EXECUTION COPY
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NAVIGATOR GAS TRANSPORT PLC
10 1/2% First Priority Ship Mortgage Notes
Due 2007
the
GUARANTORS
named herein
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INDENTURE
Dated as of August 1, 1997
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UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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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) .............................. 7.08; 7.10
(c) .............................. N.A.
311(a) .............................. 7.11
(b) .............................. 7.11
(c) .............................. N.A.
312(a) .............................. 2.05
(b) .............................. 12.03
(c) .............................. 12.03
313(a) .............................. 7.06
(b)(1) .............................. N.A.
(b)(2) .............................. 7.06
(c) .............................. 14.02
(d) .............................. 7.06
314(a) .............................. 4.02;
4.21; 12.02
(b) .............................. N.A.
(c)(1) .............................. 12.04
(c)(2) .............................. 12.04
(c)(3) .............................. N.A.
(d) .............................. N.A.
(e) .............................. 14.05
(f) .............................. 4.21
315(a) .............................. 7.01
(b) .............................. 7.05; 12.02
(c) .............................. 7.01
(d) .............................. 7.01
(e) .............................. 6.11
316(a)(last sentence) .............................. 12.06
(a)(1)(A) .............................. 6.05
(a)(1)(B) .............................. 6.04
(a)(2) .............................. N.A.
(b) .............................. 6.07
317(a)(1) .............................. 6.08
(a)(2) .............................. 6.09
(b) .............................. 2.04
318(a) .............................. 12.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ............................ 1
SECTION 1.02. Other Definitions ...................... 23
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act ........................ 23
SECTION 1.04. Rules of Construction .................. 24
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating ........................ 25
SECTION 2.02. Execution and Authentication ........... 25
SECTION 2.03. Registrar and Paying Agent ............. 26
SECTION 2.04. Paying Agent To Hold Money in Trust..... 26
SECTION 2.05. Securityholder Lists ................... 27
SECTION 2.06. Replacement Securities ................. 27
SECTION 2.07. Outstanding Securities ................. 27
SECTION 2.08. Temporary Securities ................... 28
SECTION 2.09. Cancelation ............................ 28
SECTION 2.10. Defaulted Interest ..................... 28
SECTION 2.11. CUSIP Numbers .......................... 29
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee ..................... 29
SECTION 3.02. Selection of Securities To Be
Redeemed ............................. 29
SECTION 3.03. Notice of Redemption ................... 30
SECTION 3.04. Effect of Notice of Redemption ......... 31
SECTION 3.05. Deposit of Redemption Price ............ 31
SECTION 3.06. Securities Redeemed in Part ............ 31
2
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities .................. 31
SECTION 4.02. SEC Reports ............................ 32
SECTION 4.03. Limitation on Indebtedness ............. 32
SECTION 4.04. Limitation on Indebtedness of
Owners ............................... 33
SECTION 4.05. Limitation on Restricted Payments....... 33
SECTION 4.06. Limitation on Restrictions on Distribu-
tions from Owners..................... 33
SECTION 4.07. Limitation on Asset Sales............... 33
SECTION 4.08. Limitation on Affiliate
Transactions.......................... 34
SECTION 4.09. Limitation on the Sale or Issuance
of Capital Stock of Owners............ 34
SECTION 4.10. Limitation on Liens .................... 35
SECTION 4.11. Limitation on Sale/Leaseback
Transactions ......................... 35
SECTION 4.12. Offers To Purchase with Available Cash
and upon a Change of Control.......... 35
SECTION 4.13. Limitation on Business Activities....... 37
SECTION 4.14. Impairment of Security Interest......... 38
SECTION 4.15. Amendments to Security Agreements....... 38
SECTION 4.16. Limitation on Activities of Holdings.... 38
SECTION 4.17. Additional Amounts...................... 38
SECTION 4.18. Compliance Certificate.................. 41
SECTION 4.19. Further Instruments and Acts............ 41
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. When Company and Owners May Merge or
Transfer Assets ...................... 41
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default ...................... 44
SECTION 6.02. Acceleration ........................... 47
SECTION 6.03. Other Remedies ......................... 47
SECTION 6.04. Waiver of Past Defaults ................ 47
SECTION 6.05. Control by Majority .................... 48
SECTION 6.06. Limitation on Suits .................... 48
SECTION 6.07. Rights of Holders To Receive Payment ... 49
SECTION 6.08. Collection Suit by Trustee ............. 49
SECTION 6.09. Trustee May File Proofs of Claim ....... 49
3
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SECTION 6.10. Priorities ............................. 49
SECTION 6.11. Undertaking for Costs .................. 50
SECTION 6.12. Waiver of Stay or Extension Laws ....... 50
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee ...................... 50
SECTION 7.02. Rights of Trustee ...................... 52
SECTION 7.03. Individual Rights of Trustee ........... 52
SECTION 7.04. Trustee's Disclaimer ................... 53
SECTION 7.05. Notice of Defaults ..................... 53
SECTION 7.06. Reports by Trustee to Holders .......... 53
SECTION 7.07. Compensation and Indemnity ............. 53
SECTION 7.08. Replacement of Trustee ................. 54
SECTION 7.09. Successor Trustee by Merger ............ 55
SECTION 7.10. Eligibility; Disqualification .......... 56
SECTION 7.11. Preferential Collection of Claims
Against Company ...................... 56
SECTION 7.12. Not Acting in Individual Capacity....... 56
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Securities;
Defeasance ........................... 57
SECTION 8.02. Conditions to Defeasance ............... 58
SECTION 8.03. Application of Trust Money ............. 59
SECTION 8.04. Repayment to Company ................... 60
SECTION 8.05. Indemnity for Government
Obligations .......................... 60
SECTION 8.06. Reinstatement .......................... 60
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders ............. 61
SECTION 9.02. With Consent of Holders ................ 61
SECTION 9.03. Compliance with Trust Indenture Act..... 63
SECTION 9.04. Revocation and Effect of Consents
and Waivers .......................... 63
SECTION 9.05. Notation on or Exchange of
Securities ........................... 63
SECTION 9.06. Trustee To Sign Amendments ............. 63
SECTION 9.07. Payment for Consent .................... 64
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ARTICLE 10
GUARANTEES
SECTION 10.01. Guarantees.............................. 64
SECTION 10.02. Limitation on Liability................. 66
SECTION 10.03. Successors and Assigns.................. 66
SECTION 10.04. No Waiver............................... 67
SECTION 10.05. Modification............................ 67
SECTION 10.06. Release of Guarantor.................... 67
ARTICLE 11
SECURITY AGREEMENTS
SECTION 11.01. Collateral and Security Agreements...... 68
SECTION 11.02. Recording; Annual Opinions.............. 68
SECTION 11.03. Disposition of Collateral Without
Release............................... 69
SECTION 11.04. Release of Collateral................... 71
SECTION 11.05. Permitted Releases Not To Impair
Lien; Trust Indenture Act
Requirements.......................... 72
SECTION 11.06. Suits To Protect the Collateral......... 72
SECTION 11.07. Purchaser Protected..................... 73
SECTION 11.08. Powers Exercisable by Receiver or
Trustee............................... 73
SECTION 11.09. Disposition of Obligations Received..... 73
SECTION 11.10. Determinations Relating to Mortgaged
Collateral............................ 74
SECTION 11.11. Release upon Termination of the
Company's Obligations................. 74
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls ........... 75
SECTION 12.02. Notices ................................ 75
SECTION 12.03. Communication by Holders with Other
Holders .............................. 76
SECTION 12.04. Certificate and Opinion as to
Conditions Precedent ................. 76
SECTION 12.05. Statements Required in Certificate
or Opinion ........................... 76
SECTION 12.06. When Securities Disregarded ............ 76
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SECTION 12.07. Rules by Trustee, Paying Agent and
Registrar ........................... 77
SECTION 12.08. Legal Holidays ......................... 77
SECTION 12.09. Governing Law .......................... 77
SECTION 12.10. No Recourse Against Others ............. 77
SECTION 12.11. Successors ............................. 77
SECTION 12.12. Multiple Originals ..................... 78
SECTION 12.13. Table of Contents; Headings ............ 78
SECTION 12.14. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities... 78
Rule 144A/Regulation S Appendix
Exhibit A - Form of Security
INDENTURE dated as of August 1, 1997, among
NAVIGATOR GAS TRANSPORT PLC, an Isle of Man public
limited company (the "Company"), NAVIGATOR HOLDINGS
PLC, an Isle of Man public limited Company
("Holdings"), the guarantors listed on the signature
pages hereto (the "Guarantors"), and UNITED STATES
TRUST COMPANY OF NEW YORK, as Trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 10
1/2% First Priority Ship Mortgage Notes Due 2007 (the "Initial Securities") and,
if and when issued pursuant to a registered exchange for Initial Securities, the
Company's 10 1/2% First Priority Ship Mortgage Notes Due 2007 (the "Exchange
Securities") and if and when issued pursuant to a private exchange for Initial
Securities, the Company's 10 1/2% First Priority Ship Mortgage Notes Due 2007
(the "Private Exchange Securities", together with the Exchange Securities and
the Initial Securities, the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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. For
purposes of the provisions described under Sections 4.05 and 4.08 only,
"Affiliate" shall also mean any beneficial owner of Capital Stock representing
5% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of the Company or of rights or warrants to purchase such Capital Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
2
"Allocated Portion of Interest Draw" means, with respect to an
Interest Draw and a Vessel that has been accepted by the related Owner under the
related Building Contract, an amount equal to the product of (a) the amount of
such Interest Draw and (b) a fraction the numerator of which is one and the
denominator of which is the number of Vessels that have been accepted by the
related Owners as of the date of such Interest Draw.
"Allocated Portion of Interest Draws for a Vessel" means, as
of any date of determination and with respect to a Vessel, an amount equal to
the aggregate principal amount of all Allocated Portion of Interest Draws for
such Vessel as of such date of determination.
"Allocated Principal Amount" means, when used with reference
to the Securities and any Vessel, the following amounts: The quotient of (a) the
difference between (i) the sum of the initial principal amount of the Securities
and the initial principal amount of the Second Priority Notes and (ii) all
amounts applied to the principal thereof and (b) the difference between (i) five
and (ii) the sum of (A) the number of Vessels that have been rejected by the
Owners pursuant to the terms of the Building Contracts and (B) the number of
Vessels released by the Collateral Agent from the lien of the related Mortgage.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Available Cash" means, as of any Available Cash Determination
Date, an amount equal to the excess, if any, of (a) the amounts available in the
Revenue Account after giving effect to the payments made therefrom on the
related Interest Payment Date over (b) the Manager's Fee for the Vessels payable
in the next succeeding Management Fee Payment Date.
"Available Cash Determination Date" means, with respect to an
Available Cash Payment Date, the close of business on the first Business Day of
the month immediately preceding such Available Cash Payment Date.
3
"Available Cash Payment Date" means June 30, 2001 and each
June 30 and December 31 thereafter so long as the Securities remain outstanding.
"Board of Directors" means the Board of Directors of Holdings
(or, if Holdings no longer controls the Company, the Company) or any committee
thereof duly authorized to act on behalf of such Board.
"Budgeted Monthly Operating Balance" means as of any date of
determination the product of (i) $500,000 and (ii) the number of Vessels as to
which the Delivery Date has occurred.
"Builders" means Jiangnan Shipyard and China
Shipbuilding Trading Company, Limited.
"Building Contract" means any of the shipbuilding contracts
for the Vessels between the Builders and Holdings, each dated as of February 4,
1997, as amended and restated as of June 27, 1997, and to be assigned by
Holdings to the Owners on or before the Issue Date.
"Building Contract Guarantee" means, with respect to each
Building Contract, the guarantee on behalf of the Builders to be issued by the
Export Import Bank of China.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in The City of New York, or in the city of
the corporate trust office of the Trustee, are authorized by law to close.
"Capital Lease Obligations" means an obligation that is
required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations 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.
4
"CGTC" means Cambridge Gas Transport Corporation, a Cayman
Islands corporation, and its successors.
"Change of Control" shall mean the occurrence of
any of the following events:
(i) prior to the first public offering of common stock of
Holdings, the Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange act), directly or
indirectly, of a majority in the aggregate of the total voting power of
the Voting Stock of the Company, whether as a result of issuance of
securities of Holdings or the Company, any merger, consolidation,
liquidation or dissolution of Holdings or the Company, any direct or
indirect transfer of securities by Holdings or otherwise (for purposes
of this clause (i) and clause (ii) below, the Permitted Holders shall
be deemed to beneficially own any Voting Stock of a corporation (the
"specified corporation") held by any other corporation (the "parent
corporation") so long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a majority of the
voting power of the Voting Stock of the parent corporation);
(ii) any "person" (as such term is 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 for purposes of this clause (ii)
such person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of
the Voting Stock of the Company; PROVIDED, HOWEVER, that the Permitted
Holders beneficially own (as defined in clause (i) above), directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other person 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
(for the purposes of this clause (ii), such other person shall be
deemed to beneficially own any Voting Stock of a specified corporation
held by a parent corporation, if such other person is the beneficial
owner (as defined in this clause (ii)), directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such parent
5
corporation and the Permitted Holders beneficially own (as defined in
clause (i) above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent
corporation 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 corporation);
(iii) during any period of two consecutive years, individuals
who at the beginning of such period consti tuted the board of directors
of Holdings or the Company (together with any new directors whose
election by such board of directors or whose nomination for election by
the shareholders of Holdings or the Company was approved by a vote of
66-2/3% of the directors of Holdings or the Company, as the case may
be, then still in office who were either directors at the beginning of
such period or whose election or nomination for elec tion was
previously so approved) cease for any reason to constitute a majority
of the board of directors of Holdings or the Company, respectively,
then in office;
(iv) either CGTC or GEBAB ceases to be a
shareholder of Holdings; or
(v) prior to the expiration of the warranty period of the
final Vessel delivered by the Builders and accepted by the related
Owner, TGE (including its Affiliates) disposes of any of its shares in
Holdings, except to an Affiliate of TGE.
"Charters" is defined to mean each charter party and contract
of affreightment between an Owner and any third party with respect to a Vessel,
and as the same may be amended from time to time.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collateral" means all the collateral described in
the Security Agreements.
"Collateral Agent" means United States Trust Company of New
York, as collateral agent under the Intercreditor Agreement, and its successors.
"Commercial Management Agreement" means the Master Commercial
Marketing and Services Agreement between Holdings and GEBAB dated as of February
28, 1997, to be assigned by
6
Holdings to the Manager on behalf of the Owners on or before the Issue Date.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Compulsory Acquisition" means requisition for title or other
compulsory acquisition of any Vessel (otherwise than by requisition for hire),
capture, seizure, condemnation, destruction, detention or confiscation of such
Vessel by any Governmental Authority or by persons acting or purporting to act
on behalf of any Governmental Authority.
"Consolidated Net Worth" means, with respect to any Person,
the total of the amounts shown on the balance sheet of such Person and its
consolidated Subsidiaries, determined on a consolidated basis in accordance with
GAAP, as of the end of the most recent fiscal quarter of such Person ending at
least 45 days prior to the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of all outstanding
Capital Stock of such Person plus (ii) paid-in capital or capital surplus
relating to such Capital Stock plus (iii) any retained earnings or earned
surplus less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Contractual Delivery Date" means with respect to a Vessel,
the date specified in the relating Building Contract for the delivery of such
Vessel.
"DCR" means Duff & Xxxxxx Credit Rating Co. and
its successors.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Delivery Date" means, with respect to a Vessel, the date such
Vessel is accepted by the related Owner pursuant to the terms of the related
Building Contract.
"Designated Owners" means CGTC, GEBAB, Xenon Shipping AS, a
Norwegian corporation, and any Person actually controlled by any of the
foregoing.
7
"Disqualified Stock" means, with respect to any Person, any
Capital Stock 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 (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable or subject to required purchase at the
option of the holder thereof, in whole or in part, in each case on or prior to
the first anniversary of the Stated Maturity of the Securities.
"Draw Amount" means the amount drawn under an Interest Draw or
a Working Capital Draw, as the case may be.
"DCR" means Duff & Xxxxxx Credit Rating Co. and
its successors.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Sections 13 or 15(d) of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the SEC.
"GEBAB" means Gesellschaft Fur Konzeption,
Beratung, Vermittlung und Betreuung privater Investitionen
mbH, a German corporation.
"Governmental Approval" means any authorization, consent,
approval, license, franchise, lease, ruling, permit, tariff, rate,
certification, exemption, filing or registration by or with any Governmental
Authority relating to the ownership of the Collateral or to the execution,
delivery or performance of this Indenture, the Second Priority Note Indenture or
any Security Agreement.
8
"Governmental Authority" means the United
States federal or any foreign government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
other governmental entity with authority over an Owner or the operation of a
Vessel.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation of such Person (whether arising by
virtue of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose 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" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "guarantee" used as a verb has a corresponding meaning.
"Guarantee Agreement" means a supplemental indenture, in a
form satisfactory to the Trustee, pursuant to which a successor Owner becomes
subject to the applicable terms and conditions of this Indenture.
"Guarantor" means each Owner.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Holdings" means Navigator Holdings PLC, an Isle of Man public
limited company, and its successors.
"Holdings Pledge" means the pledge by Holdings to the
Collateral Agent, for the benefit of the Securityholders, the holders of the
Second Priority Notes, the Letter of Credit Issuer, the participating banks
party to the Letter of Credit Reimbursement Agreement, the Trustee and the
Second Priority Trustee, all of the Capital Stock of the Company.
9
"Incidental Asset" is defined to mean any equipment, outfit,
furniture, furnishings, appliances, spare or replacement parts or stores owned
by the Company or an Owner that have become obsolete or unfit for use or no
longer useful, necessary or profitable in the conduct of the business of the
Company or such Owner, as the case may be. In no event shall the term
"Incidental Asset" include a Vessel.
"Incur" means issue, 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 Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary. The term "Incurrence"
when used as a noun shall have a correlative meaning. The accretion of principal
of a non-interest bearing or other discount security shall be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person
on any date of determination (without duplication):
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by securities, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable (other
than a written commitment made on or prior to the Issue Date);
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(iv) all obligations of such Person for the xxxx bursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (i) through (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon
10
or, if and to the extent drawn upon, such drawing is reimbursed no
later than the tenth Business Day follow ing payment on the letter of
credit);
(v) the amount 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 of such Person, the
liquidation preference with respect to, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any guarantee; and
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
The amount of Indebtedness of any Person at any date shall 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.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Initial Letter of Credit Amount for Interest Draws" shall
mean $45.5 million.
"Insurance Policies" means with respect to a Vessel, those
policies of insurance required to be maintained pursuant to the terms of the
related Mortgage.
"Insurance Proceeds" means the proceeds of the
Insurance Policies.
"Intercompany Note" means the promissory note, dated the Issue
Date, from the Owners evidencing the loans made by the Company to the Owners on
the Issue Date as well as any amounts loaned from time to time by the Company to
an
11
Owner to fund working capital requirements of such Owner's Vessel.
"Intercreditor Agreement" means the Collateral Agency and
Intercreditor Agreement, dated as of the date of this Indenture, among the
Company, the Owners, Holdings, the Trustee, the Second Priority Note Trustee,
the Letter of Credit Issuer and the Collateral Agent, as the same may be amended
from time to time.
"Interest Amount" means, as of any Interest Payment Date, the
amount of interest, determined by the Trustee, that is accrued and unpaid on the
Allocated Principal Amount of the Securities as of such Interest Payment Date in
respect each Vessel as to which the Delivery Date has occurred as of such
Interest Payment Date; PROVIDED, HOWEVER, that the Interest Amount on the
Allocated Principal Amount of Securities in respect of a Vessel for the period
prior to the Delivery Date of such Vessel shall be zero.
"Interest Payment Date" means any date on which interest is
payable on the Securities or the Second Priority Notes.
"Interest Shortfall" means, with respect to each Interest
Payment Date, the excess of (i) the Interest Amount in respect of such Interest
Payment Date over (ii) the amount available in the Revenue Account (after giving
effect to the distributions described in Section 3.3(i) and (ii) of the
Intercreditor Agreement to be made on such Interest Payment Date) as of the
opening of business on the third Business Day prior to such Interest Payment
Date.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extensions of credit (including by way of guarantee or similar
arrangement) 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. The payments of the Purchase
Price shall not be deemed to be an Investment.
"Issue Date" means the date on which the
Securities are originally issued.
12
"Issue of One Debenture" means the issue of one debenture,
dated as of the Issue Date, between each Owner and the Collateral Agent wherein
such Owner grants to the Collateral Agent a security interest in and to all of
such Owner's now owned and hereafter acquired property.
"Letter of Credit" means the letter of credit issued pursuant
to the Letter of Credit Reimbursement Agreement.
"Letter of Credit Issuer" means Credit Suisse First Boston
acting through its London branch, as funding bank and as administrating bank for
the participating banks party to the Letter of Credit Reimbursement Agreement.
"Letter of Credit Reimbursement Agreement" means the agreement
dated as of the Issue Date among the Letter of Credit Issuer, the participating
banks from time to time party thereto, the Company, Holdings and each of the
Owners.
"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).
"Management Agreement" means the management agreement to be
entered into among Navigator Gas Management Limited, the Company, Holdings and
each of the Owners.
"Manager" shall mean the company that manages the Vessels,
which initially shall be Navigator Gas Management Limited.
"Manager's Fee" means, with respect to each Vessel, (a) prior
to the Delivery Date thereof, an amount equal to $30,000 per annum, and (b) from
and after the Delivery Date thereof, an amount equal to $120,000 per annum.
"Maximum Amount Available under the Letter of Credit" means,
as of each date of determination, (1) the Initial Letter of Credit Amount for
Interest Draws less (2) all Interest Draws made on the Letter of Credit to such
date of determination plus (3) all amounts reimbursed to the Letter of Credit
Issuer in repayment of Interest Draws, other than in respect of interest on
outstanding Interest Draws, to such date of determination.
"Moody's" means Xxxxx'x Investor Service, Inc. and
its successors.
13
"Mortgage" means the mortgage granted to the Collateral Agent
by each Owner on its related Vessel to secure the obligations of such Owner
under its Guarantee.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer or the Secre tary of the Company.
"Officers' Certificate" means a certificate signed
by two Officers.
"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.
"Owners" shall mean: Navigator Gas (IOM I-A) Limited,
Navigator Gas (IOM I-B) Limited, Navigator Gas (IOM I-C) Limited, Navigator Gas
(IOM I-D) Limited, and Navigator Gas (IOM I-E) Limited, each an Isle of Man
private limited company, and their respective successors.
"Performance Bond" means, with respect to the Building
Contracts, the performance bonds issued by The Export Import Bank of China, on
behalf of the Builders, and Generale de Banque, on behalf of TGE.
"Permitted Holder" means CGTC, Xenon and GEBAB and
their Related Parties.
"Permitted Investment" means an Investment by the Company or
any Owner in (i) the Company or an Owner; (ii) Temporary Cash Investments; (iii)
receivables owing to the Company or any Owner if 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 Owner deems reasonable
under the circumstances; (iv) 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; and (v) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company or any
Owner or in satisfaction of judgments.
"Permitted Liens" means with respect to any Person, (a) Liens
securing obligations under this Indenture, the Second Priority Note Indenture,
the Securities, the
14
Second Priority Notes, the Letter of Credit Reimbursement Agreement and the
Security Agreements; (b) other Liens existing or securing Indebtedness existing
(or for which a written commitment has been made on or prior to the Issue Date)
on the Issue Date; (c) Liens granted after the Issue Date in favor of the
Holders; and in the case of an Owner, the following additional Liens: (d) Liens
for crews' wages and pledges or deposits by such Person under worker'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 duties
or for the payment of rent, in each case Incurred in the ordinary course of
business; (e) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review; (f) Liens for
property taxes not yet subject to penalties for non-payment or which are being
contested in good faith and by appropriate proceedings; (g) Liens in favor of
issuer's of surety bonds or letters of credit 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;
(h) minor survey exceptions, minor encumbrances, easements or reservations of,
or rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which were
not Incurred in connection with Indebtedness and 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; (i) Liens on property
at the time such Person or any of its Subsidiaries acquires the property,
including any acquisition by means of a merger or consolidation with or into
such Person or a Subsidiary of such Person; PROVIDED, HOWEVER, that such Liens
are not created, incurred or assumed in connection with, or in contemplation of,
such acquisition; provided further, however, that the Liens may not extend to
any other property owned by such Person or any of its Subsidiaries; (j) any Lien
which arises in favor of
15
an unpaid seller in respect of goods, plant or equipment sold and delivered to
the Company in the ordinary course of business until payment of the purchase
price for such goods or plant or equipment or any other goods, plant or
equipment previously sold and delivered by that seller (except to the extent
that such Lien secures Indebtedness or arises otherwise than due to deferment of
payment of purchase price); (k) 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;
(l) charters, leases or subleases granted to others in the ordinary course of
business that are subject to the relevant Mortgage and that do not materially
interfere with the ordinary course of business of the Company and the Owners,
taken as a whole; (m) (A) Liens in favor of the Company or any Owner, (B) Liens
arising from the rendering of a final judgment or order against the Company or
any Owner that does not give rise to an Event of Default and (C) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and products and
proceeds thereof; (n) Liens in favor of customers and revenue authorities
arising as a matter of law to secure payment of custom duties in connection with
the importation of goods; and (o) Liens for salvage. For purposes of this
definition, the term "Indebtedness" shall be deemed to include interest on such
Indebtedness.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Public Equity Offering" means an underwritten
primary public offering of common stock of Holdings pursuant
16
to an effective registration statement under the Securities
Act.
"Public Market" means any time after (x) a Public Equity
Offering has been consummated and (y) at least 15% of the total issued and
outstanding common stock (being ordinary shares) of Holdings has been
distributed by means of an effective registration statement under the Securities
Act or is eligible for distribution pursuant to Rule 144(k) under the Securities
Act.
"Purchase Price" means, with respect to a Vessel, the amount
specified under the related Building Contract as the total purchase price to be
paid to the Builders for such Vessel.
"Rating Agencies" means S&P, DCR and Moody's, or if S&P, DCR
or Moody's or all of them shall not make a rating on the Notes publicly
available, a nationally recognized statistical rating agency or agencies, as the
case may be, selected by the Company (as certified by a resolution of the Board
of Directors) which shall be substituted for S&P, DCR or Moody's or all of them,
as the case may be.
"Refund Amount" means with respect to a Vessel and the related
Building Contract, the amount payable by the Builders in the event such Building
Contract is rescinded by the related Owner because of a material breach thereof
by the Builders (including a failure to pay liquidated damages for any delay in
the delivery of the related Vessel) or is otherwise terminated.
"Registration Jurisdiction" means the Republic of Liberia or
such other jurisdiction under whose laws a Vessel is permitted to be registered
under the terms and subject to the conditions of this Indenture.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Owners on the Issue Date.
"Related Party" with respect to a Permitted Holder means (A)
any controlling stockholder, 80% (or more) owned subsidiary, or spouse or
immediate family member (in the case of an individual) of the foregoing or (B)
any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist
17
of such other persons referred to in the immediately preceding clause (A).
"Rescission Amount" means, as of any date of determination and
with respect to a Vessel, the sum of (a) the Allocated Principal Amount of the
Securities and the Allocated Principal Amount of the Second Priority Notes, in
each case for such Vessel as of such date, (b) all accrued and unpaid interest
thereon to the date of the redemption of the Securities and the Second Priority
Notes, (c) any and all Manager's Fees owing to the Manager in respect of such
Vessel, (d) an amount equal to the amounts of all Working Capital Draws made
with respect to such Vessel, together with all amounts owing to the Letter of
Credit Company with respect thereto and (e) any cost incurred by the Collateral
Agent in connection with the related redemption.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the direct
or indirect holders of its Capital Stock (ii) the purchase, redemption or other
acquisition or retirement for value of any Capital Stock of the Company held by
any Person or of any Capital Stock of an Owner held by any Affiliate of the
Company (other than an Owner), including the exercise of any option to exchange
any Capital Stock, (iii) the purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any Subordinated
Obligations (other than the purchase, repurchase or other acquisition 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 acquisition) or (iv) the making of any Investment in any
Person (other than a Permitted Investment).
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or an Owner
transfers such property to a Person and the Company or an Owner leases it from
such Person.
"S&P" means Standard & Poor's Ratings Group, a
division of The McGraw Hill Company, Inc. and its
successors.
18
"SEC" means the Securities and Exchange
Commission.
"Second Priority Notes" means the Company's 12% Second
Priority Ship Mortgage Notes Due 2007 issued from time to time pursuant to the
Second Priority Indenture (including any notes issued under the Second Priority
Note Indenture in exchange therefor in an exchange offer).
"Second Priority Note Indenture" means the indenture dated as
of the date of this Indenture, among the Company, the Guarantors and the Second
Priority Note
Trustee.
"Second Priority Note Interest Amount" means, as of any
Interest Payment Date, the amount of interest, determined by the Second Priority
Note Trustee, that is accrued and unpaid on the Allocated Principal Amount of
the Second Priority Notes as of such Interest Payment Date in respect of each
Vessel as to which the Delivery Date has occurred as of such Interest Payment
Date; PROVIDED, HOWEVER, that the Second Priority Note Interest Amount on the
Allocated Principal Amount of Second Priority Notes in respect of a Vessel for
the period prior to the Delivery Date of such Vessel shall be zero.
"Second Priority Note Interest Shortfall" means, with respect
to each Interest Payment Date, the excess of (i) the Second Priority Note
Interest Amount in respect of such Interest Payment Date over (ii) the amount
available in the Revenue Account (after giving effect to distribution of amounts
pursuant to Section 3.3(i) - (iii) of the Intercreditor Agreement on such
Interest Payment Date) as of the opening of business on the third Business Day
prior to such Interest Payment Date; PROVIDED, HOWEVER, that the Second Priority
Note Interest Shortfall will be deemed to be zero unless and until the Company
shall have issued after the Issue Date $20.9 million in aggregate principal
amount of additional Second Priority Notes in lieu of paying accrued and unpaid
interest on the Second Priority Notes in cash.
"Second Priority Note Trustee" means The Chase
Manhattan Bank, a New York banking corporation, and its
successors.
"Securities" means the Securities issued under
this Indenture.
"Securities Act" means the Securities Act of 1933.
19
"Security Agreements" means the Intercreditor
Agreement, the Mortgages, each Issue of One Debenture and
the Assignments of Earnings and Insurances.
"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 to that effect, PROVIDED that the Second Priority Notes shall
constitute Subordinated Obligations under this Indenture.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Taxes" means any present or future taxes, duties, assessments
or governmental charges of whatever nature (or interest on any taxes, duties,
assessments or other governmental charges of whatever nature) imposed or levied
by or on behalf of, or within, the Isle of Man (or the jurisdiction of
incorporation of any successor of the Company or any of the Owners) or any
political subdivision or taxing authority thereof or therein.
"Technical Management Agreement" means the Baltic and
International Maritime Council (BIMCO) Standard Ship Management Agreement
between GEBAB and Holdings, on behalf of the Owners, dated as of February 28,
1997, to be assigned by Holdings to the Manager, on behalf of the Owners on or
before the Issue Date.
"Technical Supervision Agreement" means the Agreement on
Contract for Technical Matters among GEBAB, Holdings, on behalf of the Owners,
and the Builders dated as of February 28, 1997, to be assigned by Holdings to
the Manager on behalf of the Owners on or before the Issue Date.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations guaranteed by the United States of America or any
agency thereof; (ii) investments in time deposit
20
accounts, certificates of deposit and money market deposits maturing within 180
days of the date of acquisition thereof issued by a bank or trust issuer which
is organized under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States, and which bank or trust
issuer has capital, surplus and undivided profits aggregating in excess of
$50,000,000 (or the foreign currency equivalent thereof) and has outstanding
debt which is rated "A" (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor; (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above; (iv) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America or any foreign country recognized
by the United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Moody's, "A-1" (or
higher) according to S&P or "D-1" (or higher) according to DCR; (v) investments
in securities with maturities of six months or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof,
and rated at least "A" by S&P, Moody's or DCR and (vi) guaranteed investment
contracts, investment agreements or similar agreements initially rated "A" by
S&P, Moody's or DCR that are treated as Indebtedness for United States federal
income tax purposes. For purposes of determining whether a Temporary Cash
Investment matures on or before the next succeeding Interest Payment Date, each
payment received under a Temporary Cash Investment described in clause (vi)
above will be considered to be the maturity of such Temporary Cash Investment. A
guaranteed investment contract, investment agreement or similar agreement that
constitutes a senior unsecured long-term debt obligation of a Person shall be
deemed to have the same rating as such person's other senior unsecured long-term
debt obligations, if any, that are rated by a Rating Agency.
"TGE" means Tractebel Gas Engineering GmbH, and
its successors and assigns.
21
"TIA" means the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of this
Indenture.
"Total Loss" means, with respect to a Vessel that has been
accepted by an Owner, either (a) actual or constructive or compromised or
arranged total loss of the Vessel, (b) Compulsory Acquisition of the Vessel or
(c) a requisition by a Governmental Authority for hire of the Vessel for a
period in excess of 180 days. Any actual loss of the Vessel shall be deemed to
have occurred at 1200 hours Greenwich Mean Time ("GMT") on the actual date on
which the Vessel was lost or in the event of the date of the loss being unknown
then the actual total loss shall be deemed to have occurred at 1200 hours GMT on
the day next following the day on which the Vessel was last heard from. A
constructive total loss shall be deemed to have occurred at 1200 hours GMT on
the earliest of: (1) the date that notice of abandonment of the Vessel is given
to the insurers, provided a claim for total loss is admitted by the insurers,
(2) if the insurers do not admit such a claim, at the date and time GMT at which
a total loss is subsequently adjudged by a competent court of law or arbitration
tribunal to have occurred, or (3) the date that a report is rendered by one or
more experts in marine surveying and vessel valuation concluding that salvage,
repair and associated costs in restoring the Vessel to the condition specified
in each Mortgage exceed the Vessel's fair market value in sound condition.
"Total Loss Payment" means, as of any date of determination
and with respect to a Vessel, the sum of (a) the Allocated Principal Amount of
the Securities and the Allocated Principal Amount of the Second Priority Notes,
in each case for such Vessel as of such date, (b) all accrued and unpaid
interest thereon to the date of the redemption of the Securities and of the
Second Priority Notes, (c) any and all premiums payable with respect to such
redemption, (d) any and all Manager's Fees owing to the Manager in respect of
such Vessel, (e) an amount equal to the amounts of all Working Capital Draws
made with respect to such Vessel, together with all amounts owing to the Letter
of Credit Issuer with respect thereto and (f) an amount equal to the Allocated
Portion of all Interest Draws for such Vessel, together with all amounts owing
to the Letter of Credit Issuer with respect thereto.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
22
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"UK Lease" means an arrangement pursuant to which (i) an Owner
enters into either a hire purchase agreement or a conditional sale contract with
a UK Lessor providing for such UK Lessor to pay a purchase price for the related
Vessel and granting such UK Lessor a right of possession in respect of such
Vessel, (ii) such UK Lessor charters such Vessel to such Owner under a bareboat
charter for a term ending after the maturity date of the Securities and (iii)
such Owner's monetary obligations with respect to such charter are effectively
satisfied by depositing such purchase price in a defeasance trust; PROVIDED,
HOWEVER, that the creation of any such UK Lease shall not result in the lowering
of any ratings obtained with respect to the Securities.
"UK Lessor" means a leasing subsidiary of a United
Kingdom clearing bank.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. Government Obligations" means direct obliga tions (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the Company's option.
"Vessel" means a Vessel built pursuant to a
Building Contract.
"Vessel Purchase Installment Date" means, with respect to a
Building Contract, each date on which an installment of the Purchase Price is
payable by the related Owner pursuant to the terms of such Building Contract.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Xenon" means Xenon Shipping Inc., a Norwegian
corporation, and its successors.
23
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Affiliate Transaction" ................ 4.08
"Appendix" ............................. 2.01
"Bankruptcy Law" ....................... 6.01
"covenant defeasance option" ........... 8.01(b)
"Custodian" ............................ 6.01
"Event of Default" ..................... 6.01
"legal defeasance option" .............. 8.01(b)
"Legal Holiday" ........................ 12.08
"Obligations" .......................... 10.01
"Paying Agent" ......................... 2.03
"Purchase Date" ........................ 4.18(c)
"Registrar"............................. 2.03
"Release Notice"........................ 11.04
"Successor Company" .................... 5.01(a)
"Successor uarantor" .................. 5.01(b)
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"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 by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
24
SECTION 1.04. RULES OF CONSTRUCTION. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limita
tion;
(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 Indebtedness secured by a Lien merely by
virtue of its nature as unsecured Indebtedness;
(7) the principal amount of any noninterest 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 and accretion of principal on such
security shall be deemed to be the Incurrence of Indebtedness;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemp tion or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater;
(9) all references to the date the Securities were originally
issued shall refer to the date the Initial Securities were originally
issued; and
(10) whenever there is mentioned in this Indenture or the
Security Agreements the payment of the principal of or any premium or
interest on, or in respect of, any Security, any payment pursuant to
the Guarantees or the net proceeds received from the Company or a
Guarantor on the sale or exchange of any Security, such mention shall
be deemed to include mention of the payment of Additional Amounts
provided for in Section 4.17 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to Section 4.17.
25
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
"Appendix") which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to the Appendix
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in the Appendix and Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. EXECUTION AND AUTHENTICATION. Two
Officers shall sign the Securities for the Company by manual
or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee xxxxxxxx xxxxx the Security, the Security
shall be valid neverthe less.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be con clusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver Securities for
original issue 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. Such 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. The aggregate principal amount of Securities outstanding at any
26
time may not exceed that amount except as provided in
Section 2.06.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appoint ment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authen tication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. 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 Registrar
shall keep a register of the Secur ities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any addi tional 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
provi sions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Regis trar or Paying Agent or to notify the Trustee as
provided in the previous sentence, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securi ties.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying
27
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a 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 to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve
in as current a form as is reasonably prac ticable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is
not the Registrar, 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 form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. REPLACEMENT 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 and the Holder 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. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.07. 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 cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstand ing
because the Company or an Affiliate of the Company holds the Security.
28
If a Security is replaced pursuant to Section 2.06, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide 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, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.08. TEMPORARY SECURITIES. Until 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
and deliver them in exchange for temporary Securities.
SECTION 2.09. CANCELATION. The Company at any time may deliver
Securities to the Trustee for cancelation. 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 and
destroy (subject to the record reten tion requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancelation.
SECTION 2.10. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date,
29
the payment date and the amount of defaulted interest to be
paid.
SECTION 2.11. 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 numbers.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
If the Company is required to redeem Securities pursuant to
paragraph 6 of the Securities, it may reduce the principal amount of Securities
required to be redeemed to the extent it is permitted a credit by the terms of
the Securities and it notifies the Trustee of the amount of the credit and the
basis for it. If the reduction is based on a credit for redeemed or canceled
Securities that the Company has not previously delivered to the Trustee for
cancelation, it shall deliver such Securities with the notice.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the condi tions herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies
30
with applicable legal and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
of the Securities or portions of Securities to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not
more than 60 days before a date for redemp tion of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price or the method of
calculating such redemption price pursuant to this
Indenture;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemp
tion price;
(5) if fewer than all the outstanding Securities
are to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Securities pursuant to
which the Securities called for redemption are being
redeemed; and
31
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surren der to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued inter est on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancelation.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Secur ity
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. 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 money sufficient to pay
all principal and interest then due.
32
The Company shall pay interest on overdue princi pal 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.
SECTION 4.02. SEC REPORTS. Whether or not required by the
rules and regulations of the SEC, Holdings shall furnish to the Securityholders
(i) all annual and quarterly financial information that would be required to be
contained in a filing with the SEC on Forms 20-F and 10-Q if Holdings were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual financial information, a report thereon by Holdings' certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if Holdings were required to file such
reports; PROVIDED, HOWEVER, that (x) such quarterly financial information shall
be furnished within 60 days following the end of each such fiscal quarter of
Holdings (provided that the initial quarterly information shall be furnished
within 75 days following the end of the most recently completed fiscal quarter
ending prior to the Issue Date) and (y) such annual financial information shall
be furnished within 120 days following the end of the fiscal year of Holdings.
In addition, whether or not required by the rules and regulations of the SEC,
Holdings will file a copy of all such information and reports with the SEC for
public availability (unless the SEC will not accept such filing). In addition,
Holdings shall furnish to the Securityholders and to prospective investors, upon
the requests of such Securityholders, any information required to be delivered
pursuant to Rule 144A (d)(4) under the Securities Act so long as the Securities
are not freely transferable under the Securities Act.
SECTION 4.03. LIMITATION ON INDEBTEDNESS. The Company shall
not Incur, directly or indirectly, any Indebtedness, except that the Company may
Incur any or all of the following Indebtedness:
(1) the Securities and the Second Priority Notes;
and
(2) Indebtedness Incurred under the Letter of
Credit Reimbursement Agreement and under the Security
Agreements.
33
SECTION 4.04. LIMITATION ON INDEBTEDNESS OF
OWNERS. (a) The Company shall not permit any Owner to
Incur, directly or indirectly, any Indebtedness except that
an Owner may Incur the following Indebtedness:
(1) Guarantees of the Securities and the Second Priority
Notes, the Company's obligations under the Letter of Credit
Reimbursement Agreement and any Indebtedness Incurred under the
Security Agreements;
(2) the Intercompany Note; and
(3) Attributable Debt in respect of a UK Lease; PROVIDED,
HOWEVER, that prior to such Incurrence, the Company shall have
delivered to the Trustee written confirmation from the Rating Agencies
that the entry into such UK Lease will not result in a downgrading (or
possible downgrading) of the Securities.
SECTION 4.05. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Owner,
directly or indirectly, to make a Restricted Payment.
(b) The provisions of the foregoing paragraph (a) shall not
prohibit the redemption of Second Priority Notes pursuant to the provisions
described in paragraph 6 of the Second Priority Notes or the purchase of Second
Priority Notes pursuant to the provisions described in Section 4.12 of the
Second Priority Note Indenture in each case only to the extent that the
provisions in paragraph 6 of the Securities or Section 4.12 of this Indenture,
as the case may be, have been complied with prior to or on the date of such
redemption or purchase.
SECTION 4.06. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
OWNERS. The Company shall not, and shall not permit any Owner to, create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Owner to (a) pay dividends or
make any other distributions on its Capital Stock to the Company or another
Owner or pay any Indebtedness owed to the Company, (b) make any loans or
advances to the Company or (c) transfer any of its property or assets to the
Company, except any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date.
SECTION 4.07. LIMITATION ON ASSET SALES. The Company shall
not, and shall not permit any Owner to, sell, assign, convey, transfer or
otherwise dispose of a Vessel or any other portion of the Collateral, except
pursuant to the
34
Security Agreements or a UK Lease and except sales of Incidental Assets.
SECTION 4.08. LIMITATION ON AFFILIATE TRANSACTIONS. (a) Except
for payments under the Building Contract which the Builders paid to TGE or which
the Builders have directed to be paid directly to TGE, the Company shall not,
and shall not permit any Owner to, enter into or permit to exist any transaction
or series of related transactions (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering of
any service) with any Affiliate of the Company (an "Affiliate Transaction")
unless the terms thereof (1) are no less favorable to the Company or such Owner
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (2) if such
Affiliate Transaction involves an amount in excess of $1,000,000, (i) are set
forth in writing and (ii) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate Transaction and
(3) if such Affiliate Transaction involves an amount in excess of $5,000,000,
have been determined by a reasonably appropriate independent qualified appraiser
given the size and nature of the transaction to be fair, from a financial
standpoint, to the Company and the Owners.
(b) The provisions of the foregoing paragraph (a) shall not prohibit
(i) any Restricted Payment permitted to be paid pursuant to Section 4.05, (ii)
any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements,
stock options, stock ownership and other employee benefit plans approved by the
Board of Directors, (iii) the grant of stock options or similar rights to
employees and directors of Holdings or the Company pursuant to plans approved by
the Board of Directors, (iv) fees paid to directors who are not employees of the
Company or the Owners, (v) any Affiliate Transaction between the Company and an
Owner or between Owners, (vi) the performance by the Company and the Owners of
their obligations under the Management Agreement and, in the case of the Owners,
the Technical Supervision Agreement, the Technical Management Agreement and the
Commercial Management Agreement, in each case in the form in effect on the Issue
Date, and (vii) certain payments to be made to GEBAB, TGE and Xenon on the Issue
Date.
SECTION 4.09. LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL
STOCK OF OWNERS. The Company shall not sell or
35
otherwise dispose of any Capital Stock of an Owner, and shall not permit any
such Owner, directly or indirectly, to issue or sell or otherwise dispose of any
of its Capital Stock except (i) to the Company or another Owner, or (ii)
directors' qualifying shares.
SECTION 4.10. LIMITATION ON LIENS. The Company shall not, and
shall not permit any Owner to, directly or indirectly, Incur or permit to exist
any Lien of any nature whatsoever on any of its properties (including Capital
Stock of an Owner), whether owned at the Issue Date or thereafter acquired,
other than Permitted Liens.
SECTION 4.11. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The
Company shall not, and shall not permit any Owner to, enter into any
Sale/Leaseback Transaction, except for a UK Lease.
SECTION 4.12. OFFERS TO PURCHASE WITH AVAILABLE CASH AND UPON
A CHANGE OF CONTROL. (a) On each Available Cash Payment Date, the Company shall,
to the extent of Available Cash on such Available Cash Payment Date, make an
offer (each, an "Available Cash Offer") to each Holder of the Securities to
purchase such Holder's Securities, in whole or in part, at a price equal to 102%
of the principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right holders of record on the relevant record date to
receive interest on the relevant Interest Payment Date), in accordance with the
terms contemplated in Section 4.12(c); PROVIDED, HOWEVER, that the Company will
not be required to make an Available Cash Offer if Available Cash on such
Available Cash Payment Date is less than $1.0 million.
(b) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase such Holder's
Securities 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 purchase
(subject to the right of holders of record on the relevant record date to
receive interest on the relevant interest payment date), in accordance with the
terms contemplated in Section 4.12(c).
(c) On the next succeeding Business Day after the Available
Cash Determination Date with respect to an Available Cash Offer and within 30
days after the occurrence of a Change of Control, the Company will be required
to provide, by mail (first class, prepaid) written notice to the Trustee and
each Holder stating that: (i) Available
36
Cash is expected to be available on the next succeeding Available Cash Payment
Date or a Change of Control has occurred, as applicable; (ii) an Available Cash
Offer is being made and Securities of the applicable series having an aggregate
principal amount equal to Available Cash divided by 1.02 (the "Maximum Principal
Amount") will be accepted for payment or a Change of Control Offer is being made
and all Securities validly tendered will be accepted for payment, as applicable;
(iii) the purchase price and date of purchase (which shall be the Available Cash
Date, in the case of an Available Cash Offer, or which shall be a Business Day
not less than 30 days nor more than 60 days from the date on which such Change
of Control notice is mailed in the case of a Change of Control Offer); (iv) any
Security not tendered will continue to accrue interest pursuant to its terms;
(v) any Security accepted for payment pursuant to the Available Cash Offer or
the Change of Control Offer, as applicable, shall cease to accrue interest on
and after the purchase payment date therefor (in the case of a Change of Control
Offer, the "Change of Control Payment Date" and, together with the Available
Cash Offer, the "Purchase Payment Date"), unless the Company defaults on such
payment; (vi) Holders of Securities electing to have any Security or portion
thereof purchased pursuant to an Available Cash Offer or Change of Control Offer
will be required, prior to the close of business on the Business Day immediately
preceding the applicable Purchase Payment Date, to surrender such Security to
the Trustee at the address specified in the notice, together with a completed
form entitled "Option of the Holder to Elect Purchase" on the reverse side of
such Security; (vii) Holders of Securities will be entitled to withdraw their
election if the Trustee receives, not later than the close of business on the
third Business Day immediately preceding the applicable Purchase Payment Date, a
telegraph, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Securities
purchased; and (viii) Holders whose Securities are being purchased in part will
receive new Securities of the same series and in principal amount equal to the
unpurchased portion of the Securities surrendered; PROVIDED, HOWEVER, that each
Security purchased and each new Security issued shall be in a principal amount
of $1,000 or integral multiples thereof.
(d) On the applicable Purchase Payment Date, the
Company will be required to: (i) accept for payment all
Securities or portions thereof tendered pursuant to the
Available Cash Offer or Change of Control Offer, as
37
applicable; (ii) deposit with the Trustee funds sufficient to pay the purchase
price of all Securities of the applicable series or portions thereof so
accepted, on a pro rata basis, in the proportion which the amount payable to
each Holder of Securities bears to the aggregate amount payable in respect of
all outstanding Securities; and (iii) deliver or cause to be delivered to the
Trustee, all Securities or potions thereof so accepted together with an
officers' certificate specifying the Securities or portions thereof accepted for
payment. The Trustee shall promptly mail, to the Holders of Securities so
accepted, payment in an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered;
PROVIDED, HOWEVER, that each Security purchased and each new Security issued
shall be in a principal amount of $1,000 or integral multiples thereof; PROVIDED
FURTHER, HOWEVER, that with respect to an Available Cash Offer, if the aggregate
amount of Securities tendered exceeds the Maximum Principal Amount, then the
Trustee shall select Securities to be purchased ratably from each Holder that
tendered Securities such that the ratio of the principal amount of the
Securities to be purchased from each Holder that tendered Securities to the
aggregate principal amount of Securities tendered by such Holder shall, as
nearly as practicable and subject to rounding, equal the ratio of the Maximum
Principal Amount to the aggregate principal amount of the Securities tendered
with respect to such Available Cash Offer. The Company will notify the Holders
of the results of an Available Cash Offer or Change of Control on or as soon as
practicable after the applicable Purchase Payment Date.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws and regulations in connection with the repurchase of Securities pursuant to
this Section 4.12. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.12, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
SECTION 4.13. LIMITATION ON BUSINESS ACTIVITIES. The Company
shall not conduct any trade or business other than hold Investments in the
Owners. The Company shall not permit any Owner to conduct any trade or business
other than the ownership and operation of its respective Vessel and
38
holding Investments in the Company or one or more other
Owners.
SECTION 4.14. IMPAIRMENT OF SECURITY INTEREST. The Company
shall not, and shall not permit any Owner to, take or knowingly or negligently
omit to take, any action which action or omission might or would have the result
of materially impairing the security interest with respect to the Collateral for
the benefit of the Trustee and the Securityholders, and the Company shall not,
and shall not permit any Owner to, grant to any Person other than the Collateral
Agent, for the benefit of the Trustee, the Second Priority Note Trustee, the
Letter of Credit Issuer, the participating banks party to the Letter of Credit
Reimbursement Agreement and the holders of the Securities and of the Second
Priority Notes, any interest whatsoever in any of the Collateral.
SECTION 4.15. AMENDMENTS TO SECURITY AGREEMENTS. The Company
shall not, and shall not permit any Owner to, amend, modify or supplement, or
permit or consent to any amendment, modification or supplement of, the Security
Agreements in any way that would be adverse to the holders of the Securities.
SECTION 4.16. LIMITATION ON ACTIVITIES OF
HOLDINGS. (a) Holdings shall not Incur, directly or
indirectly, any Indebtedness other than the Holdings Pledge.
(b) Holdings shall at all times be the holder of record of,
and shall be the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of, 100% of the outstanding Capital Stock of the Company.
(c) Holdings shall not engage in any trade or business or hold
any assets or make any Investments (other than, in each case, the ownership of
the Capital Stock of the Company).
(d) Holdings shall not, directly or indirectly, Incur or
permit to exist any Lien of any nature whatsoever on any of its properties,
other than the Holdings Pledge.
(e) Holdings shall not consolidate with or merge
with or into any Person.
SECTION 4.17. ADDITIONAL AMOUNTS. The Company
and the Guarantors shall make all payments of, or in respect
of, principal of and interest on the Securities, and all
payments pursuant to the Guarantees, without withholding or
39
deduction for, or on account of any Taxes, unless such Taxes are required by the
Isle of Man or the jurisdiction of incorporation of any successor to the Company
or any of the Owners (each a "Successor Jurisdiction"), as the case may be, or
any such authority to be withheld or deducted. In the event such Taxes are to be
withheld or deducted, the Company, the relevant Guarantor or any successor, as
the case may be, will pay such additional amounts of, or in respect of,
principal and interest or with respect to payments pursuant to the Guarantees
("Additional Amounts") as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amounts that the Holder would have received if such
Taxes had not been withheld or deducted, except that no Additional Amounts shall
be so payable for or on account of:
(1) Taxes that 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 or corporation) and the Isle of
Man or any Successor Jurisdiction (including any territory or political
subdivision of the foregoing), as the case may be, including such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a national, domiciliary or resident of
or treated as a resident thereof or being or having been present or
engaged in a trade or business therein or having or having had a
permanent establishment therein;
(b) the presentation of such Security for payment in the Isle
of Man or any Successor Jurisdiction, as the case may be, or any of
their respective territories or political subdivisions, unless such
Security could not have been presented for payment elsewhere; or
(c) the presentation of such Security more than 30 days after
the date on which the payment in respect of such Security became due
and payable or provided for, whichever is later, except to the extent
that the Holder would have been entitled to such Additional Amounts if
it had presented such Security for payment on any day within such
period of 30 days;
40
(2) any estate, inheritance, gift, sale, transfer, personal property of
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 of the Holder or beneficial owner of a
Security to comply with a request of the Company or any of the Guarantors, as
the case may be, addressed to the Holder (a) to provide reasonable information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (b) to make any reasonable declaration or other similar
claim or satisfy any reasonable information or reporting requirement, which, in
the case of (a) or (b), is required or imposed 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 governmental charge; or
(4) any combination of clauses (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Security, or payment
pursuant to the Guarantees, to any Holder (including a fiduciary or partnership)
to the extent that the beneficial owner would not have been entitled to such
Additional Amounts had it been the Holder of the Security. The Company or the
relevant Guarantors, as the case may be, will also (i) make such withholding or
deduction and (ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law. The Company or the relevant
Guarantors, as the case may be, will furnish to Holders of Securities that are
outstanding on the date of the withholding, or deduction for or on account of
Taxes, within 30 days after the date of the payment of any Taxes due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by the
Company or the relevant Guarantors, as the case may be.
The Company or the relevant Guarantors, as the case may be,
shall pay any present or future stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies that arise in any
jurisdiction from the execution, delivery, enforcement or registration of the
Securities or the Guarantees or any other document or instrument in relation
thereto, or the receipt of any payments with respect to the Securities or
Guarantees, excluding such taxes, charges or similar levies imposed by any
jurisdiction outside of the Isle of Man, any Successor Jurisdiction or any
jurisdiction in which a Paying Agent is
41
located (except those resulting from or required to be paid in connection with,
the enforcement of the Securities or the Guarantees or an other such document or
instrument following the occurrence of any Event of Default), and the Company
and the Guarantors hereby agree to indemnify the Holders for any such taxes paid
by such Holders.
SECTION 4.18. 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 and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with TIA ss. 314(a)(4).
SECTION 4.19. FURTHER INSTRUMENTS AND ACTS. Upon request of
the Trustee, the Company and the Guarantors agree to 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.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. WHEN COMPANY AND OWNERS MAY MERGE OR TRANSFER
ASSETS. (a) The Company shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions, all
or substan tially all its assets to, any Person, except in connection with the
imposition of Additional Amounts and unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under (a)
the laws of the United States of America, any State thereof or the
District of Columbia, (b) the laws of the Republic of Liberia, (c) the
laws of the Isle of Man or (d) the laws of any other jurisdiction which
at the time is generally deemed acceptable by institutional lenders to
the shipping industry, as determined in good faith by the Board of
Directors, and the Successor Company (if not the Company) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
42
obligations of the Company under the Securities and
this Indenture;
(ii) the Successor Company (if not the Company) shall
expressly assume all the obligations of the Company under the
Intercreditor Agreement and the Letter of Credit Reimbursement
Agreement;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having
been Incurred by the Successor Company or such Subsidiary at the time
of such transaction), no Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount that
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(v) 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; and
(vi) an opinion of counsel in the jurisdiction where the
Successor Company is domiciled (the "Applicable Jurisdiction") to the
effect that (A) any payment of interest, principal or premiums (if any)
on the Securities by the Successor Company to a Holder will, after the
consolidation, merger, conveyance, transfer or lease of assets be
exempt from withholding tax in the Applicable Jurisdiction and (B) no
other taxes on income (including taxable capital gains) will be payable
under any tax law of the Applicable Jurisdiction by a Holder of the
Securities who is or who is deemed to be a non-resident of the
Applicable Jurisdiction in respect of the acquisition, ownership or
disposition of the Securities, including the receipt of interest,
principal or premiums thereon, provided that such Holder does not use
or hold, and is not deemed to use or hold the Securities in carrying on
a business in the Applicable Jurisdiction.
The Successor Company shall be the successor to the Company
and shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under
43
this Indenture, but the predecessor Company in the case of a conveyance,
transfer or lease shall not be released from the obligation to pay the principal
of and interest on the Securities.
(b) The Company shall not permit any Owner to consolidate with
or merge with or into, or convey, transfer or lease, in one transaction or
series of transactions, all or substantially all its assets to any Person,
except in connection with the imposition of Addition Amounts and unless: (i) the
resulting, surviving or transferee Person (the "Successor Owner") shall be a
Person organized and existing under the laws of the jurisdiction under which
such Subsidiary was organized or under the laws of (a) the United States of
America, or any State thereof or the District of Columbia, (b) the Republic of
Liberia, (c) the Isle of Man, or (d) any other jurisdiction which at the time is
generally deemed acceptable by institutional lenders to the shipping industry,
as determined in good faith by the Board of Directors, and the Successor Owner
(if not such Owner) shall expressly assume, by a Guarantee Agreement, all the
obligations of such Successor Owner, if any, under its Guarantee; (ii) the
Successor Owner (if not the Owner) shall expressly assume, by the Guarantee
Agreement, all the obligations of such Owner, if any, under its Guarantee of the
Issuer's obligations under the Security Agreements and the Letter of Credit
Reimbursement Agreement; (iii) immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Indebtedness
which becomes an obligation of the Successor Owner as a result of such
transaction as having been issued by such Successor Owner at the time of such
transaction), no Default shall have occurred and be continuing; (iv) the Company
delivers to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such Guarantee
Agreement, if any, complies with this Indenture; and (v) an opinion of counsel
in the jurisdiction where the Successor Owner is domiciled (the "Applicable
Jurisdiction") to the effect that (A) any payment of interest, principal or
premiums (if any) on the Guarantee by the Successor Owner to a Holder will,
after the consolidation, merger, conveyance, transfer or lease of assets be
exempt from withholding tax in the Applicable Jurisdiction and (B) no other
taxes on income (including taxable capital gains) will be payable under any tax
law of the Applicable Jurisdiction by a Holder of the Securities who is or who
is deemed to be a non-resident of the Applicable Jurisdiction in respect of the
acquisition, ownership or disposition of the Securities, including the receipt
of interest, principal or premiums thereon, PROVIDED
44
that such Holder does not use or hold, and is not deemed to use or hold the
Securities in carrying on a business in the Applicable Jurisdiction.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of
Default" occurs if:
(1) the Company defaults in any payment of inter est on any
Security when the same becomes due and payable, and such default
continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon redemption, upon required purchase, upon declaration or
otherwise, or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities following notice thereof
properly given under this Indenture;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16
and 4.17 (other than a failure to purchase Securities when required
under Section 4.12) and such failure continues for 30 days after the
notice specified below;
(5) the Company fails to comply with any of its agreements in
the Securities, this Indenture (other than those referred to in clause
(1), (2), (3) or (4) above) or the Security Agreements, or the
occurrence of an event of default under a Mortgage, and such failure
continues for 60 days after the notice specified below;
(6) Indebtedness of Holdings, the Company or any Owner is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $5,000,000,
or its foreign currency equivalent at the time;
45
(7) Holdings, the Company or any Owner pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case;
(C) consents to the appointment of a Custo
dian of it or for any substantial part of its
property; or
(D) makes a general assignment for the bene
fit of its creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against Holdings, the
Company or any Owner in an involuntary case;
(B) appoints a Custodian of Holdings, the
Company or any Owner or for any substantial part
of its property; or
(C) orders the winding up or liquidation of
Holdings, the Company or any Owner;
or any similar relief is granted under any foreign laws
and the order or decree remains unstayed and in effect
for 60 days;
(9) any judgment or decree for the payment of money in excess
of $5,000,000 or its foreign currency equivalent at the time is entered
against Holdings, the Company or any Owner, remains outstanding for a
period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed within 10 days
after the notice specified below;
(10) a Guarantee ceases to be in full force and effect (other
than in accordance with the terms of such Guarantee) or a Guarantor
denies or disaffirms its obligations under its Guarantee;
46
(11) the security interest under this Indenture or the
Security Agreements shall, at any time, cease to be in full force and
effect for any reason (other than by operation of this Indenture and
the Security Agreements) other than the satisfaction in full of all
obligations under this Indenture and discharge of this Indenture or any
security interest created thereunder shall be declared invalid or
unenforceable or the Company or any Guarantor shall assert, in any
pleading in any court of competent jurisdiction, that any such security
interest is invalid or unenforceable;
(12) the Designated Owners cease to own (and vote at their
discretion) Voting Stock of Holdings representing at least a majority
of the Voting Stock of Holdings and cease to own Capital Stock of
Holdings entitling them to at least a majority of the equity interests
in Holdings; or
(13) Holdings fails to comply with Section 4.16 and such
failure continues for 10 Business Days after notice of such
non-compliance.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, XXXXXX XXXXXX CODE,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clauses (4), (5) or (9) is not an Event of
Default until the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities notify the Company of the Default and the Company
does not cure such Default within the time specified after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6), (10), (11) or (12) and any event which
with the giving of notice or the lapse of time would become
47
an Event of Default under clause (4), (5) or (9), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the Securities then outstanding
by notice to the Company and the Trustee, may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs, the principal of and interest on all the
Securities shall IPSO FACTO become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. 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 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 acquies cence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected.
48
When a Default is waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceed ing 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 Section 7.01, 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 indemni fication
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in principal
amount of the Securities make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss,
liability or expense;
(4) the Trustee does not comply with the 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
Securities do not give the Trustee a direction inconsistent with the
request during 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.
49
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Inden ture, the right of any Holder
to receive payment of princi pal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Secu rities, 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 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disburse ments and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. PRIORITIES. If the Trustee col
lects any money or property pursuant to this Article 6, it
shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under
Section 7.07;
SECOND: to Securityholders for amounts due and
unpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securi
ties for principal and interest, respectively; and
THIRD: to the Company.
50
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 Inden ture 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 rea sonable 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 a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatso ever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. 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 the Security Agreements 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.
51
(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 the
Security Agreements and no implied covenants or obligations shall be
read into this Indenture and the Security Agreements 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 or
opinions furnished to the Trustee and conforming to the require ments
of this Indenture and the Security Agreements. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture and the Security
Agreements.
(c) The Trustee may not be relieved from liabil ity for its
own negligent action, its own negligent failure to act or its own wilful
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 6.05.
(d) Every provision of this Indenture and the Security
Agreements 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.
52
(g) No provision of this Indenture or of the Security
Agreements 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 thereunder 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 or of the Security
Agreements relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section and
to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The
Trustee may rely on any document believed by it to be genu
ine and to have been signed or presented by the proper per
son. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opin ion of Counsel or such other
information as it may reasonably request. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on the Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents 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; PROVIDED, HOWEVER, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture, the
Security Agreements and the Securities shall be full and complete authorization
and protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The
Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it
53
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 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Security Agreements 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, the
Security Agreements 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 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the redemption provisions of such Security, if
any), the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION 7.06. 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 31 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. (a) The Company
shall pay to the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of fiduciaries or a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
54
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.
(b) The Company shall indemnify the Trustee and hold it
harmless from and against any and all loss, liability or expense (including
attorneys' fees) incurred by it in connection with the administration of this
trust and the performance of its duties hereunder and under the Security
Agreements. 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 may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith.
(c) In addition to, but without duplication of, its
obligations under subsection (b) above, the Company shall indemnify and hold
harmless the Trustee and the Securityholders from and against any and all
losses, damages and expenses incurred by the Trustee and the Securityholders as
a result of any environmental damage resulting from the operation of any Vessel.
(d) 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.
(e) 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 Section 6.01(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Secur ities then outstanding 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;
55
(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, 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 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 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appoint ment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
56
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 ss. 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
TIAss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIAss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are out standing if the requirements for such exclusion set forth in
TIAss. 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shalL be subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12. NOT ACTING IN INDIVIDUAL CAPACITY. Except as
otherwise provided in this Indenture, the Trustee acts hereunder solely as
trustee as herein provided and not in its individual capacity, and all persons,
other than the Securityholders as provided in this Indenture, having any claim
against the Trustee by reason of the transactions contemplated hereby shall,
subject to priorities of payment as herein provided, look only to the Collateral
for payment or satisfaction thereof.
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ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURI TIES;
DEFEASANCE. (a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.06) for
cancelation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee funds suffi cient to pay at maturity or upon redemption all outstanding
Securities, including interest thereon to maturity or such redemption date
(other than Securities replaced pursuant to Section 2.06), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture and the Security Agreements shall, subject to Sections 8.01(c), cease
to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture and the Security Agreements on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its and Holdings obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16 and 4.17 and the operation of Sections 6.01(4), 6.01(6),
6.01(7), 6.01(8), 6.01(9), 6.01(10), 6.01(11) and 6.01(12 (but, in the case of
Sections 6.01(7) and (8), with respect only to Owners) and the limitations
contained in Sections 5.01(a)(iv) and 5.01(b), each Guarantor's obligations
under Articles 10 and 11 and under the Security Agreements ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) 6.01(9), 6.01(10),
6.01(11) and 6.01(12) (but, in the case of Sections 6.01(7) and (8), with
respect only to Owners) or because of the failure of the Company to comply
58
with Section 5.01(a)(iv) or 5.01(b). If the Company exercises its legal
defeasance option or its covenant defeasance option, each Guarantor shall be
released from all its obligations with respect to its Guarantee and under the
Security Agreements.
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 clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE. The
Company may exercise its legal defeasance option or its
covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for
the payment of principal of and interest on the Secu
rities to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a cer tificate from a
nationally recognized firm of indepen dent accountants expressing their
opinion that the pay ments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obliga tions 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 or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default
under any other agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a
59
regulated investment company under the Investment
Company Act of 1940;
(6) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the 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 times as would have been
the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Security holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such cove nant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred;
(8) the Company delivers to the Trustee a letter from each of
the Rating Agencies and which such Rating Agency confirms that the
exercise of such legal defeasance option or covenant defeasance
options, as the case may be, will not result in a downgrading of the
rating issued by such Rating Agency then in effect with respect to the
Securities; and
(9) the Company delivers to the Trustee an Offi cers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall
hold in trust money or U.S. Government Obliga tions deposited with it pursuant
to this Article 8. It shall apply the deposited money and the money from U.S.
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Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
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 or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGA
TIONS. 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 8.06. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restrain ing or
otherwise prohibiting such application, the Company's and the Owners'
obligations under this Indenture, the Security Agreements and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 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 8; 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 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.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, the
Guarantors and the Trustee may amend this Indenture, the Security Agreements,
any of the agreements referred to in the Intercreditor Agreement 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 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; PROVIDED, HOWEVER, 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 provide additional security for the
Securities;
(5) to add guarantees with respect to the Secur
ities, including any Guarantees;
(6) to add to the covenants of the Company or the
Guarantors for the benefit of the Holders or to
surrender any right or power herein conferred upon the
Company;
(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(8) to make any change that does not adversely
affect the rights of any Securityholder.
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.
SECTION 9.02. WITH CONSENT OF HOLDERS. The
Company, the Guarantors and the Trustee may amend this
62
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 (including consents obtained in connection with a tender offer or
exchange for the Securities). However, without the consent of each
Securityholder affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the rate of or extend the 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 of any
Security or change the time at which any Secur ity may or shall be
redeemed in accordance with Article 3;
(5) make any Security payable in money other than
that stated in the Security;
(6) make any changes in the Security Agreements or in Articles
10 or 11 that adversely affect the Holders or would terminate the Lien
of this Indenture or any Security Agreement on any property subject
thereto or deprive the Holder of the security afforded by the Lien of
this Indenture or the Security Agreements;
(7) make any change in Section 6.04 or 6.07 or the
second sentence of this Section; or
(8) make any change in any Guarantee that would
adversely affect the Securityholders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to 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 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture, the Security Agreements or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subse xxxxx Xxxxxx 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 subse xxxxx Xxxxxx 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 Security holder.
An amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
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 be valid or
effective for more than 120 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURI TIES. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee.
64
If it does, the Trustee may but need not sign it. In sign ing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permit xxx by this Indenture.
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
GUARANTEES
SECTION 10.01. GUARANTEES. Each Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption, by required repurchase or
otherwise, and all other monetary obligations of the Company and the other
Guarantors under this Indenture and the Securities and of the Owners under the
Security Agreements and (b) the full and punctual performance within applicable
grace periods of all other obligations of the Company and the other Guarantors
under this Indenture, the Security Agreements and the Securities (all the
foregoing being hereinafter collectively called the "Obligations"). Each
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Guarantor and that
such Guarantor will remain bound under this Article 10 notwithstanding any
extension or renewal of any Obligation.
Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Obligations and also waives notice of
protest for nonpayment. Each Guarantor waives notice of any default under the
Securities or the Obligations. The obligations of each Guarantor hereunder shall
not be affected by (a) the
65
failure of any Holder or the Trustee to assert any claim or demand or to enforce
any right or remedy against the Company or any other Person under this
Indenture, the Security Agreements, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Security Agreements, the Securities or any other agreement; (d)
the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Obligations; or
(f) subject to Section 10.06, any change in the ownership of such Guarantor.
Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Obligations.
Except as expressly set forth in Sections 8.01(b), 10.02 and
10.06, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Security
Agreements, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of such Guarantor or would otherwise operate as a discharge
of such Guarantor as a matter of law or equity.
Each Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the
66
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on any Obligation when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, each Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i)
the unpaid amount of such Obligations, (ii) accrued and unpaid interest on such
Obligations (but only to the extent not prohibited by law) and (iii) all other
monetary Obligations of the Company or the Guarantors to the Holders and the
Trustee.
Each Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of such Guarantor's Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purposes of this Section.
Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 10.02. LIMITATION ON LIABILITY. Any term or provision
of this Indenture to the contrary notwith standing, the maximum aggregate amount
of the Obligations guaranteed hereunder by any Owner shall not exceed the
maximum amount that can be hereby guaranteed without rendering this Indenture,
as it relates to such Owner, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
SECTION 10.03. SUCCESSORS AND ASSIGNS. This Article 10 shall
be binding upon each Guarantor and its successors and assigns and shall enure to
the benefit of the
67
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture, in the Security
Agreements and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. NO WAIVER. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 10 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 10
at law, in equity, by statute or otherwise.
SECTION 10.05. MODIFICATION. No modification, amendment or
waiver of any provision of this Article 10, nor the consent to any departure by
any Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.06. RELEASE OF GUARANTOR. Upon the sale or other
disposition (including by way of consolidation or merger) of an Owner or the
sale or disposition of all or substantially all the assets of such Owner (in
each case other than to the Company or an Affiliate of the Company), such Owner
shall be deemed released from all obligations under this Article 10 without any
further action required on the part of the Trustee or any Holder. At the request
of the Company and upon receipt of an Officers' Certificate, the Trustee shall
execute and deliver an appropriate instrument evidencing such release.
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ARTICLE 11
SECURITY AGREEMENTS
SECTION 11.01. COLLATERAL AND SECURITY AGREEMENTS. (a) To
secure the due and punctual payment of the Obligations, the Company, the Owners
and the Trustee have entered into the Intercreditor Agreement and have entered
or, under the circumstances described in the Intercreditor Agreement, will
enter, into the Security Agreements. The Trustee and the Company hereby
acknowledge and agree that the Collateral Agent holds the Collateral in trust
for the benefit of the Trustee and the Holders, in each case pursuant to the
terms of the Security Agreements. Each Holder, by accepting a Security, shall be
deemed to have agreed to all the terms and provisions of the Security
Agreements.
(b) As among the Holders, the Collateral shall be held for the
equal and ratable benefit of such holders without preference, priority or
distinction of any thereof over any other.
SECTION 11.02. RECORDING; ANNUAL OPINIONS. (a) The Company and
the Owners will take or cause to be taken all action required to maintain,
preserve and protect the Lien on the Collateral granted by the Security
Agreements, including causing the Mortgages and any other Security Agreement,
instruments of further assurance and all amendments or supplements thereto, to
be promptly recorded, registered and filed and at all times to be kept recorded,
registered and filed, and will execute and file statements and cause to be
issued and filed statements, all in such manner and in such places and at such
times as are prescribed in the Intercreditor Agreement or in this Indenture as
may be required by law fully to preserve and protect the rights of the Holders
and the Trustee under this Indenture and the Security Agreements to the
Collateral.
The Company and the Owners will from time to time promptly pay
and discharge all recording or filing fees, charges and taxes relating to the
filing or registration of this Indenture and the Security Agreements, any
amendments thereto and any other instruments of further assurance.
(b) The Company and the Owners shall furnish to
the Trustee:
(i) as soon as practicable after the execution and
delivery of this Indenture, in any event not to exceed
69
30 days after the execution and delivery thereof, an Opinion of Counsel
either (a) to the effect that, in the opinion of such Counsel, this
Indenture and the assignment of the Collateral intended to be made by
the Security Agreements and all other instruments of further assurance
or assignment have been properly recorded, registered and filed (or
proper provision has been made for such recording, registration and
filing) to the extent necessary to make effective the Lien created by
such Security Agreements and reciting the details of such action, and
stating that as to the Lien created pursuant to such Security
Agreements, such recordings, registerings and filings are the only
recordings, registerings and filings necessary to give notice thereof
and that no re-recordings, re-register ings or refilings are necessary
to maintain such notice (other than as stated in such opinion), and
further stating that all statements have been executed and filed (or
proper provision has been made for such filing) that are necessary
fully to preserve and protect the rights of the Holders and the Trustee
with respect to the Lien under this Indenture and such Security
Agreements, or (b) to the effect that, in the opinion of such counsel,
no such action is necessary to perfect such Lien; and
(ii) within 30 days after August 1 in each year beginning with
August 1, 1998, an Opinion of Counsel, dated as of such date, either
(a) to the effect that, in the opinion of such counsel, such action has
been taken with respect to the recordings, registerings, filings,
re-recordings, re-registerings and re-filings of this Indenture, the
Security Agreements and all financing statements, continuation
statements or other instruments of further assurance as is necessary to
maintain the Lien of this Indenture and the Security Agreements and
reciting with respect to such Lien the details of such action or
referencing to prior Opinions of Counsel in which such details are
given, and stating that all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the rights of the Holders and the Trustee
hereunder and under the Security Agreements with respect to such Lien,
or (b) to the effect that, in the opinion of such Counsel, no such
action is necessary to maintain such Lien.
SECTION 11.03. DISPOSITION OF COLLATERAL WITHOUT RELEASE. (a)
Notwithstanding the provisions of Section 11.04, so long as no Event of Default
shall have occurred
70
and be continuing, the Company and any Owner, as appropriate, may, without any
release or consent by the Trustee:
(i) sell or otherwise dispose of any machinery, equipment,
furniture, apparatus, tools or implements, materials or supplies or
other similar property subject to the Lien of this Indenture and the
Security Agreements, which may have become worn out or obsolete, not
exceeding in aggregate value in any one calendar year $1,000,000, or
which may constitute an Incidental Asset, upon substituting for the
same other machinery, equipment, furniture, apparatus, tools or
implements, materials or supplies or other similar property not
necessarily of the same character but of at least equal value to the
Company as, and costing not less than the amount realized from, the
Collateral disposed of, which shall forthwith become, without further
action, subject to the Lien of this Indenture and the Security
Agreements;
(ii) abandon, terminate, cancel, release or make alterations
in or substitutions of any contracts subject to the Lien of this
Indenture and any of the Security Agreements; PROVIDED, HOWEVER, that
any altered or substituted contracts shall forthwith, without further
action, be subject to the Lien of this Indenture and the Security
Agreements to the same extent as those previously existing;
(iii) surrender or modify any franchise, license or permit
subject to the Lien of this Indenture and any of the Security
Agreements which it may own or under which it may be operating;
PROVIDED, HOWEVER, that, after the surrender or modification of any
such franchise, license or permit, the Company or the applicable Owner
shall still, in the reasonable opinion of the Board of Directors of the
Company, be entitled, under some other or without any franchise,
license or permit, to conduct its business as it was operating
immediately prior to such surrender or modification;
(iv) alter, repair, replace and add to its plants, structures,
machinery, systems, equipment, fixtures and appurtenances; PROVIDED,
HOWEVER, that such alteration, repair or replacement shall comply with
the terms of the Security Agreements and will not, in the reasonable
opinion of the Board of Directors, be prejudicial to the interests of
the Holders; or
71
(v) demolish, dismantle, tear down or scrap any portion of the
Collateral (other than a Vessel), if in the good faith opinion of the
Board of Directors, as evidenced by a Board Resolution, such
demolition, dis mantling, tearing down or scrapping is in the best
interests of the Company and the fair market value and utility of the
Collateral as an entirety, and the security for the Securities, will
not thereby be impaired.
(b) In the event that the Company or an Owner has sold,
exchanged or otherwise disposed of or proposes to sell, exchange or otherwise
dispose of any portion of the Collateral which under the provisions of this
Section 11.03 may be sold, exchanged or otherwise disposed of by the Company
without any release or consent of the Trustee or the Collateral Agent, and the
Company requests the Trustee to furnish a written disclaimer, release or
quitclaim of any interest in such property under this Indenture and the Security
Agreements, the Trustee shall execute such an instrument upon delivery to the
Trustee of (i) an Officers' Certificate by the Company reciting the sale,
exchange or other disposition made or proposed to be made and describing in
reasonable detail the property affected thereby, and stating that such property
is property which by the provisions of this Section 11.03 may be sold, exchanged
or otherwise disposed of or dealt with by the Company without any release or
consent of the Trustee and (ii) an Opinion of Counsel stating that the sale,
exchange or other disposition made or proposed to be made was duly taken by the
Company or the Owner in conformity with a designated subsection of Section
11.03(a) and that the execution of such written disclaimer, release or quitclaim
is appropriate to confirm the propriety of such sale, disposition or other
disposition under this Section 11.03.
SECTION 11.04. RELEASE OF COLLATERAL. Collateral may be
released from the security interest created by the Security Agreements at any
time or from time to time in accordance with the provisions of the Security
Agreements. The release of any Collateral from the terms hereof and of the
Security Agreements or the release of, in whole or in part, the Liens created by
the Security Agreements, will not be deemed to impair the Lien on the Collateral
in contravention of the provisions hereof if and to the extent the Collateral or
Liens are released pursuant to the applicable Security Agreements and pursuant
to the terms of this Article 11. The Trustee and each of the Holders acknowledge
that a release of Collateral or a Lien strictly in accordance with the terms of
the Security Agreements and
72
of this Article 11 will not be deemed for any purpose to be an impairment of the
Lien on the Collateral in contravention of the terms of this Indenture. To the
extent applicable, the Company and each obligor on the Securities shall cause
ss. 314(d) of the TIA relating to the release of property or securities from the
Lien hereof and of the Security Agreements to be complied with. Any certificate
or opinion required by ss. 314(d) of the TIA may be made by an officer of the
Company, except in cases which ss. 314(d) of the TIA requires that such
certificate or opinion be made by an independent person.
SECTION 11.05. PERMITTED RELEASES NOT TO IMPAIR LIEN; TRUST
INDENTURE ACT REQUIREMENTS. The release of any Collateral from the terms hereof
and of the Security Agreements or the release of, in whole or in part, the Liens
created by the Security Agreements, will not be deemed to impair the Lien on the
Collateral in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the applicable Security Agreements
and pursuant to the terms of this Article 11. The Trustee and each of the
Holders acknowledge that a release of Collateral or a Lien strictly in
accordance with the terms of the Security Agreements and of this Article 11 will
not be deemed for any purpose to be an impairment of the Lien on the Collateral
in contravention of the terms of this Indenture. To the extent applicable, the
Company and each obligor on the Securities shall cause ss. 314(d) of the TIA
relating to the release of property or securities from the Lien hereof and of
the Security Agreements to be complied with. Any certificate or opinion required
by ss. 314(d) of the TIA may be made by an officer of the Company, except in
cases which ss. 314(d) of the TIA requires that such certificate or opinion be
made by an independent person.
SECTION 11.06. SUITS TO PROTECT THE COLLATERAL. Subject to the
provisions of the Security Agreements, the Trustee shall have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of any of the Security Agreements or this Indenture, and such suits
and proceedings as the Trustee, in its sole discretion, may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with,
73
such enactment, rule or order would impair the Lien on the Collateral or be
prejudicial to the interests of the Holders or the Trustee).
SECTION 11.07. PURCHASER PROTECTED. In no event shall any
purchaser in good faith of any property purported to be released hereunder be
bound to ascertain the authority of the Trustee or the Collateral Agent to
execute the release or to inquire as to the satisfaction of any conditions
required by the provisions hereof or of the Security Agreements for the exercise
of such authority or to see to the application of any consideration given by
such purchaser or other transferee; nor shall any purchaser or other transferee
of any property or rights permitted by this Article 11 to be sold be under
obligation to ascertain or inquire into the authority of the Company or the
applicable Owner to make any such sale or other transfer.
SECTION 11.08. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE. In
case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article 11 upon the Company or
an Owner with respect to the release, sale or other disposition of such property
may be exercised by such receiver or trustee, and an instrument signed by such
receiver or trustee shall be deemed the equivalent of any similar instrument of
the Company or an Owner or of any officer or officers thereof required by the
provisions of this Article 11; and if the Trustee or the Collateral Agent shall
be in the possession of the Collateral under any provision of this Indenture,
then such powers may be exercised by the Trustee or the Collateral Agent.
SECTION 11.09. DISPOSITION OF OBLIGATIONS RECEIVED. All
purchase money and other obligations received by the Collateral Agent under this
Article 11 shall be held by the Trustee as a part of the Collateral. Upon
payment in cash or cash equivalents by or on behalf of the Company to the
Collateral Agent of the entire unpaid principal amount of any such obligation,
the Trustee shall or the Collateral Agent release and transfer such obligation
and any mortgage securing the same upon receipt of any documentation that the
Trustee may reasonably require. Any cash or cash equivalents received by the
Collateral Agent in respect of the principal of any such obligations shall be
held by the Collateral Agent as Trust Moneys under the Intercreditor Agreement
subject to application as therein provided and as provided in the Security
Agreements. All interest and other income on any such obligations, when received
by the
74
Collateral Agent shall be held and applied in accordance with the Intercreditor
Agreement.
SECTION 11.10. DETERMINATIONS RELATING TO COLLATERAL. In the
event (i) the Trustee shall receive any written request from the Company or an
Owner under any Security Agreement for consent or approval with respect to any
matter or thing relating to any Collateral or the Company's or an Owner's
obligations with respect thereto or (ii) there shall be due to or from the
Trustee under the provisions of any Security Agreement any material performance
or the delivery of any material instrument or (iii) the Trustee shall become
aware of any material nonperformance by the Company or an Owner of any covenant
or any material breach of any representation or warranty of the Company or an
Owner set forth in any Security Agreement, then, in each such event, the Trustee
shall be entitled to hire, at the sole reasonable cost and expense of the
Company, experts, consultants, agents and attorneys to advise the Trustee on the
manner in which the Trustee should respond, to such request or render any
requested performance or response to such nonperformance or breach. The Trustee
shall be fully protected in accordance with Article 7 hereof in the taking of
any action recommended or approved by any such expert, consultant, agent or
attorney and by indemnification provided in accordance with Section 6.05 and
other sections of this Indenture if such action is agreed to by Holders of a
majority in principal amount of the Securities pursuant to Section 6.05 and, the
Trustee may, in its sole discretion, prior to taking such action if such action
could subject it to environmental liabilities or taxation, require (i) direction
from the Holders of a majority in principal amount of the Securities in
accordance with Section 6.05 hereof and (ii) indemnification in accordance with
Section 6.05.
SECTION 11.11. RELEASE UPON TERMINATION OF THE COMPANY'S
OBLIGATIONS. In the event that the Company delivers an Officers' Certificate
certifying that all the obligations under this Indenture, the Securities and the
Security Agreements have been satisfied and discharged by complying with the
provisions of Article 8 or by the payment in full of the Company's obligations
under the Securities, this Indenture and the Security Agreements, the Trustee
shall deliver to the Company a notice stating that the Trustee, on behalf of the
Holders, disclaims and gives up any and all rights it has in or to the
Collateral, and any rights it has under the Security Agreements.
75
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or con flicts with another provision which
is required to be included in this Indenture by the TIA, the required provi sion
shall control.
SECTION 12.02. NOTICES. Any notice or communica tion shall be
in writing and delivered in person or mailed by first-class mail or overnight
courier addressed as follows:
if to the Company or any Guarantor:
Navigator Gas Transport PLC
00-00 Xxxxx Xxxxxx
Xxxxxxx, Xxxx xx Xxx XX0 0XX
Fax: 000-00-0-000-000-000
Attention of Xxxxxx Xxxx
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention of Corporate Trust Administration
The Company, the Guarantors 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 Security holder shall
be mailed to the Securityholder at the Secu rityholder'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.
76
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA ss. 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company or a Guarantor to the
Trustee to take or refrain from taking any action under this Indenture, the
Company or such Guarantor 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 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condi
tion;
(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 opin ion of such
individual, such covenant or condition has been complied with.
SECTION 12.06. WHEN SECURITIES DISREGARDED. In determining
whether the Holders of the required principal
77
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company shall be disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether 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, subject to the fore going, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 12.07. 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 12.08. LEGAL HOLIDAYS. A "Legal Holiday" is a
Saturday, a Sunday or other day on which commercial banks in The City of New
York, or in the city of the corporate trust office of the Collateral Agent, are
authorized by law to close. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 12.09. GOVERNING LAW. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 12.10. NO RECOURSE AGAINST OTHERS. A director,
officer, employee or stockholder, as such, of the Company, Holdings or any of
the Guarantors shall not have any liability for any obligations of the Company,
Holdings or any of the Guarantors, respectively, 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 12.11. SUCCESSORS. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
78
SECTION 12.12. 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 12.13. TABLE OF CONTENTS; HEADINGS. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 12.14. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES. By the execution and delivery of this Indenture, the
Company and each of the Guarantors (i) acknowledges that it has, by separate
written instrument, irrevocably designated and appointed Cambridge Partners,
L.L.C. ("CPLLC"), (and any successor entity), as its authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
this Indenture, the Securities or the Security Agreements that may be instituted
in any federal or state court in the State of New York, Borough of Manhattan or
brought by the Trustee (whether in its individual capacity or in its capacity as
Trustee hereunder), and acknowledges that CPLLC has accepted such designation,
(ii) submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon CPLLC and written
notice of said service to the Company or the applicable Guarantor, shall be
deemed in every respect effective service of process upon the Company or such
Guarantor, as the case may be, in any such suit or proceeding. The Company and
each of the Guarantors further agree to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of CPLLC in full force
and effect so long as this Indenture shall be in full force and effect.
The Company and each of the Guarantors hereby irrevocably and
unconditionally waive, to the fullest extent they may legally effectively do so,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Indenture, the
Security Agreements or the Securities in any federal or state court in the State
of New York, Borough of Manhattan. The Company and each of the Guarantors hereto
hereby irrevocably waives, to the fullest extent permitted
79
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
To the extent either the Company or any of the Guarantors has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in Securities and
the Security Agreements, to the extent permitted by law.
80
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
NAVIGATOR GAS TRANSPORT
PLC,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
NAVIGATOR HOLDINGS PLC,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
GUARANTORS:
NAVIGATOR GAS (IOM I-A)
LIMITED,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
NAVIGATOR GAS (IOM I-B)
LIMITED,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
81
NAVIGATOR GAS (IOM I-C)
LIMITED,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
NAVIGATOR GAS (IOM I-D)
LIMITED,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
NAVIGATOR GAS (IOM I-E)
LIMITED,
by /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee,
by /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
RULE 144A/REGULATION S APPENDIX
[FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO
RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE TRANSACTIONS IN
RELIANCE ON REGULATION S.]
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall
have the meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Securities" means the 10 1/2% First Priority Ship
Mortgage Notes Due 2007 to be issued pursuant to this Indenture in connection
with a Registered Exchange Offer pursuant to the Registration Rights Agreement.
"Initial Purchasers" means Credit Suisse First
Boston Corporation and Cambridge Partners LLC.
"Initial Securities" means the 10 1/2% First PrioriTY
Ship Mortgage Notes Due 2007, issued under this Indenture on
or about the date hereof.
"Private Exchange" means the offer by the Company and the
Guarantors, pursuant to the Registration Rights Agreement, to the Initial
Purchasers to issue and deliver to each Initial Purchaser, in exchange for the
Initial Securities held by the Initial Purchaser as part of its initial
distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the 10 1/2% FirST Priority
Ship Mortgage Notes Due 2007 to be issued pursuant to this Indenture in
connection with a Private Exchange.
"Purchase Agreement" means the Purchase Agreement dated July
31, 1997, among the Company, the Guarantors and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company and
the Guarantors, pursuant to the Registration Rights Agreement, to certain
Holders of Initial Securities,
2
to issue and deliver to such Holders, in exchange for the Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated July 31, 1997, among the Company, the Guarantors and the Initial
Purchasers.
"Securities" means the Initial Securities, the
Exchange Securities and the Private Exchange Securities,
treated as a single class.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary), or any successor person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration
statement, if any, issued by the Company and the Guarantors, in connection with
the offer and sale of Initial Securities or Private Exchange Securities,
pursuant
to the Registration Rights Agreement.
"Transfer Restricted Securities" means Definitive Securities
and Securities that bear or are required to bear the legend set forth in Section
2.3(b) hereto.
1.2 OTHER DEFINITIONS
Defined in
Term Section:
---- --------
"Agent Members".........................................................2.1(b)
"Global Security".......................................................2.1(a)
"Regulation S"..........................................................2.1(a)
"Rule 144A".............................................................2.1(a)
2. THE SECURITIES
2.1 FORM AND DATING
The Initial Securities are being offered and sold by the
Company pursuant to the Purchase Agreement.
(a) GLOBAL SECURITIES. Initial Securities offered and sold to
a QIB in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"), in each case
as
3
provided in the Purchase Agreement, shall be issued initially in the form of one
or more permanent global Securities in definitive, fully registered form without
interest coupons with the global securities legend and restricted securities
legend set forth in Exhibit 1 hereto (each, a "Global Security"), which shall be
deposited on behalf of the purchasers of the Initial Securities represented
thereby with the Trustee, at its New York, New York office, as custodian for the
Depositary (or with such other custodian as the Depositary may direct), and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b)
shall apply only to a Global Security deposited with or on
behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (b)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as the
custodian of the Depositary or under such Global Security, and the Depositary
may be treated by the Company, the Guarantors, the Trustee and any agent of the
Company, the Guarantors, 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 Guarantors, the Trustee or any agent of
the Company, the Guarantors, or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in
Section 2.3 or 2.4, owners of beneficial interests in Global
4
Securities will not be entitled to receive physical delivery of certificated
Securities.
2.2 AUTHENTICATION.
The Trustee shall authenticate and deliver: (1) Initial
Securities for original issue in an aggregate principal amount of $217,000,000
and (2) Exchange Securities or Private Exchange Securities for issue only in a
Registered Exchange Offer or a Private Exchange, respectively, pursuant to the
Registration Rights Agreement, for a like principal amount of Initial
Securities, 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. Such 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,
Exchange Securities or Private Exchange Securities. The aggregate principal
amount of Securities outstanding at any time may not exceed $217,000,000 except
as provided in Section 2.06 of this Indenture.
2.3 TRANSFER AND EXCHANGE. (a) TRANSFER AND
EXCHANGE OF GLOBAL SECURITIES.
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depositary,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security
shall deliver to the Registrar a written order given in accordance with
the Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial
interest in the Global Security. The Registrar shall, in accordance
with such instructions instruct the Depositary to credit to the account
of the Person specified in such instructions a beneficial interest in
the Global Security and to debit the account of the Person making the
transfer the beneficial interest in the Global Security being
transferred.
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the
5
Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
(iii) In the event that a Global Security is exchanged for
Securities in definitive registered form pursuant to Section 2.4 or
Section 2.08 of the Indenture, prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule 144A
or Regulation S, as the case may be) and such other procedures as may
from time to time be adopted by the Company.
(b) LEGEND. (i) Except as permitted by the following
paragraphs (ii), (iii) and (iv), each Security certificate evidencing the Global
Securities (and all Securities issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (i) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (iv) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (v) TO THE
ISSUER, IN EACH OF CASES (i) THROUGH (iv) IN ACCORDANCE WITH
6
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act, in the
case of any Transfer Restricted Security that is represented by a
Global Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a certificated Security
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security, if
the Holder certifies in writing to the Registrar that its request for
such exchange was made in reliance on Rule 144 (such certification to
be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or
Private Exchange Securities, as the case may be, all requirements
pertaining to legends on such Initial Security or such Private Exchange
Security will cease to apply, the requirements that any such Initial
Security or such Private Exchange Security issued to certain Holders be
issued in global form will cease to apply, and a certificated Initial
Security or Private Exchange Security without legends will be available
to the transferee of the Holder of such Initial Securities or Private
Exchange Securities upon exchange of such transferring Holder's
certificated Initial Security or Private Exchange Security or
directions to transfer such Holder's interest in the Global Security,
as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will cease to apply and certificated Initial Securities
with the restricted securities legend set forth in Exhibit 1 hereto
will be available to Holders of such Initial Securities that do not
exchange their Initial Securities, and Exchange
7
Securities in certificated or global form will be available to Holders
that exchange such Initial Securities in such Registered Exchange
Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities pursuant to which Holders of such Initial
Securities are offered Private Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will still apply, and Private Exchange Securities in
global form with the Restricted Securities Legend set forth in Exhibit
1 hereto will be available to Holders that exchange such Initial
Securities in such Private Exchange.
(c) CANCELATION OR ADJUSTMENT OF GLOBAL SECURITY. At such time
as all beneficial interests in a Global Security have either been exchanged for
certificated Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to the Depositary for cancelation or retained and canceled by
the Trustee. At any time prior to such cancelation, if any beneficial interest
in a Global Security is exchanged for certificated Securities, redeemed,
repurchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(d) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate certificated Securities,
Definitive Securities and Global Securities at the Registrar's or
co-registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.12 and 9.05).
(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of
8
(a) any certificated or Definitive Security selected for redemption in
whole or in part pursuant to Article 3 of this Indenture, except the
unredeemed portion of any certificated or Definitive Security being
redeemed in part, or (b) any Security for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase
or redeem Securities or 15 Business Days before an interest payment
date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Guarantors, 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
Guarantors, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All Securities issued upon any 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 transfer or exchange.
(e) 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 the Depositary or other Person with respect to
the accuracy of the records of the Depositary 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 the Depositary) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communica tions to be given to the
Holders and all payments to be made to Holders under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depositary or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any
beneficial owners.
9
(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 Depositary 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 Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 CERTIFICATED SECURITIES. (a) A Global Security deposited
with the Depositary or with the Trustee as custodian for the Depositary pursuant
to Section 2.1 shall be transferred to the beneficial owners thereof in the form
of certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global Security,
only if such transfer complies with Section 2.3 and (i) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time such Depositary ceases to be a "clearing
agency" registered under the Exchange Act and a successor depositary is not
appointed by the Company within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depositary
to the Trustee to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of certificated Initial Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security delivered in exchange for an interest
in the Global Security shall, except as otherwise provided by Section 2.3(d),
bear the restricted securities legend set forth in Exhibit 1 hereto.
10
(c) Subject to the provisions of Section 2.4(b), 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.
(d) In the event of the occurrence of either of the events
specified in Section 2.4(a), the Company will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
1
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
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 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (ii) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (iv) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (v) TO THE ISSUER, IN EACH OF CASES (i) THROUGH (iv)
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
2
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO
IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
3
No. $
10 1/2% First Priority Ship Mortgage Notes Due 2007
NAVIGATOR GAS TRANSPORT PLC, an Isle of Man public limited
company, promises to pay to , or registered assigns, the principal sum of
Dollars on June 30, 2007.
Interest Payment Dates: June 30 and December 31.
Record Dates: June 15 and December 15.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
NAVIGATOR GAS TRANSPORT PLC,
by
-----------------------------
President
-----------------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee, certifies this is
one of the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10 1/2% First Priority Ship Mortgage Note Due 2007
1. INTEREST
NAVIGATOR GAS TRANSPORT PLC, an Isle of Man public limited
company (such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest in cash on the principal amount of this Security at the rate per annum
shown above; PROVIDED, HOWEVER, that if a Registration Default (as defined in
the Registration Rights Agreement) occurs, additional interest will accrue on
this Security at a rate of 0.50% per annum from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. The Company will pay interest
semiannually on June 30 and December 31 of each year, commencing December 31,
1997. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 7, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the June 15 or December 15 next preceding the interest
payment date even if Securities are canceled 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 the 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 The Depository Trust Company. The Company will make all payments in
respect of a certificated Security (including principal, premium and interest)
by mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER,
5
that payments on a certificated Security will be made 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 30
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, United States Trust Company of New York, a bank and
trust company organized under the New York Banking Law ("Trustee"), will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of August 1, 1997 ("Indenture"), among the Company, Holdings, the Guarantors 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. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture 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 Act for a
statement of those terms.
The Securities are general secured obligations of the Company
limited to $217,000,000 aggregate principal amount (subject to Section 2.06 of
the Indenture). The Indenture limits (i) the incurrence of additional debt by
the Company and the Owner, (ii) the payment of dividends on capital stock of the
Company and the purchase, redemption or retirement of capital stock or
subordinated indebtedness, (iii) investments, (iv) certain liens and
sale/leaseback transactions, (v) certain transactions with affiliates, (vi)
sales of assets, (vii) the issuance or sale of capital stock of subsidiaries and
(viii) certain consolidations, mergers and transfers of assets. The Indenture
also prohibits certain restrictions on distributions from the Owners.
6
5. OPTIONAL REDEMPTION
Except as set forth in the next two paragraphs, the Securities
may not be redeemed prior to June 30, 2002. On and after that date, the Company
may redeem the Securities in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of principal amount),
plus accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
Interest Payment Date):
if redeemed during the 12-month period beginning
June 30,
Period Percentage
------ ----------
2002 . . . . . . . . . . . . . . . . . 105.750%
2003 . . . . . . . . . . . . . . . . . 103.500
2004 . . . . . . . . . . . . . . . . . 101.750
2005 and thereafter . . . . . . . . . 100.000
If, as a result of any change in or any amendment to the laws,
regulations or published tax rulings of the Isle of Man or any Successor
Jurisdiction, or of any political subdivision or taxing authority thereof or
therein, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any particular Securities, which change in official
administration, application or interpretation shall not have been available to
the public prior to such issue date and is notified to the Company or the
relevant Owners, as the case may be, on or after such issue date, it is
determined by the Company or the relevant Owners, as the case may be, that the
Company or the relevant Owners, as the case may be, would be required to pay,
any Additional Amounts pursuant to the Indenture or the terms of any Security in
respect of interest on the next succeeding Interest Payment Date (assuming, in
the case of the Owners, that a payment in respect of such interest were required
to be made by the relevant Owners under the Guarantees on such Interest Payment
Date), and that such obligation cannot be avoided by the Company or the relevant
Owners taking reasonable measures available to it, the Company or the relevant
Owners, as the case may be, may, at its option, redeem all (but not less than
all) the Securities in respect of which such Additional Amounts would be so
payable at any time, at a redemption price equal to 100% of the principal amount
thereof plus accrued interest to the date fixed for redemption; PROVIDED,
HOWEVER, that (a) no such notice of
7
redemption may be given earlier than 60 days prior to the earliest date on which
the Company or the relevant Owners, as the case may be, would be obligated, or
is substantially likely to be obligated, to pay such Additional Amounts were a
payment in respect of the Securities or the Guarantees, as the case may be, then
due, and (b) at the time any such redemption notice is given, such obligation,
or substantial likelihood, to pay such Additional Amounts must remain in effect.
In addition, at any time and from time to time prior to June
30, 2000, the Company may redeem up to 35% of the aggregate principal amount of
Securities with the proceeds of one or more Public Equity Offerings (with the
cash proceeds thereof to the extent actually contributed to the Company)
following which there is a Public Market, at a redemption price (expressed as a
percentage of principal amount) of 110.5% plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date);
PROVIDED, HOWEVER, that at least $100 million aggregate principal amount of the
Securities and $45 million aggregate principal amount of the Second Priority
Notes must remain outstanding after each such redemption.
6. MANDATORY REDEMPTION
In the event an Owner elects to terminate its Building
Contract because of a material breach thereof by the Builders (including a
failure to pay liquidated damages for any delay in the delivery of the related
Vessel), the Securities will be subject to mandatory redemption in part, on a
pro rata basis, in an aggregate principal amount equal to the Allocated
Principal Amount of the Securities for such Vessel and for each other Vessel
that has not been accepted by its related Owner as of the date of such
termination, at a redemption price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to and including the date of
redemption (subject to the right of a Holder of record on the relevant record
date to receive interest due on the relevant Interest Payment Date), upon the
earlier to occur of (a) the receipt of the Refund Amount with respect to the
related Building Contract(s) and (b) 60 days after the termination of such
Building Contract(s) by the related Owner(s).
If a Vessel is subject to Total Loss, the Securities will be
subject to mandatory redemption in part, on a pro rata basis, in an aggregate
principal amount equal to the Allocated Principal Amount of the Securities for
such Vessel, at a
8
redemption price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest to the date of redemption (subject to the right of a Holder of
record on the relevant record date to receive interest due on the relevant
Interest Payment Date), upon the earlier to occur of (a) the receipt of the
Insurance Proceeds with respect to such Total Loss and (b) 60 days after such
Total Loss was deemed to have occurred.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date, on and after such date
interest ceases to accrue on such Securities (or such portions thereof) called
for redemption.
8. OFFERS TO PURCHASE
On each Available Cash Payment Date, the Company will be
required, to the extent of Available Cash on such Available Cash Payment Date,
to make an Available Cash Offer to each Holder of Securities to purchase such
Holder's Securities in whole or in part, at a price equal to 102% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interests due on the related Interest Payment Date) as provided in,
and subject to the terms of, the Indenture. Upon a Change of Control, any Holder
of Securities will have the right to cause the Company to purchase all or any
part of the Securities of such Holder at a purchase price equal to 101% of the
principal amount of the Securities to be purchased plus accrued interest to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the related Interest Payment Date) as
provided in, and subject to the terms of, the Indenture.
9
9. GUARANTEE
The payment by the Company of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed on a
joint and several senior basis by the Owners.
10. SECURITY
The Securities will initially be secured by the Collateral
delivered on the Issue Date. Upon the occurrence of a Delivery Date with respect
to a Vessel the Securities will thereafter be secured by a first priority ship
mortgage on such Vessel and all other Collateral delivered on the Delivery Date
of such Vessel. The Securities will also have the benefit of the Letter of
Credit.
11. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations 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 endorse ments 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 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) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
12. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
13. 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
10
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
14. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may
terminate some or all of its and the Guarantors' obligations under the
Securities, the Security Agreements 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.
15. 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 Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company, the Guarantors and the Trustee may amend the
Indenture, the Security Agreements or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add additional guarantees with respect to the
Securities or to provide additional security for the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company or
the Guarantors, or to comply with any request of the SEC in connection with
qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder.
16. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to para graph
5 or 6 of the Securities, upon required purchase, upon acceleration or
otherwise, or failure by the Company or the Guarantors to redeem or purchase
Securities when required; (iii) failure by the Company to comply with other
agreements
11
in the Indenture or the Securities, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Indebtedness of Holdings, the Company or
the Owners if the amount accelerated (or so unpaid) exceeds $5.0 million; (v)
certain events of bankruptcy or insolvency with respect to Holdings, the Company
or the Owners; (vi) certain judgments or decrees for the payment of money in
excess of $5.0 million, (vii) certain events or defaults with respect to the
Guarantees or the Security Agreements and (ix) the failure by the Designated
Owners to hold certain prescribed percentages of Voting Stock and Capital Stock
of Holdings. 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 (except a Default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders.
17. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, 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.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company, Holdings, the Owners or the Trustee shall not have any liability for
any obligations of the Company, Holdings or the Owners under the Securities or
the Indenture or for any claim based on, in respect of or by
12
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 considera tion for the issue of the Securities.
19. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. 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 entireties), 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).
21. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS
AGREEMENT
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company and the Guarantors to the extent provided
therein.
22. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
13
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:
NAVIGATOR GAS TRANSPORT PLC,
00-00 XXXXX XXXXXX
XXXXXXX, XXXX XX XXX XX0 0XX
FAX: 00-0000-000-000
ATTENTION OF SECRETARY
14
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: _____________________
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act 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 transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) / / inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer to
whom notice is given that such transfer is
being made in reliance on Rule 144A, in each
15
case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(4) / / outside the United States in an offshore
transaction within the meaning of Regulation S under
the Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
(5) / / pursuant to another available exemption from
registration provided by Rule 144 under 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 (4) or (5) is checked, the Trustee may require, prior to
registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably
requested 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
--------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (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, 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
16
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: ________________ ______________________________
NOTICE: To be executed by
an executive officer
17
[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:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.12 of the Indenture, check the
box:
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.12 of the Indenture, state the
amount in principal amount: $
Date: _______________ Your Signature: ______________________
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY OR PRIVATE EXCHANGE SECURITY]
[*/]
[**/]
No. $
10 1/2% First Priority Ship Mortgage Notes Due 2007
NAVIGATOR GAS TRANSPORT PLC, an Isle of Man public limited company,
promises to pay to , or registered assigns, the principal
sum of Dollars on June 30, 2007.
Interest Payment Dates: June 30 and December 31.
Record Dates: June 15 and December 15.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated:
NAVIGATOR GAS TRANSPORT PLC,
by
-----------------------
President
-----------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee, certifies that this
is one of the Securities referred
to in the Indenture.
by [Seal]
-----------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to the Rule 144A/Regulation S
2
Appendix and the attachment from such Exhibit 1 captioned "[TO BE ATTACHED TO
GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
**/ If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to the Rule 144A/Regulation S
Appendix and replace the Assignment Form included in this Exhibit A with the
Assignment Form included in such Exhibit 1.
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY [OR PRIVATE EXCHANGE
SECURITY]]
10 1/2% First Priority Ship Mortgage Note Due 2007
1. INTEREST
Navigator Gas Transport PLC, an Isle of Man public limited
company (such company, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest in cash on the principal amount of this Security at the rate per annum
shown above [; PROVIDED, HOWEVER, that if a Registration Default (as defined in
the Registration Rights Agreement) occurs, additional interest will accrue on
this Security at a rate of 0.50% per annum from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured] ***/. The Company will pay interest
semiannually on June 30 and December 31 of each year, commencing December 31,
1997. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 7, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
----------
***/ Insert if at the time of issuance of the Exchange Security or Private
Exchange Security (as the case may be) neither the Registered Exchange Offer has
been consummated nor a Shelf Registration Statement has been declared effective
in accordance with the Registration Rights Agreement.
4
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the June 15 or December 15 next preceding the interest
payment date even if Securities are canceled 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
(including principal, premium and interest) will be made by wire transfer of
immediately available funds to the accounts specified by the holders thereof or,
if no U.S. dollar account maintained by the payee with a bank in the United
States is designated by any holder to the Trustee or the Paying Agent at least
30 days prior to the relevant due date for payment (or such other date as the
Trustee may accept in its discretion), by mailing a check to the registered
address of such holder.
3. PAYING AGENT AND REGISTRAR
Initially, United States Trust Company of New York, a bank and
trust company organized under the New York Banking Law ("Trustee"), will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of August 1, 1997 ("Indenture"), among the Company, Holdings, the Guarantors 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. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture 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 Act for a
statement of those terms.
5
The Securities are general secured obligations of the Company
limited to $217,000,000 aggregate principal amount (subject to Section 2.06 of
the Indenture). The Indenture limits (i) the incurrence of additional debt by
the Company and its subsidiaries, (ii) the payment of dividends on capital stock
of the Company and the purchase, redemption or retirement of capital stock or
subordinated indebtedness, (iii) investments, (iv) certain liens and
sale/leaseback transactions, (v) certain transactions with affiliates, (vi)
sales of assets, (vii) the issuance or sale of capital stock of subsidiaries and
(viii) certain consolidations, mergers and transfers of assets. The Indenture
also prohibits certain restrictions on distributions from subsidiaries.
5. OPTIONAL REDEMPTION
Except as set forth in the next two paragraphs, the Securities
may not be redeemed prior to June 30, 2002. On and after that date, the Company
may redeem the Securities in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of principal amount),
plus accrued interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
Interest Payment Date):
if redeemed during the 12-month period beginning
June 30,
Period Percentage
------ ----------
2002.................................................... 105.750%
2003.................................................... 103.500
2004.................................................... 101.750
2005 and thereafter..................................... 100.000
If, as a result of any change in or any amendment to the laws,
regulations or published tax rulings of the Isle of Man or any Successor
Jurisdiction, or of any political subdivision or taxing authority thereof or
therein, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any particular Securities, which change in official
administration, application or interpretation shall not have been available to
the public prior to such issue date and is notified to the Company or the
relevant Owners, as the case may be, on or after such issue date, it is
determined by the Company or the relevant Owners, as the case may be, that the
Company or the relevant Owners, as the case may be, would be required to pay,
6
any Additional Amounts pursuant to the Indenture or the terms of any Security in
respect of interest on the next succeeding Interest Payment Date (assuming, in
the case of the Owners, that a payment in respect of such interest were required
to be made by the relevant Owners under the Guarantees on such Interest Payment
Date), and that such obligation cannot be avoided by the Company or the relevant
Owners taking reasonable measures available to it, the Company or the relevant
Owners, as the case may be, may, at its option, redeem all (but not less than
all) the Securities in respect of which such Additional Amounts would be so
payable at any time, at a redemption price equal to 100% of the principal amount
thereof plus accrued interest to the date fixed for redemption; PROVIDED,
HOWEVER, that (a) no such notice of redemption may be given earlier than 60 days
prior to the earliest date on which the Company or the relevant Owners, as the
case may be, would be obligated, or is substantially likely to be obligated, to
pay such Additional Amounts were a payment in respect of the Securities or the
Guarantees, as the case may be, then due, and (b) at the time any such
redemption notice is given, such obligation, or substantial likelihood, to pay
such Additional Amounts must remain in effect.
In addition, at any time and from time to time prior to June 30, 2000,
the Company may redeem up to 35% of the aggregate principal amount of Securities
with the proceeds of one or more Public Equity Offerings (with the cash proceeds
thereof to the extent actually contributed to the Company) following which there
is a Public Market, at a redemption price (expressed as a percentage of
principal amount) of 110.5% plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date); PROVIDED, HOWEVER,
that at least $100 million aggregate principal amount of the Securities and $45
million aggregate principal amount of the Second Priority Notes must remain
outstanding after each such redemption.
6. MANDATORY REDEMPTION
In the event an Owner elects to terminate its Building
Contract because of a material breach thereof by the Builders (including a
failure to pay liquidated damages for any delay in the delivery of the related
Vessel), the Securities will be subject to mandatory redemption in part, on a
pro rata basis, in an aggregate principal amount equal to the Allocated
Principal Amount of the Securities for such Vessel and for each other Vessel
that has not been accepted by its related Owner as of the date of such
termination, at a
7
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest to and including the date of redemption (subject to the right of
a Holder of record on the relevant record date to receive interest due on the
relevant Interest Payment Date), upon the earlier to occur of (a) the receipt of
the Refund Amount with respect to the related Building Contract(s) and (b) 60
days after the termination of such Building Contract(s) by the related Owner(s).
If a Vessel is subject to Total Loss, the Securities will be
subject to mandatory redemption in part, on a pro rata basis, in an aggregate
principal amount equal to the Allocated Principal Amount of the Securities for
such Vessel, at a redemption price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest to the date of redemption (subject to
the right of a Holder of record on the relevant record date to receive interest
due on the relevant Interest Payment Date), upon the earlier to occur of (a) the
receipt of the Insurance Proceeds with respect to such Total Loss and (b) 60
days after such Total Loss was deemed to have occurred.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at his registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date, on and after such date
interest ceases to accrue on such Securities (or such portions thereof) called
for redemption.
8
8. OFFERS TO PURCHASE
On each Available Cash Payment Date, the Company will be
required, to the extent of Available Cash on such Available Cash Payment Date,
to make an Available Cash Offer to each Holder of Securities to purchase such
Holder's Securities in whole or in part, at a price equal to 102% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interests due on the related Interest Payment Date) as provided in,
and subject to the terms of, the Indenture. Upon a Change of Control, any Holder
of Securities will have the right to cause the Company to purchase all or any
part of the Securities of such Holder at a purchase price equal to 101% of the
principal amount of the Securities to be purchased plus accrued interest to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the related Interest Payment Date) as
provided in, and subject to the terms of, the Indenture.
9. GUARANTEE
The payment by the Company of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed on a
joint and several senior basis by the Owners.
10. SECURITY
The Securities will initially be secured by the Collateral
delivered at the Issue Date (as defined in the Intercreditor Agreement). Upon
the occurrence of a Delivery Date with respect to a Vessel the Securities will
thereafter be secured by a first priority ship mortgage on such Vessel and all
other Collateral delivered and the Delivery Date of such Vessel. The Securities
will also have the benefit of the Letter of Credit.
11. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations 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 endorse ments or transfer
documents and to pay any taxes and fees
9
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange 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) or any Securities for a period of 15 days before a selection of
Securities to be redeemed or 15 days before an interest payment date.
12. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
13. 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.
14. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may
terminate some or all of its and the Guarantors' obligations under the
Securities, the Security Agreements 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.
15. 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 Securities and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company, the Guarantors and the Trustee may amend the
Indenture, the Security Agreements or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
10
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add additional guarantees with respect to the
Securities or to provide additional security for the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company or
the Guarantors, or to comply with any request of the SEC in connection with
qualifying the Indenture under the Act, or to make any change that does not
adversely affect the rights of any Securityholder.
16. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to para graph
5 or 6 of the Securities, upon required purchase, upon acceleration or
otherwise, or failure by the Company or the Guarantors to redeem or purchase
Securities when required; (iii) failure by the Company to comply with other
agreements in the Indenture or the Securities, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of Holdings,
the Company or the Owners if the amount accelerated (or so unpaid) exceeds $5.0
million; (v) certain events of bankruptcy or insolvency with respect to Holdings
and the Company or the Owners; (vi) certain judgments or decrees for the payment
of money in excess of $5.0 million, (vii) certain events or defaults with
respect to the Guarantees or the Security Agreements and (ix) the failure by the
Designated Owners to hold certain prescribed percentages of Voting Stock and
Capital Stock of Holdings. 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 (except a
11
Default in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.
17. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, 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.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company, the Owners or the Trustee shall not have any liability for any
obligations of the Company or the Owners 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.
19. AUTHENTICATION
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. 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 entireties), 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).
21. 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
12
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.
22. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including,
the obligations of the Holders with respect to a registration and the
indemnification of the Company and the Guarantors to the extent provided
therein.
23. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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:
NAVIGATOR GAS TRANSPORT PLC
00-00 XXXXX XXXXXX
XXXXXXX, XXXX XX XXX XX0
FAX: 00-0000-000-000
ATTENTION OF SECRETARY
13
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: _____________________
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
14
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY
PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.12 OF THE
INDENTURE, CHECK THE BOX:
/ /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS
SECURITY PURCHASED BY THE COMPANY PURSUANT TO SECTION 4.12 OF
THE INDENTURE, STATE THE AMOUNT:
$
DATE: __________________ YOUR SIGNATURE: _________________________
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
(SIGNATURE MUST BE GUARANTEED BY A
MEMBER FIRM OF THE NEW YORK STOCK
EXCHANGE OR A COMMERCIAL BANK OR TRUST
COMPANY)
