indebtedness and
Capital Stock) to be used by the Company or a
Restricted Subsidiary in a Related Business,
including, without limitation, a hull under
construction or rights under a Vessel Construction
Contract, any installment payment under a Vessel
Construction Contract, and any repairs, improvements,
additions, enhancements, drydocking or capital
improvement of any Vessel;
(2) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition
of such Capital Stock by the Company or a Restricted
Subsidiary; or
(3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary;
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provided, however, that, in the case of clauses (2) and (3), such Restricted
Subsidiary is primarily engaged in a Related Business.
"Additional Securities" has the meaning ascribed to it in the
second introductory paragraph of this Indenture.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing;
provided that the beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"Asset Disposition" means any direct or indirect sale, lease
(other than an operating lease or charter accounted for as an operating lease
entered into in the ordinary course of business), transfer, issuance or other
disposition, or a series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan, of (i) shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares) and (ii)
property (including Vessels) or other assets, other than Capital Stock (except
as prohibited by clause (i) above), (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its Restricted
Subsidiaries, including any disposition by means of a merger, consolidation or
similar transaction.
Notwithstanding the preceding, the following items shall not
be deemed to be Asset Dispositions:
(1) a disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary
to a Wholly-Owned Restricted Subsidiary;
(2) the sale of Cash Equivalents in the ordinary course
of business;
(3) a disposition of inventory in the ordinary course of
business;
(4) a disposition of obsolete or worn out assets that are
no longer useful in the conduct of the business of
the Company and its Restricted Subsidiaries and that
are disposed of in the ordinary course of business;
(5) transactions permitted under Section 4.1;
(6) an issuance of Capital Stock by a Restricted
Subsidiary to the Company or to a Wholly-Owned
Subsidiary;
2
(7) for purposes of Section 3.7 only, the making of a
Permitted Investment or a disposition subject to
Section 3.4;
(8) an Asset Swap effected in compliance with Section
3.7;
(9) dispositions of assets in a single transaction or
series of related transactions with an aggregate fair
market value of less than $5.0 million;
(10) dispositions in connection with Permitted Liens;
(11) dispositions of receivables in connection with the
compromise, settlement or collection thereof in the
ordinary course of business or in bankruptcy or
similar proceedings and exclusive of factoring or
similar arrangements;
(12) the licensing or sublicensing of intellectual
property or other general intangibles and licenses,
leases or subleases of other property in the ordinary
course of business which do not materially interfere
with the business of the Company and its Restricted
Subsidiaries; and
(13) foreclosure on assets.
"Asset Swap" means the concurrent purchase and sale or exchange
of Related Business Assets between the Company or any of its Restricted
Subsidiaries and another Person; provided that any cash received must be applied
in accordance with Section 3.7.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (2) the sum of all
such payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar Federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Business Day" means each day that is not a Saturday, Sunday
or other day on which banking institutions in New York, New York are authorized
or required by law to close.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
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"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation will be the capitalized amount of such obligation
at the time any determination thereof is to be made as determined in accordance
with GAAP, and the Stated Maturity thereof will be the date of the last payment
of rent or any other amount due under such lease prior to the first date such
lease may be terminated without penalty.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency
or instrumentality of the United States or the
European Union (provided that the full faith and
credit of the United States or the European Union is
pledged in support thereof), having maturities of not
more than one year from the date of acquisition;
(2) marketable general obligations issued by any state of
the United States of America or any political
subdivision of any such state or any public
instrumentality thereof maturing within one year from
the date of acquisition (provided that the full faith
and credit of the United States is pledged in support
thereof) and, at the time of acquisition, having a
credit rating of "A" or better from either Standard &
Poor's Ratings Services or Xxxxx'x Investors Service,
Inc.;
(3) certificates of deposit, time deposits, eurodollar
time deposits, overnight bank deposits or bankers'
acceptances having maturities of not more than one
year from the date of acquisition thereof issued by
any commercial bank the long-term debt of which is
rated at the time of acquisition thereof at least "A"
or the equivalent thereof by Standard & Poor's
Ratings Services, or "A" or the equivalent thereof by
Xxxxx'x Investors Service, Inc., and having combined
capital and surplus in excess of $500.0 million;
(4) repurchase obligations with a term of not more than
seven days for underlying securities of the types
described in clauses (1), (2) and (3) entered into
with any bank meeting the qualifications specified in
clause (3) above;
(5) commercial paper rated at the time of acquisition
thereof at least "A-2" or the equivalent thereof by
Standard & Poor's Ratings Services or "P-2" or the
equivalent thereof by Xxxxx'x Investors Service,
Inc., or carrying an equivalent rating by a
nationally recognized rating agency, if both of the
two named rating agencies cease publishing ratings of
investments, and in any case maturing within one year
after the date of acquisition thereof; and
4
(6) interests in any investment company or money market
fund which invests primarily in instruments of the
type specified in clauses (1) through (5) above.
"Change of Control" means:
(1) (A) any "person" or "group" of related persons (as
such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that such person or group shall be deemed
to have "beneficial ownership" of all shares that any
such person or group has the right to acquire,
whether such right is exercisable immediately or only
after the passage of time), directly or indirectly,
of more than 40% of the total voting power of the
Voting Stock of the Company or Holdings (or its
successor by merger, consolidation or purchase of all
or substantially all of its assets) (for the purposes
of this clause, such person or group shall be deemed
to beneficially own any Voting Stock of the Company
or Holdings held by a parent entity, if such person
or group "beneficially owns" (as defined above),
directly or indirectly, more than 40% of the voting
power of the Voting Stock of such parent entity); and
(B) the Permitted Holders "beneficially own" (as
defined in Rules 13d-3 and 13d-5 of the Exchange
Act), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the
Voting Stock of the Company or Holdings, as the case
may be, (or its successor by merger, consolidation or
purchase of all or substantially all of its assets)
than such other person or group and do not have the
right or ability by voting power, contract or
otherwise to elect or designate for election a
majority of the Board of Directors of the Company or
Holdings or such successor (for the purposes of this
clause, such other person or group shall be deemed to
beneficially own any Voting Stock of a specified
entity held by a parent entity, if such other person
or group "beneficially owns" directly or indirectly,
more than 40% of the voting power of the Voting Stock
of such parent entity and the Permitted Holders
"beneficially own" directly or indirectly, in the
aggregate a lesser percentage of the voting power of
the Voting Stock of such parent entity and do not
have the right or ability by voting power, contract
or otherwise to elect or designate for election a
majority of the Board of Directors of such parent
entity); or
(2) the first day on which a majority of the members of
the Board of Directors (but not committees thereof)
of the Company or Holdings are not Continuing
Directors; or
(3) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the
assets of the Company or Holdings and its Restricted
Subsidiaries taken as a whole to any "person" (as
such term is
5
used in Sections 13(d) and 14(d) of the Exchange Act)
other than a Permitted Holder; or
(4) the adoption by the stockholders of the Company or
Holdings of a plan or proposal for the liquidation or
dissolution of the Company or Holdings (other than,
in the case of the adoption of a plan or proposal
involving the transfer of all or substantially all
the assets of Holdings and its Subsidiaries, if the
Successor Person is a Permitted Holder).
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means with respect to any Person, any and all
shares, interest or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of such Person's common stock
whether or not outstanding on the Issue Date, and includes, without limitation,
all series and classes of such common stock.
"Consolidated Coverage Ratio" means as of any date of
determination, with respect to any Person, the ratio of (x) the aggregate amount
of Consolidated EBITDA of such Person for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which financial statements are in existence to (y) Consolidated Interest Expense
of such Person for such four fiscal quarters, provided, however, that:
(1) if such Person or any Subsidiary of such Person
(Restricted Subsidiary, in the case of the Company):
(a) has Incurred any Indebtedness since the
beginning of such period that remains
outstanding on such date of determination or
if the transaction giving rise to the need
to calculate the Consolidated Coverage Ratio
is an Incurrence of Indebtedness,
Consolidated EBITDA and Consolidated
Interest Expense for such Person for such
period will be calculated after giving
effect on a pro forma basis to such
Indebtedness as if such Indebtedness had
been Incurred on the first day of such
period (except that in making such
computation, the amount of Indebtedness
under any revolving credit facility
outstanding on the date of such calculation
will be deemed to be (i) the average daily
balance of such Indebtedness during such
four fiscal quarters or such shorter period
for which such facility was outstanding or
(ii) if such facility was created after the
end of such four fiscal quarters, the
average daily balance of such Indebtedness
during the period from the date of creation
of such facility to the date of such
calculation) and the discharge of any other
Indebtedness repaid, repurchased, defeased
or otherwise discharged with the proceeds of
such new Indebtedness as if such discharge
had occurred on the first day of such
period; or
6
(b) has repaid, repurchased, defeased or
otherwise discharged any Indebtedness since
the beginning of the period that is no
longer outstanding on such date of
determination or if the transaction giving
rise to the need to calculate the
Consolidated Coverage Ratio involves a
discharge of Indebtedness (in each case
other than Indebtedness Incurred under any
revolving credit facility unless such
Indebtedness has been permanently repaid and
the related commitment terminated),
Consolidated EBITDA and Consolidated
Interest Expense for such Person for such
period will be calculated after giving
effect on a pro forma basis to such
discharge of such Indebtedness, including
with the proceeds of such new Indebtedness,
as if such discharge had occurred on the
first day of such period;
(2) if since the beginning of such period such Person or
any Subsidiary of such Person (Restricted Subsidiary,
in the case of the Company) will have made any Asset
Disposition or disposed of any company, division,
operating unit, segment, business, group of related
assets or line of business or if the transaction
giving rise to the need to calculate the Consolidated
Coverage Ratio is such an Asset Disposition:
(a) the Consolidated EBITDA for such Person for
such period will be reduced by an amount
equal to the Consolidated EBITDA (if
positive) directly attributable to the
assets which are the subject of such Asset
Disposition for such period or increased by
an amount equal to the Consolidated EBITDA
(if negative) directly attributable thereto
for such period; and
(b) Consolidated Interest Expense for such
Person for such period will be reduced by an
amount equal to the Consolidated Interest
Expense directly attributable to any
Indebtedness of such Person or any
Subsidiary of such Person (Restricted
Subsidiary, in the case of the Company)
repaid, repurchased, defeased or otherwise
discharged with respect to such Person and
its continuing Subsidiaries (Restricted
Subsidiaries, in the case of the Company) in
connection with such Asset Disposition for
such period (or, if the Capital Stock of any
Subsidiary (Restricted Subsidiary, in the
case of the Company) is sold, the
Consolidated Interest Expense for such
period directly attributable to the
Indebtedness of such Subsidiary (Restricted
Subsidiary, in the case of the Company) to
the extent such Person and its continuing
Subsidiaries (Restricted Subsidiaries, in
the case of the Company) are no longer
liable for such Indebtedness after such
sale);
(3) if since the beginning of such period or in
connection with the transaction for which the
Consolidated Coverage Ratio is being determined, such
7
Person or any Subsidiary of such Person (Restricted
Subsidiary, in the case of the Company) (by merger or
otherwise) will have made one or more Investments in
any Subsidiary (Restricted Subsidiary, in the case of
the Company) (or any Person which becomes a
Subsidiary (Restricted Subsidiary, in the case of the
Company) or is merged with or into such Person) or
one or more acquisitions of assets or, in the case of
one or more Vessels, the construction thereof or
conversion of an existing Vessel, including any
acquisition or construction of assets, which
constitutes all or substantially all of a company,
division, operating unit, segment, business, group of
related assets or line of business (or for purposes
of this subsection, any Vessel), Consolidated EBITDA
and Consolidated Interest Expense for such period
will be calculated after giving pro forma effect to
all such Investments, acquisitions, constructions or
conversions (including the Incurrence of any
Indebtedness related thereto) as if such Investments,
acquisitions, constructions or conversions had
occurred on the first day of such period; and
(4) if since the beginning of such period or in
connection with the transaction for which the
Consolidated Coverage Ratio is being determined, any
Person (that subsequently became a Subsidiary
(Restricted Subsidiary, in the case of the Company)
or was merged with or into such Person or any
Subsidiary of such Person (Restricted Subsidiary, in
the case of the Company) since the beginning of such
period) will have Incurred any Indebtedness or
discharged any Indebtedness, made any Asset
Disposition, Investment or acquisition, construction
or conversion of assets that would have required an
adjustment pursuant to clause (2) or (3) above if
made by such Person or a Subsidiary of such Person
(Restricted Subsidiary, in the case of the Company)
during such period, Consolidated EBITDA and
Consolidated Interest Expense for such period will be
calculated after giving pro forma effect thereto as
if such Asset Disposition, Investment or acquisition,
construction or conversion of assets had occurred on
the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any
calculation under this definition, the pro forma calculations will be determined
in good faith by a responsible financial or accounting officer of such Person
(including pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act). For purposes of this
definition, whenever pro forma effect is to be given to an acquisition,
construction or conversion of a Vessel or the Capital Stock of a vessel-owning
company or the financing thereof and the related Indebtedness Incurred to
finance such acquisition, construction or conversion, such Person may:
(a) (i) if the relevant Vessel is to be subject to a bareboat or
time charter with a remaining term longer than six months,
apply pro forma earnings (losses) for such period for such
Vessel based upon such charter, or (ii) if such Vessel is not
to be subject to a bareboat or time charter, is under bareboat
or time charter that is due
8
to expire within six months or less (whether or not any such
charter is in place for such Vessel), then in each case apply
earnings (losses) for such period for such Vessel, assuming
that it was in operation throughout such period, based upon
the average of the historical earnings of comparable Vessels
in such Person's fleet (as determined in good faith by its
Board of Directors) during such period or if there is no such
comparable Vessel, then based upon industry average earnings
for comparable Vessels (as determined in good faith by its
Board of Directors); and
(b) determine the Consolidated Interest Expense for such
Indebtedness assuming that the full amount of such
Indebtedness (as determined in good faith by such Person's
Board of Directors) is outstanding during such period.
Pro forma effect may be given in accordance with the foregoing to the
construction or conversion of a Vessel (and the related Indebtedness Incurred in
connection therewith) which commenced prior to the beginning of the period for
which the Consolidated Coverage Ratio is being calculated, but has not been
completed by the end of such period. In the event that the construction or
conversion of a Vessel is completed during a period for which the Consolidated
Coverage Ratio is being calculated, historical earnings (losses) and interest
expense related to such Vessel shall be included for the portion of such period
during which such Vessel is in operation and pro forma effect of the earnings
(losses) and interest expense may be given in accordance with the foregoing for
the portion of such period during which such Vessel was not yet in operation.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest expense on such Indebtedness will be calculated as if
the rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months). If any Indebtedness that is being given pro forma effect bears an
interest rate at the option of such Person, the interest rate shall be
calculated by applying such optional rate chosen by such Person.
"Consolidated EBITDA" for any Person for any period means,
without duplication, the Consolidated Net Income of such Person for such period,
plus the following for such Person for such period to the extent deducted in
calculating such Consolidated Net Income:
(1) Consolidated Interest Expense;
(2) Consolidated Income Taxes;
(3) consolidated depreciation expense;
(4) consolidated amortization expense or impairment
charges recorded in connection with the application
of Financial Accounting Standard No. 142 "Goodwill
and Other Intangibles," Financial Accounting Standard
No. 144 "Accounting for the Impairment or Disposal of
Long-Lived Assets,"
9
or Financial Accounting Standard No. 146 "Accounting
for Costs Associated with Exit or Disposal
Activities";
(5) other non-cash charges reducing Consolidated Net
Income (excluding any such non-cash charge to the
extent it represents an accrual of or reserve for
cash charges in any future period or amortization of
a prepaid cash expense that was paid in a prior
period not included in the calculation (other than
for drydocking expenses)).
Notwithstanding the preceding sentence, clauses (2) through (5) relating to
amounts of a Restricted Subsidiary of a Person will be added to Consolidated Net
Income to compute Consolidated EBITDA of such Person only to the extent (and in
the same proportion) that the net income (loss) of such Restricted Subsidiary
was included in calculating the Consolidated Net Income of such Person and, to
the extent the amounts set forth in clauses (2) through (5) are in excess of
those necessary to offset a net loss of such Restricted Subsidiary or if such
Restricted Subsidiary has net income for such period included in Consolidated
Net Income, only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Restricted
Subsidiary or its stockholders.
"Consolidated Income Taxes" means, with respect to any Person
for any period, taxes imposed upon such Person or its Subsidiaries (Restricted
Subsidiaries, in the case of the Company) or other payments required to be made
by such Person or its Subsidiaries (Restricted Subsidiaries, in the case of the
Company) by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Subsidiaries (Restricted Subsidiaries, in the case of the Company) (to
the extent such income or profits were included in computing Consolidated Net
Income for such period), regardless of whether such taxes or payments are
required to be remitted to any governmental authority.
"Consolidated Interest Expense" means, for any Person for any
period, the total interest expense of such Person and its Subsidiaries
(Restricted Subsidiaries, in the case of the Company), whether paid or accrued,
plus, to the extent not included in such interest expense:
(1) interest expense attributable to Capitalized Lease
Obligations and the interest component of any
deferred payment obligations which constitute
Indebtedness under clause (4) of the definition of
"Indebtedness";
(2) amortization of debt discount and debt issuance cost;
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers'
acceptance financing;
10
(5) the interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of
its Subsidiaries (Restricted Subsidiaries, in the
case of the Company) or secured by a Lien on assets
of such Person or one of its Subsidiaries (Restricted
Subsidiaries, in the case of the Company);
(6) costs associated with Hedging Obligations (other than
under Fuel Hedging Agreements) (including
amortization of fees) provided, however, that if
Hedging Obligations result in net benefits rather
than costs, such benefits shall be credited to reduce
Consolidated Interest Expense unless, pursuant to
GAAP, such net benefits are otherwise reflected in
Consolidated Net Income;
(7) the consolidated interest expense of such Person and
its Subsidiaries (Restricted Subsidiaries, in the
case of the Company) that was capitalized during such
period;
(8) the product of (a) all dividends paid or payable in
cash, Cash Equivalents or Indebtedness or accrued
during such period on any series of Disqualified
Stock of such Person or on Preferred Stock of its
Subsidiaries (Restricted Subsidiaries, in the case of
the Company) payable to a party other than the
Company or a Restricted Subsidiary, times (b) a
fraction, the numerator of which is one and the
denominator of which is one minus the then current
combined federal, state, provincial and local
statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in
accordance with GAAP; and
(9) the cash contributions to any employee stock
ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay
interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by
such plan or trust; provided, however, that there
will be excluded therefrom any such interest expense
of any Unrestricted Subsidiary to the extent the
related Indebtedness is not Guaranteed or paid by the
Company or any Restricted Subsidiary.
For the purpose of calculating the Consolidated Coverage Ratio in connection
with the Incurrence of any Indebtedness described in the final paragraph of the
definition of "Indebtedness", the calculation of Consolidated Interest Expense
shall include all interest expense (including any amounts described in clauses
(1) through (8) above) relating to any Indebtedness of such Person or any
Subsidiary of such Person (Restricted Subsidiary, in the case of the Company)
described in the final paragraph of the definition of "Indebtedness."
For purposes of the foregoing, total interest expense will be determined after
giving effect to any net payments made or received by the Company and its
Subsidiaries with respect to Interest Rate Agreements. Notwithstanding anything
to the contrary contained herein, commissions, discounts, yield and other fees
and charges Incurred in connection with any transaction pursuant
11
to which such Person or its Subsidiaries (Restricted Subsidiaries, in the case
of the Company) may sell, convey or otherwise transfer or grant a security
interest in any accounts receivable or related assets shall be included in
Consolidated Interest Expense.
"Consolidated Net Income" means, for any Person for any
period, the net income (loss) of such Person and its Subsidiaries (Restricted
Subsidiaries, in the case of the Company) determined in accordance with GAAP;
provided, however, that there will not be included in such Consolidated Net
Income:
(1) any net income (loss) of any other Person if such
other Person is not a Subsidiary (Restricted
Subsidiary, in the case of the Company), except that:
(a) subject to the limitations contained in
clauses (3), (4) and (5) below, such
Person's equity in the net income of any
other such Person for such period will be
included in such Consolidated Net Income up
to the aggregate amount of cash actually
distributed by such other Person during such
period to such Person or a Subsidiary of
such Person (Restricted Subsidiary, in the
case of the Company) as a dividend or other
distribution (subject, in the case of a
dividend or other distribution to a
Subsidiary (Restricted Subsidiary, in the
case of the Company), to the limitations
contained in clause (2) below); and
(b) such Person's equity in a net loss of any
such other Person (other than an
Unrestricted Subsidiary) for such period
will be included in determining such
Consolidated Net Income to the extent such
loss has been funded with cash from such
Person or a Subsidiary of such Person
(Restricted Subsidiary, in the case of the
Company);
(2) any net income (but not loss) of any Subsidiary
(Restricted Subsidiary, the case of the Company) if
such Subsidiary is subject to restrictions, directly
or indirectly, on the payment of dividends or the
making of distributions by such Subsidiary
(Restricted Subsidiary, the case of the Company),
directly or indirectly, to such Person, except that:
(a) subject to the limitations contained in
clauses (3), (4), (5) and (6) below, such
Person's equity in the net income of any
such Subsidiary of such Person for such
period will be included in such Consolidated
Net Income up to the aggregate amount of
cash that could have been distributed by
such Subsidiary during such period to such
Person or another Subsidiary of such Person
as a dividend (subject, in the case of a
dividend to another Subsidiary of such
Person, to the limitation contained in this
clause); and
12
(b) such Person's equity in a net loss of any
such Subsidiary of such Person for such
period will be included in determining such
Consolidated Net Income;
(3) any gain (loss) realized upon the sale or other
disposition of any property (including, without
limitation, a Vessel), plant or equipment of such
Person or its Subsidiaries (Restricted Subsidiaries,
in the case of the Company) including pursuant to any
Sale/Leaseback Transaction, which is not sold or
otherwise disposed of in the ordinary course of
business and any gain (loss) realized upon the sale
or other disposition of any Capital Stock of any
other Person;
(4) any net after-tax extraordinary gain or loss or gain
or loss in connection with any casualty event related
to a Vessel;
(5) any gains or losses on early extinguishment of
indebtedness; and
(6) the cumulative effect of a change in accounting
principles.
"Consolidated Net Tangible Assets" of any Person means, as of
any date of determination, the sum of the assets of such Person after
eliminating intercompany items, determined on a consolidated basis in accordance
with GAAP, including appropriate deductions for any minority interest in
tangible assets of such Person's Subsidiaries, less (without duplication) (i)
the net book value of all of its licenses, patents, patent applications,
copyrights, trademarks, trade names, goodwill, non-compete agreements or
organizational expenses and other like intangibles, (ii) unamortized
Indebtedness discount and expenses, (iii) all reserves for depreciation,
obsolescence, depletion and amortization of its properties and (iv) all other
proper reserves related to assets which in accordance with GAAP have been
provided by such Person.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company or Holdings, as the case may
be, who: (1) was a member of such Board of Directors on the date of the
Indenture; or (2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of the relevant Board at the time of such nomination or election.
"Credit Facility" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities (including, without
limitation, the Senior Secured Credit Facility and the Subsidiary Credit
Agreements) or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, supplemented, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time (and
whether or not with the original administrative agent and lenders or another
administrative agent or agents or other lenders and whether provided under the
Subsidiary Credit Agreements or any other credit or other agreement or
indenture) including to permit an increase in borrowings thereunder.
13
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement, futures contract, option contract or
other similar agreement as to which such Person is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable) or upon the
happening of any event:
(1) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or
Disqualified Stock (excluding Capital Stock which is
convertible or exchangeable solely at the option of
the Company or a Restricted Subsidiary); or
(3) is redeemable at the option of the holder of the
Capital Stock in whole or in part,
in each case on or prior to the date that is 91 days after the earlier of the
date (a) of the Stated Maturity of the Securities or (b) on which there are no
Securities outstanding, provided that only the portion of Capital Stock which so
matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date will be deemed
to be Disqualified Stock; provided, further, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a
change of control or asset sale (each defined in a substantially identical
manner to the corresponding definitions in this Indenture) shall not constitute
Disqualified Stock if the terms of such Capital Stock (and all such securities
into which it is convertible or for which it is ratable or exchangeable) provide
that the Company may not repurchase or redeem any such Capital Stock (and all
such securities into which it is convertible or for which it is ratable or
exchangeable) pursuant to such provision prior to compliance by the Company with
the provisions of the Indenture described under Section 3.9 and Section 3.7 and
such repurchase or redemption complies with Section 3.4.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
14
"Equity Offering" means a private placement to institutional
investors or a public offering for cash by the Company or Holdings, as the case
may be, of its Common Stock, or options, warrants or rights with respect to its
Common Stock made pursuant to a registration statement that has been declared
effective by the Commission, other than public offerings with respect to the
Company's Common Stock, or options, warrants or rights, registered on Form S-4
or S-8.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Exchange Securities" has the meaning ascribed to it in the
second introductory paragraph of this Indenture.
"Existing Fleet" means the M/S Norwegian Xxxx, M/S Norwegian
Star, M/S Norwegian Sun, M/S Pride of Aloha, M/S Pride of America, M/S Norwegian
Jewel, M/S Pride of Hawaii, in each case, as such Vessel may be renamed from
time to time.
"Fuel Hedging Agreements" means any spot, forward or option
fuel price protection agreements and other types of fuel hedging agreements
designed to protect against or manage exposure to fluctuations in fuel prices.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of the Indenture, including
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
the Indenture will be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person:
(1) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness of such
other Person (whether arising by virtue of
partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial
statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other
manner the obligee of such Indebtedness of the
payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not
include endorsements for collection or deposit in the
ordinary course of business.
15
The term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement, Currency Agreement or Fuel
Hedging Agreement.
"Holdings" means Star Cruises Limited, a Bermuda exempted
company with limited liability and its successors and assigns.
"Incur" means issue, create, assume, Guarantee, incur or
otherwise become liable for; provided, however, that any Indebtedness or Capital
Stock of a Person existing at the time such person becomes a Restricted
Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be
deemed to be Incurred by such Restricted Subsidiary at the time it becomes a
Restricted Subsidiary; and the terms "Incurred" and "Incurrence" have meanings
correlative to the foregoing.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal of (or, if less, the accreted value)
and premium (if any) in respect of indebtedness of
such Person for borrowed money;
(2) the principal of (or, if less, the accreted value)
and premium (if any) in respect of obligations of
such Person evidenced by bonds, debentures, notes or
other similar instruments;
(3) the principal component of all obligations of such
Person in respect of letters of credit, bankers'
acceptances or other similar instruments (including
reimbursement obligations with respect thereto except
to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied
within 30 days of Incurrence);
(4) the principal component of all obligations of such
Person to pay the deferred and unpaid purchase price
of property (except trade payables), which purchase
price is due more than six months after the date of
placing such property in service or taking delivery
and title thereto and which would appear as a
liability on the balance sheet of such Person
prepared in accordance with GAAP;
(5) Capitalized Lease Obligations of such Person;
(6) the principal component or liquidation preference of
all obligations of such Person with respect to the
redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any
Subsidiary, any Preferred Stock (but excluding, in
each case, any accrued dividends);
16
(7) the principal component of all Indebtedness of other
Persons secured by a Lien on any asset of such Person
or, other than in the case of the Company and its
Restricted Subsidiaries, a Lien on the Capital Stock
of a Person other than a Restricted Subsidiary of the
Company for which recourse is solely to such Capital
Stock, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of
such Indebtedness will be the lesser of (a) the fair
market value of such asset at such date of
determination and (b) the amount of such Indebtedness
of such other Persons so secured;
(8) the principal component of Indebtedness of other
Persons to the extent Guaranteed by such Person; and
(9) to the extent not otherwise included in this
definition, net obligations of such Person under
Hedging Obligations (the amount of any such
obligations to be equal at any time to the
termination value of such agreement or arrangement
giving rise to such obligation that would be payable
by such Person at such time).
The amount of Indebtedness of any Person at any date will be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date. Notwithstanding the
foregoing, money borrowed and set aside at the time of the Incurrence of any
Indebtedness in order to pre-fund the payment of interest on such Indebtedness
shall not be deemed to be "Indebtedness" provided that such money is held to
secure the payment of such interest.
In addition, "Indebtedness" of any Person shall include
Indebtedness described in the preceding paragraph that would not appear as a
liability on the balance sheet of such Person if:
(1) such Indebtedness is the obligation of a partnership
or joint venture that is not a Restricted Subsidiary
(a "Joint Venture");
(2) such Person or a Restricted Subsidiary of such Person
is a general partner of the Joint Venture (a "General
Partner"); and
(3) there is recourse, by contract or operation of law,
with respect to the payment of such Indebtedness to
property or assets of such Person or a Restricted
Subsidiary of such Person; and then such Indebtedness
shall be included in an amount not to exceed:
(a) the lesser of (i) the net assets of the
General Partner and (ii) the amount of such
obligations to the extent that there is
recourse, by contract or operation of law,
to the property or assets of such Person or
a Restricted Subsidiary of such Person; or
17
(b) if less than the amount determined pursuant
to clause (a) immediately above, the actual
amount of such Indebtedness that is recourse
to such Person or a Restricted Subsidiary of
such Person, if the Indebtedness is
evidenced by a writing and is for a
determinable amount and the related interest
expense shall be included in Consolidated
Interest Expense to the extent actually paid
by the Company or its Restricted
Subsidiaries.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Independent Appraiser" means a Person:
(1) engaged in the business of appraising vessels who is
generally acceptable to institutional lenders to the
cruise or shipping industry; and
(2) who (a) is independent of the parties to the
transaction in question and their Affiliates and (b)
is not connected with the Company, any of the
Restricted Subsidiaries or any of such Affiliates as
an officer, director, employee, promoter,
underwriter, trustee, partner or person performing
similar functions.
"Initial Securities" has the meaning ascribed to it in the
second introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the form
of any direct or indirect advance, loan (other than advances or extensions of
credit to customers in the ordinary course of business) or other extension of
credit (including by way of Guarantee or similar arrangement, but excluding any
debt or extension of credit represented by a bank deposit other than a time
deposit) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, Indebtedness or
other similar instruments issued by, such Person and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP; provided that none of the following will be deemed to be an
Investment:
(1) Hedging Obligations entered into in the ordinary
course of business and in compliance with the
Indenture;
18
(2) endorsements of negotiable instruments and documents
in the ordinary course of business; and
(3) an acquisition of assets, Capital Stock or other
securities by the Company or a Subsidiary for
consideration to the extent such consideration
consists of Common Stock of the Company.
For purposes of Section 3.4:
(1) "Investment" will include the portion (proportionate
to the Company's equity interest in a Restricted
Subsidiary to be designated as an Unrestricted
Subsidiary) of the fair market value of the net
assets of such Restricted Subsidiary at the time that
such Restricted Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon
a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company will be deemed to continue to
have a permanent "Investment" in an Unrestricted
Subsidiary in an amount (if positive) equal to (a)
the Company's "Investment" in such Subsidiary at the
time of such redesignation less (b) the portion
(proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net
assets (as conclusively determined by the Board of
Directors of the Company in good faith) of such
Subsidiary at the time that such Subsidiary is so
re-designated a Restricted Subsidiary; and
(2) property transferred to or from an Unrestricted
Subsidiary will be valued at its fair market value at
the time of such transfer, in each case as determined
in good faith by the Board of Directors of the
Company.
"Issue Date" means the date on which the Initial Securities
are originally issued.
"Joint Venture" means a partnership or joint venture that is
not a Restricted Subsidiary.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash
payments actually received (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise and net proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring person
of Indebtedness or other obligations relating to the properties or assets that
are the subject of such Asset Disposition or received in any other non-cash
form) therefrom, in each case net of:
19
(1) all legal, accounting, investment banking, title and
recording tax expenses, commissions and other fees
and expenses Incurred, and all Federal, state,
provincial, foreign and local taxes required to be
paid or accrued as a liability under GAAP (after
taking into account any available tax credits or
deductions and any tax sharing agreements), as a
consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is
secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien
upon such assets, or which must by its terms, or in
order to obtain a necessary consent to such Asset
Disposition, or by applicable law be repaid out of
the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition;
(4) the deduction of appropriate amounts to be provided
by the seller as a reserve, in accordance with GAAP,
against any liabilities associated with the assets
disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such
Asset Disposition; and
(5) all expenditures incurred to inspect, repair or
modify a Vessel and bring such Vessel to the
condition and place of delivery in connection with
the sale of such Vessel as may be specified in the
related purchase and sale agreement or otherwise as
the Board of Directors of the Company shall determine
as advisable in connection with such sale.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
listing fees, discounts or commissions and brokerage, consultant and other fees
and charges actually Incurred in connection with such issuance or sale and net
of taxes paid or payable as a result of such issuance or sale (after taking into
account any available tax credit or deductions and any tax sharing
arrangements).
"Non-Recourse Debt" means Indebtedness of a Person:
(1) as to which neither the Company nor any Restricted
Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking,
guarantee, indemnity, agreement or instrument that
would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise);
(2) no default with respect to which (including any
rights that the holders thereof may have to take
enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time
or both) any holder
20
of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default under such
other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity;
and
(3) the explicit terms of which provide that there is no
recourse against any of the assets of the Company or
its Restricted Subsidiaries.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Note Register" means the register of Securities, maintained
by the Trustee, pursuant to Section 2.3.
"Offering Memorandum" means the offering memorandum, dated
July 9, 2004, relating to the offering by the Company of $250.0 million of the
10-5/8% Senior Notes due 2014 and any future offering memoranda relating to
Additional Securities.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company. One of the Officers giving an Officers' Certificate
pursuant to Section 3.18 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means Indebtedness that ranks
equally in right of payment to the Securities.
"Permitted Holders" means Tan Sri Lim Goh Tong, Golden Hope
Limited as trustee of the Golden Hope Unit Trust or Genting Berhad and any
Affiliate or Related Person thereof.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in:
(1) a Restricted Subsidiary or a Person which will, upon
the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is a Related
Business;
(2) another Person if as a result of such Investment such
other Person is merged or consolidated with or into,
or transfers or conveys all or
21
substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such
Person's primary business is a Related Business;
(3) Investments in Joint Ventures in connection with a
Related Business in an aggregate principal amount not
to exceed, as of the most recent balance sheet date
10% of Consolidated Net Tangible Assets of the
Company at any one time outstanding;
(4) cash and Cash Equivalents;
(5) receivables owing to the Company or any Restricted
Subsidiary created or acquired in the ordinary course
of business and payable or dischargeable in
accordance with customary trade terms; provided,
however, that such trade terms may include such
concessionary trade terms as the Company or any such
Restricted Subsidiary deems reasonable under the
circumstances;
(6) payroll, travel and similar advances to cover matters
that are expected at the time of such advances
ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of
business;
(7) loans or advances to employees made in the ordinary
course of business consistent with past practices of
the Company or such Restricted Subsidiary; provided
that the Company and its Subsidiaries will comply in
all material respects with all applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith in
connection with such loans or advances to the extent
such laws are applicable to the Company or any of its
Subsidiaries;
(8) Capital Stock, obligations or securities received in
settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments or
pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a
debtor;
(9) Investments made as a result of the receipt of
non-cash consideration from an Asset Disposition that
was made pursuant to and in compliance with Section
3.7;
(10) Investments in existence on the Issue Date and any
extension, modification or renewal thereof that does
not increase the amount of such Investments;
22
(11) Currency Agreements, Interest Rate Agreements, Fuel
Hedging Agreements and related Hedging Obligations,
which transactions or obligations are Incurred in
compliance with Section 3.3;
(12) Guarantees issued in accordance with Section 3.3;
(13) any Asset Swap made in accordance with Section 3.7;
and
(14) in addition to the items referred to in clauses (1)
through (13) above, so long as no Event of Default
has occurred and is continuing, Investments by the
Company or any of its Restricted Subsidiaries, when
taken together with other Investments made pursuant
to this clause (14), in an aggregate amount not to
exceed $20.0 million outstanding at any one time
(with the fair market value of such Investment being
measured at the time made and without giving effect
to subsequent changes in value).
"Permitted Liens" means, with respect to any Person:
(1) Liens securing Indebtedness and other obligations
under the revolving credit facility portion of the
Senior Secured Credit Facility and related Hedging
Obligations and liens on assets of Restricted
Subsidiaries securing Guarantees of Indebtedness and
other obligations under the revolving credit facility
portion of the Senior Secured Credit Facility
permitted to be Incurred under the Indenture;
(2) Liens securing Indebtedness and other obligations
under the Credit Facilities and related Hedging
Obligations and liens on assets of Restricted
Subsidiaries securing Guarantees of Indebtedness and
other obligations under the Credit Facilities
permitted to be Incurred pursuant to clause (2) of
the second paragraph under Section 3.3.
(3) Liens securing Indebtedness incurred to finance the
construction, purchase or lease of, or repairs,
improvements or additions to, property of such Person
or any of its Subsidiaries (Restricted Subsidiaries,
in the case of the Company), including a Vessel
(which term, for purposes of this clause (3), shall
include the Capital Stock of a Person substantially
all of the assets of which is a Vessel and any
Related Assets, as the context may require);
provided, however,
(A) subject to clause (B) below, in the case of a
Vessel,
(i)except as provided in clauses (ii), (iii) and
(iv) below, the principal amount of Indebtedness
secured by such a Lien does not exceed
(x) with respect to Indebtedness Incurred to
finance the construction of such Vessel, 80%
of the sum of (1) the contract
23
price pursuant to the Vessel
Construction Contract for such
Vessel and (2) any other Ready for
Sea Cost for such Vessel, and
(y) with respect to Indebtedness
Incurred to finance the acquisition
of such Vessel, 80% of the sum of
(1) the contract price for the
acquisition of such Vessel and (2)
any other Ready for Sea Cost of
such Vessel,
(ii) in the case of Indebtedness that
matures within nine months after the
Incurrence of such Indebtedness (other than
any Refinancing Indebtedness of such
Indebtedness or Indebtedness that matures
within one year prior to the Stated Maturity
of the Securities), the principal amount of
Indebtedness secured by such a Lien shall
not exceed the fair market value, as
determined in good faith by the Board of
Directors, of such Vessel at the time such
Lien is incurred,
(iii) in the case of a Sale/Leaseback
Transaction, the principal amount of
Indebtedness secured by such a Lien shall
not exceed the fair market value, as
determined in good faith by the Board of
Directors, of such Vessel at the time such
Lien is incurred and
(iv) in the case of Indebtedness
representing Capitalized Lease Obligations
relating to a Vessel, the principal amount
of Indebtedness secured by such a Lien shall
not exceed 100% of the sum of (1) the fair
market value, as determined in good faith by
the Board of Directors, of such Vessel at
the time such Lien is incurred and (2) any
Ready for Sea Cost for such Vessel and
(B) in the case of Additional Assets acquired
directly or indirectly from Net Available Cash
pursuant to Section 3.7, the principal amount of
Indebtedness secured by such a Lien does not exceed
the lesser of
(i) 80% of the contract price for the
acquisition of such Additional Asset and
(ii) the contract price for the acquisition
of such Additional Asset less the Net
Available Cash used to acquire such
Additional Asset; provided further, however,
that such Lien may not extend to any other
property owned by such Person or any of its
Subsidiaries at the time the Lien is
Incurred and the Indebtedness (other than
any interest thereon) secured by the Lien
may not be incurred more than 180 days after
the later of the acquisition, completion of
construction, repair, improvement, addition
or commencement of full operation of the
property subject to the Lien;
24
(4) Liens securing Indebtedness arising in the ordinary
course of business from letters of credit for the
account of the Company or any Restricted Subsidiary,
as the case may be, in order to provide security to
travel agencies, banks, financial institutions,
credit card issuers or other institutions for
unearned amounts owing to passenger deposits or
similar obligations;
(5) Liens securing Indebtedness arising in the ordinary
course of business from performance guarantees,
letters of credit, bonds or other payments required
by the U.S. Federal Maritime Commission, or other
similar government authority in respect of
liabilities for non-performance of transportation and
other obligations to passengers;
(6) pledges or deposits by such Person under workmen's
compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public
or statutory obligations of such Person or deposits
of cash or United States government bonds to secure
surety or appeal bonds to which such Person is a
party, or deposits as security for contested taxes or
import or customs duties or for the payment of rent,
in each case Incurred in the ordinary course of
business;
(7) Liens imposed by law, including carriers',
warehousemen's and mechanics' Liens, in each case for
sums not yet due or being contested in good faith by
appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required
by GAAP shall have been made in respect thereof;
(8) Liens for taxes, assessments or other governmental
charges not yet subject to penalties for non-payment
or which are being contested in good faith by
appropriate proceedings provided appropriate reserves
required pursuant to GAAP have been made in respect
thereof;
(9) Liens in favor of issuers of surety or performance
bonds or letters of credit or bankers' acceptances
issued pursuant to the request of and for the account
of such Person in the ordinary course of its
business; provided, however, that such letters of
credit do not constitute Indebtedness;
(10) encumbrances, easements or reservations of, or rights
of others for, licenses, rights of way and other
similar purposes, or zoning or other restrictions as
to the use of real properties or liens incidental to
the conduct of the business of such Person or to the
ownership of its properties which do not in the
aggregate materially adversely affect the value of
said properties or materially impair their use in the
operation of the business of such Person;
25
(11) Liens securing Hedging Obligations so long as the
related Indebtedness is, and is permitted to be under
the Indenture, secured by a Lien on the same property
securing such Hedging Obligation;
(12) leases, licenses, subleases and sublicenses of assets
(including, without limitation, real property and
intellectual property rights) which do not materially
interfere with the ordinary conduct of the business
of the Company or any of its Restricted Subsidiaries;
(13) judgment Liens not giving rise to an Event of Default
so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been
duly initiated for the review of such judgment have
not been finally terminated or the period within
which such proceedings may be initiated has not
expired;
(14) Liens for the purpose of securing the payment of all
or a part of the purchase price of, or Capitalized
Lease Obligations, purchase money obligations or
other payments Incurred to finance the purchase or
lease acquisition, improvement or construction of, or
addition to, assets or property (other than Vessels)
acquired or constructed in the ordinary course of
business, provided that:
(a) the aggregate principal amount of
Indebtedness secured by such Liens is
otherwise permitted to be Incurred under the
Indenture and does not exceed the cost of
the assets or property so acquired or
constructed; and
(b) such Liens are created within 180 days of
construction or acquisition of such assets
or property and do not encumber any other
assets or property of the Company or any
Restricted Subsidiary other than such assets
or property and assets affixed or
appurtenant thereto;
(15) Liens arising solely by virtue of any statutory or
common law provisions relating to banker's Liens,
rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a
depositary institution; provided that:
(a) such deposit account is not a dedicated cash
collateral account and is not subject to
restrictions against access by the Company
in excess of those set forth by regulations
promulgated by the Federal Reserve Board;
and
26
(b) such deposit account is not intended by the
Company or any Restricted Subsidiary to
provide collateral to the depository
institution;
(16) Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases and
vessel charters entered into by the Company and its
Restricted Subsidiaries in the ordinary course of
business;
(17) Liens existing on the Issue Date;
(18) Liens on property or shares of stock of a Person at
the time such Person becomes a Restricted Subsidiary;
provided, however, that such Liens are not created,
Incurred or assumed in connection with, or in
contemplation of, such other Person becoming a
Restricted Subsidiary; provided further, however,
that any such Lien may not extend to any other
property owned by the Company or any Restricted
Subsidiary;
(19) Liens on property at the time the Company or a
Restricted Subsidiary acquired the property,
including any acquisition by means of a merger or
consolidation with or into the Company or any
Restricted Subsidiary; provided, however, that such
Liens are not created, Incurred or assumed in
connection with, or in contemplation of, such
acquisition; provided further, however, that such
Liens may not extend to any other property owned by
the Company or any Restricted Subsidiary;
(20) Liens securing the Securities;
(21) Liens on Capital Stock of a Person other than the
Company or a Restricted Subsidiary of the Company;
(22) Liens securing Refinancing Indebtedness Incurred to
refinance Indebtedness that was previously so
secured, provided that any such Lien is limited to
all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or,
under the written arrangements under which the
original Lien arose, could secure) the Indebtedness
being refinanced or is in respect of property that is
the security for a Permitted Lien hereunder;
(23) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary arising from
Vessel chartering, drydocking, maintenance, the
furnishing of supplies and bunkers to Vessels,
repairs and improvements to Vessels, crews' wages and
maritime Liens;
27
(24) any Lien or pledge created or subsisting in the
ordinary course of business over documents of title,
insurance policies or sale contracts in relation to
commercial goods to secure the purchase price
thereof;
(25) Liens for salvage and general average; and
(26) Liens securing Indebtedness (other than Subordinated
Obligations) in an aggregate principal amount
outstanding at any one time not to exceed $20.0
million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock" , as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
A "Public Market" exists at any time with respect to the
Common Stock of the Company or Holdings, as the case may be, if:
(1) the Common Stock of the Company or Holdings, as the
case may be, is then registered with the Commission
pursuant to Section 12(b) or 12(g) of the Exchange
Act and traded either on a national securities
exchange or in the National Association of Securities
Dealers Automated Quotation System; and
(2) at least 15% of the total issued and outstanding
Common Stock of the Company or Holdings, as the case
may be, has been distributed prior to such time by
means of an effective registration statement under
the Securities Act of 1933, as amended.
"Ready for Sea Cost" means with respect to a Vessel or Vessels
to be acquired, constructed or leased (pursuant to a Capitalized Lease
Obligation) by the Company or any Restricted Subsidiary of the Company, the
aggregate amount of all expenditures incurred to acquire or construct and bring
such Vessel or Vessels to the condition and location necessary for its intended
use, including any and all inspections, appraisals, repairs, modifications,
additions, permits and licenses in connection with such acquisition or lease,
which would be classified and accounted for as "property, plant and equipment"
in accordance with GAAP.
"Receivable" means a right to receive payment arising from a
sale or lease of goods or the performance of services by a Person pursuant to an
arrangement with another Person pursuant to which such other Person is obligated
to pay for goods or services under terms that permit the purchase of such goods
and services on credit and shall include, in any event, any
28
items of property that would be classified as an "account," "chattel paper,"
"payment intangible" or "instrument" under the Uniform Commercial Code as in
effect in the State of New York and any "supporting obligations" as so defined.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, exchange, renew, repay or extend (including
pursuant to any defeasance or discharge mechanism) (collectively, "refinance,"
"refinances," and "refinanced" shall have a correlative meaning) any
Indebtedness existing on the date of the Indenture or Incurred in compliance
with the Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted Subsidiary)
including Indebtedness that refinances Refinancing Indebtedness, provided,
however, that:
(1) (a) if the Stated Maturity of the Indebtedness being
refinanced is earlier than the Stated Maturity of the
Securities, the Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the
Indebtedness being refinanced or (b) if the Stated
Maturity of the Indebtedness being refinanced is
later than the Stated Maturity of the Securities, the
Refinancing Indebtedness has a Stated Maturity at
least 91 days later than the Stated Maturity of the
Securities;
(2) the Refinancing Indebtedness has an Average Life at
the time such Refinancing Indebtedness is Incurred
that is equal to or greater than the Average Life of
the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an
aggregate principal amount (or if issued with
original issue discount, an aggregate issue price)
that is equal to or less than the sum of the
aggregate principal amount (or if issued with
original issue discount, the aggregate accreted
value) then outstanding of the Indebtedness being
refinanced (plus, without duplication, any additional
Indebtedness Incurred to pay interest or premiums
required by the instruments governing such existing
Indebtedness and fees Incurred in connection
therewith); and
(4) if the Indebtedness being refinanced is subordinated
in right of payment to the Securities, such
Refinancing Indebtedness is subordinated in right of
payment to the Securities on terms at least as
favorable to the Holders of Securities as those
contained in the documentation governing the
Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Registration Rights Agreement" means that certain
registration rights agreement dated as of the date of this Indenture by and
among the Company and the several initial purchasers named therein and future
registration rights agreements with respect to Additional Securities.
29
"Related Asset" means, with respect to a Vessel, (i) any
insurance policies and contracts from time to time in force with respect to such
Vessel, (ii) the Capital Stock of any Subsidiary of the Company owning such
Vessel and related assets, (iii) any requisition compensation payable in respect
of any compulsory acquisition thereof, (iv) any earnings derived from the use or
operation thereof and/or any earnings account with respect to such earnings, (v)
any charters, operating leases and related agreements entered into in respect of
such Vessel and any security or guarantee in respect of the charterer's or
lessee's obligations under such charter, lease or agreement, (vi) any cash
collateral account established with respect to such Vessel pursuant to the
financing arrangement with respect thereto, (vii) any building, conversion or
repair contracts relating to such Vessel and any security or guarantee in
respect of the builder's obligations under such contracts and (viii) any
security interest in, or agreement or assignment relating to, any of the
foregoing or any mortgage in respect of such Vessel.
"Related Business" means any business that is the same as or
related, ancillary or complementary to any of the businesses of the Company and
its Restricted Subsidiaries on the date of the Indenture (including, without
limitation, sales and marketing, land transportation, accommodation, reservation
systems and services, and other travel related businesses).
"Related Business Assets" means assets used or useful in a
Related Business.
"Related Person" with respect to any Permitted Holder means:
(1) any controlling stockholder or a majority (or more)
owned Subsidiary of such Permitted Holder or, in the
case of an individual, any spouse or immediate family
member of such Permitted Holder, any trust created
for the benefit of such individual or such
individual's estate, executor, administrator,
committee or beneficiaries; or
(2) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or
Persons beneficially holding a majority (or more)
controlling interest of which consist of such
Permitted Holder and/or such other Persons referred
to in the immediately preceding clause (1).
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (A) the
day on which the Securities are first offered to Persons other than distributors
(as defined in Regulation S), notice of which day shall be promptly given by the
Company to the Trustee, and (B) the issue date with respect to such Securities.
"Restricted Securities Legend" means the Private Placement
Legend set forth in Section 2.1(d)(A) or the Regulation S Legend set forth
Section 2.1(d)(B), as applicable.
30
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person.
"Secured Indebtedness" means Indebtedness that is secured by a
lien on the property or assets of the relevant obligor.
"Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Securityholder" or "Holder" means the Person in whose name a
Security is registered in the Note Register.
"Senior Secured Credit Facility" means, the $800.0 million
Senior Secured Credit Facility dated as of July 7, 2004 among the Company and a
syndicate of lenders parties thereto from time to time, comprised of a $300.0
million term loan facility and a $500.0 million revolving credit facility as the
same may be amended, supplemented, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time (and whether or not
with the original administrative agent and lenders or another administrative
agent or agents or other lenders and whether provided under the Revolving Credit
Secured Facility or any other credit or other agreement or indenture) including
to permit an increase in borrowings thereunder.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the Commission.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision, but shall not include any contingent obligations
to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" of any Person means (a) any corporation,
association, partnership, joint venture, limited liability company or other
business entity of which more than 50% of the
31
total ordinary voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof (or persons performing similar functions) or (b)
any partnership, joint venture, limited liability company or similar entity of
which more than 50% of the capital accounts, distribution rights, total equity
and voting interests or general or limited partnership interests, as applicable,
is in the case of clauses (a) and (b), at the time owned or controlled, directly
or indirectly, by (1) such Person, (2) such Person and one or more Subsidiaries
of such Person or (3) one or more Subsidiaries of such Person. Unless otherwise
specified herein, each reference to a Subsidiary will refer to a Subsidiary of
the Company.
"Subsidiary Credit Agreements" means the (i) $225 million loan
agreement dated as of July 9, 2003 among Norwegian Sun Limited and a syndicate
of lenders; (ii) $626,922,000 secured loan agreement dated as of June 26, 1999
among Norwegian Star Limited and Norwegian Xxxx Limited, as borrowers, NCL
Corporation Ltd., as guarantor, and a syndicate of lenders; (iii) secured loan
agreements dated as of April 4, 2003, among Ship Holding LLC and a syndicate of
lenders for the equivalent amount in U.S. dollars of respectively (euro)258
million and (euro)40 million; (iv) $334,050,000 secured loan agreement dated
April 20, 2004 among Hull 667 Limited and a syndicate of lenders; and (v)
(euro)308,130,000 secured loan agreement dated April 20, 2004 among Ship
Ventures Inc. and a syndicate of lenders; each as the same may be amended,
supplemented, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time, including to permit an increase in
borrowings thereunder.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this
Indenture, provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "TIA" or "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee having
direct responsibility for the administration of this Indenture, 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 the administration of this Indenture.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of the Company
in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
32
The Board of Directors of the Company may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary or a Person becoming a Subsidiary through merger or consolidation or
Investment therein) to be an Unrestricted Subsidiary only if:
(1) such Subsidiary or any of its Subsidiaries does not
own any Capital Stock or Indebtedness of or have any
Investment in, or own or hold any Lien on any
property of, any other Subsidiary of the Company
which is not a Subsidiary of the Subsidiary to be so
designated or otherwise an Unrestricted Subsidiary;
(2) all the Indebtedness of such Subsidiary and its
Subsidiaries shall, at the date of designation, and
will at all times thereafter, consist of Non-Recourse
Debt;
(3) such designation and the Investment of the Company in
such Subsidiary complies with Section 3.4;
(4) such Subsidiary, either alone or in the aggregate
with all other Unrestricted Subsidiaries, does not
operate, directly or indirectly, all or substantially
all of the business of the Company and its
Subsidiaries;
(5) such Subsidiary is a Person with respect to which
neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation:
(a) to subscribe for additional Capital Stock of
such Person; or
(b) to maintain or preserve such Person's
financial condition or to cause such Person
to achieve any specified levels of operating
results; and
(6) on the date such Subsidiary is designated an
Unrestricted Subsidiary, such Subsidiary is not a
party to any agreement, contract, arrangement or
understanding with the Company or any Restricted
Subsidiary with terms substantially less favorable to
the Company than those that might have been obtained
from Persons who are not Affiliates of the Company.
Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complies with the
foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to
meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture
and any Indebtedness of such Subsidiary shall be deemed to be Incurred as of
such date.
33
The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately
after giving effect to such designation, no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof and the
Company could Incur at least $1.00 of additional Indebtedness under the first
paragraph of Section 3.3 on a pro forma basis taking into account such
designation.
"U.S. Government Obligations" means securities that are (a)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Obligations or a specific payment of principal of or
interest on any such U.S. Government Obligations held by such custodian for the
account of the holder of such depositary receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligations or the specific
payment of principal of or interest on the U.S. Government Obligations evidenced
by such depositary receipt.
"Vessel" means one or more shipping vessels whose primary
purpose is the maritime transportation of passengers and/or cargo or which are
otherwise engaged, used or useful in any business activities of the Company and
its Restricted Subsidiaries and which are owned by and registered (or to be
owned by and registered) in the name of the Company or any of its Restricted
Subsidiaries or operated or to be operated by the Company or any of its
Restricted Subsidiaries pursuant to a lease or other operating agreement
constituting a Capitalized Lease Obligation, in each case together with all
related spares, equipment and any additions or improvements.
"Vessel Construction Contract" means any contract for the
construction (or construction and acquisition) or conversion of a Vessel or
Vessels entered into by the Company or any Restricted Subsidiary, including any
amendments, supplements or modifications thereto or change orders in respect
thereof.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary, all
of the Capital Stock of which (other than directors' qualifying shares) is owned
by the Company or another Wholly-Owned Subsidiary.
34
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- -------
"Additional Amounts" .............................................. 3.1(b)
"Additional Restricted Securities" ................................ 2.1(b)
"Affiliate Transaction"............................................ 3.8
"Agent Member"..................................................... 2.1(e)
"Asset Disposition Offer".......................................... 3.7(b)
"Asset Disposition Offer Amount"................................... 3.7(c)(1)
"Asset Disposition Offer Period"................................... 3.7(c)(1)
"Asset Disposition Purchase Date".................................. 3.7(c)(1)
"Authenticating Agent"............................................. 2.2
"Change in Tax Law" ............................................... 5.1(b)
"Change of Control Offer".......................................... 3.9(b)
"Change of Control Payment"........................................ 3.9(b)(1)
"Change of Control Payment Date"................................... 3.9(b)(2)
"Company Order".................................................... 2.2
"Corporate Trust Office"........................................... 3.15
"covenant defeasance option"....................................... 8.1(b)
"cross acceleration provision"..................................... 6.1(6)(b)
"Defaulted Interest"............................................... 2.11
"Event of Default"................................................. 6.1
"Excess Proceeds".................................................. 3.7(b)
"Exchange Global Note"............................................. 2.1(b)
35
"Global Securities"................................................ 2.1(b)
"IAI".............................................................. 2.1(b)
"Institutional Accredited Investor Note"........................... 2.1(b)
"Institutional Accredited Investor Global Note".................... 2.1(b)
"judgment default provision"....................................... 6.1(8)
"legal defeasance option".......................................... 8.1(b)
"Legal Holiday" ................................................... 10.8
"Pari Passu Notes"................................................. 3.7(b)
"final payment default" ........................................... 6.1(6)
"Paying Agent"..................................................... 2.3
"Payor"............................................................ 3.1
"Private Placement Legend"......................................... 2.1(d)
"QIB".............................................................. 2.1(b)
"Redemption Date" ................................................. 5.1
"Registrar"........................................................ 2.3
"Regulation S"..................................................... 2.1(b)
"Regulation S Global Note"......................................... 2.1(b)
"Regulation S Legend".............................................. 2.1(d)
"Regulation S Note"................................................ 2.1(b)
"Relevant Tax Jurisdiction" ....................................... 3.1(b)
"Resale Restriction Termination Date".............................. 2.6(a)
"Restricted Payment"............................................... 3.4
"Rule 144A"........................................................ 2.1(b)
"Rule 144A Global Note"............................................ 2.1(b)
36
"Rule 144A Note"................................................... 2.1(b)
"Special Interest Payment Date".................................... 2.11(a)
"Special Record Date".............................................. 2.11(a)
"Successor Person"................................................. 4.1
"Total Loss" ...................................................... 3.3
SECTION 1.3. 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 have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" mean the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Indenture securities means the Company and
any other obligor on the Indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by
Commission rule have the meanings assigned to them by such definitions.
SECTION 1.4. 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 GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
37
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(9) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Initial
Securities issued on the date hereof will be in an aggregate principal amount of
$250,000,000. In addition, the Company may issue, from time to time in
accordance with the provisions of this Indenture, including, without limitation,
Section 3.3 hereof, Additional Securities and Exchange Securities. Furthermore,
Securities may be authenticated and delivered upon registration or transfer, or
in lieu of, other Securities pursuant to Section 2.6, 2.7, 2.9 or 9.5 or in
connection with an Asset Disposition Offer pursuant to Section 3.7 or a Change
of Control Offer pursuant to Section 3.9.
The Initial Securities, Additional Securities and Exchange
Securities shall be known and designated as "10-5/8% Senior Notes due 2014" of
the Company.
With respect to any Additional Securities, the Company shall
set forth in a Board Resolution and an Officers' Certificate, the following
information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant
to this Indenture;
(2) the issue price and the issue date of such Additional
Securities, including the date from which interest
shall accrue; and
(3) whether such Additional Securities shall be
Restricted Securities issued in the form of Exhibit A
hereto and/or shall be issued in the form of Exhibit
B hereto.
The Initial Securities, the Additional Securities and the
Exchange Securities shall be considered collectively as a single class for all
purposes of this Indenture. Holders of the
38
Initial Securities, the Additional Securities and the Exchange Securities will
vote and consent together on all matters to which such Holders are entitled to
vote or consent as one class, and none of the Holders of the Initial Securities,
the Additional Securities or the Exchange Securities shall have the right to
vote or consent as a separate class on any matter to which such Holders are
entitled to vote or consent.
(b) The Initial Securities are being offered and sold by the
Company pursuant to a Purchase Agreement, dated July 9, 2004, between the
Company, X.X. Xxxxxx Securities Inc. and the other several initial purchasers
listed in Schedule I thereto. The Initial Securities and any Additional
Securities (if issued as Restricted Securities) (the "Additional Restricted
Securities") will be resold initially only to (A) qualified institutional buyers
(as defined in Rule 144A under the Securities Act ("Rule 144A")) in reliance on
Rule 144A ("QIBs") and (B) Persons other than U.S. Persons (as defined in
Regulation S under the Securities Act ("Regulation S")) in reliance on
Regulation S. Such Initial Securities and Additional Restricted Securities may
thereafter be transferred to, among others, QIBs, purchasers in reliance on
Regulation S and institutional "accredited investors" (as defined in Rules
501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs ("IAIs")
in accordance with Rule 501 of the Securities Act in accordance with the
procedure described herein.
Initial Securities and Additional Restricted Securities
offered and sold to qualified institutional buyers in the United States of
America in reliance on Rule 144A (the "Rule 144A Notes") shall be issued in the
form of a permanent global Security, without interest coupons, substantially in
the form of Exhibit A, which is hereby incorporated by reference and made a part
of this Indenture, including appropriate legends as set forth in Section 2.1(d)
(the "Rule 144A Global Note"), deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Rule 144A Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Rule 144A Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities and Additional Securities offered and sold
outside the United States of America (the "Regulation S Notes") in reliance on
Regulation S shall be issued in the form of a permanent global Security, without
interest coupons, substantially in the form of Exhibit A (the "Regulation S
Global Note") deposited with the Trustee, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented by more than one certificate, if so
required by DTC's rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Regulation S
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Initial Securities and Additional Securities resold to IAIs
(the "Institutional Accredited Investor Notes") in the United States of America
shall be issued in the form of a permanent global Security, without interest
coupons, substantially in the form of Exhibit A (the "Institutional Accredited
Investor Global Note") deposited with the Trustee, as custodian for
39
DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Institutional Accredited Investor Global Note may be
represented by more than one certificate, if so required by DTC's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Institutional Accredited
Investor Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A
Notes, the Regulation S Notes and the Institutional Accredited Investor Notes
will be issued in the form of a permanent global Security, without interest
coupons, substantially in the form of Exhibit B, which is hereby incorporated by
reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in Section
2.1(d) (the "Exchange Global Note"). The Exchange Global Note may be represented
by more than one certificate, if so required by DTC's rules regarding the
maximum principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the "Global Securities."
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose pursuant to Section 2.3;
provided, however, that, at the option of the Company, each installment of
interest may be paid by (i) check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Note Register or (ii) wire
transfer to an account located in the United States maintained by the payee.
Payments in respect of Securities represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of immediately
available funds to the accounts specified by DTC.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage or DTC rule or usage in addition
to those set forth on Exhibit A and Exhibit B and in Section 2.1(d). The Company
and the Trustee shall approve the forms of the Securities and any notation,
endorsement or legend on them. Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A and Exhibit B
are part of the terms of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to be bound by such terms.
(c) Denominations. The Securities shall be issuable only in
fully registered form, without coupons, and only in denominations of $1,000 and
any integral multiple thereof.
(d) Restrictive Legends. Unless and until (i) an Initial
Security is sold under an effective registration statement or (ii) an Initial
Security is exchanged for an Exchange Security in connection with an effective
registration statement, in each case pursuant to the Registration Rights
Agreement or a similar agreement,
40
(A) the Rule 144A Global Note and the Institutional Accredited
Investor Global Note shall bear the following legend (the "Private Placement
Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.
41
(B) the Regulation S Global Note shall bear the following
legend (the "Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS FORTY DAYS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE
HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
42
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT.
(C) The Global Securities, whether or not an Initial Security,
shall bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THIS INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(e) Book-Entry Provisions.
(i) This Section 2.1(e) shall apply only to Global Securities
deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in
the name of DTC for such Global Security or the nominee of DTC, (y) be delivered
to the Trustee as custodian for DTC and (z) bear legends as set forth in Section
2.1(d).
(iii) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or under
such Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices of DTC governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
43
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (f) of this
Section 2.1 to beneficial owners who are required to hold Definitive Securities,
the Securities Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to subsection (f) of this Section 2.1,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount
of Definitive Securities of authorized denominations.
(vi) The registered Holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(f) Definitive Securities. (i) Except as provided below,
owners of beneficial interests in Global Securities will not be entitled to
receive Definitive Securities. If required to do so pursuant to any applicable
law or regulation, beneficial owners may obtain Definitive Securities in
exchange for their beneficial interests in a Global Security upon written
request in accordance with DTC's and the Registrar's procedures. In addition,
Definitive Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (a) DTC notifies the
Company that it is unwilling or unable to continue as depositary for such Global
Security or DTC ceases to be a clearing agency registered under the Exchange
Act, at a time when DTC is required to be so registered in order to act as
depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice or, (b) the Company executes and delivers
to the Trustee and Registrar an Officers' Certificate stating that such Global
Security shall be so exchangeable or (c) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(e)(iv) or (v) shall,
except as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set forth
in Section 2.1(d).
(iii) In connection with the exchange of a portion of a
Definitive Security for a beneficial interest in a Global Security, the Trustee
shall cancel such Definitive Security, and the Company shall execute, and the
Trustee shall authenticate and deliver, to the transferring Holder a new
Definitive Security representing the principal amount not so transferred.
SECTION 2.2. Execution and Authentication. One Officer 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 Trustee authenticates the Security, the
44
Security shall be valid nevertheless, after giving effect to any exchange of
Initial Securities for Exchange Securities.
A Security shall not be valid until an authorized signatory of
the Trustee manually authenticates the Security. The signature of the Trustee on
a Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery: (1) Initial Securities for original issue on the Issue Date in an
aggregate principal amount of $250,000,000, (2) Additional Securities for
original issue and (3) Exchange Securities for issue only in an Exchange Offer
pursuant to the Registration Rights Agreement, and only in exchange for Initial
Securities or Additional Securities of an equal principal amount, in each case
upon a written order of the Company signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company (the
"Company Order"). Such Company Order shall specify the amount of the Securities
to be authenticated and the date on which the original issue of Securities is to
be authenticated and whether the Securities are to be Initial Securities,
Additional Securities or Exchange Securities. If such form or terms have been so
established, the Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.
In case the Company, pursuant to Article IV, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the successor Person, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.2 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide
45
for the exchange of all Securities at the time outstanding for Securities
authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Company shall
cause each of the Registrar and the Paying Agent to maintain an office or agency
in the Borough of Manhattan, The City of New York. The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "Note
Register"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its Restricted Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
SECTION 2.4. Paying Agent to Hold Money in Trust. By no later
than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such
principal or interest when due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by
such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Company in making
any such payment. If the Company or a Restricted Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent (other
than the Trustee) to pay all money held by it to the Trustee and to account for
any funds disbursed by such Paying Agent. Upon complying with this Section, the
Paying Agent (if other than the Company or a Restricted Subsidiary) shall have
no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder Lists. 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 Securityholders. If the Trustee is not the
Registrar, or to the extent otherwise required under the TIA, the Company shall
furnish to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such
46
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) The following provisions shall apply with respect to any
proposed transfer of a Rule 144A Note or an Institutional Accredited Investor
Note prior to the date which is two years after the later of the date of its
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Securities (or any predecessor thereto) (the
"Resale Restriction Termination Date"):
(i) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a QIB
shall be made upon the representation of the transferee in the form as
set forth on the reverse of the Security that it is purchasing for its
own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to an IAI
shall be made upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Exhibit C from the proposed
transferee and, if requested by the Company, the delivery of an opinion
of counsel stating that such transaction is exempt from registration
under the federal securities laws; and
(iii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Exhibit D from the
proposed transferee and, if requested by the Company, the delivery of
an opinion of counsel stating that such transaction is exempt from
registration under the federal securities laws, certification and/or
other information satisfactory to them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial interest
therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the
certificate, that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is
47
aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule
144A;
(ii) a transfer of a Regulation S Note or a beneficial
interest therein to an IAI shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in
Exhibit C from the proposed transferee and, if requested by the
Company, the delivery of an opinion of counsel stating that such
transaction is exempt from registration under the federal securities
laws, certification and/or other information satisfactory to them; and
(iii) a transfer of a Regulation S Note or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Exhibit D hereof from the proposed transferee and, if
requested by the Company, receipt by the Trustee or its agent of an
opinion of counsel stating that such transaction is exempt from
registration under the federal securities laws, certification and/or
other information satisfactory to them.
After the expiration of the Restricted Period, interests in
the Regulation S Note may be transferred without requiring the certification set
forth in Exhibit C, Exhibit D or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange
or replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing a Restricted Securities Legend, the Registrar shall deliver only
Securities that bear a Restricted Securities Legend unless there is delivered to
the Registrar an Opinion of Counsel to the effect that neither such legend nor
the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(d) The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.1 or this
Section 2.6. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company or the Trustee
may require payment by a Holder of a sum sufficient to cover any
transfer tax, assessments, or similar governmental taxes and fees
payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental taxes and fees payable upon
exchange or transfer pursuant to Sections 2.9, 3.7, 3.9 or 9.5).
48
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Securities and ending at the close of business on
the day of such mailing or (2) 15 days before an interest payment date
and ending on such interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(e) shall, except
as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security
set forth in Section 2.1(d).
(vi) All Securities issued upon any registration of transfer
or exchange pursuant to the terms of this Indenture shall evidence the
same debt and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such registration of
transfer or exchange.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a participant in, DTC
or other Person with respect to the accuracy of the records of DTC or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than DTC) of any notice
(including any notice of redemption) or the payment of any amount or delivery of
any Securities (or other security or property) under or with respect to such
Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be DTC or
its nominee in the case of a Global Security). The rights of beneficial owners
in any Global Security shall be exercised only through DTC subject to the
applicable rules and procedures of DTC. The Trustee may rely and shall be fully
protected in relying upon information furnished by DTC with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among DTC
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this
49
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Securities.
If a mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met, such that the Securityholder (a) satisfies the Company or the Trustee
within a reasonable time after such Securityholder has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer
prior to receiving such notification, (b) makes such request to the Company or
Trustee prior to the Security being acquired by a protected purchaser as defined
in Section 8-303 of the Uniform Commercial Code (a "protected purchaser") and
(c) satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Security is replaced, and, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, 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.
Upon the issuance of any new Security under this Section, 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) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and any other obligor upon the
Securities, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security shall be deemed to be outstanding in
the event the Company or an Affiliate of the Company holds the Security,
provided, however, that (i) for purposes of determining which are outstanding
for consent or
50
voting purposes hereunder, the provisions of Section 10.6 shall apply and (ii)
in determining whether the Trustee shall be protected in making a determination
whether the Holders of the requisite principal amount of outstanding Securities
are present at a meeting of Holders of Securities for quorum purposes or have
consented to or voted in favor of any request, demand, authorization, direction,
notice, consent, waiver, amendment or modification hereunder, or relying upon
any such quorum, consent or vote, only Securities which a Trust Officer of the
Trustee actually knows to be held by the Company or an Affiliate of the Company
shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. 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 shall authenticate
Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon
surrender of the temporary Securities at any office or agency maintained by the
Company for that purpose and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery in exchange therefor, one or more Definitive Securities
representing an equal principal amount of Securities. Until so exchanged, the
Holder of temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as a Holder of Definitive Securities.
SECTION 2.10. 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 and no one else shall
cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and destroy such Securities in accordance with its
internal policies and, upon the Company's written request, delivery of a
certificate (a "Certificate of Destruction") describing such Securities
disposed. The Company may not issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation for any reason other than in
connection with a transfer or exchange.
51
SECTION 2.11. Payment of Interest; Defaulted Interest.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose
name such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid
when the same becomes due and payable and such nonpayment continues for a period
of 30 days shall forthwith cease to be payable to the Holder on the regular
record date by virtue of having been such Holder, and such defaulted interest
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on a Special Record Date (as defined below) for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date
(not less than 30 days after such notice) of the proposed payment (the
"Special Interest Payment Date"), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a record date (the "Special Record Date") for the
payment of such Defaulted Interest, which date shall be not more than
15 days and not less than 10 days prior to the Special Interest Payment
Date and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor to be given in the manner provided for in Section
10.2, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest
Payment Date to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
52
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.12. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.13. 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, however, 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 identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP numbers. The Company shall promptly notify the Trustee in
writing of any change in the CUSIP numbers.
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities; Payment of Additional
Amounts. (a) Payment of Securities. The Company shall promptly pay the principal
of and interest on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture immediately available funds sufficient to pay all
principal and interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by any jurisdiction from
principal or interest payments hereunder.
(b) Payment of Additional Amounts. If any taxes, assessments
or other governmental charges are imposed by any jurisdiction where the Company
or a successor thereof (a "Payor") is organized or otherwise considered by a
taxing authority to be a resident for tax purposes, any jurisdiction from or
through which the Payor makes a payment on the Securities, or, in each case, any
political organization or governmental authority thereof or therein having the
power to tax (the "Relevant Tax Jurisdiction") in respect of any payments under
the Securities, the Payor will pay to each Holder of a Security, to the extent
it may lawfully do so, such additional amounts ("Additional Amounts") as may be
necessary in order that the net amounts paid to such Holder will be not less
than the amount specified in such Security to which
53
such Holder is entitled; provided, however, the Payor will not be required to
make any payment of Additional Amounts for or on account of:
(1) Any tax, assessment or other governmental charge
which would not have been imposed but for (a) the
existence of any present or former connection between
such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor
of a power over, such Holder, if such Holder is an
estate, trust, partnership, limited liability company
or corporation) and the Relevant Tax Jurisdiction
other than solely by the holding of Notes or by the
receipt of principal or interest in respect of the
Notes, including, without limitation, such Holder (or
such fiduciary, settlor, beneficiary, member,
shareholder or possessor) being or having been a
citizen or resident thereof or being or having been
present or engaged in trade or business therein or
having or having had a permanent establishment
therein or (b) the presentation of a Security (where
presentation is required) for payment on a date more
than 30 days after (x) the date on which such payment
became due and payable or (y) the date on which
payment thereof is duly provided for, whichever
occurs later (in either case (x) or (y), except to
the extent that the Holder would have been entitled
to Additional Amounts had the Security been presented
for such 30-day period);
(2) Any estate, inheritance, gift, sales, transfer,
personal property or similar tax, assessment or other
governmental charge;
(3) Any tax, assessment or other governmental charge that
is imposed or withheld by reason of the failure by
the Holder or the beneficial owner of the Security to
comply with a reasonable and timely request of the
Payor addressed to the Holder to provide information,
documents or other evidence concerning the
nationality, residence or identity of the Holder or
such beneficial owner which is required by a statute,
treaty, regulation or administrative practice of the
taxing jurisdiction as a precondition to exemption
from all or part of such tax, assessment or other
governmental charge;
(4) Any tax, assessment or other governmental charge that
is payable otherwise than by any deduction or
withholding from any payment of the principal of, or
any premium or interest on, any Security;
(5) Any tax imposed on, or measured by, net income;
(6) Any tax, assessment or other governmental charge
required to be deducted or withheld by any Paying
Agent from any payment of the principal of, or any
premium or interest on, any Security, if such payment
can be made alternatively at the Holder's option
without such deduction or withholding by any other
Paying Agent available to such Holder at the same
time; or
54
(7) Any combination of the above;
nor will Additional Amounts be paid with respect to any payment of the principal
of, or any premium or interest on, any Security to any Holder who is a fiduciary
or partnership or limited liability company or other than the sole beneficial
owner of such payment to the extent such payment would be required by the laws
of the Relevant Tax Jurisdiction to be included in the income for tax purposes
of a beneficiary or settlor with respect to such fiduciary or a member of such
partnership, limited liability company or beneficial owner who would not have
been entitled to such Additional Amounts had it been the Holder of such
Security.
The Payor will provide the Trustee with the official
acknowledgment of the Relevant Tax Authority (or, if such acknowledgment is not
available, a certified copy thereof) evidencing the payment of the withholding
taxes by the Payor. Copies of such documentation will be made available to the
Holders of the Securities or the Paying Agents, as applicable, upon request
therefor.
The Company will pay any present or future stamp, court or
documentary taxes, or any other excise or property taxes, charges or similar
levies which arise in any jurisdiction from the execution, delivery or
registration of the Securities or any other document or instrument referred to
therein (other than a transfer of the Securities), or the receipt of any
payments with respect to the Securities, excluding any such taxes, charges or
similar levies imposed by any jurisdiction that is not a Relevant Tax
Jurisdiction, other than those resulting from, or required to be paid in
connection with, the enforcement of the Securities or any other such document or
instrument following the occurrence of any Event of Default with respect to the
Securities.
All references in this Indenture to principal of, premium, if
any, and interest on the Securities will include any Additional Amounts payable
by the Payor in respect of such principal, such premium, if any, and such
interest.
SECTION 3.2. SEC Reports. So long as any Securities are
outstanding, notwithstanding that the Company may not continue to be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, to the
extent permitted by the Exchange Act, the Company will file with the Commission,
and make available to the Trustee and the registered Holders of the Securities,
the annual reports and the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) that are specified in Sections 13 and 15(d) of the
Exchange Act within the time periods specified therein; provided that the
Company will not be required to make any such filings with the Commission until
the date that the Company is first subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, including upon effectiveness of any
Exchange Offer Registration Statement or Shelf Registration Statement (each as
defined in the Registration Rights Agreement). In the event that the Company is
not permitted (or required by virtue of the proviso in the previous sentence) to
file such reports, documents and information with the Commission pursuant to the
Exchange Act, the Company will nevertheless make available such Exchange Act
information to the Trustee and the Holders of the Securities as if
55
the Company were subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act within the time periods specified therein.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
reports shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Issuer's compliance with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers' Certificates).
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
to the financial statements and in Management's Discussion and Analysis of
Results of Operations and Financial Condition, of the financial condition and
results of operations of the Company and its Restricted Subsidiaries.
SECTION 3.3. Limitation on Indebtedness. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (including Acquired Indebtedness); provided, however, that the
Company and the Restricted Subsidiaries may Incur Indebtedness (including
Acquired Indebtedness) if on the date thereof:
(1) the Consolidated Coverage Ratio for the Company is at
least 2.00 to 1.00; and
(2) no Default or Event of Default will have occurred or
be continuing or would occur as a consequence of
Incurring the Indebtedness or transactions relating
to such Incurrence.
The first paragraph of this Section 3.3 will not prohibit the
Incurrence of the following Indebtedness:
(1) Indebtedness of the Company Incurred pursuant to the
revolving credit facility portion of the Senior
Secured Credit Facility in an aggregate amount
outstanding at any time of up to $500.0 million;
(2) Indebtedness of the Company or any of its Restricted
Subsidiaries Incurred pursuant to any Credit Facility
and secured by any or all of the Existing Fleet in an
aggregate amount of up to $2.125 billion; provided,
that the Company and its Restricted Subsidiaries will
not Incur any Indebtedness under this clause (2)
(other than initial borrowings pursuant to the term
loan portion of the Senior Secured Credit Facility or
the Subsidiary Credit Agreements and any refinancing
thereof that would not have a final maturity within
one year prior to the Stated Maturity of the
Securities) unless:
56
(a) the amount of such Indebtedness does not
exceed 75% of the fair market value of the
Vessel or Vessels in the Existing Fleet
securing such Indebtedness at the time of
the commitment entered into for such
Indebtedness, based upon a written appraisal
of two Independent Appraisers; and
(b) any such Indebtedness does not have a final
maturity within one year prior to the Stated
Maturity of the Securities.
(3) Indebtedness of the Company or any Restricted
Subsidiary Incurred to finance the replacement
(through construction or acquisition) of one or more
Vessels, and any assets that shall become Related
Assets (and any Refinancing Indebtedness with respect
to such Vessels or assets), upon a total loss,
destruction, condemnation, confiscation, requisition,
seizure, forfeiture, or other taking of title to or
use of such Vessel (provided that such loss,
destruction, condemnation, confiscation, requisition,
seizure, forfeiture or other taking of title to or
use of such Vessel was covered by insurance or
resulted in the actual payment of compensation,
indemnification or similar payments to such Person
(collectively, a "Total Loss")) in an aggregate
amount no greater than the Ready for Sea Cost for
such replacement Vessel, in each case less all
compensation, damages and other payments (including
insurance proceeds other than in respect of business
interruption insurance) actually received by the
Company or any Restricted Subsidiary from any Person
in connection with the Total Loss in excess of
amounts actually used to repay Indebtedness secured
by the Vessel subject to the Total Loss; provided
that if the Indebtedness Incurred by the Company or
any Restricted Subsidiary in financing the Vessel
subject to the Total Loss is subordinated to the
Securities, the Indebtedness Incurred by the Company
or any Restricted Subsidiary to finance the
replacement Vessel shall be subordinated to the same
extent;
(4) Guarantees of Indebtedness Incurred in accordance
with the provisions of this Indenture; provided that
in the event such Indebtedness that is being
Guaranteed is a Subordinated Obligation, then the
related Guarantee shall be subordinated in right of
payment to the Securities;
(5) Indebtedness of the Company owing to and held by any
Restricted Subsidiary or Indebtedness of a Restricted
Subsidiary owing to and held by the Company or a
Restricted Subsidiary, provided, however;
(a) if the Company is the obligor on such
Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in
cash of all obligations with respect to the
Securities; and
(b) (i) any subsequent issuance or transfer of
Capital Stock or any other event which
results in any such Indebtedness being
57
beneficially held by a Person other
than the Company or a Restricted
Subsidiary of the Company; and
(ii) any sale or other transfer of any
such Indebtedness to a Person other
than the Company or a Restricted
Subsidiary of the Company,
shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be;
(6) Indebtedness represented by (a) the Securities issued
on the Issue Date and the Exchange Securities issued
in an Exchange Offer, (b) any Indebtedness (other
than the Indebtedness described in clauses (1), (2),
(3), (5), (8), (9), (10), (11), (12), (13), (14) and
(15)) outstanding on the Issue Date and (c) any
Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (6) or clause
(7) or Incurred pursuant to the first paragraph of
this Section 3.3 (including any additional items of
Indebtedness with respect thereto permitted pursuant
to the first sentence of the third to last paragraph
of this Section 3.3);
(7) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on the date on which such Restricted
Subsidiary was acquired by the Company (other than
Indebtedness Incurred (a) to provide all or any
portion of the funds utilized to consummate the
transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was otherwise acquired by
the Company or (b) otherwise in connection with, or
in contemplation of, such acquisition); provided,
however, that at the time such Restricted Subsidiary
is acquired by the Company, the Company would have
been able to Incur $1.00 of additional Indebtedness
pursuant to the first paragraph of this Section 3.3
giving effect to the Incurrence of such Indebtedness
pursuant to this clause (7);
(8) Indebtedness under Hedging Obligations entered into
in the ordinary course of business and not entered
into for speculative purposes of the Company or its
Restricted Subsidiaries (as determined in good faith
by the Board of Directors or senior management of the
Company);
(9) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries arising in the ordinary
course of business from letters of credit for the
account of the Company or any Restricted Subsidiary,
as the case may be, in order to provide security to
travel agencies, banks, financial institutions,
credit card issuers or other institutions for
unearned amounts owing to passenger deposits or
similar obligations;
58
(10) Indebtedness Incurred in the ordinary course of
business by the Company or any of its Restricted
Subsidiaries arising from performance guarantees,
letters of credit, bonds or other payments required
by the U.S. Federal Maritime Commission, or other
similar government authority in respect of
liabilities for non-performance of transportation and
other obligations to passengers;
(11) the Incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness Incurred in
relation to: (i) regular maintenance required to
maintain the classification of any of the Vessels
owned, time chartered, bareboat chartered or leased
to or by the Company or any Restricted Subsidiary;
(ii) scheduled dry-docking of any of the Vessels
owned by the Company or any Restricted Subsidiary;
and (iii) any expenditures which will or may
reasonably expected to be recoverable from insurance
on such Vessels;
(12) Indebtedness Incurred in respect of workers'
compensation claims, self-insurance obligations,
performance, surety and similar bonds, completion
guarantees and letters of credit provided by the
Company or a Restricted Subsidiary in the ordinary
course of business;
(13) Indebtedness arising from agreements of the Company
or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or
similar obligations, in each case, Incurred or
assumed in connection with the disposition of any
business, assets or Capital Stock of a Restricted
Subsidiary, provided that the maximum aggregate
liability in respect of all such Indebtedness shall
at no time exceed the gross proceeds actually
received by the Company and its Restricted
Subsidiaries in connection with such disposition;
(14) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or
similar instrument (except in the case of daylight
overdrafts) drawn against insufficient funds in the
ordinary course of business, provided, however, that
such Indebtedness is extinguished within five
business days of Incurrence; and
(15) in addition to the items referred to in clauses (1)
through (14) above, Indebtedness of the Company and
its Restricted Subsidiaries in an aggregate
outstanding principal amount which, when taken
together with the principal amount of all other
Indebtedness Incurred pursuant to this clause (15)
and then outstanding, will not exceed $50.0 million
at any time outstanding.
The Company will not Incur any Indebtedness under the
preceding paragraph if the proceeds thereof are used, directly or indirectly, to
refinance any Subordinated Obligations of
59
the Company unless such Indebtedness will be subordinated to the Securities to
at least the same extent as such Subordinated Obligations.
No Restricted Subsidiary may Incur any Indebtedness if the
proceeds are used to refinance Indebtedness of the Company (for the avoidance of
doubt, excluding Indebtedness of a Restricted Subsidiary Guaranteed by the
Company).
For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness Incurred pursuant to
and in compliance with, this Section 3.3:
(1) in the event that Indebtedness meets the criteria of
more than one of the types of Indebtedness described
in the first and second paragraphs of this Section
3.3, the Company, in its sole discretion, will
classify and may reclassify such item of Indebtedness
and only be required to include the amount and type
of such Indebtedness in one of such clauses;
(2) all Indebtedness outstanding on the date of the
Indenture and under a Credit Facility shall be deemed
initially Incurred on the Issue Date under clause (1)
or clause (2), as the case may be, of the second
paragraph of this Section 3.3 and not the first
paragraph or clause (6) of the second paragraph of
this Section 3.3;
(3) Guarantees of, or obligations in respect of letters
of credit relating to, Indebtedness which is
otherwise included in the determination of a
particular amount of Indebtedness shall not be
included;
(4) if obligations in respect of letters of credit are
Incurred pursuant to a Credit Facility and are being
treated as Incurred pursuant to clause (1) or clause
(2), as the case may be, of the second paragraph
above and the letters of credit relate to other
Indebtedness, then such other Indebtedness shall not
be included;
(5) the principal amount of any Disqualified Stock of the
Company or a Restricted Subsidiary, or Preferred
Stock of a Restricted Subsidiary, will be equal to
the greater of the maximum mandatory redemption or
repurchase price (not including, in either case, any
redemption or repurchase premium) or the liquidation
preference thereof;
(6) Indebtedness permitted by this Section 3.3 need not
be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in
part by one such provision and in part by one or more
other provisions of this Section 3.3 permitting such
Indebtedness;
60
(7) the amount of Indebtedness issued at a price that is
less than the principal amount thereof will be equal
to the amount of the liability in respect thereof
determined in accordance with GAAP; and
(8) Indebtedness to be Incurred by the Company and its
Restricted Subsidiaries pursuant to the first
paragraph of this Section 3.3 to finance the
construction of a Vessel in an amount up to 80% of
the Ready for Sea Cost of such Vessel, the terms of
which provide for multiple borrowings during the
course of construction of such Vessel, will be deemed
to be permitted under such first paragraph if at the
time of the commitment entered into for such
Indebtedness, the Company could Incur the full amount
of such Indebtedness under such first paragraph
assuming that it were borrowed on the date of such
commitment.
Accrual of interest, accrual of dividends, the accretion of
accreted value, the payment of interest in the form of additional Indebtedness
and the payment of dividends in the form of additional shares of Preferred Stock
or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for
purposes of this Section 3.3. The amount of any Indebtedness outstanding as of
any date shall be (i) the accreted value thereof in the case of any Indebtedness
issued with original issue discount and (ii) the principal amount or liquidation
preference thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness.
In addition, the Company will not permit any of its
Unrestricted Subsidiaries to Incur any Indebtedness or issue any shares of
Disqualified Stock, other than Non-Recourse Debt. If at any time an Unrestricted
Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary
shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and,
if such Indebtedness is not permitted to be Incurred as of such date under this
Section 3.3, the Company shall be in Default of this Section 3.3).
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is Incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such U.S. dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness does
not exceed the principal amount of such Indebtedness being refinanced.
Notwithstanding any other provision of this Section 3.3, the maximum amount of
Indebtedness that the Company may Incur pursuant to this Section 3.3 shall not
be deemed to be exceeded solely as a result of fluctuations in the exchange rate
of currencies. The principal amount of any Indebtedness Incurred to refinance
other Indebtedness, if Incurred in a different currency from the Indebtedness
being refinanced, shall be
61
calculated based on the currency exchange rate applicable to the currencies in
which such Refinancing Indebtedness is denominated that is in effect on the date
of such refinancing.
SECTION 3.4. Limitation on Restricted Payments. The Company
shall not, and shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to:
(1) declare or pay any dividend or make any distribution
on or in respect of its Capital Stock (including any
payment in connection with any merger or
consolidation involving the Company or any of its
Restricted Subsidiaries) except:
(a) dividends or distributions payable in
Capital Stock of the Company (other than
Disqualified Stock) or in options, warrants
or other rights to purchase such Capital
Stock of the Company; and
(b) dividends or distributions payable to the
Company or a Restricted Subsidiary (and if
such Restricted Subsidiary is not a
Wholly-Owned Subsidiary, to its other
holders of common Capital Stock on a pro
rata basis);
(2) purchase, redeem, retire or otherwise acquire for
value any Capital Stock of the Company or any direct
or indirect parent of the Company held by Persons
other than the Company or a Restricted Subsidiary
(other than in exchange for Capital Stock of the
Company (other than Disqualified Stock));
(3) purchase, repurchase, redeem, defease or otherwise
acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligations (other
than the purchase, repurchase, redemption, defeasance
or other acquisition or retirement of Subordinated
Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or
final maturity, in each case due within one year of
the date of purchase, repurchase, redemption,
defeasance or other acquisition or retirement); or
(4) make any Restricted Investment in any Person;
(any such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Restricted Investment referred to in clauses
(1) through (4) shall be referred to herein as a "Restricted Payment"), if at
the time the Company or such Restricted Subsidiary makes such Restricted
Payment:
(a) a Default shall have occurred and be
continuing (or would result therefrom); or
62
(b) the Company is not able to Incur an
additional $1.00 of Indebtedness pursuant to
the first paragraph of Section 3.3 after
giving effect, on a pro forma basis, to such
Restricted Payment; or
(c) the aggregate amount of such Restricted
Payment and all other Restricted Payments
declared or made subsequent to the Issue
Date would exceed the sum of:
(i) 50% of Consolidated Net Income for
the period (treated as one
accounting period) from the
beginning of the first fiscal
quarter commencing after the Issue
Date to the end of the most recent
fiscal quarter ending prior to the
date of such Restricted Payment for
which financial statements are in
existence (or, in case such
Consolidated Net Income is a
deficit, minus 100% of such
deficit);
(ii) 100% of (a) the aggregate Net Cash
Proceeds received by the Company
from the issue or sale of its
Capital Stock (other than
Disqualified Stock) or other
capital contributions subsequent to
the Issue Date (other than Net Cash
Proceeds received from an issuance
or sale of such Capital Stock to a
Subsidiary of the Company or an
employee stock ownership plan,
option plan or similar trust to the
extent such sale to an employee
stock ownership plan, option plan
or similar trust is financed by
loans from or Guaranteed by the
Company or any Restricted
Subsidiary unless such loans have
been repaid with cash on or prior
to the date of determination) plus
(b) the fair market value of
non-cash proceeds received by the
Company from Holdings from the
issue or sale of its Capital Stock
or other capital contributions
subsequent to the Issue Date;
provided that the aggregate amount
of non-cash proceeds that may be
included pursuant to this clause
(b) will not exceed the lesser of
$100.0 million in the aggregate or
80% of the fair market value, based
upon a written appraisal of three
Independent Appraisers, of such
property at the time such
Restricted Payment is made;
(iii) the amount by which Indebtedness of
the Company or its Restricted
Subsidiaries is reduced on the
Company's balance sheet upon the
conversion or exchange (other than
by a Subsidiary of the Company)
subsequent to the Issue Date of any
Indebtedness of the Company or its
Restricted Subsidiaries convertible
or exchangeable for Capital Stock
(other than Disqualified Stock) of
the Company (less the amount of any
cash, or the fair market value of
any other
63
property, distributed by the
Company upon such conversion or
exchange); and
(iv) the amount equal to the net
reduction in Restricted Investments
made by the Company or any of its
Restricted Subsidiaries in any
Person resulting from:
(A) without duplication,
repurchases or redemptions of
such Restricted Investments
by such Person, proceeds
realized by the Company and
any of its Restricted
Subsidiaries upon the sale of
such Restricted Investment to
a Person other than the
Company or a Restricted
Subsidiary, repayments of
loans or advances or other
transfers of assets
(including by way of dividend
or distribution) by such
Person to the Company or any
Restricted Subsidiary or
releases of Guarantees of
Indebtedness of such Person
constituting a Restricted
Investment; or
(B) the redesignation of
Unrestricted Subsidiaries as
Restricted Subsidiaries
(valued in each case as
provided in the definition of
"Investment") not to exceed,
in the case of any
Unrestricted Subsidiary, the
amount of Investments
previously made by the
Company or any Restricted
Subsidiary in such
Unrestricted Subsidiary,
which amount in each case under
this clause (iv) was included in
the calculation of the amount of
Restricted Payments; provided,
however, that no amount will be
included under this clause (iv) to
the extent it is already included
in Consolidated Net Income.
The provisions of the preceding paragraph will not prohibit:
(1) any purchase, repurchase, redemption, defeasance or
other acquisition or retirement of Capital Stock,
Disqualified Stock or Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of
the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary or an
employee stock ownership plan or similar trust to the
extent such sale to an employee stock ownership plan or
similar trust is financed by loans from or Guaranteed by
the Company or any Restricted Subsidiary unless such
loans have been repaid with cash on or prior to the date
of determination); provided, however, that (a) such
purchase,
64
repurchase, redemption, defeasance, acquisition or
retirement will be excluded in subsequent calculations
of the amount of Restricted Payments and (b) the Net
Cash Proceeds from such sale of Capital Stock will be
excluded from clause (c)(ii) of the preceding paragraph;
(2) any purchase, repurchase, redemption, defeasance or
other acquisition or retirement of Subordinated
Obligations of the Company or of any of its Restricted
Subsidiaries made by exchange for, or out of the
proceeds of the substantially concurrent sale of,
Subordinated Obligations of the Company or of any of its
Restricted Subsidiaries that are permitted to be
Incurred pursuant to Section 3.3 and that in each case
constitutes Refinancing Indebtedness; provided, however,
that such purchase, repurchase, redemption, defeasance,
acquisition or retirement will be excluded in subsequent
calculations of the amount of Restricted Payments;
(3) any purchase, repurchase, redemption, defeasance or
other acquisition or retirement of Disqualified Stock of
the Company or a Restricted Subsidiary made by exchange
for or out of the proceeds of the substantially
concurrent sale of Disqualified Stock of the Company or
such Restricted Subsidiary, as the case may be, that, in
each case, is permitted to be Incurred pursuant to
Section 3.3 and that in each case constitutes
Refinancing Indebtedness; provided, however, that such
purchase, repurchase, redemption, defeasance,
acquisition or retirement will be excluded in subsequent
calculations of the amount of Restricted Payments;
(4) so long as no Default or Event of Default has occurred
and is continuing, any purchase or redemption of
Subordinated Obligations from Net Available Cash to the
extent permitted under Section 3.7; provided, however,
that such purchase or redemption will be excluded in
subsequent calculations of the amount of Restricted
Payments;
(5) dividends paid within 60 days after the date of
declaration if at such date of declaration such dividend
would have complied with this provision; provided,
however, that such dividends will be included in
subsequent calculations of the amount of Restricted
Payments;
(6) so long as no Default or Event of Default has occurred
and is continuing, the purchase, redemption or other
acquisition, cancellation or retirement for value of
Capital Stock, or options, warrants, equity appreciation
rights or other rights to purchase or acquire Capital
Stock of the Company or any Restricted Subsidiary or any
parent of the Company held by any existing or former
employees or management of the Company or Holdings or
any Subsidiary of the Company or their assigns, estates
or heirs, in each case in connection with the repurchase
provisions under employee stock option or stock purchase
agreements or other agreements to compensate
65
management employees; provided that such redemptions or
repurchases pursuant to this clause will not exceed $2.5
million in the aggregate during any calendar year and
$10.0 million in the aggregate for all such redemptions
and repurchases; provided, however, that the amount of
any such repurchase or redemption will be included in
subsequent calculations of the amount of Restricted
Payments;
(7) repurchases of Capital Stock deemed to occur upon the
exercise of stock options if such Capital Stock
represents a portion of the exercise price thereof;
provided, however, that such repurchases will be
excluded from subsequent calculations of the amount of
Restricted Payments;
(8) cash dividends, loans or other payments to Holdings or
any of its Subsidiaries in amounts equal to:
(a) the amounts required for Holdings or any of its
Subsidiaries to pay any income taxes to the extent
that such income taxes are directly attributable
to the income of the Company and its Restricted
Subsidiaries;
(b) the amounts required for Holdings to pay franchise
taxes and other fees required to maintain its
legal existence;
(c) an amount not to exceed $3.0 million in any fiscal
year to permit Holdings and its Subsidiaries to
pay its corporate overhead expenses Incurred in
the ordinary course of business, and to pay
salaries or other compensation of employees who
perform services for both Holdings and the
Company;
provided, that such dividends, loans or other payments
will be excluded from subsequent calculations of the
amount of Restricted Payments;
(9) the purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value of any
Subordinated Obligation (i) at a purchase price not
greater than 101% of the principal amount of such
Subordinated Obligation in the event of a Change of
Control in accordance with provisions similar to those
of Section 3.9 or (ii) at a purchase price not greater
than 100% of the principal amount thereof in accordance
with provisions similar to those of Section 3.7;
provided, however, that, prior to or simultaneously with
such purchase, repurchase, redemption, defeasance or
other acquisition or retirement, the Company has made
the Change of Control Offer or Asset Disposition Offer,
as applicable, as provided in Section 3.9 with respect
to the Securities and has completed the repurchase or
redemption of all Securities validly tendered for
payment in connection with such Change of Control Offer
or Asset Disposition Offer; and provided, further, that
such purchase, repurchase, redemption,
66
defeasance or other acquisition or retirement will be
excluded from subsequent calculations of the amount of
Restricted Payments; and
(10) Restricted Payments in an amount not to exceed $25.0
million at any one time outstanding; provided that the
amount of such Restricted Payments will be included in
the calculation of the amount of Restricted Payments.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of such Restricted Payment of the asset(s)
or securities proposed to be paid, transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
The fair market value of any cash Restricted Payment shall be its face amount
and the fair market value of any non-cash Restricted Payment shall be determined
conclusively by the Board of Directors of the Company acting in good faith, such
determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing if such fair market
value is estimated in good faith by the Board of Directors of the Company to
exceed $50.0 million, or, in the case of a Vessel, to be based upon a written
appraisal of two Independent Appraisers. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by Section 3.4 were computed,
together with a copy of any fairness opinion or appraisal required by this
Indenture.
SECTION 3.5. Limitation on Liens. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, Incur or suffer to exist any Lien (other than Permitted Liens) upon any
of its property or assets (including Capital Stock of Restricted Subsidiaries),
whether owned on the date of this Indenture or acquired after that date, which
Lien is securing any Indebtedness, unless contemporaneously with the Incurrence
of such Liens effective provision is made to secure the Indebtedness due under
this Indenture and the Securities equally and ratably with (or prior to in the
case of Liens with respect to Subordinated Obligations) the Indebtedness secured
by such Lien for so long as such Indebtedness is so secured.
SECTION 3.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or consensual restriction on the ability of
any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock or pay any Indebtedness or other
obligations owed to the Company or any Restricted
Subsidiary (it being understood that the priority of
any Preferred Stock in receiving dividends or
liquidating distributions prior to dividends or
liquidating distributions being paid on Common Stock
shall not be deemed a restriction on the ability to
make distributions on Capital Stock);
67
(2) make any loans or advances to the Company or any
Restricted Subsidiary (it being understood that the
subordination of loans or advances made to the
Company or any Restricted Subsidiary to other
Indebtedness Incurred by the Company or any
Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or
advances); or
(3) transfer any of its property or assets to the Company
or any Restricted Subsidiary.
The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to
an agreement (a) in effect at or entered
into on the date of this Indenture,
including, without limitation, this
Indenture and the Senior Secured Credit
Facility and the Subsidiary Credit
Agreements in effect on such date and (b)
relating to Indebtedness Incurred after the
Issue Date so long as any such encumbrances
or restrictions are substantially similar to
encumbrances or restrictions permitted
pursuant to clause (i)(a);
(ii) any encumbrance or restriction with respect
to a Restricted Subsidiary pursuant to an
agreement relating to any Indebtedness
Incurred by a Restricted Subsidiary on or
before the date on which such Restricted
Subsidiary was acquired by the Company
(other than Indebtedness Incurred as
consideration in, or to provide all or any
portion of the funds utilized to consummate,
the transaction or series of related
transactions pursuant to which such
Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company or
in contemplation of the transaction) and
outstanding on such date; provided, that any
such encumbrance or restriction shall not
extend to any assets or property of the
Company or any other Restricted Subsidiary
other than the assets and property so
acquired;
(iii) any encumbrance or restriction with respect
to a Restricted Subsidiary pursuant to an
agreement effecting a refunding, replacement
or refinancing of Indebtedness Incurred
pursuant to an agreement referred to in
clause (i) or (ii) of this paragraph or this
clause (iii) or contained in any amendment
to an agreement referred to in clause (i) or
(ii) of this paragraph or this clause (iii);
provided, however, that the encumbrances and
restrictions with respect to such Restricted
Subsidiary contained in any such agreement
are no less favorable in any material
respect to the Holders of the Securities
than the encumbrances and restrictions
contained in such agreements referred to in
clauses (i)or (ii) of this
68
paragraph on the Issue Date or the date such
Restricted Subsidiary became a Restricted
Subsidiary, whichever is applicable;
(iv) in the case of clause (3) of the first
paragraph of this Section 3.6, any
encumbrance or restriction:
(a) that restricts in a customary
manner the subletting, assignment
or transfer of any property or
asset that is subject to a lease,
license or similar contract, or the
assignment or transfer of any such
lease, license or other contract;
(b) contained in agreements or
instruments related to any Lien
permitted under this Indenture
securing Indebtedness of the
Company or a Restricted Subsidiary
to the extent such encumbrances or
restrictions restrict the transfer
of the property subject to such
Lien; or
(c) pursuant to customary provisions
restricting dispositions of real
property interests set forth in any
reciprocal easement agreements of
the Company or any Restricted
Subsidiary;
(v) purchase money obligations and Capitalized
Lease Obligations for property acquired or
leased in the ordinary course of business
that impose encumbrances or restrictions of
the nature described in clause (3) of the
first paragraph of this Section 3.6 on the
property so acquired or leased;
(vi) any restriction (a) with respect to a
Restricted Subsidiary (or any of its
property or assets) imposed pursuant to an
agreement entered into for the direct or
indirect sale or disposition of all or
substantially all the Capital Stock or
assets of such Restricted Subsidiary (or the
property or assets that are subject to such
restriction) pending the closing of such
sale or disposition or (b) on the sale or
other disposition of Capital Stock of
Persons that are Unrestricted Subsidiaries
of the Company or are not Subsidiaries of
the Company;
(vii) encumbrances or restrictions arising or
existing by reason of applicable law or any
applicable rule, regulation or order;
(viii) encumbrances or restrictions, including,
without limitation, encumbrances or
restrictions on cash or assets in escrow
accounts of deposits paid on property used
in the Company's business, in each case
imposed by applicable law or regulation or
by governmental licenses, concessions,
franchises or permits;
69
(ix) encumbrances or restrictions on cash or
other deposits or net worth imposed by
customers under contracts entered into in
the ordinary course of business;
(x) customary limitations on the distribution or
disposition of property or assets in joint
venture agreements governing Persons that
are Unrestricted Subsidiaries or are not
Subsidiaries of the Company; provided that
such encumbrance or restriction is
applicable only to the Company or the
Restricted Subsidiary entering into such
joint venture agreement; and provided
further that:
(a) the encumbrance or restriction is
not materially more disadvantageous
to the Holders of the Securities
than is customary in comparable
agreements (as determined by the
Company's Board of Directors); and
(b) the Company determines that any
such encumbrance or restriction
will not materially affect its
ability to make any anticipated
principal or interest payment on
the Securities; and
(xi) any encumbrance or restriction of the nature
described in clause (3) of the first
paragraph of this Section 3.6 arising by
reason of customary non-assignment
provisions in agreements.
SECTION 3.7. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of
such Asset Disposition at least equal to the fair
market value (such fair market value to be determined
on the date of contractually agreeing to such Asset
Disposition), as determined in good faith by the
Board of Directors (including as to the value of all
non-cash consideration), of the shares and assets
subject to such Asset Disposition;
(2) at least 80% of the consideration from such Asset
Disposition received by the Company or such
Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; and
(3) subject to the requirement to make an Asset
Disposition Offer as described below, an amount equal
to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company or such
Restricted Subsidiary, as the case may be:
70
(a) first, to the extent the Company or any Restricted
Subsidiary, as the case may be, elects (or is
required by the terms of any Indebtedness), to
prepay, repay or purchase Indebtedness of the Company
(other than any Disqualified Stock or Subordinated
Obligations) or Indebtedness of a Restricted
Subsidiary (in each case other than Indebtedness owed
to the Company or an Affiliate of the Company) within
360 days from the later of the date of such Asset
Disposition or the receipt of such Net Available
Cash; provided, however, that, in connection with any
prepayment, repayment or purchase of Indebtedness
pursuant to this clause (a), the Company or such
Restricted Subsidiary will retire such Indebtedness
and will cause the related commitment (if any) to be
permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased; and
(b) second, to the extent of the balance of such Net
Available Cash after application in accordance with
clause (a), to the extent the Company or such
Restricted Subsidiary elects to invest in or make
installment or progress payments in respect of
Additional Assets within 360 days from the later of
the date of such Asset Disposition or the receipt of
such Net Available Cash; provided, that with respect
to Additional Assets that are Vessels, if at the end
of such 360 day period, the Company or such
Restricted Subsidiary shall have entered into a
Vessel Construction Contract but payments under such
Vessel Construction Contract have not yet come due,
the Company or such Restricted Subsidiary shall have
an additional 180 days to apply the Net Available
Cash from such Asset Disposition.
provided that pending the final application of any such Net
Available Cash in accordance with clause (a) or clause (b)
above, the Company and its Restricted Subsidiaries may
temporarily reduce Indebtedness or otherwise invest such Net
Available Cash in any manner not prohibited by the Indenture.
(b) Any Net Available Cash from Asset Dispositions that are not applied or
invested as provided in the preceding paragraph will be deemed to constitute
"Excess Proceeds." On the 361st day (or 541st day in respect of Net Available
Cash for which the proviso in Section 3(a)(3)(b) above applies) after an Asset
Disposition, if the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company will be required to make an offer ("Asset Disposition Offer") to all
Holders of Securities and to the extent required by the terms of other Pari
Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding
with similar provisions requiring the Company to make an offer to purchase such
Pari Passu Indebtedness with the proceeds from any Asset Disposition ("Pari
Passu Notes"), to purchase the maximum principal amount of Securities and any
such Pari Passu Notes to which the Asset Disposition Offer applies that may be
purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to
71
100% of the principal amount of the Securities and Pari Passu Notes plus accrued
and unpaid interest to the date of purchase, in accordance with the procedures
set forth in the Indenture or the agreements governing the Pari Passu Notes, as
applicable, in each case in integral multiples of $1,000. To the extent that the
aggregate amount of Securities and Pari Passu Notes so validly tendered and not
properly withdrawn pursuant to an Asset Disposition Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes, subject to the other covenants contained in the Indenture.
If the aggregate principal amount of Securities surrendered by Holders thereof
and other Pari Passu Notes surrendered by holders or lenders, collectively,
exceeds the amount of Excess Proceeds, the Trustee shall select the Securities
and Pari Passu Notes to be purchased on a pro rata basis on the basis of the
aggregate principal amount of tendered Securities and Pari Passu Notes. Upon
completion of such Asset Disposition Offer, the amount of Excess Proceeds shall
be reset at zero.
(c)(1) The Asset Disposition Offer will remain open for a
period of 20 Business Days following its commencement, except to the extent that
a longer period is required by applicable law (the "Asset Disposition Offer
Period"). No later than five Business Days after the termination of the Asset
Disposition Offer Period (the "Asset Disposition Purchase Date"), the Company
will purchase the principal amount of Securities and Pari Passu Notes required
to be purchased pursuant to this Section 3.7 (the "Asset Disposition Offer
Amount") or, if less than the Asset Disposition Offer Amount has been so validly
tendered, all Securities and Pari Passu Notes validly tendered in response to
the Asset Disposition Offer.
(2) If the Asset Disposition Purchase Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest will be paid to the Person in whose name a Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders of the Securities who tender Securities
pursuant to the Asset Disposition Offer.
(3) On or before the Asset Disposition Purchase Date, the
Company will, to the extent lawful, accept for payment, on a pro rata basis to
the extent necessary, the Asset Disposition Offer Amount of Securities and Pari
Passu Notes or portions of Securities and Pari Passu Notes so validly tendered
and not properly withdrawn pursuant to the Asset Disposition Offer, or if less
than the Asset Disposition Offer Amount has been validly tendered and not
properly withdrawn, all Securities and Pari Passu Notes so validly tendered and
not properly withdrawn, in each case in integral multiples of $1,000. The
Company will deliver to the Trustee an Officers' Certificate stating that such
Securities or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.7 and, in addition, the Company will
deliver all certificates and notes required, if any, by the agreements governing
the Pari Passu Notes. The Company or the Paying Agent, as the case may be, will
promptly (but in any case not later than five Business Days after termination of
the Asset Disposition Offer Period) mail or deliver to each tendering Holder of
Securities or holder or lender of Pari Passu Notes, as the case may be, an
amount equal to the purchase price of the Securities or Pari Passu Notes so
validly tendered and not properly withdrawn by such holder or lender, as the
case may be, and accepted by the Company for purchase, and the Company will
promptly issue a new Security, and the Trustee, upon delivery of an Officers'
Certificate from the Company will authenticate and mail or deliver such new
Security to such Holder, in a principal amount equal to
72
any unpurchased portion of the Security surrendered; provided that each such new
Security will be in a principal amount of $1,000 or an integral multiple of
$1,000. In addition, the Company will take any and all other actions required by
the agreements governing the Pari Passu Notes. Any Security not so accepted will
be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Asset Disposition Offer on the
Asset Disposition Purchase Date.
For the purposes of this Section 3.7, the following will be
deemed to be cash:
(1) the assumption by the transferee of Indebtedness
(other than Subordinated Obligations or Disqualified
Stock) of the Company or Indebtedness of a Restricted
Subsidiary (other than Preferred Stock) and the
release of the Company or such Restricted Subsidiary
from all liability on such Indebtedness in connection
with such Asset Disposition (in which case the
Company will, without further action, be deemed to
have applied such deemed cash to Indebtedness in
accordance with clause (a) above); and
(2) securities, notes or other obligations received by
the Company or any Restricted Subsidiary from the
transferee that are promptly converted by the Company
or such Restricted Subsidiary into cash.
The Company will not, and will not permit any Restricted
Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and
immediately after giving effect to such Asset Swap,
no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence
thereof;
(2) in the event such Asset Swap involves the transfer by
the Company or any Restricted Subsidiary of assets
having an aggregate fair market value, as determined
by the Board of Directors of the Company in good
faith, in excess of $10.0 million, the terms of such
Asset Swap have been approved by a majority of the
members of the Board of Directors of the Company; and
(3) in the event such Asset Swap involves the transfer by
the Company or any Restricted Subsidiary of assets
having an aggregate fair market value, as determined
by the Board of Directors of the Company in good
faith, in excess of $50.0 million, the Company has
received a written opinion from an independent
investment banking firm of nationally recognized
standing (or, in the case of Vessels, two Independent
Appraisers), that such Asset Swap is fair to the
Company or such Restricted Subsidiary, as the case
may be, from a financial point of view.
(d) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection
73
with the repurchase of Securities pursuant to this Section 3.7. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of this Section 3.7, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Indenture by virtue of any conflict.
SECTION 3.8. Limitation on Affiliate Transactions. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or conduct any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (an "Affiliate Transaction") unless:
(1) the terms of such Affiliate Transaction are no less
favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could
be obtained in a comparable transaction at the time
of such transaction in arms'-length dealings with a
Person who is not such an Affiliate;
(2) in the event such Affiliate Transaction involves an
aggregate consideration in excess of $5.0 million,
the terms of such transaction have been approved by a
majority of the members of the Board of Directors of
the Company and by a majority of the members of such
Board having no personal stake in such transaction,
if any (and such majority or majorities, as the case
may be, determines that such Affiliate Transaction
satisfies the criteria in clause (1) above); and
(3) in the event such Affiliate Transaction involves an
aggregate consideration in excess of $10.0 million,
the Company has received a written opinion from an
independent investment banking, accounting or
appraisal firm of nationally recognized standing (or,
in the case of Vessels, two Independent Appraisers)
that such Affiliate Transaction is not materially
less favorable than those that might reasonably have
been obtained in a comparable transaction at such
time on an arms'-length basis from a Person that is
not an Affiliate.
The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted
Investment) permitted to be made pursuant to Section
3.4 and any Permitted Investment or Restricted
Investment made in an Unrestricted Subsidiary or
Joint Venture so long as neither Holdings nor any
Affiliate of Holdings (other than the Company and its
Subsidiaries) directly owns Capital Stock of such
Unrestricted Subsidiary or Joint Venture;
(2) any issuance of securities, or other payments, awards
or grants in cash, securities or otherwise pursuant
to, or the funding of, employment agreements and
other compensation arrangements, options to purchase
Capital Stock of the Company, restricted stock plans,
long-term incentive
74
plans, stock appreciation rights plans, participation
plans or similar employee benefits plans and/or
indemnity provided on behalf of officers and
employees in the ordinary course of business and
approved by the Board of Directors;
(3) loans or advances to employees, officers or directors
in the ordinary course of business of the Company or
any of its Restricted Subsidiaries but in any event
not to exceed $5.0 million in the aggregate
outstanding at any one time with respect to all loans
or advances made since the Issue Date, provided, that
the Company and its Subsidiaries will comply in all
material respects with all applicable provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith in
connection with such loans or advances to the extent
such laws are applicable to the Company or its
Subsidiaries;
(4) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries and
Guarantees issued by the Company or a Restricted
Subsidiary for the benefit of the Company or a
Restricted Subsidiary, as the case may be, in
accordance with Section 3.3;
(5) the payment of reasonable and customary fees paid to,
and indemnity provided on behalf of, directors,
employees, consultants or agents of the Company or
any Restricted Subsidiary;
(6) arrangements on customary terms regarding letters of
credit issued in order to provide security to travel
agencies, banks, financial institutions, credit card
issuers or other institutions for unearned amounts
owing to passenger deposits or similar obligations;
and
(7) the performance of obligations of the Company or any
of its Restricted Subsidiaries under the terms of any
agreement to which the Company or any of its
Restricted Subsidiaries is a party on the Issue Date
and disclosed in the Offering Memorandum, as these
agreements may be amended, modified, replaced or
supplemented from time to time; provided, however,
that any future amendment, modification, replacement
or supplement entered into after the Issue Date will
be permitted to the extent that its terms are not
more materially disadvantageous taken as a whole to
the Holders of the Securities than the terms of the
agreements in effect on the Issue Date.
SECTION 3.9. Change of Control. (a) If a Change of Control
occurs, each Holder of Securities will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Securities at a purchase price in cash equal to 101% of the
principal amount of the Securities plus accrued and unpaid interest, if any, to
the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that
75
notwithstanding the foregoing, the Company shall not be obligated to repurchase
the Securities pursuant to this Section 3.9 if the Company has exercised its
right to redeem all of the Securities pursuant to the terms of Section 5.1.
(b) Within 30 days following any Change of Control, the
Company will mail a notice (the "Change of Control Offer") to each Holder with a
copy to the Trustee stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company to
purchase such Holder's Securities at a purchase price
in cash equal to 101% of the principal amount of such
Securities plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of
Holders of record on a record date to receive
interest on the relevant interest payment date) (the
"Change of Control Payment");
(2) the repurchase date (which shall be no earlier than
30 days nor later than 60 days from the date such
notice is mailed) (the "Change of Control Payment
Date"); and
(3) the procedures determined by the Company, consistent
with this Indenture, that a Holder must follow in
order to have its Securities repurchased.
(c) On the Change of Control Payment Date, the Company will,
to the extent lawful:
(1) accept for payment all Securities or portions of
Securities (in integral multiples of $1,000) properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all
Securities or portions of Securities so tendered; and
(3) deliver or cause to be delivered to the Trustee the
Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of
Securities or portions of Securities being purchased
by the Company.
(d) The Paying Agent will promptly mail to each Holder of
Securities so tendered the Change of Control Payment for such Securities, and
the Trustee will promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
such new Security will be in a principal amount of $1,000 or an integral
multiple thereof.
(e) If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, will
76
be paid to the Person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender pursuant to the Change of Control Offer.
(f) In the event that any issue of Indebtedness issued under
an indenture or other agreement may be violated by the payment of the Change of
Control Offer, the Company covenants to effect repayment of such Indebtedness or
obtain from the holders of such Indebtedness consent and waivers of any event of
default within 30 days following any Change of Control, it being a Default of
this Section 3.9 if the Company fails to comply with such covenant.
(g) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
(h) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 3.9. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations described in this Indenture by virtue of the
conflict.
SECTION 3.10. Limitation on Sale of Capital Stock of
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, transfer, convey, sell, lease or otherwise dispose of
any Voting Stock of any Restricted Subsidiary or to issue any of the Voting
Stock of a Restricted Subsidiary (other than, if necessary, shares of its Voting
Stock constituting directors' qualifying shares) to any Person except:
(1) to the Company or a Wholly-Owned Restricted
Subsidiary; or
(2) in compliance with Section 3.7 and immediately after
giving effect to such issuance or sale, such
Restricted Subsidiary would continue to be a
Restricted Subsidiary.
Notwithstanding the preceding paragraph, the Company or any
Restricted Subsidiary may sell all the Voting Stock of a Restricted Subsidiary
held by the Company or any Restricted Subsidiary as long as the Company complies
with the terms of Section 3.7.
SECTION 3.11. Limitation on Sale/Leaseback Transactions. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any Sale/Leaseback Transaction unless:
(1) in the case of a Sale/Leaseback Transaction effected
pursuant to a Capitalized Lease Obligation:
77
(a) the Company or such Restricted Subsidiary
could have Incurred such Capitalized Lease
Obligation (or similar obligation) pursuant
to Section 3.3;
(b) the Company or such Restricted Subsidiary
would be permitted to create a Lien on the
property subject to such Sale/Leaseback
Transaction without securing the Securities
as set forth in Section 3.5; and
(2) in the case of any other Sale/Leaseback Transaction,
such Sale/Leaseback Transaction is treated as an
Asset Disposition and all of the conditions of this
Indenture described under Section 3.7 (including the
provisions concerning the consideration received and
the application of Net Available Cash) are satisfied
with respect to such Sale/Leaseback Transaction,
treating all of the consideration received in such
Sale/Leaseback Transaction as Net Available Cash for
purposes of such covenant.
SECTION 3.12. Maintenance of Properties and Insurance. (a) The
Company shall, and shall cause its Restricted Subsidiaries to, in accordance
with customary industry practice, maintain or cause to be maintained in good
repair, working order and condition all Vessels and properties used or useful by
the Company or any Subsidiary in a Related Business; provided, however, that
neither the Company nor its Subsidiaries shall be prevented from discontinuing
those operations or suspending the maintenance of those Vessels or properties
which, in the reasonable judgment of the Company or a Restricted Subsidiary (as
the case may be), are no longer useful or necessary in the conduct of the
Company's or such Subsidiary's Related Business.
(b) The Company shall maintain, and shall cause its
Subsidiaries to maintain, insurance coverage by financially sound and reputable
insurers in such forms and amounts and against such risks as are in accordance
with customary industry practice, including general liability insurance and (but
without duplication) protection and indemnity insurance and, with respect to any
Vessel, hull and machinery insurance.
SECTION 3.13. Limitation on Lines of Business. The Company
shall not, and shall not permit any Restricted Subsidiary to, engage in any
business other than a Related Business.
SECTION 3.14. Maintenance of Office or Agency. The Company
will maintain in The City of New York, an office or agency where the Securities
may be presented or surrendered for payment, where, if applicable, the
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be
78
made or served at the trustee's principal corporate trust office (the "Corporate
Trust Office"), 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
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.15. Corporate Existence. Subject to Article IV, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and that of each Restricted
Subsidiary and the corporate rights (charter and statutory) licenses and
franchises of the Company and each Restricted Subsidiary; provided, however,
that the Company shall not be required to preserve any such existence (except
the Company), right, license or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and each of its Restricted
Subsidiaries, taken as a whole, and that the loss thereof would not have a
material adverse effect on the ability of the Company to perform its obligations
under the Securities or this Indenture, provided, further, the Company may merge
in accordance with Section 4.1.
SECTION 3.16. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary and (ii) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Company or any Restricted Subsidiary,
except for any Lien permitted to be incurred pursuant to subsections (7) and (8)
of the definition of "Permitted Liens"; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of
the Company), are being maintained in accordance with GAAP or where the failure
to pay or discharge the same would not have a material adverse effect on the
ability of the Company to perform its obligations under the Securities or this
Indenture.
SECTION 3.17. Payments for Consent. Neither the Company nor
any of its Restricted Subsidiaries will, directly or indirectly, pay or cause to
be paid any consideration, whether by way of interest, fees or otherwise, to any
Holder of any Securities 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 or is paid to all Holders of the
Securities that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or amendment.
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SECTION 3.18. 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 or Event of Default and whether or not the signers
know of any Default or Event of Default that occurred during such period. If
they do, the certificate shall describe the Default or Event of Default, its
status and what action the Company is taking or proposes to take with respect
thereto. The Company also shall comply with TIA Section 314(a)(4).
SECTION 3.19. Further Instruments and Acts. Upon the
reasonable request of the Trustee, the Company will execute and deliver 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 3.20. Statement by Officers as to Default. The Company
shall deliver to the Trustee, as soon as possible and in any event within thirty
days after the Company becomes aware of the occurrence of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default and the action which the Company is taking or
proposing to take with respect thereto.
ARTICLE IV
Successor Person
SECTION 4.1. Merger and Consolidation. The Company will not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Person") will be a corporation organized
and existing under the laws of Bermuda, the Isle of
Man, the United States of America, any State of the
United States or the District of Columbia or any
other country recognized by the United States of
America with an investment grade credit rating from
either Standard & Poor's Ratings Services or Xxxxx'x
Investors Service, Inc. and the Successor Person (if
not the Company) will expressly assume, by
supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and
this Indenture;
(2) immediately after giving effect to such transaction
(and treating any Indebtedness that becomes an
obligation of the Successor Person or any Subsidiary
of the Successor Person as a result of such
transaction as having been Incurred by the Successor
Person or such Subsidiary at the
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time of such transaction), no Default or Event of
Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction,
the Successor Person would be able to Incur at least
an additional $1.00 of Indebtedness pursuant to the
first paragraph of Section 3.3; and
(4) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with
this Indenture.
For purposes of this Section 4.1, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The Successor Person will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture,
but, in the case of a lease of all or substantially all its assets, the Company
will not be released from the obligation to pay the principal of and interest on
the Securities.
Notwithstanding the preceding clause (3),(x) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or another Restricted Subsidiary and (y)
the Company or another Restricted Subsidiary may merge with an Affiliate
incorporated solely for the purpose of reincorporating the Company in another
jurisdiction to realize tax benefits.
SECTION 4.2. Reflagging of Vessels. Notwithstanding anything
to the contrary herein, a Restricted Subsidiary may reconstitute itself in
another jurisdiction, or merge with or into another Restricted Subsidiary, for
the purpose of reflagging a Vessel that it owns or bareboat charters so long as
at all times each Restricted Subsidiary remains organized under the laws of
Bermuda, the Isle of Man, Panama, the United States of America, any State of the
United States or the District of Columbia or any other country recognized by the
United States of America with an investment grade credit rating from either
Standard & Poor's Ratings Services or Xxxxx'x Investors Service, Inc.
ARTICLE V
Redemption of Securities
SECTION 5.1. Optional Redemption; Optional Tax Redemption. (a)
Except as set forth below, the Securities are not redeemable until July 15,
2009. On and after July 15,
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2009, the Company may redeem all or, from time to time, a part of the Securities
upon not less than 30 nor more than 60 days' notice, at the following redemption
prices (expressed as a percentage of principal amount) plus accrued and unpaid
interest on the Securities, if any, to the applicable date of redemption (any
such date, a "Redemption Date") (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on July 15
of the years indicated below:
YEAR PERCENTAGE
2009.................................... 105.313%
2010.................................... 103.542%
2011.................................... 101.771%
2012 and thereafter..................... 100.000%
Prior to July 15, 2007, the Company may on any one or more
occasions redeem up to 35% of the original principal amount of the Securities
with the Net Cash Proceeds of one or more Equity Offerings at a redemption price
of 110.625% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided that
(1) there is a Public Market at the time of such
redemption;
(2) at least 65% of the original principal amount of the
Securities remains outstanding after each such
redemption; and
(3) the redemption occurs within 75 days after the
closing of such Equity Offering.
If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Security
is registered at the close of business on such record date, and no additional
interest will be payable to holders whose Securities will be subject to
redemption by the Company.
(b) A Payor will be entitled to redeem all but not part of the
Securities if as a result of any change in or amendment to the laws, regulations
or rulings of any Relevant Tax Jurisdiction or any change in the official
application or interpretation of such laws, regulations or rulings, or any
change in the official application or interpretation of, or any execution of or
amendment to, any treaty or treaties affecting taxation to which such Relevant
Tax Jurisdiction is a party (a "Change in Tax Law") the Payor is or would be
required on the next succeeding interest payment date to pay Additional Amounts
with respect to the Securities as set forth in Section 3.1(b), and the payment
of such Additional Amounts cannot be avoided by the use of any reasonable
measures available to the Payor. The Change in Tax Law must become effective on
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or after the date of the Offering Memorandum. Further, the Payor must deliver to
the Trustee at least 30 days before the applicable redemption date an Opinion of
Counsel of recognized standing to the effect that the Payor has or will become
obligated to pay Additional Amounts as a result of such Change in Tax Law. The
Payor must also provide the Holders with notice of the intended redemption at
least 30 days and no more than 60 days before the applicable redemption date.
The redemption price will equal the principal amount of the Security plus
accrued and unpaid interest thereon, if any to the applicable redemption date
and Additional Amounts, if any, then due and which otherwise would be payable.
SECTION 5.2. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 5.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, upon not later than the earlier of the date that
is 45 days prior to the Redemption Date fixed by the Company or the date on
which notice is given to the Holders (except as provided in Section 5.5 or
unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4.
SECTION 5.4. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed at any time
pursuant to an optional redemption, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the outstanding Securities not previously called for redemption,
in compliance with the requirements of the principal securities exchange, if
any, on which such Securities are listed, or, if such Securities are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee shall
deem fair and appropriate (and in such manner as complies with applicable legal
requirements) and which may provide for the selection for redemption of portions
of the principal of the Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 5.5. Notice of Redemption. Notice of redemption shall
be given in the manner provided for in Section 10.2 not less than 30 nor more
than 60 days prior to the
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Redemption Date, to each Holder of Securities to be redeemed. The Trustee shall
give notice of redemption in the Company's name and at the Company's expense;
provided, however, that the Company shall deliver to the Trustee, at least 45
days prior to the Redemption Date, an Officers' Certificate requesting that the
Trustee give such notice at the Company's expense and setting forth the
information to be stated in such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of accrued
interest to the Redemption Date payable as provided
in Section 5.7, if any,
(3) if less than all outstanding Securities are to be
redeemed, the identification of the particular
Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities
to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial
redemption,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender
of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized
denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the redemption price (and
accrued interest, if any, to the Redemption Date
payable as provided in Section 5.7) will become due
and payable upon each such Security, or the portion
thereof, to be redeemed, and, unless the Company
defaults in making the redemption payment, that
interest on Securities called for redemption (or the
portion thereof) will cease to accrue on and after
said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and
accrued interest, if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price,
(9) the CUSIP number, and that no representation is made
as to the accuracy or correctness of the CUSIP
number, if any, listed in such notice or printed on
the Securities, and
(10) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
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SECTION 5.6. Deposit of Redemption Price. Prior to 10:00 a.m.
New York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.4) an amount of
money sufficient to pay the redemption price of, and accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price
therein specified (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
redemption price, together with accrued interest, if any, to the Redemption Date
(subject to the rights of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which
is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 3.15 (with, if the Company so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security at
the expense of the Company, a new Security or Securities, of any authorized
denomination as requested by such Holder, in an aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered, provided, that each such new Security will be in a principal
amount of $1,000 or integral multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. Each of the following is an
"Event of Default":
(1) default in any payment of interest or additional
interest (as required by the Registration Rights
Agreement) on any Security when due, continued for 30
days;
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(2) default in the payment of principal of or premium, if
any, on any Security when due at its Stated Maturity,
upon optional redemption, upon required repurchase,
upon declaration or otherwise;
(3) failure by the Company to comply with its obligations
under Section 4.1;
(4) failure by the Company to comply for 30 days after
notice with any of its obligations under Sections
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.14, 3.15, 3.16, and 3.17 (in each case,
other than a failure to purchase Securities which
will constitute an Event of Default under clause (2)
above and other than a failure to comply with Section
4.1 which is covered by clause (3));
(5) failure by the Company to comply for 60 days after
notice with its other agreements contained in this
Indenture;
(6) default under any mortgage, indenture or instrument
under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Restricted
Subsidiaries), other than Indebtedness owed to the
Company or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default is
caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such
Indebtedness:
(a) at the final maturity of such Indebtedness
if such maturity is not earlier extended in
accordance with the terms of such
Indebteness ("final payment default"); or
(b) resulting in the acceleration of such
Indebtedness prior to its maturity (the
"cross acceleration provision");
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of
any other such Indebtedness under which there has
been a final payment default or the maturity of which
has been so accelerated, aggregates $15.0 million or
more;
(7) (a) the Company or any Significant Subsidiary or a
group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial
statements for the Company and its Restricted
Subsidiaries), would constitute a Significant
Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or
proceeding;
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(ii) consents to the entry of judgment,
decree or order for relief against
it in an involuntary case or
proceeding;
(iii) consents to the appointment of a
Custodian of it or for any
substantial part of its property;
(iv) makes a general assignment for the
benefit of its creditors;
(v) consents to or acquiesces in the
institution of a bankruptcy or an
insolvency proceeding against it;
or
(vi) takes any corporate action to
authorize or effect any of the
foregoing;
or takes any comparable action under any foreign laws relating
to insolvency; or
(b) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company
or any Significant Subsidiary or a
group of Restricted Subsidiaries
that, taken together (as of the
latest audited consolidated
financial statements for the
Company and its Restricted
Subsidiaries), would constitute a
Significant Subsidiary in an
involuntary case;
(ii) appoints a Custodian of the Company
or any Significant Subsidiary or a
group of Restricted Subsidiaries
that, taken together (as of the
latest audited consolidated
financial statements for the
Company and its Restricted
Subsidiaries), would constitute a
Significant Subsidiary or for any
substantial part of its property;
or
(iii) orders the winding up or
liquidation of the Company or any
Significant Subsidiary or a group
of Restricted Subsidiaries that,
taken together (as of the latest
audited consolidated financial
statements for the Company and its
Restricted Subsidiaries) would
constitute a Significant
Subsidiary;
or any similar relief is granted under any foreign laws and
the order, decree or relief remains unstayed and in effect for
60 days; or
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(8) failure by the Company or any Significant Subsidiary
or group of Restricted Subsidiaries that, taken
together (as of the latest audited consolidated
financial statements for the Company and its
Restricted Subsidiaries), would constitute a
Significant Subsidiary to pay final judgments
aggregating in excess of $15.0 million (net of any
amounts that a reputable and creditworthy insurance
company has acknowledged liability for in writing),
which judgments are not paid, discharged or stayed
for a period of 60 days (the "judgment default
provision").
However, a Default under clauses (4) and (5) of this Section 6.1 will not
constitute an Event of Default until the Trustee or the Holders of 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 in clauses
(4) and (5) of this Section 6.1 after receipt of such notice.
SECTION 6.2. Acceleration. If an Event of Default (other than
an Event of Default described in clause (7) of Section 6.1) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in principal amount of the outstanding Securities by notice to the Company and
the Trustee, may, and the Trustee at the request of such Holders shall, declare
the principal of, premium, if any, and accrued and unpaid interest, if any, on
all the Securities to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest will be due and payable
immediately. In the event of a declaration of acceleration of the Securities
because an Event of Default described in clause (6) of Section 6.1 has occurred
and is continuing, the declaration of acceleration of the Securities shall be
automatically annulled if the event of default or final payment default
triggering such Event of Default pursuant to clause (6) of Section 6.1 shall be
remedied or cured by the Company or a Restricted Subsidiary or waived by the
holders of the relevant Indebtedness within 20 days after the declaration of
acceleration with respect thereto and if (1) the annulment of the acceleration
of the Securities would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default, except nonpayment
of principal, premium or interest on the Securities that became due solely
because of the acceleration of the Securities, have been cured or waived. If an
Event of Default described in clause (7) of Section 6.1 above occurs and is
continuing with respect to the Company, the principal of, premium, if any, and
accrued and unpaid interest on all the Securities will become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in principal amount of the outstanding
Securities may waive all past defaults (except with respect to nonpayment of
principal, premium or interest) and rescind any such acceleration with respect
to the Securities and its consequences if (1) rescission would not conflict with
any judgment or decree of a court of competent jurisdiction, (2) all existing
Events of Default, other than the nonpayment of the principal of, premium, if
any, and interest on the Securities that have become due solely by such
declaration of acceleration, have been cured or waived and (3) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 7.7 have been paid in full.
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SECTION 6.3. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of (or premium, if any) or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default 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 6.4. Waiver of Past Defaults. Subject to Section 6.2,
the Holders of a majority in principal amount of the outstanding Securities by
notice to the Trustee may (a) waive, by their consent (including, without
limitation consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities), an existing Default or Event of Default and
its consequences except (i) a Default or Event of Default in the payment of the
principal of, or premium, if any, or interest on a Security or (ii) a Default or
Event of Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Securityholder affected and (b) rescind any
such acceleration with respect to the Securities and its consequences if
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. When a Default or Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities 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. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Sections 7.1 and 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in 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 indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) such Holder has previously given to the Trustee
written notice stating that an Event of Default is
continuing;
(2) Holders of at least 25% in principal amount of the
outstanding Securities have requested that the
Trustee pursue the remedy;
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\
(3) such Holders have offered to the Trustee reasonable
security or indemnity against any loss, liability or
expense;
(4) the Trustee has not complied with such request within
60 days after receipt of the request and the offer of
security or indemnity; and
(5) the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a
direction that, in the opinion of the Trustee, is
inconsistent with such request within such 60-day
period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of, premium (if any) or interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of
Default specified in clauses (1) or (2) of Section 6.1 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 7.7.
SECTION 6.9. 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 Securityholders
allowed in any judicial proceedings relative to the Company, its Subsidiaries or
its or their respective creditors or properties 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 under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
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THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
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, 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 the Company, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in outstanding principal
amount of the Securities.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs; provided that if an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise the rights or powers under this Indenture at the request or direction
of any of the holders unless such holders have offered to the Trustee reasonable
indemnity or security against loss, liability or expense.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in
this Indenture and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates, opinions or
orders 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
provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine
such certificates and opinions to determine whether
or not they conform on their face to the requirements
of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations
or other facts stated therein).
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(c) The Trustee may not be relieved from liability for its own
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 Trust 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 6.5.
(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 other 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.
(i) 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.
(j) 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 unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses (including reasonable attorneys' fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document (whether
in its original or facsimile form) reasonably 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.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/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 an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent 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, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(e) The Trustee may consult with counsel of its selection, 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 of any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities, unless either (1) a
Trust Officer shall have actual knowledge of such default or Event of Default or
(2) written notice of such default or Event of Default shall have been given to
the Trustee by the Company or by any Holder of the Securities; and
(g) The permissive rights of the Trustee enumerated herein
shall not be construed as duties.
SECTION 7.3. 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, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.4. 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 or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail to each Securityholder notice of the Default or
Event of Default within the earlier of 90 days after it occurs or 30 days after
the Trustee has knowledge of such default. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, or interest on any
Security (including payments pursuant to the optional redemption or required
repurchase provisions of such Security, if any), the Trustee may withhold the
notice if and so long a
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committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15, following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports required by TIA
Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock exchange (if
any) on which the Securities are listed. The Company agrees to notify promptly
the Trustee whenever the Securities become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder 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, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders, 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, damages, claims or expense (including reasonable attorneys' fees and
expenses) incurred by it without negligence, willful misconduct or bad faith on
its part in connection with the administration of this trust and the performance
of its duties hereunder, including the costs and expenses of enforcing this
Indenture (including this Section 7.7) and of defending itself against any
claims (whether asserted by any Securityholder, the Company or otherwise). The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall provide reasonable cooperation at the Company's expense in the
defense. The Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee's defense, and,
in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Company and the Trustee in connection with such
defense. The Company shall not be under any obligation to pay for any written
settlement without its consent, which consent shall not be unreasonably delayed,
conditioned or withheld. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
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 principal of and interest on particular Securities.
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The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in clause (7) of Section 6.1 with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law. The obligations of the Company under
this Section 7.7 shall survive the resignation or removal of the Trustee and the
termination, satisfaction or discharge of this Indenture.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the 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 Securityholders. 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 7.7.
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 at least 10% in principal amount of the Securities may petition, at
the Company's expense, any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA, any
Securityholder who has been a bona fide Holder of a Security for at least six
months 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, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
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SECTION 7.9. 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 in case at that time any of the Securities shall not have
been authenticated, any 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 Section 310(a). The Trustee shall
have a combined capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance.
(a) Subject to Section 8.1(c), when (i)(x) the Company delivers to the Trustee
all outstanding Securities (other than Securities replaced pursuant to Section
2.7) for cancellation or (y) all outstanding Securities not theretofore
delivered for cancellation have become due and payable, whether at maturity or
upon redemption or will 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 pursuant to Article V hereof and
the Company irrevocably deposits or causes to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders money in U.S.
dollars, non-callable U.S. Government Obligations, or a combination thereof, in
such amounts as will be sufficient without consideration of any reinvestment of
interest to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation for principal, premium, if
any, and accrued interest to the date of maturity or redemption; (ii) no Default
or Event of Default shall have occurred and be continuing on the date
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of such deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any other
material instrument to which the Company is a party or by which the Company or
any Guarantor is bound; (iii) the Company has paid or caused to be paid all sums
payable under this Indenture and the Securities; and (iv) the Company has
delivered irrevocable instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of such Securities at maturity or the
Redemption Date, as the case may be, then the Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
(accompanied by an Officers' Certificate and an Opinion of Counsel stating that
all conditions precedent specified herein relating to the satisfaction and
discharge of this Indenture have been complied with) and at the cost and expense
of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option"), and after giving effect to such legal
defeasance, any omission to comply with such obligations shall no longer
constitute a Default or Event of Default or (ii) its obligations under Sections
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.17, and 4.1(3)
and 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 with such
covenants shall no longer constitute a Default or an Event of Default under
Section 6.1(4) and 6.1(5) and the operation of Sections 6.1(6), 6.1(7) (but only
with respect to a Significant Subsidiary or group of Restricted Subsidiaries
that would constitute a Significant Subsidiary), 6.1(8) and 6.1(9), and the
events specified in such Sections shall no longer constitute an Event of Default
(clause (ii) being referred to as the "covenant defeasance option"), but except
as specified above, the remainder of this Indenture and the Securities shall be
unaffected thereby. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Section 6.1(4) (as such Section relates to 3.2, 3.3, 3.4, 3.5, 3.6,
3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, and 3.17), 6.1(5), 6.1(6), 6.1(7) (but
only with respect to a Significant Subsidiary or group of Restricted
Subsidiaries that would constitute a Significant Subsidiary) or 6.1(8) or
because of the failure of the Company to comply with Section 4.1(3).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.1(a) and (b),
the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9,
3.1, 3.14, 3.15, 3.16, 3.18, 3.19, 3.20, 6.7, 7.7, 7.8 and in this Article 8
shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
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(1) the Company irrevocably deposits in trust with the Trustee
for the benefit of the Holders money in U.S. dollars
or U.S. Government Obligations or a combination
thereof for the payment of principal, premium, if
any, and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants
expressing their opinion that the payments of
principal and interest when due and without
reinvestment 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 to
maturity;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with
respect to certain bankruptcy or insolvency Events of
Default, on the 123rd day after such date of deposit;
(4) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a
Default under, this Indenture or any other material
agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel (subject to customary assumptions and
exclusions) to the effect that (A) the Securities and
(B) assuming no intervening bankruptcy of the Company
between the date of deposit and the 123rd day
following the deposit and that no Holder of the
Securities is an insider of the Company, after the
123rd day following the deposit, the trust funds will
not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar
laws affecting creditors' right generally;
(6) the Company delivers to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) to
the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act
of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and
exclusions) in the United States 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 Securityholders 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
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times as would have been the case if such legal
defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of
Counsel (subject to customary assumptions and
exclusions) in the United States to the effect that
the Securityholders will not recognize income, gain
or loss for federal income tax purposes as a result
of such deposit and covenant defeasance and will be
subject to federal income tax on the same amount, in
the same manner and at the same times as would have
been the case if such deposit and covenant defeasance
had not occurred; and
(9) the Company delivers 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 and this Indenture as
contemplated by this Article VIII have been complied
with.
SECTION 8.3. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.4. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money,
U.S. Government Obligations or securities held by them upon payment of all the
obligations under this Indenture.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Securities that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.5. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be
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subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article IV in respect of the
assumption by a Successor Person of an obligation of
the Company under this Indenture;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities (provided
that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the
Code, or in a manner such that the uncertificated
Securities are described in Section 163(f) (2) (B) of
the Code);
(4) to add Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or
power herein conferred upon the Company;
(7) to make any change that does not adversely affect the
rights of any Securityholder;
(8) to comply with any requirement of the Commission in
connection with qualifying, or maintaining the
qualification of this Indenture under the Trust
Indenture Act;
(9) provide for the issuance of Exchange Securities;
(10) provide for the issuance of Additional Securities.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
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SECTION 9.2. With Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice
to any Securityholder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Securities). However, without the consent of
each Securityholder affected, an amendment may not:
(1) reduce the principal amount of Securities whose
Holders must consent to an amendment;
(2) reduce the stated rate of or extend the stated time
for payment of interest on any Security;
(3) reduce the principal of or extend the Stated Maturity
of any Security;
(4) reduce the premium payable upon the redemption or
repurchase of any Security or change the time at
which any Security may be redeemed or repurchased as
described under Article V;
(5) reduce the premium payable upon the repurchase of any
Security in connection with a Change of Control Offer
or amend, change or modify the obligation of the
Company to make and consummate a Change of Control
Offer in respect of a Change of Control that has
occurred or make and consummate an Asset Disposition
Offer that has been made;
(6) make any Security payable in currency other than that
stated in the Security;
(7) impair the right of any Holder to receive payment of,
premium, if any, principal of and interest on such
Holder's Securities on or after the due dates
therefor or to institute suit for the enforcement of
any payment on or with respect to such Holder's
Securities; or
(8) make any change in the amendment provisions which
require each Holder's consent or in the 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. A consent to
any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender of such Holder's Securities will not be
rendered invalid by such tender.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such
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notice to all Securityholders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. 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 Securityholder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.1 or 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders 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
Securityholders 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 become
valid or effective more than 120 days after such record date.
SECTION 9.5. 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 9.6. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX 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, in addition to the documents required by
Section 10.4, and (subject to Sections 7.1 and 7.2) 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.
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ARTICLE X
Miscellaneous
SECTION 10.1. 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 provision required by
the TIA shall control.
SECTION 10.2. 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:
NCL Corporation Ltd.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Cooler
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxx
if to the Trustee:
JPMorgan Chase Bank
Institutional Trust Services
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services
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 registered
Securityholder shall be mailed to the Securityholder at the Securityholder'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 Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
103
SECTION 10.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders 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 Section 312(c).
SECTION 10.4. 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 10.5. 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;
(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.
In giving such Opinion of Counsel, counsel may rely as to
factual matters on an Officers' Certificate or on certificates of public
officials.
SECTION 10.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether a Trust Officer
of the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also,
104
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City. 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 regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 10.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 10.10. No Recourse Against Others. An incorporator,
director, officer, employee, stockholder or controlling person, as such, of the
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
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind their respective 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 is enough to
prove this Indenture.
SECTION 10.13. Qualification of Indenture. The Company shall
qualify this Indenture under the TIA in accordance with the terms and conditions
of the Registration Rights Agreement and shall pay all reasonable costs and
expenses (including attorneys' fees and expenses for the Company, the Trustee
and the Holders) incurred in connection therewith, including, but not limited
to, costs and expenses of qualification of this Indenture and the Securities and
printing this Indenture and the Securities. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates or other documentation
as it may reasonably request in connection with any such qualification of this
Indenture under the TIA.
SECTION 10.14. 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.
105
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
Very truly yours,
NCL CORPORATION LTD.
By_______________________
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By:______________________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF UNREGISTERED NOTE]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No.[___] Principal Amount $[___________]
CUSIP NO. ________
NCL CORPORATION LTD.
10-5/8% Senior Notes due 2014
NCL Corporation Ltd., a Bermuda corporation, promises to pay
to [__________], or registered assigns, the principal sum of [_______________]
Dollars, on July 15, 2014.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Additional provisions of this Security are set forth on the
other side of this Security.
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Date: July 15, 2004
NCL CORPORATION LTD.
By:_____________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
JPMORGAN CHASE BANK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By________________________________
Authorized Officer
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[FORM OF REVERSE SIDE OF UNREGISTERED NOTE]
10-5/8% Senior Notes due 2014
1. Interest
NCL Corporation Ltd., a Bermuda corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on January 15 and
July 15 of each year commencing January 15, 2005. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from July 15, 2004. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities 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
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the January 1 or July 1 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of a least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, JPMorgan Chase Bank (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-
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registrar without notice to any Securityholder. The Company or any of its
Restricted Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of July 15, 2004 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among 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 Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Trust Indenture Act"; provided, however, that in the event the Trust Indenture
Act is amended after such date, "Trust Indenture Act" shall mean, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended).
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms.
The Securities are general unsecured senior obligations of the
Company. The aggregate principal amount of securities that may be authenticated
and delivered under the Indenture is unlimited. This Security is one of the
10-5/8% Senior Notes due 2014 referred to in the Indenture. The Securities
include (i) $250,000,000 aggregate principal amount of the Company's 10-5/8%
Senior Notes due 2014 issued under the Indenture on July 15, 2004 (herein called
"Initial Securities"), (ii) if and when issued, additional 10-5/8% Senior Notes
due 2014 of the Company that may be issued from time to time under the Indenture
subsequent to July 15, 2004 (herein called "Additional Securities") and (iii) if
and when issued, the Company's 10-5/8% Senior Notes due 2014 that may be issued
from time to time under the Indenture in exchange for Initial Securities or
Additional Securities in an offer registered under the Securities Act as
provided in the Registration Rights Agreement. The Initial Securities,
Additional Securities and Exchange Securities are treated as a single class of
securities under the Indenture. This Indenture imposes certain limitations on,
among other things, the Incurrence of Indebtedness by the Company and its
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Subsidiaries, the purchase or redemption of Capital
Stock of the Company, certain purchases or redemptions of Subordinated
Indebtedness, the sale or transfer of assets and Capital Stock of Subsidiaries,
certain sale/leaseback transactions involving the Company or any Restricted
Subsidiary, the issuance or sale of Capital Stock of Subsidiaries, the
incurrence of certain liens, certain payment guarantees, the business activities
and investments of the Company and its Subsidiaries and transactions with
Affiliates. In addition, the Indenture limits the ability of the Company and its
Restricted Subsidiaries to enter into agreements that restrict distributions and
dividends from Restricted Subsidiaries.
5. Redemption
Except as set forth below, the Securities will not be
redeemable at the option of the Company prior to July 15, 2009. On and after
such date, the Securities will be redeemable, at the Company's option, in whole
or in part, at any time upon not less than 30 nor more than
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60 days prior notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed in percentages of
principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date):
If redeemed during the twelve-month period commencing on July
15 of the years set forth below:
REDEMPTION
PERIOD PRICE
------ -----
2009 105.313%
2010 103.542%
2011 101.771%
2012 and thereafter 100.000%
In addition, at any time and from time to time prior to July
15, 2007, the Company may redeem in the aggregate up to 35% of the original
principal amount of the Securities with the Net Cash Proceeds of one or more
Equity Offerings received by the Company at a redemption price (expressed as a
percentage of principal amount) of 110.625% plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that there is a Public Market at the time of such
Redemption; provided further, that at least 65% of the original principal amount
of the Securities must remain outstanding after each such redemption; provided
further, that each such redemption occurs within 75 days of the date of closing
of such Equity Offering.
If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be subject to
redemption by the Company.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of redemption relating to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original
Security. On and after the redemption date, interest will cease to accrue on
Securities or portions thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture.
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A Payor will be entitled to redeem all but not part of the
Securities if as a result of any change in or amendment to the laws, regulations
or rulings of any Relevant Tax Jurisdiction or any change in the official
application or interpretation of such laws, regulations or rulings, or any
change in the official application or interpretation of, or any execution of or
amendment to, any treaty or treaties affecting taxation to which such Relevant
Tax Jurisdiction is a party (a "Change in Tax Law") the Payor is or would be
required on the next succeeding interest payment date to pay Additional Amounts
with respect to the Securities, and the payment of such Additional Amounts
cannot be avoided by the use of any reasonable measures available to the Payor.
The Change in Tax Law must become effective on or after the date of the Offering
Memorandum. Further, the Payor must deliver to the Trustee at least 30 days
before the applicable redemption date an Opinion of Counsel of recognized
standing to the effect that the Payor has or will become obligated to pay
Additional Amounts as a result of such Change in Tax Law. The Payor must also
provide the Holders with notice of the intended redemption at least 30 days and
no more than 60 days before the redemption date. The redemption price will equal
the principal amount of the Security plus accrued and unpaid interest thereon,
if any to the applicable redemption date and Additional Amounts, if any, then
due and which otherwise would be payable.
6. Repurchase Provisions
(a) Upon a Change of Control any Holder of Securities will
have the right to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 3.7(b) of the Indenture, the Company
will be required to apply such Excess Proceeds to the repayment of the
Securities and any Pari Passu Notes in accordance with the procedures set forth
in Section 3.7 of the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
A-6
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Section 4.1 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, to secure the Securities, or to add additional covenants of the
Company, or surrender rights and powers conferred on the Company, or to comply
with any request of the Commission in connection with qualifying the Indenture
under the Trust Indenture Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for issuance of Exchange
Securities, or to provide for the issuance of Additional Notes.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest or additional interest when due on the
Securities; (ii) default in payment of principal or premium, if any, on the
Securities at Stated Maturity, upon required repurchase or upon optional
redemption pursuant to paragraphs 5 and 6 of the Securities, upon declaration or
otherwise; (iii) the failure by the Company to comply with its obligations under
Section 4.1 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.2 through 3.17 inclusive of the
A-7
Indenture (in each case, other than a failure to purchase Securities, which
failure shall constitute an Event of Default under clause (ii) above and other
than a failure to comply with Section 4.1, which failure shall constitute an
Event of Default under clause (iii) above); (v) the failure by the Company to
comply for 60 days after notice with its other agreements contained in the
Indenture or under the Securities (other than those referred to in (i), (ii),
(iii) or (iv) above); (vi) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default is caused by a failure to
pay principal of, or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness: (a) at the
final maturity of such Indebtedness if such maturity is not earlier extended in
accordance with the terms of such Indebtedness ("final payment default") or (b)
resulting in the acceleration of such Indebtedness prior to its maturity (the
"cross acceleration provision") and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a final payment default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (vii)
certain events of bankruptcy, insolvency or reorganization of the Company or a
Significant Subsidiary or group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial statements for the Company and
its Restricted Subsidiaries), would constitute a Significant Subsidiary (the
"bankruptcy provisions"); or (viii) failure by the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final
judgments aggregating in excess of $15.0 million (net of any amounts with
respect to which a reputable and creditworthy insurance company has acknowledged
liability for in writing), which judgments are not paid, discharged or stayed
for a period of 60 days (the "judgment default provision"). However, a default
under clauses (iv) and (v) will not constitute 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 in clauses (iv) and (v) hereof after receipt
of such notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
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13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company shall 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. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift 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 has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. 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
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture, which
has in it the text of this Security in larger type. Requests may be made to:
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NCL Corporation Ltd.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Cooler
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
_______________________________________________________________________________
Date:____________________ Your Signature:___________________
Signature Guarantee:___________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account, without transfer;
or
2[ ] transferred to the Company; or
3[ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
4[ ] transferred pursuant to an effective registration statement
under the Securities Act; or
5[ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
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6[ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter appears as Exhibit C of the Indenture);
or
7[ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
_______________________________
Signature
Signature Guarantee:
______________________________ _______________________________
(Signature must be guaranteed) Signature
____________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
__________________
Dated:
A-12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
-------- -------------------- -------------------- -------------------- --------------------
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 3.7 or 3.9 of the Indenture, check either box:
[ ] [ ]
3.7 3.9
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000):
$
Date: __________ Your Signature _______________________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
A-14
EXHIBIT B
[FORM OF FACE OF REGISTERED NOTE]
[Depository Legend, if applicable]
No.[__] Principal Amount $[___________]
CUSIP NO.________
NCL CORPORATION LTD.
10-5/8% Senior Notes due 2014
NCL Corporation Ltd., a Bermuda corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, on July 15, 2014.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Additional provisions of this Security are set forth on the
other side of this Security.
B-1
Date: July 15, 2004
NCL CORPORATION LTD.
By:________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
JPMORGAN CHASE BANK
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By________________________________
Authorized Officer
B-2
[FORM OF REVERSE SIDE OF REGISTERED NOTE]
10-5/8% Senior Notes due 2014
1. Interest
NCL Corporation Ltd., a Bermuda corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on January 15 and
July 15 of each year commencing January 15, 2005. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from July 15, 2004. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities 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
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the January 1 or July 1 next
preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of a least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, JPMorgan Chase Bank (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-
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registrar without notice to any Securityholder. The Company or any of its
Restricted Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of July 15, 2004 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among 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 Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Trust Indenture Act"; provided, however, that in the event the Trust Indenture
Act is amended after such date, "Trust Indenture Act" shall mean, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended).
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms.
The Securities are general unsecured senior obligations of the
Company. The aggregate principal amount of securities that may be authenticated
and delivered under the Indenture is unlimited. This Security is one of the
10-5/8% Senior Notes due 2014 referred to in the Indenture. The Securities
include (i) $250,000,000 aggregate principal amount of the Company's 10-5/8%
Senior Notes due 2014 issued under the Indenture on July 15, 2004 (herein called
"Initial Securities"), (ii) if and when issued, additional 10-5/8% Senior Notes
due 2014 of the Company that may be issued from time to time under the Indenture
subsequent to July 15, 2004 (herein called "Additional Securities") and (iii) if
and when issued, the Company's 10-5/8% Senior Notes due 2014 that may be issued
from time to time under the Indenture in exchange for Initial Securities or
Additional Securities in an offer registered under the Securities Act as
provided in the Registration Rights Agreement. The Initial Securities,
Additional Securities and Exchange Securities are treated as a single class of
securities under the Indenture. This Indenture imposes certain limitations on,
among other things, the Incurrence of Indebtedness by the Company and its
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Subsidiaries, the purchase or redemption of Capital
Stock of the Company, certain purchases or redemptions of Subordinated
Indebtedness, the sale or transfer of assets and Capital Stock of Subsidiaries,
certain sale/leaseback transactions involving the Company or any Restricted
Subsidiary, the issuance or sale of Capital Stock of Subsidiaries, the
incurrence of certain liens, certain payment guarantees, the business activities
and investments of the Company and its Subsidiaries and transactions with
Affiliates. In addition, the Indenture limits the ability of the Company and its
Restricted Subsidiaries to enter into agreements that restrict distributions and
dividends from Restricted Subsidiaries.
5. Redemption
Except as set forth below, the Securities will not be
redeemable at
B-4
the option of the Company prior to July 15, 2009. On and after such date, the
Securities will be redeemable, at the Company's option, in whole or in part, at
any time upon not less than 30 nor more than 60 days prior notice mailed by
first-class mail to each Holder's registered address, at the following
redemption prices (expressed in percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date):
If redeemed during the twelve-month period commencing on July
15 of the years set forth below:
REDEMPTION
PERIOD PRICE
------ -----
2009 105.313%
2010 103.542%
2011 101.771%
2012 and thereafter 100.000%
In addition, at any time and from time to time prior to July
15, 2007, the Company may redeem in the aggregate up to 35% of the original
principal amount of the Securities with the Net Cash Proceeds of one or more
Equity Offerings received by the Company at a redemption price (expressed as a
percentage of principal amount) of 110.625% plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that there is a Public Market at the time of such
Redemption; provided further, that at least 65% of the original principal amount
of the Securities must remain outstanding after each such redemption; provided
further, that each such redemption occurs within 75 days of the date of closing
of such Equity Offering.
If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be subject to
redemption by the Company.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of redemption relating to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original
Security. On and after the redemption date, interest will cease to accrue on
Securities or portions thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture.
B-5
A Payor will be entitled to redeem all but not part of the
Securities if as a result of any change in or amendment to the laws, regulations
or rulings of any Relevant Tax Jurisdiction or any change in the official
application or interpretation of such laws, regulations or rulings, or any
change in the official application or interpretation of, or any execution of or
amendment to, any treaty or treaties affecting taxation to which such Relevant
Tax Jurisdiction is a party (a "Change in Tax Law") the Payor is or would be
required on the next succeeding interest payment date to pay Additional Amounts
with respect to the Securities, and the payment of such Additional Amounts
cannot be avoided by the use of any reasonable measures available to the Payor.
The Change in Tax Law must become effective on or after the date of the Offering
Memorandum. Further, the Payor must deliver to the Trustee at least 30 days
before the applicable redemption date an Opinion of Counsel of recognized
standing to the effect that the Payor has or will become obligated to pay
Additional Amounts as a result of such Change in Tax Law. The Payor must also
provide the Holders with notice of the intended redemption at least 30 days and
no more than 60 days before the redemption date. The redemption price will equal
the principal amount of the Security plus accrued and unpaid interest thereon,
if any to the applicable redemption date and Additional Amounts, if any, then
due and which otherwise would be payable.
6. Repurchase Provisions
(a) Upon a Change of Control any Holder of Securities will
have the right to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 3.7(b) of the Indenture, the Company
will be required to apply such Excess Proceeds to the repayment of the
Securities and any Pari Passu Notes in accordance with the procedures set forth
in Section 3.7 of the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
B-6
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Section 4.1 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, to secure the Securities, or to add additional covenants of the
Company, or surrender rights and powers conferred on the Company, or to comply
with any request of the Commission in connection with qualifying the Indenture
under the Trust Indenture Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for issuance of Exchange
Securities, or to provide for the issuance of Additional Notes.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest or additional interest when due on the
Securities; (ii) default in payment of principal or premium, if any, on the
Securities at Stated Maturity, upon required repurchase or upon optional
redemption pursuant to paragraphs 5 and 6 of the Securities, upon declaration or
otherwise; (iii) the failure by the Company to comply with its obligations under
Section 4.1 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.2 through 3.17 inclusive of the
B-7
Indenture (in each case, other than a failure to purchase Securities, which
failure shall constitute an Event of Default under clause (ii) above and other
than a failure to comply with Section 4.1, which failure shall constitute an
Event of Default under clause (iii) above); (v) the failure by the Company to
comply for 60 days after notice with its other agreements contained in the
Indenture or under the Securities (other than those referred to in (i), (ii),
(iii) or (iv) above); (vi) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), other than Indebtedness owed to the Company or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default is caused by a failure to
pay principal of, or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness: (a) at the
final maturity of such Indebtedness if such maturity is not earlier extended in
accordance with the terms of such Indebtedness ("final payment default") or (b)
resulting in the acceleration of such Indebtedness prior to its maturity (the
"cross acceleration provision") and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a final payment default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (vii)
certain events of bankruptcy, insolvency or reorganization of the Company or a
Significant Subsidiary or group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial statements for the Company and
its Restricted Subsidiaries), would constitute a Significant Subsidiary (the
"bankruptcy provisions"); or (viii) failure by the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final
judgments aggregating in excess of $15.0 million (net of any amounts with
respect to which a reputable and creditworthy insurance company has acknowledged
liability for in writing), which judgments are not paid, discharged or stayed
for a period of 60 days (the "judgment default provision"). However, a default
under clauses (iv) and (v) will not constitute 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 in clauses (iv) and (v) hereof after receipt
of such notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
B-8
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company shall 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. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift 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 has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. 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
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
B-9
NCL Corporation Ltd.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X.Cooler
B-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
_______________________________________________________________________________
Date: _______________ Your Signature __________________________________________
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
-------- -------------------- -------------------- -------------------- --------------------
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 3.7 or 3.9 of the Indenture, check either box:
[ ] [ ]
3.7 3.9
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000): $
Date: _______________ Your Signature: _________________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-13
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS TO
INSTITUTIONAL ACCREDITED INVESTORS].
[Date]
NCL Corporation Ltd.
c/o JPMorgan Chase Bank
Institutional Trust Services
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$_________ principal amount of the 10-5/8% Senior Notes due 2014 (the
"Securities") of NCL Corporation Ltd. (the "Company").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risk of our investment in
the Securities and we invest in or purchase securities similar to the Securities
in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration
C-1
statement which has been declared effective under the Securities Act, (c) in a
transaction complying with the requirements of Rule 144A under the Securities
Act, to a person we reasonably believe is a qualified institutional buyer under
Rule 144A (a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor," in each case in
a minimum principal amount of Securities of $250,000 or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring
such Securities for investment purposes and not for distribution in violation of
the Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clauses (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to the Company and the Trustee.
TRANSFEREE:________________________
BY:________________________________
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EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
[Date]
NCL Corporation Ltd.
c/o JPMorgan Chase Bank
Institutional Trust Services
Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Re: NCL Corporation Ltd.
10-5/8% Senior Notes due 2014 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Securities was not made to a person in
the United States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (ii) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or
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legal proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in Regulation
S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
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