TORM plc F-3, filed Dec 6, 2021
TORM plc (TRMD)
F-3
2021-12-06
View Original
Added on
October 16, 2026
As filed with the Securities and Exchange Commission on December 6, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
TORM plc
(Exact name of Registrant as specified in its charter)
________________________
|
England and Wales
(State or other jurisdiction of incorporation or organization)
|
N/A
(I.R.S. Employer Identification Number)
|
|
TORM plc
Birchin Court
20 Birchin Lane
London, EC3V 9DU
United Kingdom
+44 203 713 4560
|
Seward & Kissel LLP
Attention: Keith J. Billotti, Esq.
One Battery Park Plaza
New York, New York 10004
(212) 574-1200
|
|
(Address and telephone number of Registrant's principal executive offices)
|
(Name, address and telephone number of agent
for service)
|
________________________
Copies to:
Keith J. Billotti, Esq.
Seward & Kissel LLP
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574‑1200 (telephone number)
________________________
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective as determined by market conditions and other factors.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become
effective upon filing with the SEC pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. ☒ Emerging growth company
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered |
Amount to
be Registered |
Proposed Maximum
Aggregate Offering Price |
Amount of
Registration Fee (3) |
|||||||||
|
Primary Offering(1)(2)
|
||||||||||||
|
Class A common shares, par value $0.01 per share
|
||||||||||||
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Preferred Shares
|
||||||||||||
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Debt Securities (4)
|
||||||||||||
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Warrants (5)
|
||||||||||||
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Purchase Contracts (6)
|
||||||||||||
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Rights (7)
|
||||||||||||
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Units (8)
|
||||||||||||
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Primary Offering Total
|
$
|
250,000,000(9
|
)
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$
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23,175(10
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)
|
||||||
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Secondary Offering
|
||||||||||||
|
Class A common shares, par value $0.01 per share
|
53,812,988
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$
|
389,606,033.12
|
(11)
|
$
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36,116.48
|
(11)
|
|||||
|
TOTAL
|
$
|
639,606,033.12
|
$
|
59,291.48
|
||||||||
| (1) |
Such amount in U.S. dollars or the equivalent thereof in foreign currencies as shall result in an aggregate initial public offering price for all securities of $250,000,000. Also includes such
indeterminate amount of debt securities and common and preferred shares as may be issued upon conversion or exchange for any other debt securities or preferred shares that provide for conversion or exchange into other securities.
|
| (2) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Pursuant to General Instruction II.C of Form F-3, the
table does not specify by each class information as to the proposed maximum aggregate offering price with respect to the primary offering. Any securities registered hereunder may be sold separately or as units with other securities registered
hereunder. In no event will the aggregate offering price of all securities sold by TORM plc pursuant to this registration statement exceed $250,000,000.
|
| (3) |
Pursuant to Rule 457(p) under the Securities Act, the total registration fee due of $59,291.48 is offset by $65,376.38, representing the filing fee
previously paid by TORM plc with respect to TORM plc's securities registered and unsold pursuant to the Registration Statement on Form F-3 (File No. 333-228878 filed with the SEC on December 18, 2018).
|
| (4) |
If any debt securities are issued at an original issue discount, then the offering may be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed
$250,000,000.
|
| (5) |
There is being registered hereunder an indeterminate number of warrants as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $250,000,000.
|
| (6) |
There is being registered hereunder an indeterminate number of purchase contracts as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of
$250,000,000.
|
| (7) |
There is being registered hereunder an indeterminate number of rights as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $250,000,000.
|
| (8) |
There is being registered hereunder an indeterminate number of units as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $250,000,000. Units
may consist of any combination of the securities registered hereunder.
|
| (9) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended, or the Securities Act.
|
| (10) |
Calculated in accordance with Rule 457(o) under the Securities Act using the current SEC fee rate of 0.0000927.
|
| (11) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, based on the average of the high and
low prices per share of the registrant's Class A common shares as reported on Nasdaq New York on December 1, 2021, which average was calculated to be $7.24.
|
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. This
prospectus is not an offer to sell these securities and it is not soliciting an offer to buy or sell these securities in any jurisdiction where the offer or sale is not permitted. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective.
PROSPECTUS
Subject to completion, dated December 6, 2021
TORM PLC
$250,000,000
Common Shares, Preferred Shares, Debt Securities,
Warrants, Purchase Contracts, Rights and Units
and
53,812,988 Class A Common Shares
offered by the Selling Shareholder
We may, from time to time in one or more offerings, offer and sell our common shares, preferred shares, debt securities, warrants, purchase
contracts, rights and units. We may also offer securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above. The aggregate offering price of all securities
issued under this prospectus may not exceed $250,000,000.
We may offer and sell these securities in amounts, at prices and on terms to be determined by market conditions and other factors at the time
of the offering. This prospectus describes only the general terms of these securities and the general manner in which we will offer the securities. The specific terms of any securities we offer will be included in a supplement to this prospectus. The
prospectus supplement will describe the specific manner in which we will offer the securities and also may add, update or change information contained in this prospectus. We may sell the securities offered by this prospectus directly or through
underwriters, agents or dealers, the names of which and the specific terms of a plan of distribution will be stated in the applicable prospectus supplement.
In addition, OCM Njord Holdings S.à r.l., which we refer to herein as Njord Luxco or the Selling Shareholder, may sell in one or more
offerings pursuant to this registration statement up to 53,812,988 of our Class A common shares. The Selling Shareholder may sell any or all of these common shares on any stock exchange, market or trading facility on which the shares are traded or in
privately negotiated transactions at fixed prices that may be changed, at market prices prevailing at the time of sale or at negotiated prices. Information on the Selling Shareholder and the times and manners in which they may offer and sell our common
shares is described under the sections entitled "Selling Shareholder" and "Plan of Distribution" in this prospectus. We will not receive any of the proceeds from the sale of our Class A common shares by the Selling Shareholder.
Our Class A common shares currently trade on Nasdaq Copenhagen A/S, or Nasdaq Copenhagen, under the symbol "TRMD A" and on Nasdaq Stock
Market LLC in New York, or Nasdaq New York, under the symbol "TRMD". The applicable prospectus supplement will contain information, where applicable, as to any other listing on the Nasdaq New York or any
securities market or other exchange of the securities, if any, covered by the prospectus supplement.
An investment in these securities involves risks. See the section entitled "Risk Factors" beginning on page 9 of this
prospectus, and other risk factors contained in the applicable prospectus supplement and in the documents incorporated by reference herein and therein.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is
TABLE OF CONTENTS
Page
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ABOUT THIS PROSPECTUS
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1
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
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2
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PROSPECTUS SUMMARY
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4
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RISK FACTORS
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9
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USE OF PROCEEDS
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11
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CAPITALIZATION
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12
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PLAN OF DISTRIBUTION
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13
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SELLING SHAREHOLDER
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15
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DESCRIPTION OF SHARE CAPITAL
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16
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DESCRIPTION OF DEBT SECURITIES
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19
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DESCRIPTION OF WARRANTS
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25
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DESCRIPTION OF PURCHASE CONTRACTS
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26
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DESCRIPTION OF RIGHTS
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27
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DESCRIPTION OF UNITS
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28
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TAX CONSIDERATIONS
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29
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ENFORCEABILITY OF CIVIL LIABILITIES
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37
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LEGAL MATTERS
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38
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EXPERTS
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39
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
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40
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INFORMATION INCORPORATED BY REFERENCE
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41
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EXPENSES
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42
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i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form F-3 that we have filed with the U.S. Securities and Exchange Commission, or the SEC, using a shelf
registration process. Under the shelf registration process, we may sell common, preferred shares, debt securities, warrants, purchase contracts, rights and units described in this prospectus from time to time in one or more offerings, up to a total
of $250,000,000. In addition, the Selling Shareholder may sell in one or more offerings pursuant to this registration statement up to 53,812,988 of our Class A common shares.
This prospectus only provides you with a general description of TORM plc and the securities that are
registered hereunder that may be offered by us or the Selling Shareholder. Each time we offer securities, we will provide you with a supplement to this prospectus that will describe the specific information about the securities being offered
and the specific terms of that offering. Any prospectus supplement may also add, update or change the information contained in this prospectus. Any prospectus supplement may also add to, update or change information
contained in this prospectus. To the extent information in this prospectus is inconsistent with the information contained in a prospectus supplement you should rely on the information in the prospectus supplement.
This prospectus and any prospectus supplement are part of a registration statement we filed with the SEC and do not contain all the
information in the registration statement. Forms of the indenture and other documents establishing the terms of the offered securities are filed as exhibits to the registration statement. Statements in this prospectus or any prospectus supplement about
these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters.
For further information about us or the securities offered hereby, you should refer to the registration statement, which you can obtain from
the SEC as described below under the section entitled "Where You Can Find Additional Information."
The information in this prospectus is accurate as of its date. Additional information, including our financial statements and the notes
thereto, is incorporated in this prospectus by reference to our reports filed with the SEC. You should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus
supplement. Before you invest in our securities, you should carefully read this prospectus, including the "Risk Factors," any prospectus supplement, the information incorporated by reference in this prospectus and any prospectus supplement
(including the documents described under the heading "Where You Can Find Additional Information" in both this prospectus and any prospectus supplement), and any additional information you may need to make your investment decision. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
Unless otherwise indicated, the terms "TORM plc," "we," "us," "our," the "Company" and the "Group" refer to TORM plc and its consolidated
subsidiaries, which includes TORM A/S and its consolidated subsidiaries, following the closing of the Exchange Offer (defined below). When used in this prospectus to describe events prior to the closing of the Exchange Offer, the terms "TORM A/S,"
"we," "us," "our," the "Company" and the "Group" refer to TORM A/S and its consolidated subsidiaries before such time. References to "Former TORM A/S" refer to TORM A/S and its consolidated subsidiaries prior to the completion of the 2015 Restructuring
(defined below).
Unless otherwise indicated, all references to "U.S. dollars," "USD," "dollars," "US$" and "$" in this prospectus are to the lawful currency
of the United States of America, references to "Sterling", "£" and "GBP" are to the lawful currency of the United Kingdom, references to "Danish Kroner," and "DKK" are to the lawful currency of Denmark. We use the term deadweight ton, or dwt, in
describing the size of vessels. Dwt, expressed in metric tons, each of which is equivalent to 1,000 kilograms, refers to the maximum weight of cargo and supplies that a vessel can carry.
We report our consolidated financial results in U.S. dollars and in accordance with International Financial Reporting
Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB, which also comply with reporting requirements under English law.
1
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding our or our management's expectations, hopes, beliefs, intentions or strategies regarding the future and other statements that are other than
statements of historical fact. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words
"anticipate", "believe", "continue", "could", "estimate", "expect", "intend", "may", "might", "plan", "possible", "potential", "predict", "project", "should", "would" and similar expressions may identify forward-looking statements, but the absence of
these words does not mean that a statement is not forward-looking.
All statements, other than statements of historical fact, included in or incorporated by reference into this prospectus and any prospectus
supplements are "forward-looking statements." Forward-looking statements include, but are not limited to, such matters as:
| • |
our future operating or financial results;
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| • |
global and regional economic and political conditions, including piracy;
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| • |
our pending vessel acquisitions, our business strategy and expected capital spending or operating expenses, including dry-docking and insurance costs;
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| • |
statements about shipping market trends, including charter rates and factors affecting supply and demand;
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| • |
our financial condition and liquidity, including our ability to obtain financing in the future to fund capital expenditures, acquisitions and other general corporate activities;
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| • |
our ability to enter into time charters after our current charters expire and our ability to earn income in the spot market;
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| • |
changes in the price of our Class A common shares; and
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| • |
our expectations of the availability of vessels to purchase, the time it may take to construct new vessels, and vessels' useful lives.
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Many of these statements are based on our assumptions about factors that are beyond our ability to control or predict and are subject to
risks and uncertainties that are described more fully under the section entitled "Risk Factors," on page 9 of this prospectus, in our Annual Report on Form 20-F for the fiscal year ended December 31, 2020 and in the documents that we incorporate by
reference into this prospectus, for a more complete discussion of these risks and uncertainties and for other risks and uncertainties. Any of these factors or a combination of these factors could materially affect our future results of operations and
the ultimate accuracy of the forward-looking statements. Factors that might cause future results to differ include, but are not limited to, the following:
| • |
our future operating or financial results;
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| • |
changes in governmental rules and regulations or actions taken by regulatory authorities;
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| • |
fluctuations in interest rates and foreign exchange rates;
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| • |
the length and severity of epidemics and pandemics, including the ongoing global outbreak of the novel coronavirus ("COVID-19"), and its impact on the demand for seaborne transportation of
petroleum products;
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2
| • |
general domestic and international political conditions or events, including "trade wars";
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| • |
changes in economic and competitive conditions affecting our business, including market fluctuations in charter rates and charterers' abilities to perform under existing time charters;
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| • |
potential liability from future litigation and potential costs due to environmental damage and vessel collisions;
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| • |
the length and number of off-hire periods and dependence on third-party managers; and
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| • |
other factors discussed under the heading "Risk Factors" in this prospectus, in our Annual Report on Form 20-F for the year ended December 31, 2020 and the other documents that we incorporate by
reference into this prospectus.
|
You should not place undue reliance on forward-looking statements contained in, or incorporated by reference into, this prospectus because
they are statements about events that are not certain to occur as described or at all. All forward-looking statements in, or incorporated by reference into, this prospectus are qualified in their entirety by the cautionary statements contained herein.
These forward-looking statements are not guarantees of our future performance, and actual results and future developments may vary materially from those projected in the forward-looking statements.
Except to the extent required by applicable law or regulation, we undertake no obligation to release publicly any revisions to these
forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events.
3
PROSPECTUS SUMMARY
This section summarizes some of the key information that is contained or incorporated by reference in this prospectus. It
may not contain all of the information that may be important to you. As an investor or prospective investor, you should review carefully the entire prospectus and the information incorporated by reference herein, including the section entitled "Risk
Factors."
Our Company and our Business
TORM plc is one of the world's largest carriers of refined oil products. Our activities are primarily the transportation of clean petroleum
products, such as gasoline, jet fuel, kerosene, naphtha and gas oil, and occasionally dirty petroleum products, such as fuel oil. We are active in all larger vessel segments of the product tanker market from Handysize to Long Range 2 (LR2) tankers. As
of the date of this prospectus, we own and operate a fleet of 84 product tankers, 72 of which we own and 12 of which we charter in on bareboat charter. In addition, as of the date of this prospectus, we have one newbuilding under construction that is scheduled to be delivered in the first quarter 2022. Additionally, as of the date of this prospectus, we entered into an agreement with a Chinese financial institution for the sale and operational leaseback of
nine existing MR vessels built from 2010 to 2012, which are expected to close during the fourth quarter of 2021 and first quarter of 2022. For an overview of the specifications of our fleet, please see "Our Fleet," below.
We have an extensive in-house operating and management platform which performs commercial, administrative and technical management for our
vessels. Through this integrated platform, we handle the commercial management of all our vessels and the technical management of all our owned vessels, other than three vessels managed by an unaffiliated third party. In addition, we conduct all vessel
sale and purchase activities in-house, leveraging relationships with shipbrokers, shipyards, financial institutions and other shipowners.
History and Development of the Company
We were founded as TORM A/S in 1889 by Captain Ditlev E. Torm and Christian Schmiegelow. Within the first ten years, the
fleet of TORM A/S consisted of four vessels, and in 1905 TORM A/S became listed on the Copenhagen Stock Exchange. In connection with the Redomiciliation in 2016, TORM A/S became a wholly-owned subsidiary of TORM plc. As of the date of this
prospectus, we operate a fleet of 84 owned or chartered-in vessels and our Class A common shares are listed on both Nasdaq Copenhagen and Nasdaq New York under the symbols "TRMD A" and "TRMD," respectively.
TORM plc is a
public limited company incorporated under the laws of England and Wales on October 12, 2015 under the name Anchor Admiral Limited with company number 09818726. Anchor Admiral Limited was renamed TORM Limited on November 26, 2015, and TORM Limited was
renamed TORM plc on January 20, 2016. TORM plc's registered office is at Birchin Court, 20 Birchin Lane, London, EC3V 9DU, United Kingdom. Our telephone number at this address is +44 203 713 4560. Our main commercial and technical activities are
managed out of our office at Tuborg Havnevej 18, DK-2900 Hellerup, Denmark. Our telephone number at that address is +45 39 17 92 00. We also have offices located in Mumbai (India), New Delhi (India), Manila (the Philippines), Cebu (the Philippines),
Singapore (Singapore) and Houston (Texas, USA). Our website is www.torm.com. The SEC maintains an Internet site (sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with
the SEC. None of the information contained on these websites is incorporated into or forms a part of this prospectus. TORM plc is today one of the world's largest carriers of refined oil products.
4
Our Fleet
The following table sets forth summary information regarding our fleet of owned product tankers, including the vessels that we charter in as
of the date of this prospectus.
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Vessel Name
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Type
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DWT
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Year Built
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Shipyard
|
|
Owner On-the-Water Product Tankers
|
||||
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TORM Gudrun
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LR2
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101,155
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2000
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Hyundai HI (Ulsan)
|
|
TORM Hilde
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LR2
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114,951
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2018
|
GSI Nansha
|
|
TORM Hermia
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LR2
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114,951
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2018
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GSI Nansha
|
|
TORM Ingeborg
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LR2
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99,999
|
2003
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Hyundai Samho HI
|
|
TORM Kirsten
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LR2
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114,440
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2015
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Hyundai HI (Gunsan)
|
|
TORM Kristina
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LR2
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114,322
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2015
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Hyundai HI (Gunsan)
|
|
TORM Maren
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LR2
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109,672
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2008
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Dalian Shipbuilding
|
|
TORM Marina
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LR2
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109,672
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2007
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Dalian Shipbuilding
|
|
TORM Mathilde
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LR2
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109,672
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2008
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Dalian Shipbuilding
|
|
TORM Valborg
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LR2
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99,999
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2003
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Hyundai Samho HI
|
|
TORM Elise
|
LR1
|
75,000
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2020
|
GSI Nansha
|
|
TORM Elizabeth
|
LR1
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75,000
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2020
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GSI Nansha
|
|
TORM Emilie
|
LR1
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74,999
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2004
|
Hyundai HI (Ulsan)
|
|
TORM Estrid
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LR1
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74,999
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2004
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Hyundai HI (Ulsan)
|
|
TORM Ismini
|
LR1
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74,999
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2004
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Hyundai HI (Ulsan)
|
|
TORM Sara
|
LR1
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72,718
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2003
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Samsung HI
|
|
TORM Signe
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LR1
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72,718
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2005
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Samsung HI
|
|
TORM Sofia
|
LR1
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72,718
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2005
|
Samsung HI
|
|
TORM Venture
|
LR1
|
73,700
|
2007
|
New Century SB
|
|
TORM Adventurer
|
MR
|
46,042
|
2007
|
Brod. Trogir
|
|
TORM Agnes
|
MR
|
49,999
|
2011
|
GSI Liwan
|
|
TORM Agnete
|
MR
|
49,999
|
2010
|
GSI Liwan
|
|
TORM Allegro
|
MR
|
46,184
|
2012
|
Brod. Trogir
|
|
TORM Almena
|
MR
|
49,999
|
2010
|
GSI Liwan
|
|
TORM Amalie
|
MR
|
49,999
|
2011
|
GSI Liwan
|
|
TORM Amorina
|
MR
|
46,184
|
2012
|
Brod. Trogir
|
|
TORM Anabel
|
MR
|
49,999
|
2012
|
GSI Liwan
|
|
TORM Arawa
|
MR
|
49,999
|
2012
|
GSI Liwan
|
|
TORM Aslaug
|
MR
|
49,999
|
2010
|
GSI Liwan
|
|
TORM Astrid
|
MR
|
49,999
|
2012
|
GSI Liwan
|
|
TORM Atlantic
|
MR
|
49,999
|
2012
|
GSI Liwan
|
|
TORM Cavatina
|
MR
|
46,184
|
2010
|
Brod. Trogir
|
|
TORM Corrido
|
MR
|
46,156
|
2011
|
Brod. Trogir
|
|
TORM Discoverer
|
MR
|
45,012
|
2008
|
Brod. Trogir
|
|
TORM Eric
|
MR
|
49,999
|
2006
|
STX SB (Jinhae)
|
|
TORM Freya
|
MR
|
46,350
|
2003
|
STX SB (Jinhae)
|
|
TORM Hardrada
|
MR
|
45,983
|
2007
|
Shin Kurushima
|
|
TORM Helvig
|
MR
|
46,187
|
2005
|
STX SB (Jinhae)
|
|
TORM Horizon
|
MR
|
46,955
|
2004
|
Hyundai Mipo
|
|
TORM India
|
MR
|
49,999
|
2010
|
Hyundai Mipo
|
|
TORM Kansas
|
MR
|
46,955
|
2006
|
Hyundai Mipo
|
|
TORM Laura
|
MR
|
49,999
|
2008
|
GSI Liwan
|
|
TORM Leader
|
MR
|
46,070
|
2009
|
Brod. Trogir
|
|
TORM Lene
|
MR
|
49,999
|
2008
|
GSI Liwan
|
|
TORM Lilly
|
MR
|
49,999
|
2009
|
GSI Liwan
|
|
TORM Loke
|
MR
|
44,999
|
2007
|
SLS Shipbuilding
|
|
TORM Lotte
|
MR
|
49,999
|
2009
|
GSI Liwan
|
|
TORM Louise
|
MR
|
49,999
|
2009
|
GSI Liwan
|
|
TORM Moselle
|
MR
|
47,024
|
2003
|
Onomichi Dockyd
|
|
TORM Philippines
|
MR
|
49,999
|
2010
|
Hyundai Mipo
|
|
TORM Platte
|
MR
|
46,959
|
2006
|
Hyundai Mipo
|
|
TORM Ragnhild
|
MR
|
46,187
|
2005
|
STX SB (Jinhae)
|
|
TORM Republican
|
MR
|
46,955
|
2006
|
Hyundai Mipo
|
|
TORM Resilience
|
MR
|
49,999
|
2005
|
STX SB (Jinhae)
|
|
TORM Solution
|
MR
|
49,999
|
2019
|
GSI Nansha
|
|
TORM Sovereign
|
MR
|
49,999
|
2017
|
Hyundai Mipo
|
|
TORM Splendid
|
MR
|
49,999
|
2020
|
GSI Nansha
|
|
TORM Stellar
|
MR
|
49,999
|
2020
|
GSI Nansha
|
|
TORM Strength
|
MR
|
49,999
|
2019
|
GSI Nansha
|
|
TORM Strong
|
MR
|
49,999
|
2019
|
GSI Nansha
|
|
TORM Sublime
|
MR
|
49,999
|
2019
|
GSI Nansha
|
|
TORM Success
|
MR
|
49,999
|
2019
|
GSI Nansha
|
|
TORM Supreme
|
MR
|
49,999
|
2017
|
Hyundai Mipo
|
|
TORM Thames
|
MR
|
47,036
|
2005
|
Hyundai Mipo
|
|
TORM Thor
|
MR
|
49,757
|
2015
|
Sungdong SB
|
|
TORM Thunder
|
MR
|
49,757
|
2015
|
Sungdong SB
|
|
TORM Thyra
|
MR
|
46,350
|
2003
|
STX SB (Jinhae)
|
|
TORM Timothy
|
MR
|
49,757
|
2015
|
Sungdong SB
|
|
TORM Troilus
|
MR
|
49,757
|
2016
|
Sungdong SB
|
|
TORM Voyager
|
MR
|
45,916
|
2010
|
Brod. Trogir
|
|
TORM Gyda
|
Handy
|
36,207
|
2009
|
Hyundai Mipo
|
|
TORM Tevere
|
Handy
|
36,990
|
2005
|
Hyundai Mipo
|
5
|
Chartered-in Product Tankers
|
||||
|
TORM Kiara
|
LR2
|
114,445
|
2015
|
Hyundai HI (Gunsan)
|
|
TORM Hellerup
|
LR2
|
114,951
|
2018
|
GSI Nansha
|
|
TORM Herdis
|
LR2
|
114,951
|
2018
|
GSI Nansha
|
|
TORM Helene
|
LR2
|
114,000
|
2021
|
GSI Nansha
|
|
TORM Malaysia
|
MR
|
51,672
|
2011
|
Hyundai Mipo
|
|
TORM New Zealand
|
MR
|
49,999
|
2011
|
Hyundai Mipo
|
|
TORM Alexandra
|
MR
|
49,999
|
2010
|
GSI Liwan
|
|
TORM Alice
|
MR
|
49,999
|
2010
|
GSI Liwan
|
|
TORM Australia
|
MR
|
49,999
|
2011
|
Hyundai Mipo
|
|
TORM Singapore
|
MR
|
49,999
|
2011
|
Hyundai Mipo
|
|
TORM Titan
|
MR
|
49,757
|
2016
|
Sungdong SB
|
|
TORM Torino
|
MR
|
49,757
|
2016
|
Sungdong SB
|
|
Newbuildings
|
||||
|
N/B GSI Nansha Guangzhou 19121032
|
LR2
|
114,000
|
2022
|
GSI Nansha
|
(1) As used in this prospectus, Hyundai refers to Hyundai Heavy Industries Co. Ltd.; Halla refers to Halla Engineering & Heavy Industries, South Korea; Samho refers
to Hyundai Samho Heavy Industries Co. Ltd.; Dalian New refers to Dalian Shipbuilding Industry, China; New Century refers to New Century Shipbuilding Co. Ltd.; Onomichi refers to Onomichi Dockyard, Japan; Daedong refers to Daedong Shipbuilding, South
Korea; STX refers to STX Offshore and Shipbuilding Co. Ltd.; Hyundai Mipo refers to Hyundai Mipo Dockyard Co. Ltd.; Shin Kurushima refers to Shin Kurushima Dockyard Co. Ltd., Japan; SLS refers to SLS Shipbuilding Co. Ltd. Tongyeong, South Korea; Brod. Trogir refers to Brodotrogir Shipyard and GSI refers to Guangzhou Shipyard International Co., Ltd.
(2) Vessels were sold and leased back on bareboat charter with contract expirations in 2026. We have a purchase option for the individual vessels in
both 2024 and 2026. No sales were recorded under IFRS and hence the vessels have not been derecognized from our balance sheet and we recorded a corresponding financial liability for the cash we received.
(3) Vessels were sold and leased back on bareboat charter with a contract expiration in 2025. We have a purchase obligation for the individual
vessels. No sales were recorded under IFRS and hence the vessels have not been derecognized from our balance sheet and we recorded a corresponding financial liability for the cash we received.
(4) Vessel was sold and leased back on bareboat charter with a contract expiration in 2026. We have a purchase obligation for the vessel. No sale was
recorded under IFRS and hence the vessel has not been derecognized from our balance sheet and we recorded a corresponding financial liability for the cash we received.
(5) Vessel was sold and leased back on bareboat charter with a contract expiration in 2024. We have a purchase obligation for the vessel. No sale was
recorded under IFRS and hence the vessel has not been derecognized from our balance sheet and we recorded a corresponding financial liability for the cash we received.
Management of Our Fleet
We are primarily involved in the transportation of refined oil products from the refineries to the end user.
In addition to clean products, we use some of our vessels for the transportation of residual fuels from the refineries as well as crude oil directly from the production field to the refinery. These fuel types are commonly referred to as dirty
petroleum products, as extensive cleaning of the vessel's cargo tanks is required before a vessel can transport clean products again. In addition, some of our vessels have special chemical trading capabilities. In 2020 and through the nine months
ended September 30, 2021, 94.5% and 98.5%, respectively, of our turnover was generated from clean products transportation.
6
Our integrated operating platform with in-house technical and commercial management enhances the response to customer
demands and allows us to generate value for stakeholders as well as for the Company.
Our long-term success is dependent on our ability to provide safe and reliable transportation services. In addition to the
items explicitly stated in the financial statements, our long-term success further builds on the intellectual property of our workforce and the relationship and cooperation with external stakeholders such as oil traders, state-owned oil companies,
oil majors, financial institutions, shipyards, brokers, and governmental agencies.
We are present in all large vessel classes in the product tanker market with specific focus on the LR2, LR1 and Medium
Range (MR) vessel classes as these three segments offer the greatest synergies. In addition, six of our MR product tankers have special chemical trading capabilities.
We are, on an ongoing basis, optimizing and adjusting our fleet mix, and since the beginning of 2020, our
fleet has increased from 76 vessels to 84 vessels on the water in November 2021. The increase covers the purchase of 18 vessels, delivery of 13 vessels and 5 newbuildings and a sale of 10 older vessels. In the
second and third quarters of 2021, we took delivery of eight MR vessels and three LR2 vessels. In the fourth quarter of 2021, we took delivery of one LR2 newbuilding, and in the first quarter of 2022, we are scheduled to take delivery of one LR2
newbuilding vessel as well. The change is primarily driven by our general opportunistic approach to fleet renewal through disposal of older tonnage, acquisition of younger tonnage and modern second-hand vessels and contracting of newbuildings with
the recent additions to fleet timed in the market down-turn.
Our Business Strategy
Our primary objective is to optimize our earnings within the given market environment and conditions in addition to ensuring the long-term
viability of the company. The three key elements of our business strategy are:
Leading Product Tanker Owner.
We are an international leading product tanker company and one of the largest owners of product tankers in the world. TORM
primarily employs its fleet of 84 vessels in the spot market. With our presence in all the large product tanker segments and across all regional supply and demand hubs, we are well positioned to meet our customers' transport and storage requirements.
We seek to selectively grow our fleet and to serve as a consolidator in the product tanker segment if the right
opportunities arise. We continuously assess opportunities to optimize our fleet by acquiring attractive high-specification second-hand product tankers or selectively pursuing newbuilding programs with high-quality shipyards.
In this way, we serve as a consolidator while at the same time optimizing our invested capital to enable the highest
possible return on invested capital (ROIC). Our scalable business platform is a supportive and required enabler for this strategic objective.
During 2021, we have so far purchased 11 vessels, all of which were delivered during the second and third quarters of 2021
and in support of our expected ROIC. This includes eight MR product tankers, six of which have chemical trading capabilities in a partly share, partly cash-based transaction and three 2015-built scrubber-fitted and fuel-efficient LR2 vessels.
From time to time, we also plan to sell vessels that no longer fit with the commercial strategy, or if the price point is
deemed attractive. In 2020, we sold eight older vessels, capitalizing on the strong market during the first half of the year that provided attractive opportunities to dispose of older tonnage. During 2021 so far, we have sold one additional older
vessel.
Our solid capital structure balances the spot-based employment profile with low leverage, a strong liquidity position, a
fully funded newbuilding program and limited off-balance sheet charter-in commitments.
Secured bank financing remains the preferred source of debt funding for us, but the use of leasing structures reflects our
broad access to various sources of competitive financing.
To support our shares and to attract a broad investor base, we frequently market our shares towards investors through
investor roadshow activities, conference participation and panel discussions. Further, we believe that our transparent company structure and corporate governance principles enhance the attractiveness of our shares.
7
Superior Operating Platform.
Our fleet is effectively managed on the in-house integrated operating platform known as One TORM. Operations are conducted
combined for the entire fleet to reap synergies across vessel classes.
The integrated nature of our operating platform provides transparency and clear alignment of management and shareholder
interests, which mitigates the potential for actual or perceived conflicts of interest with related parties. We also believe that the largest customers prefer an integrated operating model as it provides them with better accountability and insight
into safety and vessel performance.
In line with our strategic focus on safety, the One TORM platform features its One TORM
Safety Culture program. The purpose of the program is to continuously strengthen our safety culture beyond mere compliance and reflects the belief that profitability and safety are not mutually exclusive.
On the One TORM platform the commercial, technical, sale and purchase and support divisions work towards common goals in a
network-based organization. Our commercial team is responsible for employment and operation of our fleet and has continuously demonstrated superior performance compared to peers and market benchmarks. One of the key elements for the commercial team
to succeed is the ability to ensure an optimal position of the fleet in the global basins, where differences in earnings can be significant during a year.
Our fleet is managed by its in-house technical management. The department is responsible for maintaining the high quality
of our vessels and the delivery of an environmentally friendly, safe, and cost- efficiently technical operation. Our technical management also has extensive experience in vessel design and construction and provides essential knowledge for us to
execute newbuilding programs. Apart from the office staff, more than 3,000 seafarers are employed in our technical department.
Our sale and purchase activities are conducted by an in-house team. The sale and purchase team leverages relationships with
shipbrokers, shipyards, financial institutions and shipowners to ensure fleet renewal and actively pursue lucrative opportunities in the second-hand and newbuilding markets.
The support division is an integral part of our day-to-day operations and provides optimized business practices, reporting
and payment processes, proactive business partnering, stringent risk management, liquidity and funding management etc. The support division has for years built a strong data and digitalized business support function. By means of significant, advanced
analytics and applied AI competences, this function has created an analytical model to further support the commercial performance of the Company.
For A Greener Future.
We strive to utilize our market position and strength to lead the product tanker industry into a more environmentally
friendly future and to develop innovative solutions for a greener future, and we have reduced our CO2 impact by 22% since 2008.
Our key priority is to contribute to combatting the accelerating global climate change and to minimizing pollution of the
seas and the atmosphere. Thus, we have strong focus on reducing fuel consumption and CO2 emissions, achieved through a committed focus on optimal performance and industry collaboration.
We believe that both the CO2 and the ESG agendas will be integral and determining elements of the future of the
product tanker business. At the same time, we acknowledge that oil and refined oil products are essential resources that the world will continue to rely on for the foreseeable future.
We embrace the climate combat and are dedicated to developing innovative solutions for our industry and easing the impact
of our vessels on the environment. To quantify our ambition, we have set a target to reduce our relative CO2 emissions by 40% by 2030 compared to 2008 and an ambition to have zero CO2 emissions from operating our fleet by the
year 2050.
We believe that our integrated focus on environmental impact will be beneficial both from an environmental and an
investment point of view. We will therefore investigate the potential of green business adjacencies that can co-create long-term value and optionality for us. We have already formed a successful partnership with a scrubber producer, supporting the
company's scrubber investments.
To reach the CO2 target set for 2030, optimization and improvement of the existing fleet are paramount, and we
are applying a broad set of actions to enhance the fuel efficiency of its fleet. This includes both operational and technical improvements. We are also engaged in developing next generation ship design and
new energy improving technologies with selected partners. To support the target, we will incorporate the impact on the reduction trajectory when assessing future fleet renewal options.
In the longer term and to meet its ambition for 2050, we believe that new alternative fuels in shipping will be required on
a global scale. We will seek to influence this development and pursue broad industry cooperation on this important journey. These new technologies are still in the developing stages and what will be the technology of the future is so far associated
with great uncertainty.
8
Corporate Structure and Certain Company Information
TORM plc was incorporated as a public limited company incorporated under the laws of England and
Wales on October 12, 2015 under the name Anchor Admiral Limited with company number 09818726. Anchor Admiral Limited was renamed TORM Limited on November 26, 2015, and TORM Limited was renamed TORM plc on January 20, 2016. TORM plc's registered office
is at Birchin Court, 20 Birchin Lane, London, EC3V 9DU, United Kingdom. Our telephone number at this address is +44 203 713 4560. Our main commercial and technical activities are managed out of our office at Tuborg Havnevej 18, DK-2900 Hellerup,
Denmark. Our telephone number at that address is +45 39 17 92 00. We also have offices located in Mumbai (India), New Delhi (India), Manila (the Philippines), Cebu (the Philippines), Singapore (Singapore) and Houston (Texas, USA). Our website is www.torm.com. Neither our website nor its contents are incorporated into this prospectus.
Recent and Other Developments
In the fourth quarter of 2021, TORM entered into an agreement a Chinese financial institution for the sale and operational leaseback of nine
existing MR vessels built from 2010 to 2012. The lease period is expected to be between eight and ten years depending on the vessels. The transactions are expected to be completed during the fourth quarter of 2021 and first quarter of 2022 and yield
aggregate net proceeds of $75.5 million to the Company following the repayment of the existing debt secured by the vessels. This lease financing includes buyout options, starting from year three. This underlines TORM's ability to obtain attractively
priced and diversified operational lease financing.
RISK FACTORS
An investment in our securities involves a high degree of risk. Before making an investment in our securities, you should carefully consider
all of the information included or incorporated by reference into this prospectus and in any prospectus supplement, including the risks described under the heading "Risk Factors" in our Annual Report on Form 20-F for the year ended December 31, 2020,
filed with the SEC on March 1, 2021, as updated by annual and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein. Please see the section of this prospectus entitled "Where
You Can Find Additional Information."
The occurrence of one or more of those risk factors could adversely impact our business, financial condition or results of operations. When
we offer and sell any securities pursuant to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
Risks inherent in an investment in our securities
The market price of our securities after any offering may be volatile, and the value of an investment in our securities
may decline.
The market price of our securities could be subject to significant fluctuations in response to any one or more of the risk factors discussed
in our latest Annual Report on Form 20-F filed with the SEC and others beyond our control, including:
| • |
the market for similar securities;
|
| • |
actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in our industry;
|
| • |
mergers and strategic alliances in the tanker industry;
|
| • |
market conditions generally and in the tanker industry;
|
| • |
prevailing global and regional economic and political conditions;
|
| • |
the effect of governmental regulations and maritime self-regulatory organization standards on the conduct of our business;
|
| • |
changes in the basis of taxation of our activities in various jurisdictions;
|
9
| • |
our ability to service and refinance our current and future indebtedness;
|
| • |
our ability to raise additional debt and equity to satisfy our capital needs;
|
| • |
the failure of securities analysts to publish research about us after this offering or shortfalls in our operating results from levels forecast by securities analysts;
|
| • |
announcements concerning us or our competitors; and
|
| • |
the general state of the securities markets.
|
The product tanker market is cyclical in nature, which leads to volatility in freight rates, vessel values and industry profitability and
freight rates among different types of product tankers are highly volatile. In addition, the securities markets in recent years have experienced substantial price and volume fluctuations that have affected and continue to affect the market prices of
securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. These broad market and industry fluctuations, as well as factors such as those listed above, may negatively
impact the price of our securities. If the market price of our securities declines, you may not realize any return on your investment in our securities and may lose some or all of your investment. Also, you may not be able to sell the securities at
prices equal to or greater than those paid by you in any offering. In the past, companies that have experienced volatility in the market price of their securities have been subject to securities class action litigation. Future securities litigation
against us could result in substantial costs and divert management's attention from other business concerns, which could harm our business, results of operations and financial condition.
We may issue additional securities without your approval, which could dilute your ownership interests and may depress the
market price of our securities.
We may issue additional securities of equal or senior rank to your securities, without shareholder approval, in a number of circumstances.
The issuance by us of additional securities of equal or senior rank to your securities may have the following effects:
| • |
our existing shareholders' proportionate ownership interest in us may decrease;
|
| • |
the amount of cash available for dividends or interest payments may decrease;
|
| • |
the relative voting strength of previously outstanding securities may be diminished; and
|
| • |
the market price of our securities may decline.
|
Additional risks associated with the operation of our business
The smuggling of drugs or other contraband onto our vessels may lead to governmental claims against us.
We expect that our vessels will call on ports where smugglers may attempt to hide drugs and other contraband on vessels, with or without the
knowledge of crew members. To the extent our vessels are found with contraband, whether inside or attached to the hull of our vessel and whether with or without the knowledge of any of our crew, we may face governmental or other regulatory claims which
could have an adverse effect on our business, results of operations and financial condition.
The impact of COVID-19 may adversely impact the global economy and our business.
The spread of the novel coronavirus (hereinafter referred to as COVID-19), which was declared a pandemic by the World Health Organization on
March 11, 2020, has had and continues to have a significant negative impact on the global economy and has caused significant volatility in the financial markets, the severity and duration of which remains uncertain and will depend on future
developments including, among others, new information which may emerge concerning the severity of the virus, any resurgence of the virus, the actions to contain or treat its impact, and the length of time that the pandemic continues and whether
subsequent waves of the infection happen including as a result of vaccination rates among the population, the effectiveness of COVID-19 vaccines and the response by governmental bodies and regulators. Accordingly, an estimate of the impact cannot be
made at this time.
COVID-19 has introduced uncertainty in a number of areas of our business, including operational, commercial, administrative and financial
activities. We are focused on maintaining our efficient operations and, above all, the health and safety of our seafarers and shore-based employees. Because of port restrictions and various quarantine measures, we continue to experience challenges with
crew changes on our operating vessels and crewing of our newbuildings prior to delivery from the relevant shipyard. In light of these challenges our crew have had to and may in the future have to stay on board for longer periods and increased costs may
occur in conjunction with crew changes on our operating vessels and crewing of our newbuildings. The uncertainty in global capital and bank credit markets has also affected access and cost of new financing. We are unable to reasonably predict the
estimated length or severity of the COVID-19 pandemic on our future operating results.
10
USE OF PROCEEDS
We intend to use the net proceeds from the sale of securities as set forth in the applicable prospectus supplement. We will not receive any
proceeds from sales by the Selling Shareholder.
11
CAPITALIZATION
Updated information about our capitalization will be included in applicable future prospectus supplements.
The following table sets forth our capitalization as September 30, 2021:
|
(USD million)
|
Actual
|
|||
|
Current borrowings
|
$
|
177.6
|
||
|
Non- current borrowings
|
$
|
862.8
|
||
|
Total Debt
|
$
|
1,040.40
|
||
|
Equity
|
||||
|
Share Capital
|
||||
|
Common Shares
|
$
|
0.8
|
||
|
Share premium
|
$
|
158.9
|
||
|
Treasury Shares
|
$
|
(4.2
|
)
|
|
|
Hedging reserves
|
$
|
(12.5
|
)
|
|
|
Translation reserves
|
$
|
0.2
|
||
|
Retained Profit
|
$
|
906.8
|
||
|
Total Equity
|
$
|
1,050
|
||
|
Total Capitalization
|
$
|
2,090.40
|
||
There have been no significant adjustments to our capitalization since September 30, 2021. The above table should be read in conjunction with "Item 5. Operating and Financial Review
and Prospects" and the consolidated financial statements and related notes included in the 2020 Annual Report as well as the unaudited interim condensed consolidated financial statements and related notes for the three and nine months ended September
30, 2021 that are included in the Form 6-K filed with the SEC on November 10, 2021. If necessary, updated information on our capitalization will be included in a prospectus supplement or in an exhibit to a current report on Form 6-K that is
incorporated herein by reference.
12
PLAN OF DISTRIBUTION
We may sell or distribute the securities included in this prospectus and the Selling Shareholder may sell our common shares through
underwriters, through agents, to dealers, in private transactions, at market prices prevailing at the time of sale, at prices related to the prevailing market prices, or at negotiated prices.
In addition, we may sell some or all of our securities, and the Selling Shareholder may sell our common shares included in this prospectus
through:
| • |
a block trade in which a broker-dealer may resell a portion of the block, as principal, in order to facilitate the transaction;
|
| • |
purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account;
|
| • |
ordinary brokerage transactions and transactions in which a broker solicits purchasers; or
|
| • |
trading plans entered into by us or the Selling Shareholder pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are in place at the time of
an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of our securities on the basis of parameters described in such trading plans.
|
In addition, we or the Selling Shareholder may enter into options or other types of transactions that require us or them to deliver our
securities to a broker-dealer, who will then resell or transfer the securities under this prospectus. We or any Selling Shareholder may enter into hedging transactions with respect to our securities. For example, we or any Selling Shareholder may enter into transactions involving short sales of our common shares by broker-dealers;
| • |
sell common shares short and deliver the shares to close out short positions;
|
| • |
enter into option or other types of transactions that require us or the Selling Shareholder to deliver common shares to a broker-dealer, who will then resell or transfer the common shares under
this prospectus; or
|
| • |
loan or pledge the common shares to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares.
|
We or any Selling Shareholder may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may use securities pledged by us or any Selling Shareholder or borrowed from us, any Selling Shareholder or others to settle those sales or to close out any related open borrowings of stock,
and may use securities received from us or any Selling Shareholder in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this
prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we or any Selling Shareholder may otherwise loan or pledge securities to a financial institution or other third party that in turn may
sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
The Selling Shareholder and any broker-dealers or other persons acting on our behalf that participate with us in the distribution of the
securities may be deemed to be underwriters and any commissions received or profit realized by them on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. As of the date of this prospectus,
we are not a party to any agreement, arrangement or understanding between any broker or dealer and us with respect to the offer or sale of the securities pursuant to this prospectus.
13
At the time that any particular offering of securities is made, to the extent required by the Securities Act, a prospectus supplement will be
distributed, setting forth the terms of the offering, including the aggregate number of securities being offered, the purchase price of the securities, the initial offering price of the securities, the names of any underwriters, dealers or agents, any
discounts, commissions and other items constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Furthermore, we, our executive officers, our directors and the Selling Shareholder may
agree, subject to certain exemptions, that for a certain period from the date of the prospectus supplement under which the securities are offered, we and they will not, without the prior written consent of an underwriter, offer, sell, contract to sell,
pledge or otherwise dispose of any of our common shares or any securities convertible into or exchangeable for common shares. However, an underwriter, in its sole discretion, may release any of the securities subject to these lock-up agreements at any
time without notice. We expect an underwriter to exclude from these lock-up agreements securities exercised and/or sold pursuant to trading plans entered into by us or the Selling Shareholder pursuant to Rule 10b5-1 under the Exchange Act, that are in
place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of our securities on the basis of parameters described in such trading plans.
Underwriters or agents could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed
to be an at-the-market offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the Nasdaq Capital Market, the existing trading market for our shares of common stock, or sales made to or
through a market maker other than on an exchange.
We will bear costs relating to all of the securities offered and sold by us under this registration statement.
If more than five percent (5%) of the net proceeds of any offering of common shares made under this prospectus will be received by a
Financial Industry Regulatory Authority, or FINRA, member participating in the offering or affiliates or associated persons of such a FINRA member, the offering will be conducted in accordance with FINRA Rule 5121.
14
SELLING SHAREHOLDER
Based solely upon information furnished to us by the Selling Shareholder, the following table sets forth information with respect to the
beneficial ownership of our Class A common shares held as of the date of this prospectus by the Selling Shareholder. The Selling Shareholder is offering an aggregate of up to 53,812,988 of our Class A common shares, which were acquired in private
transactions. The Selling Shareholder may sell some, all or none of its shares covered by this prospectus.
|
Selling Shareholder
|
Common Shares Owned Prior to the Offering
|
Percentage of Class Prior to the Offering (1)
|
Total Common Shares Offered Hereby
|
Percentage of the Class Following the Offering (2)
|
||||||||||||
|
Njord Luxco(3) (4)
|
53,812,988
|
66.67
|
%
|
53,812,988
|
0
|
%
|
||||||||||
| (1) |
Based on 80,720,404 Class A common shares outstanding as of the date of this prospectus (excluding treasury shares). The total common shares offered excludes the one C-share.
|
| (2) |
Assumes that the Selling Shareholder sells all of the common shares offered hereby.
|
| (3) |
The business address of Njord Luxco is OCM Njord Holdings S.a r.l, 26A, Boulevard Royal L-2449, Luxembourg, Luxembourg. The majority shareholder of Njord Holdings
is OCM Luxembourg OPPS IX Sarl. The majority shareholder of OCM Luxembourg OPPS IX Sarl is Oaktree Opportunities Fund IX, L.P. The general partner of Oaktree Opportunities Fund IX, L.P. is Oaktree Opportunities Fund IX GP, L.P. The sole
director of Oaktree Opportunities Fund IX GP, L.P. is Oaktree Opportunities Fund IX GP, Ltd. The sole director of Oaktree Opportunities Fund IX GP, Ltd. is Oaktree Capital Management, L.P. The general partner of Oaktree Capital Management,
L.P. is Oaktree Capital Management GP, LLC. The general partner of Oaktree Capital Management GP, LLC is Atlas OCM Holdings, LLC. The names of each of the directors and executive officers of Atlas OCM
Holdings, LLC are Howard S. Marks, Bruce A. Karsh, Jay S. Wintrob, John B. Frank and Sheldon M. Stone who, by virtue of their membership interests in Oaktree Capital Group, LLC and Atlas OCM Holdings, LLC
may be deemed to share voting and dispositive power with respect to the shares of TORM plc held by Njord Holdings. The address for all of the entities and individuals identified above is c/o Oaktree Capital Management, L.P., 333 S.
Grand Avenue, 28th Floor, Los Angeles, California 90071.
|
15
DESCRIPTION OF SHARE CAPITAL
The following is a summary of the description of our share capital. Because the following is a summary, it does not contain all information
that you may find useful. For more complete information, you should read our Memorandum and Articles of Association, which were filed as Exhibit 1.1 to our Annual Report on Form 20-F for the year ended December 31, 2020, initially filed with the SEC on
March 1, 2021 and thereafter amended. Please see the section of this prospectus entitled "Where You Can Find Additional Information."
Share Capital
Issued and Authorized Capitalization
As of the date of this prospectus, our share capital consists of 81,213,775 Class A common shares, par
value $0.01 per share, including 493,371 treasury shares, one Class B share, par value $0.01 per share and one Class C share, par value $0.01 per share.
At the Company's 2016 Annual General Meeting of Shareholders, the Board of Directors was granted certain authorizations to increase our issued share capital, both
with and without pre-emption rights to the existing shareholders. The Board of Directors sought renewal of this existing authority (other than the authority to allot Class A common shares in relation to the Exchange Offer) at the 2020 Annual General
Meeting of Shareholders and these resolutions were approved. For a description of the share authorities granted to our Board of Directors, reference is made to "Director's Report—Share Capital" on pages 99-102 of our 2020 Annual Report.
Furthermore, the Board of Directors received authorization at the 2020 Annual General Meeting of Shareholders to make market purchases up to a maximum of
7,476,065 A-shares within a certain price range. We have repurchased 180,500 A-shares in the period from January 1, 2020 to December 31, 2020, leaving a current authority to purchase up to 7,295,565 A-shares or approximately ten percent (9%) of our
share capital excluding treasury shares.
Our Shares
Class A common shares. Each outstanding Class A common share, par value $0.01 per share, has, (i)
on a poll, one (1) vote on all matters at the general meeting (other than the election or removal of the B-director), (ii) pre-emption rights upon any new issue of equity securities (including Class A common shares) for cash (unless otherwise provided
by the United Kingdom Companies Act 2006, or our Articles of Association or as disapplied by the relevant shareholders' resolution), and (iii) the right to receive dividends, as well as liquidation proceeds and other distributions, that we may declare
from time to time. The Class A common shares are not redeemable, either in full or in part.
Class B share. The one outstanding Class B share, par
value $0.01, is held by a trustee on behalf of our minority shareholders (the Class A common shareholders other than Oaktree or its affiliates) pursuant to the terms of a minority trust deed. The Class B share has (i) one vote at our general meetings,
(ii) no pre-emptive subscription rights in relation to any issue of new shares of other classes and (iii) effectively carries no right to receive dividends, liquidation proceeds or other distributions from us. The holder of the Class B share has the
right to elect one member to our Board of Directors (the Deputy Chairman) as well as appoint one Board Observer. Mr. David Weinstein serves as the Class B share elected director and Mr. Jeffrey Stein is the appointed Board Observer. The Class B share
may not be transferred or pledged, except for a transfer to a replacement trustee or a redemption by us. The Class B share is required to be redeemed when the Class C share is redeemed. The trustee is required to exercise its rights as holder of the
Class B share at the direction of such minority shareholders. Such minority shareholders are able to direct the trustee as the holder of the Class B share by responding to a directions request distributed to such minority shareholders in accordance
with the terms of the minority trust deed.
Class C share. The one outstanding Class C share, par value $0.01, is held by Oaktree. The holder
of the Class C share has 350,000,000 votes at our general meetings on specified matters, described below. Based on Oaktree's share ownership as of the date of this prospectus of 53,812,988 Class A common shares and the C share, Oaktree has 403,812,988
votes.
The Class C share votes may only be cast on resolutions in respect of the appointment or removal of directors (excluding the Deputy Chairman)
and certain amendments to the Articles of Association proposed by the Board of Directors. The Class C share votes may not be cast on resolutions in respect of any amendments to certain reserved matters, as specified in our Articles of Association,
(unless those reserved matters also constitute changes to our Articles of Association on which the Class C share is entitled to vote), pre-emptive rights of shareholders, rights attached to the Class B share and other minority protection rights
provisions contained in our Articles of Association.
16
The Class C share has no pre-emption rights in relation to any issue of new shares of other classes and effectively carries no right to
receive dividends, liquidation proceeds or other distributions from us. The Class C share may not be transferred or pledged, except to an affiliate of Oaktree or pursuant to redemption by us. The Class C share will be automatically redeemed when
Oaktree and its affiliates cease to beneficially own at least one third of our issued Class A common shares. The voting rights attached to the Class C share have the practical effect of allowing Oaktree to control the Board of Directors of TORM plc and
to make amendments to the Articles of Association proposed by the Board of Directors, other than amendments to the minority protections, even when Oaktree holds only a third of the issued Class A common shares, the votes cast by Oaktree would represent
approximately 87% of the votes that may be cast on resolutions on which the Class C share may vote.
The reserved matters set forth in our Articles of Association require either the approval of a majority of our Board including our Chairman
and Deputy Chairman or the approval of a resolution approved by at least 70% or 86% of the votes capable of being cast. Please see "Memorandum and Articles of Association," below.
Our Share History
As of December 31, 2019, TORM plc's total share capital was $747,482.50
consisting of 74,748,248 Class A common shares, par value $0.01 per share, one Class B share and one Class C share both of par value $0.01 per share.
During 2020, TORM plc increased its share capital by 107,681 Class A common shares as a result of a
corresponding number of Restricted Share Units being exercised. Following this, as of December 31, 2020, TORM plc's total share capital was $748,559.31 with 74,855,929 Class A common shares, one Class B share
and one Class C share. During 2020 TORM plc repurchased 180,500 Class A common shares and as of December 31, 2020, TORM plc holds 493,371 as treasury shares.
As of December 31, 2020, TORM plc had approximately 10,800 registered shareholders representing approximately
94% of the share capital. In 2020, TORM plc was subject to United Kingdom Disclosure Guidance and Transparency Rules under which shareholders have a 3% ownership notification requirement. However, from January
1, 2021, in connection with the United Kingdom's withdrawal from the European Union, TORM plc changed its home member state in relation to the EU's Prospectus Regulation and Transparency Directive to Denmark.
As a consequence, TORM plc's shareholders now have ownership notification requirements when crossing thresholds of 5%, 10%, 15%, 20%, 25%, 33.3% 50%, 66.6% and 90% ownership share of the voting rights or nominal value of the total share capital.
Based on notifications received during 2020 and 2021, to date, OCM Njord Holdings S.à r.l. (Oaktree) is the only shareholder with more than 5% of the share capital holding 66.67% of the share capital.
As of December 31, 2020, TORM plc's treasury shares represented approximately 0.6% of the total share
capital. The Class C share is held by Oaktree, and the Class B share is held by the minority trustee, FM Trustees Limited, on behalf of TORM plc's non-Oaktree shareholders. The Class B share and the Class C share have certain voting rights. At the
end of 2020, the members of the Board of Directors held a total of 297,135 shares, equivalent to a total market capitalization of DKK 13,371,075 or $2,109,659. The Board of Directors and certain employees are
limited to trading shares during a four-week period after the publication of TORM plc's financial report.
Through 2021 to as of the date of this prospectus, TORM plc has increased in its share capital by a total of 389,936 Class
A common shares as a result of the exercise of a corresponding number of Restricted Share Units. The capital increase was carried out without any pre-emption rights for existing shareholders or others. The new shares were subscribed for in cash.
Between April 2021 and July 2021, in connection with the acquisition of eight 2007-2012 built MR product tanker vessels
from TEAM Tankers Deep Sea Ltd, TORM plc increased its share capital by 5,967,913 Class A common shares as a result of the delivery of such vessels.
17
Restricted Share Units
In accordance with TORM plc's Remuneration Policy, the Board of Directors has, as part of the Long-Term Incentive Program
(LTIP), granted certain employees Restricted Share Units (RSUs) in the form of restricted stock options. The RSUs aim at retaining and incentivizing the employees to seek to improve the performance of TORM plc and thereby the TORM plc share price for
the mutual benefit of themselves and the shareholders of TORM plc. Each RSU granted under the LTIP entitles its holder to acquire one Class A common share, subject to vesting.
On March 18, 2021, TORM plc announced that the Company's Board of Directors has determined to grant Restricted Share Units
(to certain employees, in accordance with the Company's Renumeration Policy. The RSUs aim at incentivizing the Participants to seek to improve the performance of TORM plc and thereby the TORM plc share price for the mutual benefit of themselves and
the shareholders of TORM plc. The Participants will for the year 2021 be granted a total of 1,099,919 RSUs and, subject to vesting, each RSU entitles the holder to acquire one TORM plc A-share. The RSUs will vest over a three-year period, with one
third of the grant amount vesting at each anniversary during the three-year period starting on January 1, 2022. The exercise price for each TORM plc A-share is DKK 53.5, corresponding to the average of 90 calendar days preceding the publication of
TORM plc's 2020 Annual Report plus a 15% premium. Vested RSUs may be exercised for a period of 360 days from each vesting date. In addition to the RSUs granted to the Participants, Executive Director Jacob Meldgaard has been granted a total of
255,200 RSUs on similar terms as outlined above. Holders of the RSUs will have no rights as a shareholder with respect to such RSUs until such time as the RSUs vest and are exercised and TORM plc A-shares are issued. The RSUs include certain
adjustment and acceleration provisions, exercise conditions and other terms customary for restricted stock option programs of this nature. The theoretical market value of the RSU allocation is calculated at USD $3.0 million based on the Black-Scholes
model.
Transfer Agent
The transfer Agent is Computershare Inc, Dept CH 19228, Palatine, IL 60055, USA.
Listing
Our Class A common shares are listed on Nasdaq Copenhagen under the symbol "TRMD A" and on Nasdaq New York under the symbol "TRMD".
Memorandum and Articles of Association
The description of our Memorandum and Articles of Association is incorporated herein by reference to our Annual Report on Form 20-F for the year ended December 31, 2020,
initially filed with the SEC on March 1, 2021 and thereafter amended, as updated by annual and other reports and documents we file with the SEC after the date of this prospectus and which are incorporated by reference herein, together with our
Memorandum and Articles of Association, a copy of which were filed as Exhibit 1.1 thereto, save that, within the description of our Memorandum and Articles of Association (i) the reference to the year 2021 in the first “Pre-emptive Rights” summary is
replaced by a reference to the year 2025 (ii) the reference to article 131 under the “Reserved Matters” summary is replaced by a reference to article 137 and (iii) the second paragraph of the left hand column in the “Dissenters’ Rights of Appraisal”
summary commencing with the words “In the event that we merge with another EU company” is deleted in its entirety. Please see the section of this prospectus entitled "Where You Can Find Additional Information."
18
DESCRIPTION OF DEBT SECURITIES
We may offer and issue debt securities from time to time in one or more series, under one or more indentures, each dated as of a date on or
prior to the issuance of the debt securities to which it relates, and pursuant to an applicable prospectus supplement. We may issue senior debt securities and subordinated debt securities pursuant to separate indentures, a senior indenture and a
subordinated indenture, respectively, in each case between us and the trustee named in the indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus forms a part. The senior indenture and
the subordinated indenture, as amended or supplemented from time to time, are sometimes referred to individually as an "indenture" and collectively as the "indentures." Each indenture will be subject to and governed by the Trust Indenture Act and will
be construed in accordance with and governed by the laws of the State of New York, without giving effect to any principles thereof relating to conflicts of law that would result in the application of the laws of any other jurisdiction, unless otherwise
stated in the applicable prospectus supplement and indenture (or post-effective amendment hereto). The aggregate principal amount of debt securities which may be issued under each indenture will contain the specific terms of any series of debt
securities or provide that those terms must be set forth in or determined pursuant to, an authorizing resolution, as defined in the applicable prospectus supplement, and/or a supplemental indenture, if any, relating to such series. Our debt securities
may be convertible or exchangeable into any of our equity or other debt securities.
The following description sets forth certain general terms and provisions of the debt securities. The particular terms and provisions of the
debt securities offered by any prospectus supplement, and the extent to which the general terms and provisions described below may apply to the offered debt securities, will be described in the applicable subsequent filings. We refer to any applicable
prospectus supplement, amendment to the registration statement of which this prospectus forms a part, and reports we file with the SEC under the Exchange Act as "subsequent filings." The statements below are not complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the applicable indenture. The specific terms of any debt securities that we may offer, including any modifications of, or additions to, the general terms described below as well as
any applicable material U.S. federal income tax considerations concerning the ownership of such debt securities will be described in the applicable prospectus supplement and indenture and, as applicable, supplemental indenture. Accordingly, for a
complete description of the terms of a particular issue of debt securities, the general description of the debt securities set forth below should be read in conjunction with the applicable prospectus supplement and indenture, as amended or supplemented
from time to time.
General
We expect that neither indenture will limit the amount of debt securities which may be issued. The debt securities may be issued in one or
more series.
You should read the applicable indenture and subsequent filings relating to the particular series of debt securities for the following terms
of the offered debt securities:
| • |
the designation, aggregate principal amount and authorized denominations;
|
| • |
the issue price, expressed as a percentage of the aggregate principal amount;
|
| • |
the maturity date;
|
| • |
the interest rate per annum, if any;
|
| • |
if the debt securities provide for interest payments, the date from which interest will accrue, the dates on which interest will be payable, the date on which payment of interest will commence
and the regular record dates for interest payment dates;
|
| • |
any optional or mandatory sinking fund provisions or exchangeability provisions;
|
| • |
the terms and conditions upon which conversion of any convertible debt securities may be effected, including the conversion price, the conversion period and other conversion provisions;
|
| • |
whether the debt securities will be our senior or subordinated securities;
|
| • |
whether the debt securities will be our secured or unsecured obligations;
|
19
| • |
the applicability and terms of any guarantees;
|
| • |
the date, if any, after which and the price or prices at which the debt securities may be optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or
mandatory redemptions;
|
| • |
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the debt securities of the series will be issuable;
|
| • |
if other than the full principal amount, the portion of the principal amount of the debt securities of the series which will be payable upon acceleration or provable in bankruptcy;
|
| • |
any events of default not set forth in this prospectus;
|
| • |
the currency or currencies, including composite currencies, in which principal, premium and interest will be payable, if other than the currency of the United States of America;
|
| • |
if principal, premium or interest is payable, at our election or at the election of any holder, in a currency other than that in which the debt securities of the series are stated to be payable,
the period or periods within which, and the terms and conditions upon which, the election may be made;
|
| • |
whether interest will be payable in cash or additional securities at our or the holder's option and the terms and conditions upon which the election may be made;
|
| • |
if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price in the currency of the United States of America for purposes of
determining the voting rights of holders of those debt securities under the applicable indenture;
|
| • |
if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the debt
securities of the series are stated to be payable, the manner in which the amounts will be determined;
|
| • |
any restrictive covenants or other material terms relating to the debt securities;
|
| • |
whether the debt securities will be issued in the form of global securities or certificates in registered form;
|
| • |
any listing on any securities exchange or quotation system;
|
| • |
additional provisions, if any, related to defeasance and discharge of the debt securities; and
|
| • |
any other special features of the debt securities.
|
Subsequent filings may include additional terms not listed above. Unless otherwise indicated in subsequent filings with the SEC relating to
the indenture, principal, premium and interest will be payable and the debt securities will be transferable at the corporate trust office of the applicable trustee. Unless other arrangements are made or set forth in subsequent filings or a
supplemental indenture, principal, premium and interest will be paid by checks mailed to the registered holders at their registered addresses.
Unless otherwise indicated in subsequent filings with the SEC, the debt securities will be issued only in fully registered form without
coupons, in denominations of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection with these debt securities.
Some or all of the debt securities may be issued as discounted debt securities, bearing no interest or interest at a rate which at the time
of issuance is below market rates, to be sold at a substantial discount below the stated principal amount. United States federal income tax consequences and other special considerations applicable to any discounted securities will be described in
subsequent filings with the SEC relating to those securities.
20
Senior Debt Securities
We may issue senior debt securities, which may be secured or unsecured, under the senior debt indenture. The senior debt securities will rank
on an equal basis with all our other senior debt except subordinated debt. The senior debt securities will be effectively subordinated, however, to all of our secured debt to the extent of the value of the collateral securing such debt. We will
disclose the amount of our debt in the prospectus supplement.
Subordinated Debt Securities
We may issue subordinated debt securities under a subordinated debt indenture. Subordinated debt would rank subordinate and junior in right
of payment, to the extent set forth in the subordinated debt indenture, to all our senior debt.
Covenants
Any series of debt securities may have covenants in addition to or differing from those included in the applicable indenture which will be
described in subsequent filings prepared in connection with the offering of such securities, limiting or restricting, among other things:
| • |
our ability to incur either secured or unsecured debt, or both;
|
| • |
our ability to make certain payments, dividends, redemptions or repurchases;
|
| • |
our ability to create dividend and other payment restrictions affecting our subsidiaries;
|
| • |
our ability to make investments;
|
| • |
mergers and consolidations by us or our subsidiaries;
|
| • |
sales of assets by us;
|
| • |
our ability to enter into transactions with affiliates;
|
| • |
our ability to incur liens; and
|
| • |
sale and leaseback transactions.
|
Modification of the Indentures
We expect that each indenture and the rights of the respective holders may be modified by us only with the consent of holders of not less
than a majority in aggregate principal amount of the outstanding debt securities of all series under the respective indenture affected by the modification, taken together as a class. But we expect that no modification that:
| (1) |
changes the amount of securities whose holders must consent to an amendment, supplement or waiver;
|
| (2) |
reduces the rate of or changes the interest payment time on any security or alters its redemption provisions (other than any alteration to any such section which would not materially adversely
affect the legal rights of any holder under the indenture) or the price at which we are required to offer to purchase the securities;
|
| (3) |
reduces the principal or changes the maturity of any security or reduces the amount of, or postpones the date fixed for, the payment of any sinking fund or analogous obligation;
|
| (4) |
waives a default or event of default in the payment of the principal of or interest, if any, on any security (except a rescission of acceleration of the securities of any series by the holders
of at least a majority in principal amount of the outstanding securities of that series and a waiver of the payment default that resulted from such acceleration);
|
21
| (5) |
makes the principal of or interest, if any, on any security payable in any currency other than that stated in the security;
|
| (6) |
makes any change with respect to holders' rights to receive principal and interest, the terms pursuant to which defaults can be waived, certain modifications affecting shareholders or certain
currency-related issues; or
|
| (7) |
waives a redemption payment with respect to any security or changes any of the provisions with respect to the redemption of any securities;
|
will be effective against any holder without his consent. Other terms as specified in subsequent filings may be modified without the consent of the holders.
Events of Default
We expect that each indenture will define an event of default for the debt securities of any series as being any one of the following events:
| • |
default in any payment of interest when due which continues for 30 days;
|
| • |
default in any payment of principal or premium at maturity;
|
| • |
default in the deposit of any sinking fund payment when due;
|
| • |
default in the performance of any covenant in the debt securities or the applicable indenture which continues for 60 days after we receive notice of the default;
|
| • |
default under a bond, debenture, note or other evidence of indebtedness for borrowed money by us or our subsidiaries (to the extent we are directly responsible or liable therefor) having a
principal amount in excess of a minimum amount set forth in the applicable subsequent filings, whether such indebtedness now exists or is hereafter created, which default shall have resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and payable, without such acceleration having been rescinded or annulled or cured within 30 days after we receive notice of the default; and
|
| • |
events of bankruptcy, insolvency or reorganization.
|
An event of default of one series of debt securities will not necessarily constitute an event of default with respect to any other series of
debt securities.
There may be such other or different events of default as described in an applicable subsequent filing with respect to any class or series of
debt securities.
We expect that under each indenture, in case an event of default occurs and continues for the debt securities of any series, the applicable
trustee or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of that series may declare the principal and accrued but unpaid interest of the debt securities of that series to be due and payable.
Further, any event of default for the debt securities of any series which has been cured is expected to be permitted to be waived by the holders of a majority in aggregate principal amount of the debt securities of that series then outstanding.
We expect that each indenture will require us to file annually after debt securities are issued under that indenture with the applicable
trustee a written statement signed by two of our officers as to the absence of material defaults under the terms of that indenture. We also expect that each indenture will provide that the applicable trustee may withhold notice to the holders of any
default if it considers it in the interest of the holders to do so, except notice of a default in payment of principal, premium or interest.
Subject to the duties of the trustee in case an event of default occurs and continues, we expect that each indenture will provide that the
trustee is under no obligation to exercise any of its rights or powers under that indenture at the request, order or direction of holders unless the holders have offered to the trustee reasonable indemnity. Subject to these provisions for
indemnification and the rights of the trustee, each indenture is expected to provide that the holders of a majority in principal amount of the debt securities of any series then outstanding have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee as long as the exercise of that right does not conflict with any law or the indenture.
22
Defeasance and Discharge
The terms of each indenture are expected to provide us with the option to be discharged from any and all obligations in respect of the debt
securities issued thereunder upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both, which through the payment of interest and principal in accordance with their terms will provide money in an amount sufficient to
pay any installment of principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the payments in accordance with the terms of the debt securities and the indenture governing
the debt securities. We expect that this right may only be exercised if, among other things, we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that such a discharge will not be
deemed, or result in, a taxable event with respect to holders. This discharge would not apply to our obligations to register the transfer or exchange of debt securities, to replace stolen, lost or mutilated debt securities, to maintain paying agencies
and hold moneys for payment in trust.
Defeasance of Certain Covenants
We expect that the terms of the debt securities provide us with the right not to comply with specified covenants and that specified events of
default described in a subsequent filing will not apply provided we deposit with the trustee money or U.S. government obligations, or both, which through the payment of interest and principal will provide money in an amount sufficient to pay any
installment of principal, premium, and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of such payments in accordance with the terms of the debt securities and the indenture governing such
debt securities. We expect that to exercise this right, we will also be required to deliver to the trustee an opinion of counsel to the effect that the deposit and related covenant defeasance should not cause the holders of such series to recognize
income, gain or loss for federal income tax purposes.
We refer you to applicable subsequent filings with respect to any deletions or additions or modifications from the description contained in
this prospectus.
Form of Debt Securities
Each debt security will be represented either by a certificate issued in definitive form to a particular investor or by one or more global
securities representing the entire issuance of securities. Both certificated securities in definitive form and global securities may be issued either in registered form, where our obligation runs to the holder of the security named on the face of the
security, or in bearer form, where our obligation runs to the bearer of the security.
Definitive securities name you or your nominee as the owner of the security, other than definitive bearer securities, which name the bearer
as owner, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as
applicable.
Global securities name a depositary or its nominee as the owner of the debt securities represented by these global securities, other than
global bearer securities, which name the bearer as owner. The depositary maintains a computerized system that will reflect each investor's beneficial ownership of the securities through an account maintained by the investor with its broker/dealer,
bank, trust company or other representative, as we explain more fully below.
Global Securities
We may issue the debt securities in the form of one or more fully registered global securities that will be deposited with a depositary or
its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the
portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be
transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees. If not described below, any specific terms of the depositary arrangement
with respect to any debt securities to be represented by a registered global security will be described in the prospectus supplement relating to those debt securities. We anticipate that the following provisions will apply to all depositary
arrangements:
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Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants' accounts with the respective
principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or selling agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial
interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with
respect to interests of persons holding through participants. The laws of some jurisdictions may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own,
transfer or pledge beneficial interests in registered global securities. So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole
owner or holder of the securities represented by the registered global security for all purposes under the indenture.
Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities
represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the
indenture. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the
participant through which the person owns its interest in that registered global security, to exercise any rights of a holder under the indenture. We understand that under existing industry practices, if we request any action of holders of a registered
global security or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial
owners holding through them.
Principal, premium, if any, and interest payments on debt securities represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of us, the trustee or any other agent of us or agent of the trustee will have any
responsibility or liability to owners of beneficial interests for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to those beneficial ownership interests. We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium,
interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants' accounts in amounts proportionate to their respective beneficial interests in that registered
global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and
customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of those participants.
We expect that the indenture will provide that if the depositary for any of these securities represented by a registered global security is
at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we
will be required to issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, the indenture is expected to allow us to decide, at any time and in our sole discretion, to not
have any of the securities represented by one or more registered global securities. If we make that decision, we will issue securities in definitive form in exchange for all of the registered global security or securities representing those securities.
Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee or other relevant agent of ours or theirs. It is expected that the
depositary's instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
If we issue registered global securities, we expect that the Depository Trust Company, or DTC, will act as depository and the securities will
be registered in the name of Cede & Co., as DTC's nominee.
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DESCRIPTION OF WARRANTS
We may issue warrants to purchase any of our debt or equity securities. Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description
of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement. We expect that such terms will include, among others:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the number and type of our securities purchasable upon exercise of such warrants;
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the price at which, and the currency or currencies in which, the securities or other rights purchasable upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material U.S. federal income tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of any of our debt or equity securities issued by us.
Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such
securities or currencies at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the
cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement.
The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities or currencies and any acceleration, cancellation or termination provisions, provisions relating to U.S. federal income tax
considerations, if any, or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the
extent set forth in the applicable prospectus supplement, and those payments may be unsecured or pre-funded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the
applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement
date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either a senior indenture or subordinated indenture.
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DESCRIPTION OF RIGHTS
We may issue rights to purchase our equity securities. These rights may be issued independently or together with any other security offered
by this prospectus and may or may not be transferable by the stockholder receiving the rights in the rights offering. In connection with any rights offering, we may enter into a standby underwriting agreement with one or more underwriters pursuant to
which the underwriter will purchase any securities that remain unsubscribed for upon completion of the rights offering.
The applicable prospectus supplement relating to any rights will describe the terms of the offered rights, including, where applicable, the
following:
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the exercise price for the rights;
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the number of rights issued to each stockholder;
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the extent to which the rights are transferable;
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights;
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the date on which the right to exercise the rights will commence and the date on which the right will expire;
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the amount of rights outstanding;
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the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities; and
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the material terms of any standby underwriting arrangement entered into by us in connection with the rights offering.
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The description in the applicable prospectus supplement of any rights we offer will not necessarily be complete and will be qualified in its
entirety by reference to the applicable rights certificate or rights agreement, which will be filed with the SEC if we offer rights. For more information on how you can obtain copies of any rights certificate or rights agreement if we offer rights, see
"Where You Can Find Additional Information" of this prospectus. We urge you to read the applicable rights certificate, the applicable rights agreement and any applicable prospectus supplement in their entirety.
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DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more of our rights, purchase contracts,
warrants, debt securities, preferred shares, common shares or any combination of such securities. The applicable prospectus supplement will describe the terms of the offered units. We expect that such terms will include,
among others:
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the terms of the units and of the rights, purchase contracts, warrants, debt securities, preferred shares and common shares comprising the units, including whether and under what circumstances
the securities comprising the units may be traded separately;
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a description of the terms of any unit agreement governing the units;
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if applicable, a discussion of any material U.S. federal income tax considerations; and
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a description of the provisions for the payment, settlement, transfer or exchange or the units.
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TAX CONSIDERATIONS
United States Federal Income Tax Considerations
The following is a discussion of the material United States federal income tax considerations that may be relevant to prospective investors
in the securities offered hereunder and, unless otherwise noted in the discussion, is the opinion of Seward & Kissel, LLP, our United States counsel, insofar as it contains legal conclusions with respect to matters of United States federal income
tax law. The opinion of our counsel is dependent on the accuracy of factual representations made by us to them, including descriptions of our operations contained herein.
This discussion does not purport to deal with the tax consequences of owning the securities offered under this prospectus relevant to all
categories of investors, some of which, such as banks, insurance companies, real estate investment trusts, regulated investment companies, grantor trusts, tax-exempt organizations, dealers in securities or currencies, traders in securities that elect
the mark-to-market method of accounting for their securities, investors whose functional currency is not the U.S. dollar, investors that are or own the offered securities through partnerships or other pass-through entities, investors that own, actually
or under applicable constructive ownership rules, 10% or more of our equity, persons that will hold the offered securities as part of a hedging transaction, "straddle" or "conversion transaction," persons who are deemed to sell the offered securities
under constructive sale rules, persons required to recognize income for U.S. federal income tax purposes no later than the taxable year in which such income is included on an "applicable financial statement" and persons who are liable for the
alternative minimum tax may be subject to special rules. The following discussion of United States federal income tax matters is based on the U.S. Internal Revenue Code of 1986, as amended, or the Code, judicial decisions, administrative
pronouncements, and existing and proposed regulations issued by the United States Department of the Treasury, or the Treasury Regulations, all as in effect or in existence on the date of this prospectus, and all of which are subject to change, possibly
with retroactive effect. This discussion does not address any aspect of state, local, or any U.S. federal tax considerations other than income taxation, such as estate or gift taxation or unearned income Medicare contribution taxation. This discussion
deals only with holders who purchase securities in connection with this offering and hold such securities as a capital asset. The discussion below is based, in part, on the description of our business as described in this prospectus and assumes that we
conduct our business as described in this prospectus. Unless otherwise noted, references in the following discussion to the "Company," "we," "our," and "us" are to TORM plc and its subsidiaries on a consolidated basis.
United States Federal Income Taxation of the Company
Taxation of Operating Income: In General
We anticipate that substantially all of our gross income will be derived from the use and operation of vessels in international commerce, and
that this income will principally consist of freights from the transportation of cargoes, hire or lease income from voyage or time charters and the performance of services directly related thereto, which we refer to as "shipping income". Unless exempt
from U.S. federal income taxation under Section 883 of the Code, under Article 8 of the U.S.-United Kingdom Income Tax Treaty or under Article 8 of the U.S.-Denmark Income Tax Treaty, we will be subject to U.S. federal income taxation, in the manner
discussed below, to the extent our shipping income is considered for U.S. federal income tax purposes to be derived from sources within the United States.
Shipping income that is attributable to transportation that begins or ends, but that does not both begin and end, in the United States will
be considered for U.S. federal income tax purposes to be 50% derived from sources within the United States. Shipping income attributable to transportation that both begins and ends in the United States will be considered to be 100% derived from sources
within the United States. We are not permitted by law to engage in transportation that gives rise to 100% U.S. source shipping income.
Shipping income attributable to transportation exclusively between non-U.S. ports will be considered to be 100% derived from sources outside
the United States. Shipping income derived from sources outside the United States will not be subject to any U.S. federal income tax.
We do not believe that we or our subsidiaries will qualify for exemption from tax under Section 883, although we and our subsidiaries may
qualify in the future if there is a change in our capital structure. See below for a discussion of the requirements for qualification under Section 883.
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We and/or one or more of our subsidiaries (collectively referred to as "we" for purposes of this paragraph) may qualify for exemption from
tax under the terms of the U.S.-UK Income Tax Treaty or U.S.-Denmark Income Tax Treaty. Whether we so qualify depends, among other things, on whether we satisfy the Limitation on Benefits article of the applicable U.S. income tax treaty. In particular,
we would generally satisfy the Limitation on Benefits article if we can establish that we are engaged in the active conduct of a trade or business in the United Kingdom or Denmark, whichever is applicable, our U.S. source shipping income is derived in
connection with, or is incidental to, such trade or business, and such trade or business activity in the applicable treaty jurisdiction is substantial in relation to our trade or business activity in the United States. Additionally, we may also be able
to satisfy the Limitation on Benefits article of the U.S.-Denmark Income Tax Treaty if we can establish that our principal class of shares is regularly traded on a recognized stock exchange, such as Nasdaq Copenhagen. For this purpose, our Class A
common shares would generally be considered our primary class of shares if the Class A common shares represents more than 50% of the voting power and value of the company. Additionally for this purpose, our Class A common shares would be treated as
regularly traded if the Class A common shares are traded in more than de minimis quantities each quarter and the aggregate number of Class A common shares traded during the prior taxable year are at least 6% of the average number of Class A common
shares during such prior taxable year. Given the legal and factual uncertainties in making the foregoing determination, there can be no assurance that we will qualify for exemption from tax under a U.S. income tax treaty, or that the IRS or a court of
law will agree with our determination in this regard.
Exemption Under Section 883 of the Code
Under Section 883 of the Code and the Treasury Regulations promulgated thereunder, or "Section 883," we and each of our subsidiaries that
derives U.S. source shipping income will qualify for exemption from U.S. federal income tax under Section 883 in respect of such shipping income if, in relevant part:
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we and each such subsidiary is organized in a "qualified foreign country" which, as defined, is a foreign country that grants an equivalent exemption from tax to corporations organized in the
United States in respect of the shipping income for which exemption is being claimed under Section 883, which we refer to as the "country of organization requirement"; and either
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more than 50% of the value of our stock is owned actually or constructively under specified attribution rules, by "qualified shareholders" (which as defined includes, among other things,
individuals who are "residents" of qualified foreign countries and corporations that are organized in qualified foreign countries and meet the Publicly-Traded Test discussed immediately below), which we refer to as the "50% Ownership Test," or
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our stock is "primarily" and "regularly" traded on an "established securities market" in our country of organization, in another country that grants an "equivalent exemption" to U.S.
corporations, or in the United States, which we refer to as the "Publicly-Traded Test".
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Since the IRS has recognized the United Kingdom, our country of incorporation, and each of the countries of incorporation of our
subsidiaries, including Denmark, as a qualified foreign country in respect of the shipping income for which exemption is being claimed under Section 883, we and each of our subsidiaries satisfy the country of organization requirement. Therefore, we and
each of our subsidiaries will be exempt from U.S. federal income tax with respect to our U.S. source shipping income if we and each of our subsidiaries satisfy either the "50% Ownership Test" or the "Publicly-Traded Test" and certain substantiation and
reporting requirements are met. We do not anticipate satisfying the 50% Ownership Test. Our ability to satisfy the Publicly-Traded Test is discussed below.
The Treasury Regulations provide, in pertinent part, that a class of stock of a foreign corporation will be considered to be "primarily
traded" on an established securities market in a country (such as Nasdaq Copenhagen) if the exchange is designated under a Limitations on Benefits article in a United States income tax treaty and if the number of shares of such class of stock that are
traded during any taxable year on all established securities markets in that country exceeds the number of shares of such class that are traded during that taxable year on established securities markets in any other single country. Currently, our
shares are primarily traded on the Nasdaq Copenhagen for purposes of the "primarily traded" test, although this may change in future years.
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The Treasury Regulations provide further that stock of a foreign corporation will be considered to be "regularly traded" on an established
securities market only if: (i) one or more classes of stock of the corporation that, in the aggregate, represents more than 50% of the stock of the corporation, by voting power and value, is listed on such established securities market, (ii) each such
class of stock is traded on such established securities market, other than in de minimis quantities, on at least 60 days during the taxable year, and (iii) the aggregate number of shares of such stock traded on such established securities market is at
least 10% of the average number of shares of such stock outstanding during such taxable year. Even if this were not the case, the Treasury Regulations provide that the trading frequency and trading volume tests will be deemed satisfied with respect to
a class of stock that is traded on an established securities market in the United States if such stock is regularly quoted by dealers making a market in such stock. Although we have a class of stock that is listed on the Nasdaq New York, an established
securities market in the United States, we do not anticipate satisfying the requirement that our stock be "regularly traded" on an established securities market under the quantitative testing rules.
Even if our common stock was considered to be "regularly traded" on an established securities market, the Treasury Regulations provide, in
pertinent part, that a class of stock of a foreign corporation will not be considered to be "regularly traded" on an established securities market for any taxable year in which 50% or more of the vote and value of the outstanding shares of such class
of stock are owned, within the meaning of the Treasury Regulations, on more than half the days during such taxable year by persons who each own 5% or more of the vote and value of the outstanding shares of such class of stock, which persons we refer to
as "5% shareholders" and the rule as the "5% override rule".
For purposes of identifying our 5% shareholders, we are permitted to rely on Schedule 13G and Schedule 13D filings with the SEC. Even if our
stock was considered "regularly traded" on an established securities market, we believe the 5% override rule would have been triggered and that we would not be able to rely on Section 883 for exemption from United States federal income taxation on our
U.S. source shipping income.
Therefore, if we cannot qualify for benefits under an applicable U.S. income tax treaty, we would be subject to United States taxation on our
U.S. source shipping income. We intend to take the position that we qualify for benefits of the U.S.-U.K. income tax treaty for purposes of Section 883. Therefore, we expect to be exempt from U.S. federal income taxation on U.S. source shipping
income.
U.S. Federal Income Taxation in the Absence of Section 883 or Treaty Exemption
4% Gross Basis Tax Regime. To the extent
the benefits of Section 883 or an applicable U.S. income tax treaty are unavailable, our U.S. source shipping income which is not considered to be "effectively connected" with the conduct of a U.S. trade or business, as discussed below, would be
subject to a 4% U.S. federal income tax imposed by Section 887 of the Code on a gross basis, without the benefit of deductions, which we refer to as the "4% gross basis tax regime". Since under the sourcing rules described above, no more than 50% of
our shipping income would be treated as derived from U.S. sources, the maximum effective rate of U.S. federal income tax on our shipping income should never exceed 2% under the 4% gross basis tax regime.
Net Basis and Branch Tax Regimes. To the extent the benefits of Section 883 or an applicable U.S.
income tax treaty are unavailable and our U.S. source shipping income is considered to be "effectively connected" with the conduct of a U.S. trade or business, as discussed below, any such "effectively connected" U.S. source shipping income, net of
applicable deductions, would be subject to the U.S. federal income tax currently imposed at the corporate rate of 21%. In addition, we may be subject to the U.S. branch profits tax, at a rate of 30% or such lower rate as may be provided by an
applicable U.S. income tax treaty, on earnings "effectively connected" with the conduct of such U.S. trade or business, as determined after allowance for certain adjustments, and on certain interest paid or deemed paid attributable to the conduct of
their U.S. trade or business.
Our U.S. source shipping income will be considered "effectively connected" with the conduct of a U.S. trade or business only if:
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we have, or are considered to have, a fixed place of business in the United States involved in the earning of shipping income; and
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substantially all of our U.S. source shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated
sailings at regular intervals between the same points for voyages that begin or end in the United States.
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We do not intend to have, or permit circumstances that would result in having, substantially all of our U.S. source shipping income be
attributable to regularly scheduled transportation. Based on the foregoing and on the expected mode of our shipping operations, we believe that none of our U.S. source shipping income will be "effectively connected" with the conduct of a U.S. trade or
business.
U.S. Taxation of Gain on Sale of Vessels.
Regardless of whether we qualify for exemption under Section 883 of the Code or the applicable U.S. income tax treaty, we do not expect to be
subject to U.S. federal income taxation with respect to gain realized on a sale of a vessel, provided the sale is considered to occur outside of the United States under U.S. federal income tax principles. In general, a sale of a vessel will be
considered to occur outside of the United States for this purpose if title to the vessel, and risk of loss with respect to the vessel, pass to the buyer outside of the United States. It is expected that any sale of a vessel by us will be considered to
occur outside of the United States.
Taxation of Holders of Securities Offered Hereunder
The material U.S. federal income tax considerations to investors that are beneficial owners of any of the offered securities that are either
(a) United States persons within the meaning of section 7701(a)(30) of the Code or (b) not United States persons within the meaning of section 7701(a)(30) of the Code of purchasing, acquiring, owning, holding, exercising, exchanging, selling or
otherwise disposing of the offered securities will be described in a supplement to this prospectus.
If a partnership holds our common shares, the U.S. federal income tax treatment of a partner will generally depend upon the status of the
partner and upon the activities of the partnership. If you are a partner in a partnership holding our common shares, you are encouraged to consult your own tax advisor.
Danish Tax Considerations
The following is a summary of certain Danish tax considerations relating to an investment in TORM plc, based upon the opinion of Bech-Bruun,
our counsel as to matters of Danish tax law. The summary describes the Danish tax implications pertaining to dividends paid from TORM A/S to TORM plc, and a sale of Class A common shares by TORM plc.
The summary does not purport to constitute exhaustive tax or legal advice. It is specifically to be noted that the summary does not address
all possible tax consequences relating to an investment in the shares of TORM plc. The summary is based solely upon the tax laws of Denmark in effect on the date of this prospectus. Danish tax laws may be subject to changes, possibly with retroactive
effect.
Sale of Class A common shares by TORM plc
Shareholders not resident in Denmark will normally not be subject to Danish tax on gains realized on the sale of shares, irrespective of the
ownership period and equity interest. However, Danish anti-avoidance rules should be observed as these rules may, if certain conditions are met, result in a requalification of tax-exempt capital gains into dividends, which could trigger Danish
withholding taxes. These rules could apply in a number of situations, such as in connection with a related party sale of shares against cash and in unrelated third-party transactions in connection with the transfer of shares to a new holding company
(controlled by a third party) against shares and cash. For example, this could be the case, if dividends from TORM A/S cannot be received tax exempt by TORM plc. The rules should only apply to intra-group transactions as well as situations where TORM
plc receives an ownership share in the group acquiring the shares in TORM A/S.
Dividends distributed to the holders of Class A common shares of TORM A/S to TORM plc
Under Danish tax law, dividends paid on shares in a Danish company to a foreign company are normally subject to dividend withholding tax of
27%. However, the foreign company receiving the dividends will as a main rule be subject to a final Danish withholding tax of 22%, provided the recipient reclaims the excess tax from the Danish tax authorities). This final withholding tax may be
further reduced to the extent a tax treaty allows for a lower withholding tax rate than 22%.
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Dividends paid on shares in a Danish company are as a starting point exempt from Danish withholding tax when the foreign receiving company
owns at least 10% of the Danish distributing company, the foreign receiving company is tax resident within the EU or a state which has a tax treaty with Denmark, and the Danish taxation should be reduced or eliminated in accordance with the EU
Parent/Subsidiary Directive (2011/96/EU) or in accordance with a tax treaty between Denmark and the state in which the receiving company is domiciled. The Danish company is not required to withhold any tax if the dividend payments are exempt from
Danish withholding tax.
When considering whether the EU Parent/Subsidiary Directive (2011/96/EU) or a tax treaty can be applied (thereby enabling exemption from
Danish withholding taxes on dividend distributions provided the foreign receiving company owns at least 10% of the distributing company), the Danish tax authorities do consider a number of other criteria, including whether the foreign receiving company
is the beneficial owner, and whether the structure can be challenged based on general anti-avoidance rules introduced in 2019 (transposition of the EU Directive 2016/1164 and most recently amended by Directive 2017/952).
If these conditions for exemption are not fulfilled, Danish withholding tax of 27% (potentially reduced to 22% and potentially a lower rate
according to a tax treaty) will be triggered on such dividend distributions.
New withholding tax system
The Danish government has announced that it is considering introducing a new withholding tax system for listed shares. According to the
contemplated system, a dividend should be taxed on the distribution date at a final tax rate based on each shareholder's specific conditions. The information on the shareholders (including information on the beneficial owner pursuant to Danish
legislation) must be provided before the actual distribution date in order for the dividend distributing companies to be able to calculate and withhold the correct amount of dividend tax for each shareholder. The shareholder's custodian will be the
withholding party, and also the party that must provide the shareholder information to the Danish tax authorities. The withholding party is liable for the correct payment of withholding taxes.
The proposed new model has been introduced in a bill and sent through a consultation process. The bill has not yet been introduced before the
Danish Parliament and is subject to change. No expected date of the implementation has been announced.
As the proposed new model is only contemplated to apply to listed shares, it should not apply to dividends distributed on the shares in TORM
A/S.
Share transfer tax and stamp duties
No Danish share transfer tax or stamp duties are payable on direct or indirect transfer of the shares of TORM A/S.
Danish Tax Risks
The Danish Tax Authorities may challenge whether TORM plc is entitled to Danish withholding tax exemption on dividends from TORM A/S.
TORM plc is a tax resident of the United Kingdom and owns 100% of the shares of TORM A/S. Following the United Kingdom's departure from the
European Union, TORM plc is not entitled to the benefits under the EU Parent/Subsidiary Directive (2011/96/EU)
However, TORM plc should be entitled to the benefit of the double tax treaty entered into between Denmark and the United Kingdom. The double
tax treaty reduces dividend withholding tax to nil for wholly-owned subsidiaries (where the relevant conditions are satisfied), and its protection would, in principle, be available regardless of the United Kingdom's departure from the European Union.
In order for the double tax treaty to apply, TORM plc must be considered the beneficial owner of the dividends and must not be subject to Danish anti-abuse rules. We believe that TORM's group structure, their level of business activity carried out in
the United Kingdom, their economic risk, their right to dispose of dividends received as well as the fact that TORM plc is a listed company justify that TORM plc is the beneficial owner of dividends received from TORM A/S, that TORM plc is not a
conduit entity and that Danish anti-abuse rules should not apply.
Consequently, we believe that dividends distributed from TORM A/S to TORM plc should be exempt from Danish dividend withholding tax according
to the double tax treaty entered into between Denmark and the United Kingdom. If not all of the applicable conditions in the double tax treaty between the United Kingdom and Denmark are fulfilled, Danish withholding taxes of 27% (potentially reduced to
22%) will be triggered on such dividend distributions.
33
United Kingdom Tax Considerations
The following discussion is based upon the opinion of Watson Farley & Williams LLP, our counsel as to matters of the taxation laws of the
United Kingdom. The following statements do not constitute tax advice and are intended only as a general guide to current United Kingdom law and HM Revenue and Customs ("HMRC") published practice, which may not be binding on HMRC, as at the date of
this document (which are both subject to change at any time, possibly with retrospective effect).
They relate only to certain limited aspects of the United Kingdom tax treatment of the beneficial owners of the Class A common shares. They
are intended to apply only to shareholders who are resident only in the United Kingdom for United Kingdom tax purposes (unless the context requires otherwise) and, if individuals, who are domiciled in the United Kingdom and to whom split-year treatment
does not apply. The statements below only relate to persons who are and will be the absolute beneficial owners of the Class A common shares and who hold, and will hold, the Class A common shares through the Depository Trust Company as investments (and
not as securities to be realized in the course of a trade).
The statements below are not exhaustive and may not apply to certain shareholders, such as dealers in securities, broker dealers, insurance
companies and collective investment schemes, shareholders who are exempt from taxation, shareholders who hold their shares through an Individual Savings Account or a Self-Invested Personal Pension and shareholders who have (or are deemed to have)
acquired the Class A common shares by virtue of an office or employment. Such persons may be subject to special rules. This summary does not address any inheritance tax considerations.
Prospective purchasers of the Class A common shares who are in any doubt as to their tax position should consult an appropriate professional
adviser.
Taxation of Dividends
General
TORM plc is not required to make any withholding or deduction for or on account of United Kingdom tax in respect of dividends on the Class A
common shares, irrespective of whether the shareholder receiving the dividend is resident in or outside the United Kingdom.
Individual Shareholders
United Kingdom resident individual shareholders may be subject to income tax on dividends they receive from the Company. The first £2,000 of
dividend income that the United Kingdom resident individuals receive in each tax year is taxed at a rate of 0% (the "nil rate amount").
Dividend income that is within the nil rate amount counts towards an individual's basic or higher rate limits – and will therefore affect the
taxation of other income received and any capital gains realized by the individual in the tax year. It may also affect the level of savings allowance to which they are entitled (as this is different for basic and higher rate taxpayers). In
calculating into which tax band any dividend income over the nil rate amount falls, dividend income is treated as the "top slice" of an individual's income.
Any dividend income received by a United Kingdom resident individual shareholder in excess of the nil rate amount will be subject to income
tax at a rate of 7.5%, to the extent that it is within the basic rate band, 32.5% to the extent that it is within the higher rate band and 38.1%, to the extent that it is within the additional rate band.
On September 7, 2021, the United Kingdom Government announced that the tax rate applicable to dividends would rise by 1.25% from April 2022,
and that this would be legislated for in the next Finance Bill.
Corporate Shareholders
Shareholders within the charge to United Kingdom corporation tax which are "small companies" (for the purposes of United Kingdom taxation of
dividends) will not generally expect to be subject to tax on dividends from the Company.
34
Other shareholders within the charge to United Kingdom corporation tax will not be subject to tax on dividends from the Company so long as
the dividends fall within an exempt class and certain conditions are met. For example: dividends paid to companies holding less than 10% of the issued share capital of the payer (or any class of that share capital) are generally dividends that fall
within an exemption in respect of "portfolio holdings" (subject to the application of relevant anti-avoidance rules). Other exemptions may also apply.
Shareholders Resident outside the United Kingdom
Where a shareholder resident for tax purposes outside the United Kingdom carries on a trade, profession or vocation in the United Kingdom and
the dividends are a receipt of that trade or, in the case of corporation tax, the Class A common shares are held by or for a United Kingdom permanent establishment through which a trade is carried on, the shareholder may be liable to United Kingdom tax
on dividends paid by the Company.
Taxation of Chargeable Gains
Individual Shareholders
A disposal of the Class A common shares may give rise to a chargeable gain (or allowable loss) for the purposes of United Kingdom capital
gains tax, depending on the circumstances and subject to any available exemption or relief. The rate of capital gains tax in respect of shareholdings is 10% for individuals who are subject to income tax at the basic rate and 20% to the extent that an
individual's chargeable gains, when aggregated with his or her income chargeable to income tax, exceed the basic rate band for income tax purposes. An individual shareholder is entitled to realize an exempt amount of gains (£12,300 in the 2021/22 tax
year) in each tax year without being liable to tax.
A shareholder who is an individual and who has ceased to be resident in the United Kingdom for taxation purposes (or has become treated as
resident outside the United Kingdom for the purposes of a double tax treaty ("treaty non-resident") for a period of five years or less and who disposes of the Class A common shares during that period may in some circumstances also be liable, on his or
her return to the United Kingdom, to United Kingdom capital gains tax on that gain, subject to any available exemptions or reliefs.
Corporate Shareholders
Where a shareholder is within the charge to United Kingdom corporation tax, including cases where it is not resident (for tax purposes) in the United Kingdom, a
disposal of the Class A common shares may give rise to a chargeable gain (or allowable loss) for the purposes of United Kingdom corporation tax, depending on the circumstances and subject to any available exemption or relief. Indexation allowance may
reduce the amount of chargeable gain that is subject to corporation tax but may not create or increase any allowable loss. For disposals on or after January 1, 2018, indexation allowance covers only the movement in the retail prices index from the
date of acquisition to December 31, 2017. The rate of corporation tax is currently 19%. The main rate of corporation tax is due to increase to 25% from April 1, 2023.
Shareholders Resident outside the United Kingdom
A shareholder that is not resident in the United Kingdom (and, in the case of an individual, is not temporarily non-resident) for United
Kingdom tax purposes and whose Class A common shares are not held in connection with carrying on a trade, profession or vocation in the United Kingdom generally will not be subject to United Kingdom tax on chargeable gains on the disposal of the Class
A common shares.
Stamp Duty and Stamp Duty Reserve Tax ("SDRT")
The comments in this section relating to stamp duty and SDRT apply whether or not a shareholder is resident or domiciled in the United
Kingdom.
Special rules may apply to shareholders such as market makers, brokers, dealers and intermediaries.
Following the European Court of Justice decision in HSBC Holdings Plc and Vidacos Nominees Ltd v The Commissioners for Her Majesty's Revenue
& Customs (C-569/07) and the First-tier Tax Tribunal decision in HSBC Holdings Plc and The Bank of New York Mellon Corporation v The Commissioners for Her Majesty's Revenue & Customs (TC/2009/16584), HMRC has confirmed that 1.5% SDRT is no
longer payable when new shares are issued to a clearance service or depositary receipt system. In the 2017 Budget, the government of the United Kingdom confirmed that this will remain the case after the United Kingdom's intended departure from the
European Union.
35
No stamp duty should be payable on the acquisition or transfer of the beneficial ownership of the Class A common shares held by a nominee for
a person whose business is or includes the provision of clearance services where that acquisition or transfer is settled within the clearance service and there is no physical instrument of transfer.
An agreement for the transfer of such Class A common shares will also not give rise to a SDRT liability, provided that no election has been
made under section 97A of the United Kingdom Finance Act 1986 which is applicable to such Class A common shares. We understand that no such election has been made by the Depository Trust Company as respects the Class A common shares.
Any instrument of transfer of the Class A common shares that are not held by a nominee for a person whose business is or includes the
provision of clearance services will generally attract stamp duty at a rate of 0.5% of the amount or value of the consideration for the transfer (rounded up, if necessary, to the next multiple of £5). No stamp duty is chargeable on an instrument
transferring shares where the amount or value of the consideration is £1,000 or less and it is certified on the instrument that the transaction effected by the instrument does not form part of a larger transaction or series of transactions for which
the aggregate consideration exceeds £1,000. An unconditional agreement for such transfer, or a conditional agreement which subsequently becomes unconditional, will also generally be liable to SDRT at the rate of 0.5% of the amount or value of the
consideration for the transfer; but such liability will be cancelled if the agreement is completed by a duly stamped instrument of transfer within six years of the date of the agreement, or if the agreement was conditional, the date the agreement
became unconditional. Where stamp duty is paid, any SDRT previously paid should be repaid on the making of an appropriate claim generally with interest.
Therefore, a transfer of title in the Class A common shares or an agreement to transfer such shares from within the Depository Trust Company
system out of the Depository Trust Company system, and any subsequent transfers or agreements to transfer outside the Depository Trust Company system, will generally attract a charge to United Kingdom stamp duty and/or United Kingdom SDRT at a rate of
0.5% of any consideration.
Shareholders should note in particular that a redeposit of the Class A common shares into the Depository Trust Company system, including by
means of a transfer into a depositary receipt system, will generally attract United Kingdom stamp duty and/or United Kingdom SDRT at the higher rate of 1.5%.
36
ENFORCEABILITY OF CIVIL LIABILITIES
We are an English company and our executive offices are located outside of the United States. Our officers and the majority of our directors
and some of the experts named in this document reside outside of the United States. In addition, substantially all of our assets and the assets of our officers, directors and experts are located outside of the United States. As a result, you may have
difficulty serving legal process within the United States upon us or any of these persons or enforcing any judgments obtained in U.S. courts to the extent assets located in the United States are insufficient to satisfy the judgments. In addition,
original actions or actions for the enforcement of judgments of U.S. courts with respect to civil liabilities solely under the federal securities laws of the United States may not be enforceable in England.
37
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Seward & Kissel LLP, New York, New York with
respect to matters of United States and New York law. The validity of securities offered by this prospectus will be passed upon for us by Watson Farley & Williams LLP with respect
to matters of English law. Certain matters relating to Danish tax law will be passed upon for us by Bech-Bruun.
38
EXPERTS
The financial statements of TORM plc as of December 31, 2019 and for each of the two years in the period ended December 31, 2019,
incorporated by reference in this prospectus by reference to TORM plc's Annual Report on Form 20-F for the year ended December 31, 2020, have been audited by Deloitte Statsautoriseret Revisionspartnerselskab, an independent registered public accounting
firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm, given their authority as experts in accounting and auditing.
The consolidated financial statements of TORM plc appearing in TORM plc's Annual Report (Form 20-F) for the year ended December 31, 2020 have
been audited by EY Godkendt Revisionspartnerselskab, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The offices of EY Godkendt Revisionspartnerselskab are located at Dirch Passers Allé 36, DK-2000 Frederiksberg, Copenhagen, Denmark.
39
WHERE YOU CAN FIND ADDITIONAL INFORMATION
As required by the Securities Act of 1933, we filed a registration statement relating to the securities offered by this prospectus with the
SEC. This prospectus is a part of that registration statement, which includes additional information.
Government Filings
We file annual and special reports with the SEC. You may read any document that we file on the SEC's website (http://www.sec.gov). Further
information about our company is available on our website at www.torm.com. The information on our website does not constitute a part of this prospectus.
40
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" information that we file with it. This means that we can disclose important information to
you by referring you to those filed documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC prior to the termination of this offering will also be considered
to be part of this prospectus and will automatically update and supersede previously filed information, including information contained in this document.
We incorporate by reference the documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act:
| • |
Our Annual Report on Form 20-F for the year ended December 31, 2020, filed with the SEC on
March 1, 2021 which contains our audited consolidated financial statements for the most recent fiscal year for which those statements have been filed; and
|
| • |
Our Reports on Form 6-K, furnished to the SEC on each of March 1, 2021, March 12, 2021, March 18, 2021, March 19, 2021, March 30, 2021, April 9, 2021, April 14, 2021, April 15, 2021, April 19, 2021, May 6, 2021, May 12, 2021 (2), May 20, 2021, May 27, 2021, June 4, 2021, June 11, 2021, July 6, 2021, July 23, 2021, August 10, 2021, August 17, 2021, August 24, 2021, September 1, 2021, November 10, 2021 and November 19, 2021.
|
We are also incorporating by reference all subsequent annual reports on Form 20-F that we file with the SEC and certain reports on Form 6-K
that we furnish to the SEC after the date of this prospectus (if they state that they are incorporated by reference into this prospectus) until we file a post-effective amendment indicating that the offering of the securities made by this prospectus
has been terminated. In all cases, you should rely on the later information over different information included in this prospectus or the prospectus supplement.
You should rely only on the information contained or incorporated by reference in this prospectus and any accompanying prospectus supplement.
We have not, and any underwriters have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not,
making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement as well as the information we
previously filed with the SEC and incorporated by reference, is accurate as of the dates on the front cover of those documents only. Our business, financial condition and results of operations and prospects may have changed since those dates.
You may request a free copy of the above-mentioned filing or any subsequent filing we incorporated by reference to this prospectus by writing
or telephoning us at the following address:
TORM plc
Tuborg Havnevej 18
DK-2900 Hellerup
Denmark
+45 39 17 92 00
These reports may also be obtained on our website at www.torm.com. None of the information on our website is a part of this prospectus.
Information Provided by the Company
We will furnish holders of our common shares with annual reports containing audited financial statements and a report by our independent
registered public accounting firm. The audited financial statements will be prepared in accordance with International Financial Reporting Standards (IFRS) as issued by the IASB. As a "foreign private issuer", we
are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements to shareholders. While we furnish proxy statements to shareholders in accordance with the rules of any stock exchange on which our common shares
may be listed in the future, those proxy statements do not conform to Schedule 14A of the proxy rules promulgated under the Securities Exchange Act. In addition, as a "foreign private issuer", our officers and directors are exempt from the rules under
the Securities Exchange Act relating to short swing profit reporting and liability.
41
EXPENSES
The following are the estimated expenses of the issuance and distribution of the securities being registered under the registration statement
of which this prospectus forms a part, all of which will be paid by us.
|
SEC registration fee
|
$
|
59,291.48
|
**
|
|
|
FINRA filing fee
|
$
|
0
|
||
|
Nasdaq listing fee
|
$
|
*
|
||
|
Legal fees and expenses
|
$
|
*
|
||
|
Accounting fees and expenses
|
$
|
*
|
||
|
Printing and engraving expenses
|
$
|
*
|
||
|
Transfer agent and registrar fees
|
$
|
*
|
||
|
Indenture trustee fees and expenses
|
$
|
*
|
||
|
Blue sky fees and expenses
|
$
|
*
|
||
|
Miscellaneous
|
$
|
*
|
||
|
Total
|
$
|
*
|
| * |
To be provided by a prospectus supplement or as an exhibit to Report on Form 6-K that is incorporated by reference into this registration statement.
|
| ** |
Previously paid.
|
42
TORM PLC
Common Shares
Preferred Shares
Debt Securities
Warrants
Purchase Contracts
Rights
Units
and
53,812,988 Class A Common Shares
offered by the Selling Shareholder
, 2021
43
Part II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Indemnification of Directors and Officers.
This section requires disclosure about the general effect of any stature, provision in TORM's articles of association, contract or other
arrangement under which any controlling person, director or officer of TORM is insured or indemnified in any manner against liability which that person may incur in his capacity.
Under our Articles of Association, and subject to the provisions of the UK Companies Act 2006, each of our Directors is entitled to be
indemnified by us against all costs, charges, losses, expenses and liabilities incurred by such Director or officer in the execution and discharge of his or her duties or in relation to those duties. The UK Companies Act 2006 renders void an indemnity
(to any extent) for a Director against any liability attaching to him or her in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he or she is a director.
Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company or of an
associated company against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is also void except as permitted by the UK Companies Act 2006,
which provides exceptions for the company to (a) purchase and maintain insurance against such liability; (b) provide a "qualifying third party indemnity" (being an indemnity against liability incurred by the director to a person other than the company
or an associated company as long as he is successful in defending the claim or criminal proceedings); and (c) provide a "qualifying pension scheme indemnity" (being an indemnity against liability incurred in connection with the company's activities as
trustee of an occupational pension plan).
Item 9. Exhibits
The exhibit index at the end of this registration statement identifies the exhibits which are included in this registration statement and are
incorporated herein by reference (the "Exhibit Index").
Item 10. Undertakings
| (a) |
The undersigned registrant hereby undertakes:
|
| (1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
| (i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
|
| (ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
|
| (iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement.
|
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on
Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-1
| (2) |
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
| (4) |
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 of Regulation S-X if such
financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
Form F-3.
|
| (5) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
| (i) |
If the registrant is relying on Rule 430B:
|
| (A) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included
in this registration statement; and
|
| (B) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
| (6) |
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
|
| (i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
II-2
| (ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
| (iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
|
| (iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
| (b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's Annual Report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's Annual Report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (c)– (g) |
Not applicable.
|
| (h) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
|
| (i) |
Not applicable.
|
| (j) |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
|
| (k) |
Not applicable.
|
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Copenhagen, Country of Denmark, on December 6, 2021.
|
TORM PLC
|
|||
|
By:
|
/s/ Jacob Meldgaard
|
||
|
Name:
|
Jacob Meldgaard
|
||
|
Title:
|
Executive Director and Principal Executive Officer
|
||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Keith J. Billotti his or her true
and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this
Registration Statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following
persons on December 6, 2021 in the capacities indicated.
|
Signature
|
Title
|
||
|
/s/ Jacob Meldgaard
|
|||
|
Jacob Meldgaard
|
Executive Director and Principal Executive Officer
|
||
|
/s/ Kim Balle
|
|||
|
Kim Balle
|
Chief Financial Officer of TORM A/S (Principal Financial Officer and Principal
Accounting Officer)
|
||
|
/s/ Christopher Helmut Boehringer
|
|||
|
Christopher Helmut Boehringer
|
Chairman of the Board of Directors
|
||
|
/s/ David Neil Weinstein
|
|||
|
David Neil Weinstein
/s/ Pär Göran Trapp
Pär Göran Trapp
|
Director
Director
|
||
|
/s/ Annette Malm Justad
|
|||
|
Annette Malm Justad
|
Director
|
||
AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative of the Registrant in the
United States, has signed this registration statement in the City of Newark, State of Delaware, on December 6, 2021.
|
PUGLISI AND ASSOCIATES
|
|||
|
By:
|
/s/ Donald J. Puglisi
|
||
|
Name:
|
Donald J. Puglisi
|
||
|
Title:
|
Managing Director
|
||
Exhibit Index
|
Exhibit Number
|
Description
|
|
1.1
|
Form of Underwriting Agreement (for equity securities)*
|
|
1.2
|
Form of Underwriting Agreement (for debt securities)*
|
|
4.1
|
|
|
4.2
|
Form of Warrant*
|
|
4.3
|
Form of Preferred Share Certificate*
|
|
4.4
|
Form of Purchase Contract*
|
|
4.5
|
Form of Rights Agreement*
|
|
4.6
|
|
|
4.7
|
|
|
4.8
|
Form of Unit Agreement*
|
|
5.1
|
|
|
5.2
|
|
|
8.1
|
|
|
8.2
|
|
|
8.3
|
|
|
23.1
|
|
|
23.2
|
|
|
23.3
|
Consent of Bech-Bruun (included in Exhibit 8.3)
|
|
23.4
|
|
| 23.5 |
|
|
24.1
|
|
|
25.1
|
Form of T-1 Statement of Eligibility (senior debt securities indenture)**
|
|
25.2
|
Form of T-1 Statement of Eligibility (subordinated debt securities indenture)**
|
| * |
To be filed either as an amendment or as an exhibit to a report filed pursuant to the Securities Exchange Act of 1934 of the Registrant and incorporated by reference into this registration
statement.
|
| ** |
To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
|
| (1) |
Incorporated by reference to the Company's Registration Statement on Form 20-F (Registration No. 001-38294), as amended, filed with the SEC on November 24, 2017.
|
Exhibit 4.6
TORM PLC,
AS ISSUERS,
TO
,
AS TRUSTEE
INDENTURE
DEBT SECURITIES
DATED AS OF , 201[ ]
Reconciliation and tie between Trust Indenture Act of 1939 (the “Trust Indenture Act”) and Indenture
|
Trust Indenture Act of 1939 Section
|
Indenture Section
|
|
|
310
|
(a)(1)
|
6.8
|
|
(a)(2)
|
6.8
|
|
|
(a)(3)
|
TIA
|
|
|
(a)(4)
|
Not Applicable
|
|
|
(a)(5)
|
TIA
|
|
|
(b)
|
6.9
|
|
|
311
|
(a)
|
TIA
|
|
(b)
|
TIA
|
|
|
312
|
(a)
|
7.1
|
|
(b)
|
7.2
|
|
|
(c)
|
7.2
|
|
|
313
|
(a)
|
7.3
|
|
(b)
|
7.3
|
|
|
(c)
|
7.3
|
|
|
(d)
|
7.3
|
|
|
314
|
(a)
|
7.4; TIA
|
|
(b)
|
Not Applicable
|
|
|
(c)(1)
|
1.2
|
|
|
(c)(2)
|
1.2
|
|
|
(c)(3)
|
Not Applicable
|
|
|
(d)
|
Not Applicable
|
|
|
(e)
|
1.2
|
|
|
(f)
|
1.2
|
|
|
315
|
(a)
|
6.1; TIA
|
|
(b)
|
6.3
|
|
|
(c)
|
6.1; TIA
|
|
|
(d)(1)
|
6.1; TIA
|
|
|
(d)(2)
|
6.1; TIA
|
|
|
(d)(3)
|
6.1; TIA
|
|
|
(e)
|
5.15; TIA
|
|
|
316
|
(a)@@(last sentence)
|
1.1
|
|
(a)(1)(A)
|
5.2; 5.12
|
|
|
(a)(1)(B)
|
5.13
|
|
|
(b)
|
5.8
|
|
|
(c)
|
TIA
|
|
|
317
|
(a)(1)
|
5.3
|
|
(a)(2)
|
5.4
|
|
|
(b)
|
10.3
|
|
|
Trust Indenture Act of 1939 Section
|
Indenture Section
|
|
|
318
|
(a)
|
1.8
|
|
(b)
|
TIA
|
|
|
(c)
|
TIA
|
|
This reconciliation and tie section does not constitute part of the Indenture.
TABLE OF CONTENTS
Page
|
ARTICLE I
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
Section 1.01
|
Definitions
|
1
|
|
Section 1.02
|
Compliance Certificates and Opinions
|
10
|
|
Section 1.03
|
Form of Documents Delivered to Trustee
|
11
|
|
Section 1.04
|
Acts of Holders
|
11
|
|
Section 1.05
|
Notices, Etc. to the Trustee and the Issuers
|
13
|
|
Section 1.06
|
Notice to Holders of Securities; Waiver
|
13
|
|
Section 1.07
|
Language of Notices
|
14
|
|
Section 1.08
|
Conflict with Trust Indenture Act
|
14
|
|
Section 1.09
|
Effect of Headings and Table of Contents
|
14
|
|
Section 1.10
|
Successors and Assigns
|
14
|
|
Section 1.11
|
Separability Clause
|
14
|
|
Section 1.12
|
Benefits of Indenture
|
14
|
|
Section 1.13
|
Governing Law
|
14
|
|
Section 1.14
|
Legal Holidays
|
15
|
|
Section 1.15
|
Counterparts
|
15
|
|
Section 1.16
|
Judgment Currency
|
15
|
|
Section 1.17
|
No Security Interest Created
|
16
|
|
Section 1.18
|
Limitation on Individual Liability
|
16
|
|
ARTICLE II
|
SECURITIES FORMS
|
17
|
|
Section 2.01
|
Forms Generally
|
17
|
|
Section 2.02
|
Form of Trustee’s Certificate of Authentication
|
17
|
|
Section 2.03
|
Securities in Global Form
|
17
|
|
ARTICLE III
|
THE SECURITIES
|
18
|
|
Section 3.01
|
Amount Unlimited; Issuable in Series
|
18
|
|
Section 3.02
|
Currency; Denominations
|
21
|
|
Section 3.03
|
Execution, Authentication, Delivery and Dating
|
22
|
|
Section 3.04
|
Temporary Securities
|
23
|
|
Section 3.05
|
Registration, Transfer and Exchange
|
24
|
|
Section 3.06
|
Mutilated, Destroyed, Lost and Stolen Securities
|
26
|
|
Section 3.07
|
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved
|
27
|
|
Section 3.08
|
Persons Deemed Owners
|
29
|
|
Section 3.09
|
Cancellation
|
29
|
|
Section 3.10
|
Computation of Interest
|
29
|
|
ARTICLE IV
|
SATISFACTION AND DISCHARGE OF INDENTURE
|
30
|
|
Section 4.01
|
Satisfaction and Discharge
|
30
|
|
Section 4.02
|
Defeasance and Covenant Defeasance
|
31
|
|
Section 4.03
|
Application of Trust Money
|
34
|
i
|
Section 4.04
|
Reinstatement
|
35
|
|
ARTICLE V
|
REMEDIES
|
35
|
|
Section 5.01
|
Events of Default
|
35
|
|
Section 5.02
|
Acceleration of Maturity; Rescission and Annulment
|
37
|
|
Section 5.03
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
38
|
|
Section 5.04
|
Trustee May File Proofs of Claim
|
39
|
|
Section 5.05
|
Trustee May Enforce Claims Without Possession of Securities
|
39
|
|
Section 5.06
|
Application of Money Collected
|
40
|
|
Section 5.07
|
Limitations on Suits
|
40
|
|
Section 5.08
|
Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional Amounts
|
41
|
|
Section 5.09
|
Restoration of Rights and Remedies
|
41
|
|
Section 5.10
|
Rights and Remedies Cumulative
|
41
|
|
Section 5.11
|
Delay or Omission Not Waiver
|
41
|
|
Section 5.12
|
Control by Holders of Securities
|
41
|
|
Section 5.13
|
Waiver of Past Defaults
|
42
|
|
Section 5.14
|
Waiver of Usury, Stay or Extension Laws
|
42
|
|
Section 5.15
|
Undertaking for Costs
|
42
|
|
ARTICLE VI
|
THE TRUSTEE
|
43
|
|
Section 6.01
|
Certain Duties and Responsibilities
|
43
|
|
Section 6.02
|
Certain Rights of Trustee
|
44
|
|
Section 6.03
|
Notice of Defaults
|
48
|
|
Section 6.04
|
Not Responsible for Recitals or Issuance of Securities
|
48
|
|
Section 6.05
|
May Hold Securities
|
48
|
|
Section 6.06
|
Money Held in Trust
|
48
|
|
Section 6.07
|
Compensation and Reimbursement
|
49
|
|
Section 6.08
|
Corporate Trustee Required; Eligibility
|
49
|
|
Section 6.09
|
Resignation and Removal; Appointment of Successor
|
50
|
|
Section 6.10
|
Acceptance of Appointment by Successor
|
51
|
|
Section 6.11
|
Merger, Conversion, Consolidation or Succession to Business
|
52
|
|
Section 6.12
|
Appointment of Authenticating Agent
|
53
|
|
ARTICLE VII
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
55
|
|
Section 7.01
|
Company to Furnish Trustee Names and Addresses of Holders
|
55
|
|
Section 7.02
|
Preservation of Information; Communications to Holders
|
55
|
|
Section 7.03
|
Reports by Trustee
|
55
|
|
Section 7.04
|
Reports by Company
|
56
|
|
ARTICLE VIII
|
CONSOLIDATION, MERGER AND SALES
|
56
|
|
Section 8.01
|
Issuers May Consolidate, Etc., Only on Certain Terms
|
56
|
|
Section 8.02
|
Successor Person Substituted for Issuers
|
57
|
|
ARTICLE IX
|
SUPPLEMENTAL INDENTURES
|
58
|
|
Section 9.01
|
Supplemental Indentures Without Consent of Holders
|
58
|
ii
|
Section 9.02
|
Supplemental Indentures With Consent of Holders
|
59
|
|
Section 9.03
|
Execution of Supplemental Indentures
|
60
|
|
Section 9.04
|
Effect of Supplemental Indentures
|
60
|
|
Section 9.05
|
Reference in Securities to Supplemental Indentures
|
60
|
|
Section 9.06
|
Conformity With Trust Indenture Act
|
61
|
|
Section 9.07
|
Notice of Supplemental Indenture
|
61
|
|
ARTICLE X
|
COVENANTS
|
61
|
|
Section 10.01
|
Payment of Principal, Any Premium, Interest and Additional Amounts
|
61
|
|
Section 10.02
|
Maintenance of Office or Agency
|
61
|
|
Section 10.03
|
Money for Securities Payments to be Held in Trust
|
62
|
|
Section 10.04
|
Additional Amounts
|
63
|
|
Section 10.05
|
[Reserved.]
|
64
|
|
Section 10.06
|
[Reserved.]
|
64
|
|
Section 10.07
|
Corporate Existence
|
64
|
|
Section 10.08
|
Waiver of Certain Covenants
|
64
|
|
Section 10.09
|
Company Statement as to Compliance; Notice of Certain Defaults
|
65
|
|
ARTICLE XI
|
REDEMPTION OF SECURITIES
|
65
|
|
Section 11.01
|
Applicability of Article
|
65
|
|
Section 11.02
|
Election to Redeem; Notice to Trustee
|
65
|
|
Section 11.03
|
Selection by Trustee of Securities to be Redeemed
|
66
|
|
Section 11.04
|
Notice of Redemption
|
66
|
|
Section 11.05
|
Deposit of Redemption Price
|
68
|
|
Section 11.06
|
Securities Payable on Redemption Date
|
68
|
|
Section 11.07
|
Securities Redeemed in Part
|
68
|
|
ARTICLE XII
|
SINKING FUNDS
|
69
|
|
Section 12.01
|
Applicability of Article
|
69
|
|
Section 12.02
|
Satisfaction of Sinking Fund Payments With Securities
|
69
|
|
Section 12.03
|
Redemption of Securities for Sinking Fund
|
70
|
|
ARTICLE XIII
|
REPAYMENT AT THE OPTION OF HOLDERS
|
70
|
|
Section 13.01
|
Applicability of Article
|
70
|
|
ARTICLE XIV
|
SECURITIES IN FOREIGN CURRENCIES
|
71
|
|
Section 14.01
|
Applicability of Article
|
71
|
|
ARTICLE XV
|
MEETINGS OF HOLDERS OF SECURITIES
|
71
|
|
Section 15.01
|
Purposes for Which Meetings May Be Called
|
71
|
|
Section 15.02
|
Call, Notice and Place of Meetings
|
71
|
|
Section 15.03
|
Persons Entitled to Vote at Meetings
|
72
|
|
Section 15.04
|
Quorum; Action
|
72
|
|
Section 15.05
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
73
|
|
Section 15.06
|
Counting Votes and Recording Action of Meetings
|
73
|
iii
|
EXHIBIT A
|
FORM OF SECURITY
|
A-1
|
iv
INDENTURE, dated as of , 201[ ] (the “Indenture”),
among TORM PLC, a public limited company incorporated under the laws of England and Wales (the “Company”), having its registered office at Birchin Court, 20 Birchin
Lane, London, EC3V 9DU, United Kingdom and [ ], a corporation duly organized under the laws of [ ] (the “Co-Issuer, and together with the Company, the “Issuers”; and each individually an “Issuer”), having its principal executive office
located at [ ], and [ ], a New York banking corporation, as trustee (hereinafter called the “Trustee”), having its Corporate Trust Office located at [ ].
RECITALS
The Issuers have authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its
senior unsecured debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to
have such other provisions as shall be fixed as hereinafter provided.
The Issuers have duly authorized the execution and delivery of this Indenture. All things necessary to make this Indenture a
valid agreement of the Issuers, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all
purposes of this Indenture:
(a) the terms defined in this Article have the meanings assigned to them in this Article, and include the
plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms “generally accepted accounting principles” or “GAAP” with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date or time of such computation;
(d) the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision; and
(e) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”).
Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act,” when used with respect to any
Holders, has the meaning specified in Section 1.04.
“Additional Amounts” means any additional
amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by either Issuer in respect of certain taxes, assessments or other governmental charges imposed on Holders specified therein and which
are owing to such Holders.
“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 specified 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 the meanings correlative to the
foregoing.
“Applicable Law” has the meaning
specified in Section 6.02(w).
“Authenticating Agent” means any Person
authorized by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper,
in an official language of the place of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on days that are legal holidays in the place of
publication, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication.
“Authorized Officer” means, when used
with respect to either Issuer, the Chairman (or, if applicable, either Co-Chairman) of the Board of Directors, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
2
the Secretary or an Assistant Secretary, of such Issuer, or any person performing similar functions as any of them.
“Board of Directors” means the board of
directors of the Company or the Co-Issuer, as applicable, or any committee of that board duly authorized to act generally or in any particular respect for the Company or the Co-Issuer hereunder.
“Board Resolution” means a copy of one or
more resolutions, certified by the Secretary or an Assistant Secretary of the Company or the Co-Issuer, as applicable, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, delivered
to the Trustee.
“Business Day” with respect to any Place
of Payment or other location, means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York or such Place of Payment
or other location are authorized or obligated by law, regulation or executive order to close.
“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, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation” means an
obligation under a lease that is required to be capitalized for financial reporting purposes in accordance with generally accepted accounting principles in effect on the date hereof, and the amount of Indebtedness represented by such obligation shall
be the capitalized amount of such obligation determined in accordance with such principles.
“Co-Issuer” means the Person named as the
“Co-Issuer” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Co-Issuer” shall mean such successor Person, and any other obligor upon the
Securities.
“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Stock” in respect of any
Corporation or other Person means Capital Stock of any class or classes (however designated) which has no preference as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of
such Corporation, and which is not subject to redemption by such Corporation; and in respect of the Company, includes all shares of Common Stock thereof.
“Company” means the Person named as the
“Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions
3
of this Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the Securities.
“Conversion Event” means the cessation of
use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking
community or (ii) any currency unit or composite currency for the purposes for which it was established.
“Corporate Trust Office” means the
principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at [ ] or such other address as the
Trustee may designate from time to time by notice to the Holders and the Issuers.
“Corporation” includes corporations and
limited liability companies and, except for purposes of Article VIII, associations, companies and business trusts.
“Currency,” with respect to any payment,
deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer
is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.
“CUSIP number” means the alphanumeric
designation assigned to a Security by Standard & Poor’s Ratings Service, CUSIP Service Bureau.
“Defaulted Interest” has the meaning
specified in Section 3.07.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
“Event of Default” has the meaning
specified in Section 5.01.
“Foreign Currency” means any currency,
currency unit or composite currency, including, without limitation, the euro, issued by the government of, or used as the official currency of, one or more countries other than the United States of America or by any recognized confederation or
association of such governments.
“Government Obligations” means securities
which are (i) direct obligations of the United States of America or the other government or governments which issued the Foreign Currency in which the principal of or any premium or interest on such Security or any Additional Amounts in respect
thereof shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America
or such other government or governments, and
4
which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.
“Holder,” means the Person in whose name
such Security is registered in the Security Register.
“Indebtedness” means, with respect to any
Person, (i) the principal of and any premium and interest on (a) indebtedness of such Person for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is
responsible or liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations 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 reimbursement 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 (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 or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit); (v) all obligations of the type
referred to in clauses (i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) 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; and (vii) any amendments, modifications, refundings, renewals or extensions of any indebtedness or obligation described as Indebtedness in clauses (i) through (vi) above.
“Indenture” means this instrument as it
may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established
pursuant to Section 3.01 (as such terms and provisions may be amended pursuant to the applicable provisions hereof).
“Independent Public Accountants” means
accountants or a firm of accountants that, with respect to the Company and any other obligor under the Securities, are independent public accountants within the meaning of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public accountants regularly retained by the Company or who may be other independent public
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accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters
relating to this Indenture or certificates required to be provided hereunder or otherwise provided to the Trustee.
“Indexed Security” means a Security the
terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“Interest,” with respect to any Original
Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 10.04, includes
such Additional Amounts.
“Interest Payment Date,” with respect to
any Security, means the Stated Maturity of an installment of interest on such Security.
“Issuer Request” and “Issuer Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Company or the Co-Issuer, as applicable, by an Authorized
Officer, and delivered to the Trustee.
“Judgment Currency” has the meaning
specified in Section 1.16.
“Maturity,” with respect to any Security,
means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or
repurchase, notice of option to elect repayment or otherwise, and includes any applicable Redemption Date.
“New York Banking Day” has the meaning
specified in Section 1.16.
“Office” or “Agency,” with respect to any Securities, means an office or agency of the Company or the Co-Issuer, as applicable, maintained or designated in a Place of Payment for such Securities pursuant
to Section 10.02 or any other office or agency of the Company or the Co-Issuer maintained or designated for such Securities pursuant to Section 10.02 or, to the extent designated or required by Section 10.02 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.
“Officer’s Certificate” means a
certificate signed by an Authorized Officer that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written
opinion of counsel, who may be an employee of or counsel for the Company or the Co-Issuer, as applicable, that complies with the requirements of Section 314(e) of the Trust Indenture Act.
“Original Issue Discount Security” means
a Security issued pursuant to this Indenture which provides for declaration of an amount less than the principal face amount thereof to be due and payable upon acceleration pursuant to Section 5.02.
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“Outstanding,” when used with respect to
any Securities, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:
(1) any such Security theretofore cancelled by the Trustee or the Security Registrar or delivered to the
Trustee or the Security Registrar for cancellation;
(2) any such Security for whose payment in full at the Maturity thereof money in the necessary amount has
been theretofore deposited pursuant hereto (other than pursuant to Section 4.02) with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) any such Security with respect to which the Issuers effected defeasance pursuant to the terms hereof,
except to the extent provided in Section 4.02;
(4) any such Security which has been paid pursuant to Section 3.06 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a
valid obligation of the Issuers; and
(5) any such Security converted or exchanged as contemplated by this Indenture into securities of the
Issuers or another issuer, if the terms of such Security provide for such conversion or exchange pursuant to Section 3.01; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall
be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 5.02 at the time of such determination, and (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such
purposes shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, and (iv) Securities owned by either Issuer or any other obligor upon the Securities or any Affiliate of either Issuer or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or
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relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee has received written notice from the Company to be so owned shall be so disregarded. Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (a) the pledgee’s right so to act with respect to such Securities and (b) that the pledgee is not either Issuer or any other obligor upon the Securities. Upon request of the Trustee, the Company shall promptly furnish to
the Trustee an Officer’s Certificate: (i) listing and identifying all Securities, if any, known by the Company to be owned by either Issuer or any other obligor upon the Securities or any Affiliate of either Issuer or such other obligor, and (ii)
whether any such Securities so owned shall have been pledged in good faith to a pledgee that is not either Issuer or any other obligor upon the Securities, and the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
“Paying Agent” means any Person
authorized by the Company (other than the Co-Issuer) to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the Issuers.
“Person” means any individual,
Corporation, Company, joint venture, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” with respect to any
Security, means the place or places where the principal of, or any premium or interest on, or any Additional Amounts with respect to such Security are payable as provided in or pursuant to this Indenture or such Security.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen Security.
“Redemption Date,” with respect to any
Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security.
“Redemption Price,” with respect to any
Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security.
“Registered Security” means any Security
established pursuant to Section 2.01 which is registered in a Security Register.
“Regular Record Date” for the interest
payable on any Registered Security on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the “Regular Record Date”.
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“Required Currency” has the meaning
specified in Section 1.16.
“Responsible Officer” means any vice
president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, or any trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of
the above designated officers and, in each case, having direct responsibility for the administration of this Indenture.
“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of Indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than
one Person acting as Trustee under this Indenture, “Securities,” with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not
Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Special Record Date” for the payment of
any Defaulted Interest on any Registered Security means a date fixed by the Company pursuant to Section 3.07.
“Stated Maturity,” with respect to any
Security or any installment of principal thereof or interest thereon, or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.
“Subsidiary” means an entity over which
another entity or person has a determining influence due to direct and indirect ownership of shares or other ownership interests, control of the general partner of any such other entity that is a limited Company and/or agreement, understanding or
other arrangement. An entity shall always be considered to be the subsidiary of another entity or person if such entity or person has such number of shares or ownership interests so as to represent the majority of the votes in the entity, or has the
right to elect or dismiss a majority of the directors in the entity. Unless context otherwise requires, Subsidiary shall mean a Subsidiary of the Company.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or provision, as the case may be, as amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in furtherance of the purposes of such Act or provision, as the case may be.
“Trustee” means the Person named as the
“Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each
Person who is then a Trustee hereunder; provided, however,
that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.
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“United States,” except as otherwise
provided in or pursuant to this Indenture or any Security, means the United States of America (including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by
the Company in or pursuant to this Indenture, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any time there is more than one such Person, “U.S. Depository” or “Depository” shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities.
“Vice President,” when used with respect
to the Company, the Co-Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “Vice President,” or an authorized officer of such entity performing similar functions to
a vice president of such entity.
Section 1.02 Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any application or request by the Company or the Co-Issuer to
the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that the individual signing such certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(b) 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;
(c) 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 condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of such individual, such condition or covenant has been
complied with.
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Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Co-Issuer may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, provided that such officer, after reasonable inquiry, has no reason to believe and does not believe that the Opinion of Counsel with respect to the matters upon which his certificate or opinion is based is
erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Co-Issuer, or other Persons designated by the
officers or directors of the Company or the Co-Issuer, without independent inquiry, provided that such counsel has no reason to believe and does not believe that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
Section 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or
pursuant to this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust
Indenture Act) conclusive in favor of the Trustee and the Issuers and any agent of the Trustee and the Issuers, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided
in Section 15.06.
Without limiting the generality of this Section 1.04, unless otherwise provided in or pursuant to this Indenture, a Holder,
including a U.S. Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant
to this Indenture to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such U.S. Depository’s
standing instructions and customary practices.
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The Company shall fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any
permanent global Security held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent, waiver or other Act, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other
Act shall be valid or effective if made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such instrument or writing referred to in this
Section 1.04 may be proved in any reasonable manner; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the
date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register.
(d) [Reserved.]
(e) If the Issuers shall solicit from the Holders of any Registered Securities any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may at its option (but is not obligated to), by Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any
Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such Act is made upon such Security.
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Section 1.05 Notices, Etc. to the Trustee and the Issuers.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or by telecopy answer received at the number provided therefor, or
(b) the Company or the Co-Issuer by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Chief Financial Officer, Chief Accounting Officer or Secretary, at the address of its
principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, or by telecopy answer received at the number provided therefor.
Section 1.06 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders
of Securities of any event, such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities given as provided herein. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given or provided. If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee, which shall not be unreasonably withheld, shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a global Security, such notice shall be sufficiently
given if given to the Depository for such Security (or its designee), pursuant to the applicable procedures of the Depository, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such
notice.
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Section 1.07 Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture
shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication; provided,
however, that the Company shall be responsible for providing any such translation from the English language to the official language of such country of
publication.
Section 1.08 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, such required provision shall control.
Section 1.09 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Issuers shall bind their successors and assigns, whether so expressed
or not.
Section 1.11 Separability Clause.
In case any provision in this Indenture or any Security shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12 Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13 Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each case, performed in said state. Any dispute, action or proceeding arising out of or relating to this Indenture or the rights of any party under this Indenture shall be exclusively
maintained in the U.S. federal or New York State Court sitting in the Borough of Manhattan, The City of New York, New York. Each of the parties hereto: (i) agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law, and (ii) irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding. Each party to this Indenture waives
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all right of trial by jury in any action, proceeding or counterclaim based on, or arising out of, under or in connection with this Indenture or
any matter arising hereunder. To the fullest extent permitted by applicable law, the Issuers hereby irrevocably submit to the jurisdiction of any Federal or State court located in the Borough of Manhattan in The City of New York, New York in any
suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. The Issuers irrevocably waive, to
the fullest extent permitted by law, any objection which they may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. The Issuers agree that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Issuers, and may be enforced in any courts to the jurisdiction of which the Issuers are subject by a suit upon such judgment.
Section 1.14 Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date,
Stated Maturity or Maturity of any Security or payment in respect of such Security, or the last date on which a Holder has the right to convert or exchange Securities of a series that are convertible or exchangeable, shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this Indenture, any Security other than a provision in any Security that specifically states that such provision shall apply in lieu hereof) payment need not be made at such Place of
Payment on such date, and such Securities need not be converted or exchanged on such date but such payment may be made, and such Securities may be converted or exchanged, on the next succeeding day that is a Business Day with the same force and
effect as if made on the Interest Payment Date or at the Stated Maturity or Maturity or on such last day for conversion or exchange, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such
Interest Payment Date, Stated Maturity, Maturity or last day for conversion or exchange, as the case may be, to such next succeeding Business Day.
Section 1.15 Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute
but one and the same instrument.
Section 1.16 Judgment Currency.
Each Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (i) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series or any indemnities due hereunder from such Issuer (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the requisite amount of the Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which a final unappealable judgment is given and (ii) its obligations under this Indenture to make payments in the Required Currency (a) shall not be discharged or satisfied by any tender, or any
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recovery pursuant to any judgment (whether or not entered in accordance with clause (i)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (b) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (c) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday
or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed.
Section 1.17 No Security Interest Created.
Nothing in this Indenture or in any Security, express or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Company or its Subsidiaries is or may be located.
Section 1.18 Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any incorporator, officer or director, as such, past, present or future, of either Issuer or any managing member or general partner thereof, either directly or through such
Issuer, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of either Issuer or any managing member or general partner thereof, or any of
them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Security.
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ARTICLE II
SECURITIES FORMS
Section 2.01 Forms Generally.
Each Security issued pursuant to this Indenture shall be in substantially the form attached as Exhibit A and as set forth
pursuant to this Article, or in such other form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required
or permitted by or pursuant to this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security as evidenced by their execution of such Security.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall be issuable in registered
form without coupons.
Definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods or may be
produced in any other manner, all as determined by the officers of the Issuers executing such Securities, as conclusively evidenced by their execution of such Securities.
Section 2.02 Form of Trustee’s Certificate of Authentication.
Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Dated:
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Authorized Signatory
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Section 2.03 Securities in Global Form.
If Securities of a series shall be issuable in global form, any such Security may provide that it or any number of such
Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to reflect exchanges, redemptions or cancellations. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or
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Persons as shall be specified therein or in the Issuer Order to be delivered pursuant to Section 3.03 or 3.04 with respect thereto. Subject to
the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver, in each case at the Issuers’ expense, any Security in permanent global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Issuer Order. If an Issuer Order pursuant to Section 3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by the Issuers with respect to a Security in global form shall be in writing.
Notwithstanding the provisions of Section 3.07, unless otherwise specified in or pursuant to this Indenture or any Security,
payment of principal of, any premium and interest on, and any Additional Amounts in respect of, any Security in temporary or permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.08 and except as provided in the preceding paragraph, the Issuers, the Trustee
and any agent of the Issuers or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security the Holder of such global Security.
ARTICLE III
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to a
Board Resolution and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto,
(a) the title of such Securities and the series in which such Securities shall be included;
(b) any limit upon the aggregate principal amount of the Securities of such title or the Securities of such
series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.04,
3.05, 3.06, 9.05 or 11.07, upon repayment in part of any Registered Security of such series pursuant to Article XIII, upon surrender in part of any Registered Security for conversion into other securities of the Issuers or exchange for securities of
another issuer pursuant to its terms, or pursuant to or as contemplated by the terms of such Securities);
(c) [Reserved];
(d) if any of such Securities are to be issuable in global form, when any of such Securities are to be
issuable in global form and (i) whether such Securities are to be issued
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in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may
exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 3.05, and (iii)
the name of the Depository or the U.S. Depository, as the case may be, with respect to any such global Security;
(e) if any of such Securities are to be issuable in global form, the date as of which any such global
Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued);
(f) [Reserved];
(g) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on
which the principal of such Securities is payable;
(h) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if
any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(i) if in addition to or other than the Borough of Manhattan, The City of New York, the place or places
where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities that are Registered Securities may be surrendered for registration of transfer or exchange, any of
such Securities may be surrendered for conversion or exchange and notices or demands to or upon the Company in respect of such Securities and this Indenture may be served, the extent to which, or the manner in which, any interest payment or
Additional Amounts on a global Security on an Interest Payment Date, will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;
(j) whether any of such Securities are to be redeemable at the option of the Issuers and, if so, the date or
dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Issuers;
(k) whether the Issuers are obligated to redeem or purchase any of such Securities pursuant to any sinking
fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be
redeemed
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or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so
redeemed or purchased;
(l) the denominations in which any of such Securities that are Registered Securities shall be issuable if
other than denominations of $1,000 and any integral multiple thereof;
(m) whether the Securities of the series will be convertible into other securities of the Issuers and/or
exchangeable for securities of another issuer, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate
the issuance of such convertible or exchangeable Securities or the administration thereof;
(n) if other than the principal amount thereof, the portion of the principal amount of any of such
Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion is to be determined;
(o) if other than Dollars, the Foreign Currency in which payment of the principal of, any premium or
interest on or any Additional Amounts with respect to any of such Securities shall be payable;
(p) if the principal of, any premium or interest on or any Additional Amounts with respect to any of such
Securities are to be payable, at the election of the Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which such Securities are stated to be payable, the date or dates on which, the period or periods
within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the
election of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(q) whether the amount of payments of principal of, any premium or interest on or any Additional Amounts
with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more Currencies, commodities, equity securities,
equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;
(r) any deletions from, modifications of or additions to the Events of Default or covenants of the Issuers
with respect to any of such Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(s) whether either or both of Section 4.02(b) relating to defeasance or Section 4.02(c) relating to covenant
defeasance shall be applicable to the Securities of such series, or any covenants in addition to those specified in Section 4.02(c) relating to the Securities of such series
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which shall be subject to covenant defeasance, and any deletions from, or modifications or additions to, the provisions of
Article IV in respect of the Securities of such series;
(t) whether any of such Securities are to be issuable upon the exercise of warrants, and the time, manner
and place for such Securities to be authenticated and delivered;
(u) if any of such Securities are to be issuable in global form and are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
(v) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of
each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;
(w) [Reserved] and
(x) any other terms of such Securities and any other deletions from or modifications or additions to this
Indenture in respect of such Securities.
All Securities of any one series shall be substantially identical except as to the date from which interest, if any, shall
accrue and except as may otherwise be provided by the Issuers in or pursuant to the Board Resolution and set forth in the Officer’s Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms
of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon written order of persons designated in the Officer’s Certificate or
supplemental indenture and that such persons are authorized to determine, consistent with such Officer’s Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are specified in such
Officer’s Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided, a series may be reopened for issuances of additional Securities of such series or to establish
additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by action taken by or pursuant to a Board
Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate or supplemental indenture setting forth the terms of such series.
Section 3.02 Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional
Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in Dollars shall be issuable in registered form without coupons in denominations of
$1,000 and any integral multiple thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
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Section 3.03 Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of each Issuer by its Chairman (or, if applicable, either Co-Chairman) of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer or the Treasurer or any Assistant Treasurer or other person performing similar functions thereof. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of either
Issuer shall bind such Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of original issuance of such
Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Issuers may deliver Securities,
executed by the Issuers, to the Trustee for authentication and, provided that the Board Resolution and Officer’s Certificate or supplemental indenture or indentures with respect to such Securities referred to in Section 3.01 and an Issuer Order for
the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Issuer Order and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act)
shall be fully protected in relying upon,
(a) an Opinion of Counsel to the effect that:
(i) the form or forms and terms of such Securities, if any, have been established in conformity with the
provisions of this Indenture;
(ii) all conditions precedent to the authentication and delivery of such Securities, if any, have been
complied with and that such Securities, when completed by appropriate insertions, executed and attested by duly authorized officers of the Issuers, delivered by duly authorized officers of the Issuers to the Trustee for authentication pursuant to
this Indenture, and authenticated and delivered by the Trustee and issued by the Issuers in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Issuers,
enforceable against the Issuers in accordance with their terms, except as enforcement thereof may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and will entitle the Holders thereof to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as to the availability of equitable remedies and may contain reasonable and customary limitations, qualifications and assumptions;
(iii) all laws and requirements of the State of New York and the federal laws of the United States in
respect of the execution and delivery by the Issuers of such Securities have been complied with; and
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(iv) this Indenture has been qualified under the Trust Indenture Act; and
(b) an Officer’s Certificate stating that, to the best knowledge of the Persons executing such certificate,
all conditions precedent to the execution, authentication and delivery of such Securities, if any, appertaining thereto, have been complied with, and no Event of Default with respect to any of the Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time, the Issuers shall deliver an Issuer Order to the
Trustee at the time of issuance of each Security, but such opinion and certificate, with appropriate modifications, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any
separate written request by an Authorized Officer of the Issuers or any person designated in writing by an Authorized Officer that the Trustee authenticate and deliver Securities of such series for original issue will be deemed to be a certification
by the Issuers that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with and that no Event of Default with respect to any of the Securities has occurred
or is continuing.
The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities if the
issue of such Securities pursuant to this Indenture will, in the written opinion of counsel to the Trustee, affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not otherwise lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the form provided for in Section 2.02 or 6.12 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized officers.
Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities, the Issuers may execute and deliver to the Trustee and, upon Issuers Order,
the Trustee shall authenticate and deliver, in the manner provided in Section 3.03, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed, photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Issuers executing such Securities
may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions
thereof, if temporary Securities are issued, the Issuers shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder
thereof. Upon surrender for cancellation of any one or more temporary Securities, the Issuers shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Security, until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.05 Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the Company shall cause to be kept a register (each such
register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of the Registered Securities of such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of
Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time
the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall
have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such series,
the Issuers shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series denominated as authorized in or pursuant to this Indenture,
of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same
series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Registered Securities
are so surrendered for exchange, the Issuers shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, any global Security shall be
exchangeable for Registered Securities only if (i) the Depository notifies the Issuers that it is no longer willing or able to act as a Depository for such global Security or ceases to be a clearing agency registered under the Exchange Act, and the
Company has not appointed a successor Depository within 90 days of that notice or becoming aware that the Depository is no longer so registered; (ii) an Event of Default has occurred and is continuing, and the Depository requests the issuance of
certificated Securities; or (iii) the Company determines not to have the Securities represented by a global Security. Neither the Issuers nor the Trustee will be liable for any delay by the Depository, its nominee or any direct or indirect
participant in identifying the beneficial owners of the Securities. The Issuers and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Depository or its nominee for all purposes, including with respect
to the registration and delivery, and the respective principal amounts, of the certificated Securities to be issued. If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities as the
result of an event described in clause (i), (ii) or (iii) above, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Issuers shall deliver to the Trustee Registered
Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such global Security, executed by the
Issuers. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the U.S. Depository or such other Depository as shall be specified in the Issuer Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be contained in or accompanied by an Officer’s Certificate or
be accompanied by an Opinion of Counsel), as shall be specified in the Issuer Order with respect thereto to the Trustee, as the Issuers’ agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such global Security to be exchanged, which shall be in the form of Registered Securities; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before the provision of a Notice of Redemption of
Securities of the same series to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may
be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a global Security after the close of business
at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of
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such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the
Issuers evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so
required by the Issuers or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange, or redemption of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.04, 9.05 or 11.07 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Issuers shall not be required (i) to issue, register the
transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of Securities of like tenor and the same series under Section 11.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this Section 3.06, the Issuers shall
execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Issuers shall execute and, upon the Issuer’s request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
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Notwithstanding the foregoing provisions of this Section 3.06, in case any mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuers in their discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute a
separate obligation of the Issuers, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section 3.06, as amended or supplemented pursuant to this Indenture with respect to particular
Securities or generally, shall be exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any
Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any
Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Issuers, at their election, as provided in
clause (a) or (b) below:
(a) The Issuers may elect to make payment of any Defaulted Interest to the Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed by the Company in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on such Registered Security, the Special Record Date therefor and the date of the proposed payment, and at the same time the Issuers shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person entitled
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to such Defaulted Interest as provided in this clause (a). The Special Record Date for the payment of such Defaulted Interest
shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after notification to the Trustee of the proposed payment. The Trustee shall, in the name and at the expense of the Issuers,
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears
in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense of the Issuers, cause a similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Issuers may make payment of any Defaulted Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (b), such
payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series pursuant to the
provisions of this Indenture, at the option of the Company, interest on Registered Securities (other than global Securities) that bear interest may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear
in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security, in each case without duplication.
In the case of any Registered Security of any series that is convertible into other securities of the Issuers or exchangeable
for securities of another issuer, which Registered Security is converted or exchanged after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security with respect to which the Stated
Maturity is prior to such Interest Payment Date), interest with respect to which the Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion or exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted or exchanged, interest with respect to
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which the Stated Maturity is after the date of conversion or exchange of such Registered Security shall not be payable.
Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Issuers, the Trustee and any agent of the
Issuers or the Trustee may treat the Person in whose name such Registered Security is registered in the Security Register as the owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to
Sections 3.05 and 3.07) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and none of the
Issuers, the Trustee or any agent of the Issuers or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under
this Indenture with respect to such global Security, and such Depository may be treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Issuers,
the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against
any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities, as well as Securities surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by
the Trustee. The Issuers may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuers may have acquired in any manner whatsoever, and all Securities so delivered shall be
cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by or pursuant to this Indenture. All cancelled Securities
held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures, unless by an Issuer Order the Issuers direct their return to them.
Section 3.10 Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any Security, interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE OF INDENTURE
Section 4.01 Satisfaction and Discharge.
Upon the direction of the Issuers by an Issuer Order, this Indenture shall cease to be of further effect with respect to any
series of Securities specified in such Issuer Order, and the Trustee, on receipt of an Issuer Order, at the expense of the Issuers, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(a) either
(i) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust
by the Issuers and thereafter repaid to the Issuers or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series (i) have become due and payable, or (ii) will become due and payable at
their Stated Maturity within one year, or (iii) if redeemable at the option of the Issuers, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuers, and the Issuers, in the case of (i), (ii) or (iii) above, have deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities, including the principal of, any premium and interest on, and any Additional Amounts with respect to such Securities, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Maturity or the applicable Redemption Date thereof, as the case may be;
(b) the Issuers have paid or caused to be paid all other sums payable hereunder by the Issuers with respect
to the Outstanding Securities of such series, including, without limitation, any fees, expenses and indemnities owed to the Trustee; and
(c) the Issuers have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of
the Issuers to the Trustee under Section 6.07 and, if money shall
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have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Issuers and the Trustee
with respect to the Securities of such series under Sections 3.05, 3.06, 4.03, 10.02 and 10.03, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 10.04 (but only to the extent that
the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.01(a)(ii)), and with respect to any rights to convert or exchange such Securities into securities
of the Issuers or another issuer shall survive.
Section 4.02 Defeasance and Covenant Defeasance.
(a) Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a
series under clause (b) of this Section 4.02 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 4.02 shall not be applicable with
respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any series of Securities), shall be
applicable to such Securities, and the Company may at its option by Board Resolution, at any time, with respect to such Securities, elect to have Section 4.02(b) or Section 4.02(c) be applied to such Outstanding Securities upon compliance with the
conditions set forth below in this Section 4.02.
(b) Upon the Company’s exercise of the above option applicable to this Section 4.02(b) with respect to any
Securities of or within a series, the Issuers shall be deemed to have been discharged from their obligations with respect to such Outstanding Securities on the date the conditions set forth in clause (d) of this Section 4.02 are satisfied
(hereinafter, “defeasance”). For this purpose, such defeasance means that the Issuers shall be deemed to have paid and discharged the entire Indebtedness represented
by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 4.02 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied
all of its other obligations under such Securities, and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in clause (d) of this Section 4.02 and as more fully set forth in such
clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities when such payments are due, and any rights of such Holder to convert such Securities into
other securities of the Issuers or exchange such Securities for securities of another issuer, (ii) the obligations of the Issuers and the Trustee with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03, and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by Section 10.04 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 4.02(d)(i) below), and with respect to any rights to convert such Securities into other securities of the Issuers or exchange such Securities for securities of another issuer, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 4.02. The Company may exercise its option under this Section
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4.02(b) notwithstanding the prior exercise of its option under clause (c) of this Section 4.02 with respect to such Securities.
(c) Upon the Company’s exercise of the option to have this Section 4.02(c) apply with respect to any
Securities of or within a series, the Issuers shall be released from its obligations under, to the extent specified pursuant to Section 3.01(s), any covenant applicable to such Securities and any Event of Default with respect to such Outstanding
Securities, on and after the date the conditions set forth in clause (d) of this Section 4.02 are satisfied (hereinafter, “covenant defeasance”), and such Securities
shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such obligation or covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Issuers may omit to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 5.01(d) or otherwise and the specified Events of Default shall not longer constitute
Events of Default, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of clause (b) or (c) of this Section 4.02 to any
Outstanding Securities of or within a series:
(i) The Issuers shall irrevocably have deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.08 who shall agree to comply with the provisions of this Section 4.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities, (1) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities, money in an amount, or (3) a combination thereof, in
any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on and Additional Amounts, if any, with respect to, such
Outstanding Securities at the Stated Maturity of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the days on which such
payments are due and payable in accordance with the terms of this Indenture and of such Securities.
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(ii) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or instrument to which either Issuer is a party or by which it is bound.
(iii) No Event of Default or event which with notice or lapse of time or both would become an Event of
Default with respect to such Securities shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such period).
(iv) In the case of an election under clause (b) of this Section 4.02, the Issuers shall have delivered to
the Trustee an Opinion of Counsel stating that (i) the Issuers have received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such defeasance and will be subject to U.S. 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.
(v) In the case of an election under clause (c) of this Section 4.02, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. 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.
(vi) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the
123rd day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying
trustee) pursuant to this clause (d) to be held in trust will not be subject to any case or proceeding (whether voluntary or involuntary) in respect of either Issuer under any Federal or State bankruptcy, insolvency, reorganization or other similar
law, or any decree or order for relief in respect of such Issuer issued in connection therewith.
(vii) The Issuers shall have delivered to the Trustee an Officer’s Certificate and the Issuers shall have
delivered to the Trustee an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 4.02 (as the case may be) have been complied with.
(viii) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or covenant defeasance
shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Issuers in connection therewith pursuant to Section 3.01.
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(e) Unless otherwise specified in or pursuant to this Indenture or any Security, if, after a deposit
referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than
that in which the deposit pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i) has been made, the
indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect
to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which
such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Issuers shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section
4.02(e) and Section 4.03, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this
Section 4.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities or which resulted from the Trustee’s negligence or
willful misconduct.
Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to
time upon Issuer Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this
Section 4.02.
Section 4.03 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations (or other property as
may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.01 or 4.02 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent for the Issuers) as the Trustee may reasonably determine, to the Holders
of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any; but such money and Government Obligations need not be segregated from other funds except to the
extent required by law.
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Section 4.04 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Issuers have been
discharged or released pursuant to Section 4.02(b) or 4.02(c) shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 4.03 with respect to such Securities in accordance with this Article; provided, however, that if the Issuers make any payment of principal of or any premium or interest on any such Securities following such reinstatement of its
obligations, the Issuers shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE V
REMEDIES
Section 5.01 Events of Default.
“Event of Default,” wherever used herein
with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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), unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officer’s Certificate
establishing the terms of such Series pursuant to this Indenture:
(a) default in the payment of any interest on any Security of such series, or any Additional Amounts payable
with respect thereto, when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of thirty days; or
(b) default in the payment of the principal of or any premium on any Security of such series, or any
Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity; or
(c) default in the deposit of any sinking fund payment when and as due by the terms of a Security of such
series and continuance of such default for a period of thirty days; or
(d) default in the performance, or breach, of any covenant or warranty of either Issuer in this Indenture or
the Securities (other than a covenant or warranty a default in the performance or the breach of which is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of
Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Issuers and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities
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of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder; or
(e) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of either Issuer in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging either Issuer to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of such Issuer and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or
other similar official of such Issuer of any substantial part of the property of such Issuer or ordering the winding up or liquidation of the affairs of such Issuer; or
(f) the commencement by either Issuer of a voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by either Issuer to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by either Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of
either Issuer or relief under any applicable law, or the consent by either Issuer to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of either
Issuer or any substantial part of the property of either Issuer or the making by either Issuer of an assignment for the benefit of creditors, or the taking of corporate action by either Issuer in furtherance of any such action; or
(g) the principal amount of any Indebtedness of the Company (other than the Securities) with an aggregate
principal amount outstanding, individually or in the aggregate, of at least $50,000,000 shall not have been paid in full when due and shall continue not to be so paid within any applicable grace period after final maturity (or when otherwise due as a
result of the acceleration thereof); or
(h) the entry against the Company of one or more final and non-appealable judgments for the payment of money
in an aggregate uninsured or unbonded amount in excess of $50,000,000, by a court or courts of competent jurisdiction, which judgment remains or judgments remain undischarged, unstayed or unsatisfied for a period of 90 consecutive days; or
(i) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such
series.
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Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default
specified in clause (e) or (f) of Section 5.01) occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal of all the Securities of such
series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal
or such lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (e) or (f) of Section 5.01 occurs, all unpaid principal of and accrued interest on
the Outstanding Securities of that series (or such lesser amount as may be provided for in the Securities of such series) shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or
any Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its consequences.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Notwithstanding the foregoing, at the election of the Company, the sole remedy with respect to an Event of Default for the
failure by the Company to comply with its obligations under Section 314(a)(1) of the Trust Indenture Act relating to the Company’s failure to file any documents or reports that the Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act or of its covenants set forth in Section 7.04 (any such Event of Default, a “Reporting Default”), shall, after the occurrence of such
Reporting Default consist exclusively of the right to receive additional interest (the “Additional Interest”) on the Securities at an annual rate equal to (i) 0.25%
of the principal amount of the Securities for each day during the 90 calendar day period beginning on, and including, the date on which such Reporting Default first occurs and on which such Reporting Default is continuing and (ii) 0.50% of the
principal amount of the Securities for each day during the 90 calendar day period beginning on, and including, the 91st day following the date on which such Reporting Default first occurs and on which such Reporting Default is continuing. If the
Company so elects, the Additional Interest shall accrue on all Outstanding Securities from and including the date on which such Reporting Default first occurs until such violation is cured or waived and shall be payable as provided in Section 3.07.
On the 181st day after such Reporting Default (if such violation is not cured or waived prior to such 181st calendar day), then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may
declare the principal of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the
37
Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable.
If the Company elects to pay the Additional Interest as the sole remedy for the Reporting Default, the Company shall notify
in writing, by a certificate, the Holders, the Paying Agent and the Trustee of such election at any time on or before the close of business on the fifth Business Day prior to the date on which such Event of Default would otherwise occur. Unless and
until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that Additional Interest is not payable. The Issuers shall pay the Additional Interest semi-annually in
arrears, with the first semi-annual payment due on the first Interest Payment Date following the date of such Reporting Default, in the same manner as described on the face of the Security.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuers covenant that if
(a) default is made in the payment of any installment of interest on or any Additional Amounts with respect
to any Security when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or any premium on any Security or any Additional
Amounts with respect thereto at their Maturity,
the Issuers shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount of money
then due and payable with respect to such Securities, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.07.
If the Issuers fail to pay the money they are required to pay the Trustee pursuant to the preceding paragraph forthwith upon
the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuers or any other obligor upon such Securities and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Issuers or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as may be necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy.
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Section 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuers or any other obligor upon the Securities of any series or the property of the Issuers or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuers for the payment of any overdue principal, premium, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the
Securities of any applicable series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or
judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of the Securities in respect of which
such judgment has been recovered.
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Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account of principal, or any premium, interest or Additional Amounts, upon presentation of the Securities, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities for principal and any
premium, interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.07 Limitations on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee such indemnity as is reasonably satisfactory to it
against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of such series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
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Section 5.08 Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject to Sections 3.05 and 3.07) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturity or Maturities therefor specified in
such Security (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided in or pursuant to this Indenture, on the date such repayment is due) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Issuers, the Trustee and each such Holder shall, subject to any determination in
such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent
permitted by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of a Security may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that
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(a) such direction shall not be in conflict with any rule of law or with this Indenture or with the
Securities of such series,
(b) such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that may be incurred in compliance with such direction;
(c) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such
direction, and
(d) such direction is not unduly prejudicial to the rights of the other Holders of Securities of such series
not joining in such action.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the
Holders of all the Securities of such series may waive any past default hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect
to, any Security of such series, or
(b) in respect of the payment of any amounts due from the Issuers to the Trustee pursuant to Section 6.07;
or
(c) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Waiver of Usury, Stay or Extension Laws.
Each Issuer covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, 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 each Issuer expressly
waives (to the extent that it may lawfully do so) all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
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for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant
in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 25% in principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if
any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment, on or after
the date for repayment) or for the enforcement of the right, if any, to convert or exchange any Security into other securities in accordance with its terms.
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of willful misconduct, 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 requirements of this Indenture; but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture but not to verify or confirm the contents thereof.
(b) In the event that a Responsible Officer of the Trustee receives written notice that an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful misconduct (as conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review), except that
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(i) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
Section 6.02 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not investigate any statement, warranty or representation or any fact or matter stated in any such document and may conclusively rely as to the truth of the statements and the correctness of the opinions
expressed therein;
(b) any request or direction of either Issuer mentioned herein shall be sufficiently evidenced by an Issuer
Request or an Issuer Order (in each case, other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.03 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of willful misconduct, request and rely upon an Officer’s Certificate
and/or an Opinion of Counsel and shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate and/or Opinion of Counsel;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or
pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee such security or indemnity as is reasonably satisfactory to it
against the
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costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may, but shall not be obligated to make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books,
records and premises of the Issuers, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be responsible for any supervision of or misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable by (i) the Trustee in each document related hereto to which it is a party and (ii) the entity serving as the Trustee in each of its capacities hereunder and in each of
its capacities as under any related document whether or not specifically set forth therein and each agent, custodian and other Person employed to act hereunder and under any related document, as the case may be, including the Authenticating Agent,
Paying Agent, and Security Registrar;
(i) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers;
(j) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VI;
(k) the Trustee shall not be liable for any action taken or omitted to be taken by it in good faith that is
believed to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, unless the Trustee’s conduct constitutes negligence;
(l) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as
a duty;
(m) the Trustee shall not be deemed to have notice or knowledge of any Event of Default unless written
notice of any Event of Default is received by a Responsible Officer of the Trustee pursuant to Section 1.05 hereof and such notice references this Indenture and the Securities;
(n) the Trustee shall not be bound to make any investigation into (i) the performance or observance by the
Issuers or any other Person of any of the covenants, agreements or other terms or conditions set forth in this Indenture or in any related document, (ii)
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the occurrence of any default, or the validity, enforceability, effectiveness or genuineness of this Indenture, any related
document or any other agreement, instrument or document, or (iii) the satisfaction of any condition set forth in this Indenture or any related document;
(o) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential
loss or damage of any kind whatsoever (including, but not limited to, loss of profit), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(p) the Trustee may, from time to time, request that the Company and/or Co-Issuer deliver a certificate
(upon which the Trustee may conclusively rely) setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or any related document together with a specimen signature of
such authorized officers; provided, however, that from
time to time, the Company and/or Co-Issuer may, by delivering to the Trustee a revised certificate, change the information previously provided by it pursuant to this Section 6.02(p), but the Trustee shall be entitled to conclusively rely on the then
current certificate until receipt of a superseding certificate;
(q) the Trustee shall not have any duty or responsibility in respect of (i) any recording, filing, or
depositing of this Indenture or any other agreement or instrument, (ii) the acquisition or maintenance of any insurance or (iii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, the Company, the Co-Issuer or the Notes;
(r) the parties hereto acknowledge that in order to help the United States government fight the funding of
terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that
identifies each person establishing a relationship or opening an account; the parties to this Indenture agree that they will provide to the Trustee such information as it may request, from time to time, in order for the Trustee to satisfy the
requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account
and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided;
(s) in no event shall the Trustee be liable for any failure or delay in the performance of its obligations
under this Indenture or any related documents because of circumstances beyond the Trustee’s control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment
system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, severe weather or accident,
earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign)
which delay, restrict or prohibit the providing of the services contemplated by this Indenture or any related documents, or the unavailability of communications or computer
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facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the
Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond the Trustee’s control whether or not of the same class or kind as specified above;
(t) in respect of this Indenture, the Trustee shall have no duty or obligation to verify or confirm that the
Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or
information on behalf of the party purporting to send such electronic transmission and the Trustee shall not be liable for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance
with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other
communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties;
(u) delivery of reports, information and documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Co-Issuer’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely conclusively on Officer’s Certificates);
(v) the Trustee shall be fully justified in failing or refusing to take any action under this Indenture or
any other related document if such action (i) would, in the reasonable opinion of the Trustee, in good faith (which may be based on the advice or opinion of counsel), be contrary to applicable law, this Indenture or any other related document, or
(ii) is not provided for in this Indenture or any other related document; the Trustee shall not be required to take any action under this Indenture or any related document if taking such action (i) would subject the Trustee to a tax in any
jurisdiction where it is not then subject to a tax, or (i) would require the Trustee to qualify to do business in any jurisdiction where it is not then so qualified;
(w) in order to comply with applicable tax laws, rules and regulations (“Applicable Law”) related to this Indenture or any indenture supplemental hereto, the Issuers agree: (i) to provide
to the Trustee sufficient information about such parties and/or transactions (including any modification to the terms of such transactions) so it can determine whether it has any tax related obligations under Applicable Law, (ii) that the Trustee
shall be entitled to make any withholding or deduction from payments this Indenture or any indenture supplemental hereto to the extent necessary to comply with Applicable Law for which it shall not have any liability, and (iii) to hold harmless the
Trustee for any losses it may suffer due to the actions it takes to comply with such Applicable Law, except in each case to the extent such losses arise from the Trustee’s negligence or willful misconduct; the terms of this section shall survive the
termination of this Indenture or the earlier resignation or removal of the Trustee hereunder; and
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(x) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers
and duties hereunder.
Section 6.03 Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives written notice of a default with respect to the Securities
of any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 7.03(c), notice of such default hereunder, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the best interest of the Holders of Securities. For the purpose of this Section, the term “default” means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication shall be taken as the
statements of the Issuers and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to
the Issuers are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuers of the Securities or the proceeds thereof.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of
the Trustee or the Issuers, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Issuers with the same rights it would
have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.06 Money Held in Trust.
Except as provided in Section 4.03 and Section 10.03, money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing with the Issuers.
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Section 6.07 Compensation and Reimbursement.
Each Issuer agrees:
(a) to jointly and severally pay to the Trustee from time to time reasonable compensation as will from time
to time be agreed upon in writing for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to jointly and severally reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture or arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or willful misconduct (as
conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review); and
(c) to jointly and severally indemnify the Trustee and its agents, officers, directors
and employees for, and to hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee’s negligence or willful misconduct (as conclusively determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review).
As security for the performance of the obligations of the Issuers under this Section, the Trustee shall have a lien prior to
the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium or interest on or any Additional Amounts with respect to Securities.
To the extent permitted by law, any compensation or expense incurred by the Trustee after a default specified in or pursuant
to Section 5.01 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section
6.07 shall include any predecessor Trustee but the negligence or willful misconduct of any Trustee shall not affect the rights of any other Trustee under this Section 6.07.
The provisions of this Section 6.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation
or removal of the Trustee or until the obligations of the Issuers hereunder have been discharged or defeased and shall apply with equal force and effect to the Trustee in its capacity as Authenticating Agent, Paying Agent or Security Registrar.
Section 6.08 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a company organized and doing business under the laws of the United
States of America, any state thereof or the District of
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Columbia, that is eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000, and that is subject to supervision or examination by Federal or state authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.09 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the successor Trustee pursuant to Section 6.10.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee,
at the expense of the Issuers, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee, at the expense of the Issuers, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(d) If at any time:
(i) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after written request therefor by the Company or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written
request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, at the expense of the Issuers, petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of such series (it
being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.10. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by Section 6.10, any Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others similarly situated, at the expense of the Issuers, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
(g) In no event shall any retiring Trustee be liable for the compensation, acts or omissions of any
successor Trustee hereunder.
Section 6.10 Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 10.03, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 6.07.
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(b) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more
(but not all) series, the Issuers, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received
by, or any act or failure to act on the part of any other Trustee hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or such successor Trustee, such retiring Trustee, upon payment of its
charges with respect to the Securities of that or those series to which the appointment of such successor Trustee relates and subject to Section 10.03 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for
in Section 6.07.
(c) Upon request of any Person appointed hereunder as a successor Trustee, the Issuers shall execute any and
all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such
acceptance such successor Person shall be qualified and eligible under this Article.
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation
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to which the Trustee shall be a party, or any Corporation succeeding by sale or otherwise to all or substantially all of the corporate trust
business of the Trustee shall be the successor of the Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered
by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.12 Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except as provided in or pursuant to this Indenture, shall
at all times be a Corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and
has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any
Corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding by sale or otherwise to all or substantially all of the corporate agency or corporate trust business
of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to
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which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuers agree to pay each Authenticating Agent from time to time reasonable compensation for its services under this
Section.
The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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Dated:
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as Trustee
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By:
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as Authenticating Agent
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By:
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Authorized Signatory
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If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office
capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not
be accompanied by or contained in an Officer’s Certificate by the Company), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of
Securities.
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ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or cause to be furnished to the
Trustee,
(a) semi-annually with respect to Securities of each series not later than May 1 and November 1 of the year
or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders
as of the applicable date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
Section 7.02 Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the
Issuers, the Trustee, any Paying Agent or any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 7.03 Reports by Trustee.
(a) Within 60 days after September 15 of each year commencing with the first September 15 following the
first issuance of Securities pursuant to Section 3.01, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such September 15 with
respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding September 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a) and (b) of the Trust Indenture Act at
the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by
Sections 313(c) and 313(d) of the Trust Indenture Act.
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Section 7.04 Reports by Company.
(a) So long as any Securities issued under this Indenture are outstanding, the Company shall (i) file with
the Commission within the time periods prescribed by its rules and regulations and applicable to the Company and (ii) furnish to the Trustee and the holders of such Securities within 15 days after the date on which the Company would be required to
file the same with the Commission pursuant to its rules and regulations (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act):
(i) All financial information to the extent required of the Company to be contained in Form 20-F and, with
respect to the annual consolidated financial statements only, a report thereon by the Company’s independent auditors; and
(ii) At or prior to such times as would be required to be filed or furnished to the Commission if the
Company was then a “foreign private issuer” subject to Sections 13(a) and 15(d) of the Exchange Act, all such other reports and information that the Company would have been required to file or furnish pursuant thereto.
(b) The Company shall not be required to file any report or other information with the Commission if the
Commission does not permit such filing, although such reports will be required to be furnished to the Trustee. Documents filed by the Company with the Commission via the EDGAR system will be deemed to have been furnished to the Trustee and the
holders of such Securities as of the time such documents are filed via EDGAR; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via EDGAR.
ARTICLE VIII
CONSOLIDATION, MERGER AND SALES
Section 8.01 Issuers May Consolidate, Etc., Only on Certain Terms.
Neither the Company nor the Co-Issuer shall consolidate with or merge with or into any other Person (whether or not
affiliated with the Company or the Co-Issuer), or sell, assign, convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Company), and neither the
Company nor the Co-Issuer shall permit any other Person (whether or not affiliated with the Company) to consolidate with or merge into the Company or the Co-Issuer or convey, transfer or lease its properties and assets as an entirety or substantially
as an entirety to the Company or the Co-Issuer; unless:
(a) in case the Company or the Co-Issuer shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets as an entirety or substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company or the Co-Issuer is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company or the Co-Issuer as an entirety or substantially as an entirety shall be a corporation, limited liability company, Company, trust or
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other entity organized and validly existing under the laws of the Republic of the Marshall Islands, the United States of
America, any State thereof, or the District of Columbia, the Commonwealth of the Bahamas, the Republic of Liberia, the Republic of Panama, the Commonwealth of Bermuda, the British Virgin Islands, the Cayman Islands, the Isle of Man, Cyprus, Norway,
Greece, Hong Kong, the United Kingdom, Malta, any Member State of the European Union, [ ] and any other jurisdiction generally acceptable, as determined in good faith by the Board of Directors, to institutional lenders in the
shipping industries, and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the successor Person and delivered to the Trustee the due and punctual payment of the
principal of, any premium and interest on and any Additional Amounts with respect to all the Securities and the performance of every obligation in this Indenture and the Outstanding Securities on the part of the Company or the Co-Issuer, as
applicable, to be performed or observed and shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Common Stock or other securities;
(b) immediately after giving effect to such transaction, no Event of Default shall have occurred and be
continuing; and
(c) either the Company, the Co-Issuer or the successor Person, as applicable, shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02 Successor Person Substituted for Issuers.
Upon any consolidation by the Company or the Co-Issuer, as applicable, with or merger of the Company or the Co-Issuer, as
applicable, into any other Person or any conveyance, transfer or lease of the properties and assets of the Company or the Co-Issuer, as applicable, substantially as an entirety to any Person in accordance with Section 8.01, the successor Person
formed by such consolidation or into which the Company or the Co-Issuer, as applicable, is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company
or the Co-Issuer, as applicable, under this Indenture with the same effect as if such successor Person had been named as the Company or the Co-Issuer herein; and thereafter, except in the case of a lease, the predecessor Person shall be released from
all obligations and covenants under this Indenture and the Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Issuers (when authorized by or pursuant to a Board Resolution) and the
Trustee (upon Issuer Order), at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, or the Co-Issuer, as applicable, and the
assumption by any such successor of the covenants of the Company, or the Co-Issuer, as applicable, contained herein and in the Securities; or
(b) to add to the covenants of the Company or the Co-Issuer, for the benefit of the Holders of all or any
series of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender any right or power herein conferred upon the Company or the Co-Issuer; or
(c) [Reserved];
(d) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(e) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.10; or
(f) to cure any ambiguity or to correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of Securities of any series then Outstanding
in any material respect; or
(g) to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount,
terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or
(h) to add any additional Events of Default with respect to all or any series of Securities (as shall be
specified in such supplemental indenture); or
(i) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of Securities pursuant to Article IV, provided that any such action shall not adversely affect the interests of
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any Holder of an Outstanding Security of such series or any other Outstanding Security in any material respect; or
(j) to secure the Securities; or
(k) to make provisions with respect to conversion or exchange rights of Holders of Securities of any series
then Outstanding; or
(l) to comply with the requirements of the Trust Indenture Act and the rules promulgated under the Trust
Indenture Act; or
(m) to amend or supplement any provision contained herein or in any supplemental indenture, provided that no
such amendment or supplement shall adversely affect the interests of the Holders of any Securities then Outstanding in any material respect.
Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture including consents obtained in connection with a tender offer or exchange offer, by Act of said Holders delivered to the Company and the Trustee, the Issuers (when authorized by or pursuant to a Board
Resolution) and the Trustee (upon Issuer Order) may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this Indenture or of the Securities of such series; provided, however, that no such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby, shall
(a) change the Stated Maturity of the principal of, or any premium or installment of interest on or any
Additional Amounts with respect to, such affected Security, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts with respect thereto, or any premium payable upon
the redemption thereof or otherwise, or change the obligation of the Issuers to pay Additional Amounts pursuant to the terms hereof (except as contemplated by Section 8.01(a) and permitted by Section 9.01(a)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the amount thereof provable in bankruptcy pursuant to Section 5.04, change the redemption
provisions or adversely affect the right of repayment at the option of any Holder as contemplated by Article XIII, or change the Place of Payment, Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect
to any Security is payable, or impair the right of any Holder to receive payment of principal of and interest on such Holder’s Notes or the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the date for repayment), or change the ranking of any Outstanding Securities, or
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental indenture, or the
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consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 15.04 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or
(d) make any change that adversely affects the right to convert or exchange any Security into or for
securities of the Issuers or other securities (whether or not issued by the Issuers), cash or property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been
included expressly and solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trust created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate each stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, that all conditions precedent to the execution of such supplemental indenture have been fulfilled and that such supplemental indenture is the valid and binding obligation of the
Issuers, enforceable against the Issuers in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
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indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the Issuers and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.06 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act
as then in effect.
Section 9.07 Notice of Supplemental Indenture.
Promptly after the execution by the Issuers and the Trustee of any supplemental indenture pursuant to Section 9.02, the
Company shall transmit to the Holders of Outstanding Securities of any series affected thereby a notice setting forth the substance of such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Any Premium, Interest and Additional Amounts.
Each Issuer covenants and agrees for the benefit of the Holders of the Securities of each series, as applicable, that it will
duly and punctually pay the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of such series in accordance with the terms thereof and this Indenture.
Section 10.02 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of Securities an Office or Agency where Securities of such
series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or
exchange, and where notices and demands to or upon the Issuers in respect of the Securities of such series relating thereto and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such Office or Agency. If at any time the Company shall fail to maintain any such required Office or Agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that the Trustee shall not serve as an agent or office
for the purpose of service of process on behalf of the Issuers.
The Company may also from time to time designate one or more other Offices or Agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to
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maintain an Office or Agency in each Place of Payment for Securities of any series for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in the location of any such other Office or Agency. Unless otherwise provided in or pursuant to this Indenture, the Company hereby designates as the Place of Payment for
each series of Securities the Borough of Manhattan, The City of New York, and initially appoints the Corporate Trust Office of the Trustee as the Office or Agency of the Company in the Borough of Manhattan, The City of New York for such purpose. The
Company may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any
series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or
as so required, at least one exchange rate agent.
Section 10.03 Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as the Paying Agent for itself and the Co-Issuer with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on or Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series) sufficient to
pay the principal or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, the Issuers shall, on or prior to
10:00 a.m. New York City time on the Business Day prior to each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of such series, deposit with any Paying Agent a sum (in the currency or
currencies, currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of the Issuers’ action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture;
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(b) give the Trustee notice of any default by the Issuers (or any other obligor upon the Securities of such
series) in the making of any payment of principal, any premium or interest on or any Additional Amounts with respect to the Securities of such series; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of any series and remaining unclaimed for two years after such principal or any such premium or
interest or any such Additional Amounts shall have become due and payable shall be paid to the Issuers on Issuer Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuers for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense of the Issuers cause to be published once, in an Authorized Newspaper in each Place of Payment for such series or to be mailed to Holders of Registered Securities of such series,
or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing nor shall it be later than two years after such principal and any premium or
interest or Additional Amounts shall have become due and payable, any unclaimed balance of such money then remaining will be repaid to the Issuers.
Section 10.04 Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Issuers agree to pay to the Holder of any
such Security Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or
pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
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Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable series, if the Securities
of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any,
or interest on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Issuers agree to pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Issuers covenant to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or willful
misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 10.04.
Section 10.05 [Reserved.]
Section 10.06 [Reserved.]
Section 10.07 Corporate Existence.
Subject to Article VIII, each Issuer shall do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its rights (charter and statutory) and franchises; provided, however, that the foregoing shall not obligate such Issuer to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of
its business and that the loss thereof is not disadvantageous in any material respect to any Holder.
Section 10.08 Waiver of Certain Covenants.
The Issuers may omit in any particular instance to comply with any term, provision or condition set forth in Section 10.07
with respect to the Securities of any series or in any other covenant provided for the benefit of such series pursuant to Section 3.01 or 9.01 if before the time for such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series, by Act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuers and the duties of the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
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Section 10.09 Company Statement as to Compliance; Notice of Certain Defaults.
(a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not be contained in or accompanied by an Officer’s Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that
(i) a review of the activities of the Issuers during such year and of their performance under this
Indenture has been made under his or her supervision, and
(ii) to the best of his or her knowledge, based on such review, (i) the Issuers have complied with all the
conditions and covenants imposed on it under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him or her and the nature and status
thereof, and (ii) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the
nature and status thereof.
(b) The Company shall deliver to the Trustee, within thirty days after the occurrence thereof, written
notice of any Event of Default or any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (d) of Section 5.01, and the status thereof and what actions the Company is taking or proposes to take in
respect thereof, to the extent actually known by the Authorized Officer.
(c) The Trustee shall have no duty to monitor the Company’s or the Co-Issuer’s compliance with the covenants
contained in this Article X.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Co-Issuer’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely conclusively on Officer’s Certificates).
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Redemption of Securities of any series at the option of the Company as permitted or required by the terms of such Securities
shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of all of the
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Securities of any series, with the same issue date, interest rate or formula, Stated Maturity and other terms, the Company shall, at least 30
days but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be
redeemed.
Section 11.03 Selection by Trustee of Securities to be Redeemed.
Unless otherwise specified as contemplated by Section 3.01, if less than all of the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption: (i) by lot or such other
similar method in accordance with applicable procedures of the Depository, or (ii) if there are no such requirements of the Depository, on a pro rata basis and in compliance with any applicable stock exchange rules; provided, however, that no such partial redemption shall reduce the portion of the
principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the Securities of any series, if any Security selected for
partial redemption is converted into other securities of the Issuers or exchanged for securities of another issuer in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted
portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding
for the purpose of such selection.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06, not less than 30 nor more than 60 days prior to
the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities
designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not such Holder receives the notice.
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All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (or the formula for calculating it),
(c) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, the notice which relates to such Security shall
state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(e) that, on the Redemption Date, the Redemption Price shall become due and payable upon each such Security
or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date,
(f) the place or places where such Securities are to be surrendered for payment of the Redemption Price and
any accrued interest and Additional Amounts pertaining thereto,
(g) that the redemption is for a sinking fund, if such is the case,
(h) [Reserved],
(i) [Reserved],
(j) in the case of Securities of any series that are convertible into Common Stock of the Company or the
Co-Issuer or exchangeable for other securities, the conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate and the
place or places where such Securities may be surrendered for conversion or exchange, and
(k) the CUSIP number or the Euroclear or the Cedel reference numbers of such Securities, if any (or any
other numbers used by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.06 need not identify particular Registered Securities to be
redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Issuers; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 11.04.
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Section 11.05 Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Business Day prior to any Redemption Date, the Issuers shall deposit, with
respect to the Securities of any series called for redemption pursuant to Section 11.04, with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money in the applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.01 or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuers shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuers at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date; provided, however, that, except as otherwise specified in or pursuant to this
Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any
premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security
(with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the
Issuers shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of
such series and this Indenture.
Section 12.02 Satisfaction of Sinking Fund Payments With Securities.
The Issuers may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series
to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to
the Issuers), and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, provided that such series of Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this
Section 12.02, the principal amount of Securities of such series to be redeemed in order to satisfy the remaining sinking fund payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Issuer
Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and deliver to the Company any cash payment so
being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company.
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Section 12.03 Redemption of Securities for Sinking Fund.
Not less than 75 days and not more than 90 days prior to each sinking fund payment date for any series of Securities, the
Company shall deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking
fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Issuers shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuers in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be
repaid in accordance with the terms of the Securities of such series, and such Holder shall provide the Trustee and the Company with prior written notice of its election to have such Securities repaid. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 3.09, shall not operate as a payment, redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the Issuers, at their option, shall deliver or surrender the same to the Trustee with a directive that such Securities be cancelled. Notwithstanding anything to the contrary contained in this Section 13.01, in connection
with any repayment of Securities, the Company may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before
the close of business on the repayment date an amount not less than the repayment price payable by the Issuers on repayment of such Securities, and the obligation of the Issuers to pay the repayment price of such Securities shall be satisfied and
discharged to the extent such payment is so paid by such purchasers.
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ARTICLE XIV
SECURITIES IN FOREIGN CURRENCIES
Section 14.01 Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities
of any series in which not all of such Securities are denominated in the same Currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such
reasonable basis of exchange and as of the record date with respect to Registered Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably
proximate to the date of such action, determination of rights or distribution) as the Company may specify in a written notice to the Trustee. Notwithstanding anything contained herein to the contrary, any issuance of Securities denominated in a
currency other than Dollars must be acceptable to the applicable Depository and prior to the issuance of any Securities denominated in a currency other than Dollars the Company must obtain the prior written consent of the Trustee.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to
make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 15.02 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 15.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board Resolution) or the Holders of at least 25% in
principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 15.01, by written request setting forth in reasonable
detail the action
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proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice
of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 1.06) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in
clause (a) of this Section.
Section 15.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its agents and counsel and any representatives of the Issuers
and their counsel.
Section 15.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a
quorum for any meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such reconvened meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 15.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding
Securities of such series.
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Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
Section 15.05 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.
(b) The Company shall appoint a temporary chairman of the meeting. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.02 at which a
quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further
notice.
Section 15.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting.
A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by
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one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
[Intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above
written.
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[ ˜ ],
as Trustee |
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By:
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Name:
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Title:
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Signature Page to Base Indenture
EXHIBIT A
[If the Holder of this Security is a depository, such as The Depository Trust Company (“DTC”) or a nominee of DTC, this Security is a Global Security and insert the following two legends:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITORY (AS DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THE SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”),] TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF [CEDE & CO. OR IN] SUCH [OTHER] NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[THE DEPOSITORY] [DTC] (AND ANY PAYMENT IS MADE TO [CEDE & CO. OR TO] SUCH [OTHER] ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITORY] [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.]
[Insert any applicable legend(s) required by the Internal Revenue Code]
$
NO.
CUSIP:
TORM PLC
[ ˜ ]
[ ˜ ]
[Designation of Series]
TORM PLC, a public limited company incorporated under the laws of England and Wales (the “Company”), having its registered office at Birchin Court, 20 Birchin Lane, London,
A-1
EC3V 9DU, United Kingdom and [ ˜ ], a corporation duly organized under
the laws of [ ˜ ] (the “Co-Issuer, and together with the Company, the “Issuers”), for value received, hereby jointly and severally promise to pay to , or registered assigns, the principal sum of Dollars ($
) on , [If the Security is to bear interest prior to Maturity, insert — , and to pay interest thereon from or from the
most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on and in each year, commencing , [If the
Security is to bear interest at a
fixed rate, insert — at the rate of % per annum] [If the Security is to bear interest at an adjustable rate, insert — at a rate per annum computed or determined in accordance with the provisions below], until the principal hereof is paid or made available for payment [If applicable, insert —, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment and such interest shall be payable on demand]. [If applicable, insert — Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or the maturity date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the maturity date, as the case may be, to such next Business Day.] The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such holder, and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a subsequent special record date (which shall be at least 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to the Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture.
fixed rate, insert — at the rate of % per annum] [If the Security is to bear interest at an adjustable rate, insert — at a rate per annum computed or determined in accordance with the provisions below], until the principal hereof is paid or made available for payment [If applicable, insert —, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment and such interest shall be payable on demand]. [If applicable, insert — Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or the maturity date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the maturity date, as the case may be, to such next Business Day.] The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest which is payable but not punctually paid or duly provided for on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such holder, and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a subsequent special record date (which shall be at least 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Company, notice whereof shall be given to the Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture.
[If the Security is not to bear interest prior to
Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration or redemption or at the Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
A-2
Payment of the principal of and [If applicable,
insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in The Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts [If applicable, insert — ; provided, however, that, at the option of the Company, interest may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register;] [If applicable, insert — provided, further, that payment to [DTC or] any [successor] depository may be made by wire
transfer to the account designated by [DTC or] such [successor] depository in writing].
This Security is one of a duly authorized issue of securities of the Issuers (herein called the “Securities”), issued and to
be issued in one or more series under an Indenture, dated as of [ ˜ ], 2018 (herein called, together with all indentures supplemental thereto, the “Indenture”), between the
Issuers and [ ˜ ], as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuers, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, initially limited (subject to exceptions provided in the Indenture) to the aggregate principal amount of $ ].
[If the Security is not an Original Issue Discount
Security, insert — If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to [insert formula for determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuers’ obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series shall terminate.]
[If applicable, insert — The Securities
may not be redeemed prior to the Stated Maturity.]
[If applicable, insert — The Securities
are not subject to any sinking fund.]
[If applicable, insert — The Securities
are subject to redemption [(l) [If applicable, insert — on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] [If applicable, insert — at any time [on or after ], as a whole or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): if redeemed on or before , % and if redeemed during the 12-month period beginning of the years indicated at the Redemption Prices indicated below:
A-3
|
Year
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Redemption Price
|
|||
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [If
applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this
Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The Securities
are subject to redemption (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: if redeemed during the 12-month period beginning of the years indicated below:
|
Year
|
Redemption Price for
Redemption through Operation of the Sinking Fund |
Redemption Price for Redemption
Otherwise than through Operation of the Sinking Fund |
||
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — Notwithstanding
the foregoing, the Issuers may not, prior to, redeem any Securities as contemplated by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed
having an interest cost to the Issuers (calculated in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert — The sinking fund
for the Securities provides for the redemption on in each year, beginning with the year and ending with the year , of [not less than] $ [(“mandatory sinking fund”) and not more than $ ] aggregate
principal amount of the Securities of this series. [The Securities acquired or redeemed by the Issuers otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the [describe order].]]
A-4
[If applicable, insert — Notice of
redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the Redemption Date, all as provided in the Indenture.]
[If applicable, insert — In the event of
redemption of this Security in part only, a new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions permitting, with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Issuers and the rights of the Holders of the Securities of each series issued under the Indenture at any time by the Issuers and the Trustee with the written consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities
of any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuers with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Securities and of any Securities issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the
obligation of the Issuers, which is absolute and unconditional, to pay the principal of and interest on this Security, at the times, place and rate, and in the coin or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth therein and in this Security, the transfer of this
Security may be registered on the Security Register upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for that purpose in any place where the principal of and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney duly authorized in writing, and thereupon one or more
new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form in the denominations of $ or any integral multiple thereof.
As provided in the Indenture and subject to certain limitations set forth in the Indenture, and in this Security, the Securities are exchangeable for a like aggregate principal amount of Securities of this series in different authorized
denominations, as requested by the Holders surrendering the same.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in connection therewith, other than in certain cases provided in the Indenture.
A-5
Prior to due presentment of this Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers
or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuers, the Trustee nor any such agent shall be affected by notice to the
contrary.
[If applicable, insert — The Indenture
contains provisions whereby (i) the Issuers may be discharged from their obligations with respect to the Securities (subject to certain exceptions) or (ii) the Issuers may be released from their obligations under specified covenants and agreements in
the Indenture, in each case if the Issuers irrevocably deposits with the Trustee money or Government Obligations, or a combination thereof, in an amount sufficient, without consideration of any reinvestment, to pay and discharge the entire
indebtedness on all Securities of this series, and satisfies certain other conditions, all as more fully provided in the Indenture.]
This Security shall be governed by and construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said State.
All terms used in this Security without definition that are defined in the Indenture shall have the meanings assigned to them
in the Indenture.
[Remainder of Page Intentionally Left Blank]
A-6
Unless the Certificate of Authentication hereon has been executed by or on behalf of the Trustee under the Indenture by the
manual signature of one of its authorized officers, this Security shall not be entitled to any benefits under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly executed.
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TORM PLC
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By:
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Name:
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Title:
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[ ˜ ]
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By:
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Name:
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Attest:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Name:
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Dated:
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Title:
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Authorized Officer
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Exhibit 4.7
TORM PLC
FORM OF
SUBORDINATED INDENTURE
Dated as of [ ], 201[ ]
[ ]
Trustee
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
|
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SECTION 1.01.
|
Definitions.
|
1
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SECTION 1.02.
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Other Definitions.
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5
|
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SECTION 1.03.
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Incorporation by Reference of Trust Indenture Act.
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5
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SECTION 1.04.
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Rules of Construction.
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6
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ARTICLE II THE SECURITIES
|
6
|
|
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SECTION 2.01.
|
Issuable in Series.
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6
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SECTION 2.02.
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Establishment of Terms of Series of Securities.
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7
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SECTION 2.03.
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Execution and Authentication.
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9
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SECTION 2.04.
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Registrar and Paying Agent.
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10
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SECTION 2.05.
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Paying Agent to Hold Money in Trust.
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10
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SECTION 2.06.
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Securityholder Lists.
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11
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SECTION 2.07.
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Transfer and Exchange.
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11
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SECTION 2.08.
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Mutilated, Destroyed, Lost and Stolen Securities.
|
12
|
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SECTION 2.09.
|
Outstanding Securities.
|
12
|
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SECTION 2.10.
|
Treasury Securities.
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13
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SECTION 2.11.
|
Temporary Securities.
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13
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SECTION 2.12.
|
Cancellation.
|
13
|
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SECTION 2.13.
|
Defaulted Interest.
|
14
|
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SECTION 2.14.
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Global Securities.
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14
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SECTION 2.15.
|
CUSIP Numbers.
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16
|
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ARTICLE III REDEMPTION
|
16
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SECTION 3.01.
|
Notice to Trustee.
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16
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SECTION 3.02.
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Selection of Securities to be Redeemed.
|
16
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SECTION 3.03.
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Notice of Redemption.
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17
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SECTION 3.04.
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Effect of Notice of Redemption.
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17
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SECTION 3.05.
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Deposit of Redemption Price.
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18
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SECTION 3.06.
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Securities Redeemed in Part.
|
18
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ARTICLE IV COVENANTS
|
18
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SECTION 4.01.
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Payment of Principal and Interest.
|
18
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SECTION 4.02.
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SEC Reports.
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18
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SECTION 4.03.
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Compliance Certificate.
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19
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SECTION 4.04.
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Stay, Extension and Usury Laws.
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20
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SECTION 4.05.
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Corporate Existence.
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20
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SECTION 4.06.
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Taxes.
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20
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SECTION 4.07.
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Additional Interest Notice.
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20
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SECTION 4.08.
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Further Instruments and Acts.
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20
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ARTICLE V SUCCESSORS
|
21
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SECTION 5.01.
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When Company May Merge, Etc.
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21
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SECTION 5.02.
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Successor Corporation Substituted.
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21
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ARTICLE VI DEFAULTS AND REMEDIES
|
21
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SECTION 6.01.
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Events of Default.
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22
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SECTION 6.02.
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Acceleration of Maturity; Rescission and Annulment.
|
24
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SECTION 6.03.
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Collection of Indebtedness and Suits for Enforcement by Trustee.
|
25
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SECTION 6.04.
|
Trustee May File Proofs of Claim.
|
25
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SECTION 6.05.
|
Trustee May Enforce Claims Without Possession of Securities.
|
26
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|
SECTION 6.06.
|
Application of Money Collected.
|
26
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SECTION 6.07.
|
Limitation on Suits.
|
26
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SECTION 6.08.
|
Unconditional Right of Holders to Receive Principal and Interest.
|
27
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SECTION 6.09.
|
Restoration of Rights and Remedies.
|
27
|
|
SECTION 6.10.
|
Rights and Remedies Cumulative.
|
27
|
|
SECTION 6.11.
|
Delay or Omission Not Waiver.
|
27
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|
SECTION 6.12.
|
Control by Holders.
|
28
|
|
SECTION 6.13.
|
Waiver of Past Defaults.
|
28
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SECTION 6.14.
|
Undertaking for Costs.
|
28
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ARTICLE VII TRUSTEE
|
29
|
|
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SECTION 7.01.
|
Duties of Trustee.
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29
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|
SECTION 7.02.
|
Rights of Trustee.
|
30
|
|
SECTION 7.03.
|
Individual Rights of Trustee.
|
31
|
|
SECTION 7.04.
|
Trustee’s Disclaimer.
|
31
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SECTION 7.05.
|
Notice of Defaults.
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31
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SECTION 7.06.
|
Reports by Trustee to Holders.
|
31
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SECTION 7.07.
|
Compensation and Indemnity.
|
32
|
|
SECTION 7.08.
|
Replacement of Trustee.
|
32
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SECTION 7.09.
|
Successor Trustee by Merger, etc.
|
33
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SECTION 7.10.
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Eligibility; Disqualification.
|
33
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SECTION 7.11.
|
Preferential Collection of Claims Against Company.
|
34
|
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ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE
|
34
|
|
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SECTION 8.01.
|
Satisfaction and Discharge of Indenture.
|
34
|
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SECTION 8.02.
|
Application of Trust Funds; Indemnification.
|
35
|
|
SECTION 8.03.
|
Legal Defeasance of Securities of any Series.
|
36
|
|
SECTION 8.04.
|
Covenant Defeasance.
|
37
|
|
SECTION 8.05.
|
Repayment to Company.
|
38
|
|
ARTICLE IX AMENDMENTS AND WAIVERS
|
39
|
|
|
SECTION 9.01.
|
Without Consent of Holders.
|
39
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|
SECTION 9.02.
|
With Consent of Holders.
|
39
|
|
SECTION 9.03.
|
Limitations.
|
40
|
|
SECTION 9.04.
|
Compliance with Trust Indenture Act.
|
41
|
|
SECTION 9.05.
|
Revocation and Effect of Consents.
|
41
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|
SECTION 9.06.
|
Notation on or Exchange of Securities.
|
41
|
|
SECTION 9.07.
|
Trustee Protected.
|
41
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|
SECTION 9.08.
|
Effect of Supplemental Indenture.
|
42
|
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ARTICLE X MISCELLANEOUS
|
42
|
|
|
SECTION 10.01.
|
Trust Indenture Act Controls.
|
42
|
|
SECTION 10.02.
|
Notices.
|
42
|
|
SECTION 10.03.
|
Communication by Holders with Other Holders.
|
43
|
|
SECTION 10.04.
|
Certificate and Opinion as to Conditions Precedent.
|
43
|
|
SECTION 10.05.
|
Statements Required in Certificate or Opinion.
|
44
|
|
SECTION 10.06.
|
Record Date for Vote or Consent of Holders.
|
44
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|
SECTION 10.07.
|
Rules by Trustee and Agents.
|
44
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|
SECTION 10.08.
|
Legal Holidays.
|
44
|
|
SECTION 10.09.
|
No Recourse Against Others.
|
45
|
|
SECTION 10.10.
|
Counterparts.
|
45
|
|
SECTION 10.11.
|
Governing Laws and Submission to Jurisdiction.
|
45
|
|
SECTION 10.12.
|
No Adverse Interpretation of Other Agreements.
|
45
|
|
SECTION 10.13.
|
Successors.
|
45
|
|
SECTION 10.14.
|
Severability.
|
46
|
|
SECTION 10.15.
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Table of Contents, Headings, Etc.
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46
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SECTION 10.16.
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Securities in a Foreign Currency or in ECU.
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46
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SECTION 10.17.
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Judgment Currency.
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46
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SECTION 10.18.
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Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
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47
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ARTICLE XI SINKING FUNDS
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47
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SECTION 11.01.
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Applicability of Article.
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47
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SECTION 11.02.
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Satisfaction of Sinking Fund Payments with Securities.
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48
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SECTION 11.03.
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Redemption of Securities for Sinking Fund.
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48
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Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
Dated as of [ ], 201[ ]
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Section 310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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7.10
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(b)
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7.10
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(c)
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Not Applicable
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Section 311(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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Section 312(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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Section 313(a)
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7.06
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(b)(1)
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7.06
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(b)(2)
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7.06
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(c)(1)
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7.06
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(d)
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7.06
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Section 314(a)
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4.02, 10.05
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(b)
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Not Applicable
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(c)(1)
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10.04
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(c)(2)
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10.04
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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10.05
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(f)
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Not Applicable
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Section 315(a)
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7.01
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(b)
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7.05
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(c)
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7.01
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(d)
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7.01
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(e)
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6.14
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Section 316(a)(1)(A)
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6.12
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(a)(1)(B)
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6.13
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(a)(2)
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Not Applicable
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(b)
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6.13
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(c)
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10.06
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Section 317(a)(1)
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6.03
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(a)(2)
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6.04
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(b)
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2.05
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Section 318(a)
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10.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
TORM PLCINDENTURE, dated as of [ ], 201[ ] (the “Indenture”), among TORM PLC, a public limited company incorporated under the laws of England and Wales (the “Company”), having its registered
office at Birchin Court, 20 Birchin Lane, London, EC3V 9DU, United Kingdom and [ ], a corporation duly organized under the laws of [ ] (the “Co-Issuer, and together with the Company, the “Issuers”; and each individually an “Issuer”), having
its principal executive office located at [ ], and [ ], a New York banking corporation, as trustee (hereinafter called the “Trustee”), having its Corporate Trust Office located at [ ].
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
| SECTION 1.01. |
Definitions.
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“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by
the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.
“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” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent” means any Registrar or Paying Agent.
“Bankruptcy Law” means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors.
“Board of Directors” means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means any day other than a (x) Saturday, (y) Sunday or (z) day on which state or federally chartered banking institutions in New York, New York
are not required to be open.
“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, but excluding any debt securities convertible into such equity.
“Certificated Securities” means Securities in the form of physical, certificated Securities in registered form.
“Company” means the party named as such above until a successor replaces it in accordance with the terms of this Indenture and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Company Request” means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Chief
Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered which
office at the date of the execution of this Indenture is [ ], Attention: [ ], or at such other address as the Trustee may designate from time to time.
“Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” or “default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Default Rate” means the default rate of interest specified in the Securities.
“Depository” means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the
person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars” means the currency of The United States of America.
“ECU” means the European Currency Unit as determined by the Commission of the European Union.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
1
“Foreign Currency” means any currency or currency unit issued by a government other than the government of The United States of America.
“Foreign Government Obligations” means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such
government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
“Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established
pursuant to Section 2.02 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee.
“Holder” or “Securityholder” means a person in whose name a Security is registered.
“Indenture” means this Indenture as amended and supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“Interest,” in respect of the Securities, unless the context otherwise requires, refers to interest payable on the Securities, including any additional
interest that may become payable pursuant to Section 6.02(b).
“Maturity,” when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such
installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise.
“Officer” means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary
of the Company.
“Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer
or principal accounting officer.
“Opinion of Counsel” means a written opinion of legal counsel who is, and which opinion is, acceptable to the Trustee and its counsel. Such legal counsel may
be an employee of or counsel to the Company or the Trustee.
“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
1
“Principal” or “principal” of a Security means the principal of the Security plus, when appropriate, the premium, if
any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office and also means, any vice president, managing director, director,
associate, assistant vice president, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Security” or “Securities” means the debentures, notes or other debt instruments of the Company of any Series
authenticated and delivered under this Indenture.
“Series” or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company
created pursuant to Sections 2.01 and 2.02 hereof.
“Stated Maturity” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subordinated Indebtedness” means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities.
“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, general partners 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.
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
“Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
2
“U.S. Government Obligations” means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The
United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
| SECTION 1.02. |
Other Definitions.
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TERM
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DEFINED IN SECTION
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“Applicable Law”
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10.18
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“Event of Default”
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6.01
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“Instrument”
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6.01
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“Journal”
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10.16
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“Judgment Currency”
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10.17
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“Legal Holiday”
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10.08
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“mandatory sinking fund payment”
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11.01
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“Market Exchange Rate”
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10.16
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“New York Banking Day”
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10.17
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“optional sinking fund payment”
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11.01
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“Paying Agent”
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2.04
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“Registrar”
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2.04
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“Required Currency”
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10.17
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“successor person”
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5.01
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“Temporary Securities”
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2.11
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| SECTION 1.03. |
INCORPORATION by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. This Indenture shall also include those provisions of the
TIA required to be included herein by the provisions of the Trust Indenture Reform Act of 1990. The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
3
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein
as so defined.
| SECTION 1.04. |
RULES of Construction.
|
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles;
(c) references to “generally accepted accounting principles” shall mean generally accepted accounting
principles in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d) “or” is not exclusive;
(e) words in the singular include the plural, and in the plural include the singular;
(f) provisions apply to successive events and transactions;
(g) references to agreements and other instruments include subsequent amendments thereto;
(h) the term “merger” includes a statutory share exchange, and the term “merged” has a correlative
meaning; and
(i) ”herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
ARTICLE II
THE SECURITIES
| SECTION 2.01. |
Issuable in Series.
|
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a
Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of
Securities of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which
interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
4
| SECTION 2.02. |
ESTABLISHMENT of Terms of Series of Securities.
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At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection (a), and either as to such Securities within
the Series or as to the Series generally in the case of Subsections (b) through (t) by a Board Resolution, a supplemental indenture or an Officers’ Certificate pursuant to authority granted under a Board Resolution:
(a) the title, designation, aggregate principal amount and authorized denominations of the Securities
of the Series;
(b) the price or prices, (expressed as a percentage of the aggregate principal amount thereof) at
which the Securities of the Series will be issued;
(c) the date or dates on which the principal of the Securities of the Series is payable;
(d) the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to
determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
(e) any optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon
which Securities of the Series shall be redeemed, purchased, converted or exchanged;
(f) the date, if any, after which and the price or prices at which the Securities of the Series may be
optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or mandatory provisions;
(g) if other than denominations of $1,000 and any integral multiple thereof, the denominations in
which the Securities of the Series shall be issuable;
(h) if other than the full principal amount, the portion of the principal amount of the Securities of
the Series that shall be payable upon declaration of acceleration pursuant to Section 6.02 or provable in bankruptcy;
(i) any addition to or change in the Events of Default which applies to any Securities of the Series
and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02;
5
(j) the currency or currencies, including composite currencies, in which payments of principal of,
premium or interest, if any, on the Securities of the Series will be payable, if other than the currency of the United States of America;
(k) if payments of principal of, premium or interest, if any, on the Securities of the Series will be
payable, at the Company’s election or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the
election may be made;
(l) if payments of interest, if any, on the Securities of the Series will be payable, at the Company’s
election or at the election of any Holder, in cash or additional securities, and the terms and conditions upon which the election may be made;
(m) if denominated in a currency or currencies other than the currency of the United States of
America, the equivalent price of the Securities of the Series in the currency of the United States of America for purposes of determining the voting rights of Holders of the Securities of the Series;
(n) if the amount of payments of principal, premium or interest may be determined with reference to an
index, formula or other method based on a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in which the amounts will be determined;
(o) any restrictive covenants or other material terms relating to the Securities of the Series;
(p) whether the Securities of the Series will be issued in the form of global securities or
certificates in registered form;
(q) any terms with respect to subordination;
(r) any listing on any securities exchange or quotation system;
(s) additional provisions, if any, related to defeasance and discharge of the offered debt securities;
and
(t) the applicability of any guarantees, which would be governed by New York law.
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuance of additional Securities of such Series, unless otherwise provided in such
Board Resolution, supplemental Indenture or Officers’ Certificate.
6
| SECTION 2.03. |
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 Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’
Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.02, except as provided in Section 2.08.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying on: (a) the Board Resolution, supplemental
indenture hereto or Officers Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers’ Certificate
complying with Section 10.04, and (c) an Opinion of Counsel complying with Section 10.04.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be
taken; or (b) if a Responsible Officer of the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
If any successor that has replaced the Company in accordance with Article 5 has executed an indenture supplemental hereto with the Trustee pursuant to Section 5.01, any of the Securities
authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be exchanged for other Securities executed in the name of the such successor with such changes in phraseology and form as may be
appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon receipt of a Company Order of such successor, shall authenticate and deliver Securities as specified in such
order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of such successor pursuant to this provision of Section 2.03 in exchange or substitution for or upon registration of transfer of
any Securities, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities then outstanding for Securities authenticated and delivered in such new name.
7
| SECTION 2.04. |
Registrar and Paying Agent.
|
The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.02, an office or agency where Securities of
such Series may be presented or surrendered for payment (“Paying Agent”) and where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”). The Registrar shall keep a register with respect to each Series
of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar and Paying Agent. If at any time the Company shall fail
to maintain any such required Registrar or Paying Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations and surrenders may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar or Paying Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar or additional paying agent. The term “Registrar” includes any co-registrar; and the term “Paying Agent” includes any
additional paying agent.
The Company hereby appoints [ ] as the initial Registrar and Paying Agent for each Series unless
another Registrar or Paying Agent as the case may be, is appointed prior to the time Securities of that Series are first issued. Each Registrar and Paying Agent shall be entitled to all of the rights, protections, exculpations and indemnities
afforded to the Trustee in connection with its roles as Registrar and Paying Agent.
| SECTION 2.05. |
PAYING Agent to Hold Money in Trust.
|
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it
as Paying Agent.
8
| SECTION 2.06. |
SECURITYHOLDER Lists.
|
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least [ ] 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 of each Series of Securities.
| SECTION 2.07. |
Transfer and Exchange.
|
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series,
the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. Any exchange
or transfer shall be without charge, except that the Company or the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge required by law; provided that this sentence shall not apply to any exchange pursuant
to Section 2.11, 2.08, 3.06 or 9.06.
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business [ ] days
immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to the same benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange. Any Registrar appointed pursuant to Section 2.04 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities. Each Holder of a Security agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this
Indenture and/or applicable U.S. federal or state securities law.
9
| SECTION 2.08. |
Mutilated, Destroyed, Lost and Stolen Securities.
|
If any mutilated Security is surrendered to the Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Registrar that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
| SECTION 2.09. |
Outstanding Securities.
|
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on
a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date,
then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue.
10
A Security does not cease to be outstanding because the Company or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02.
| SECTION 2.10. |
Treasury Securities.
|
In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver Securities of
a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
| SECTION 2.11. |
Temporary Securities.
|
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order (“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 upon written
request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
| SECTION 2.12. |
Cancellation.
|
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, payment or conversion. The Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, payment, conversion or cancellation and shall deliver the cancelled
Securities to the Company. No Security shall be authenticated in exchange for any Security cancelled pursuant to this Section 2.12.
The Company may, to the extent permitted by law, purchase Securities in the open market or by tender offer at any price or by private agreement. Any Securities purchased or otherwise acquired by the
Company or any of its Subsidiaries prior to the final maturity of such Securities may, to the extent permitted by law, be reissued or resold or may, at the option of the Company, be surrendered to the Trustee for cancellation. Any Securities
surrendered for cancellation may not be reissued or resold and shall be promptly cancelled by the Trustee, and the Company may not hold or resell such Securities or issue any new Securities to replace any such Securities.
11
| SECTION 2.13. |
Defaulted Interest.
|
If the Company defaults in a payment of interest on a Series of Securities, it shall pay defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest at
the Default Rate, to the persons who are Security holders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least [ ] days before the record date, the Company shall mail to the Trustee
and the Paying Agent and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
| SECTION 2.14. |
Global Securities.
|
(a) A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish
whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities.
(b) (i) Notwithstanding any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered
in the names of Holders other than the Depository for such Security or its nominee only if (A) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository
ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository within 90 days of such event, (B) the Company executes and delivers to the Trustee an Officers’ Certificate to
the effect that such Global Security shall be so exchangeable or (C) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing.
(ii) Except as provided in this Section 2.14(b), a Global Security may not be
transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such a successor Depository.
(iii) Securities issued in exchange for a Global Security or any portion thereof
shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depository shall designate and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depository to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Registrar is acting as custodian for the Depository or its nominee with respect to such Global Security, the principal amount
thereof shall be reduced by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depository or an authorized representative thereof.
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(iv) The registered Holder may grant proxies and otherwise authorize any Person,
including participants in the Depository and persons that may hold interests through participants in the Depository, to take any action which a Holder is entitled to take under this Indenture or the Securities.
(v) In the event of the occurrence of any of the events specified in 2.14(b)(i),
the Company will promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons. If (A) an event described in Section 2.14(b)(i)(A) or (B) occurs and definitive
Certificated Securities are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain definitive Certificated Securities due to an event described in Section 2.14(b)(i)(C) and definitive
Certificated Securities are not issued promptly to any such beneficial owner, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Article VI hereof, the right of any beneficial owner of
Securities to pursue such remedy with respect to the portion of the Global Security that represents such beneficial owner’s Securities as if such definitive certificated Securities had been issued.
(vi) Notwithstanding any provision to the contrary in this Indenture, so long as a
Global Security remains outstanding and is held by or on behalf of the Depository, transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with Section 2.07, this Section 2.14(b)
and the rules and procedures of the Depository for such Global Security to the extent applicable to such transaction and as in effect from time to time.
(c) Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.”
(d) The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or
take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
13
(e) Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated
by Section 2.02, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof at their registered office.
(f) At all times the Securities are held in book-entry form with a Depository, (i) the Trustee may
deal with such Depository as the authorized representative of the Holders, (ii) the rights of the Holders shall be exercised only through the Depository and shall be limited to those established by law and agreement between the Holders and the
Depository and/or direct participants of the Depository, (iii) the Depository will make book-entry transfers among the direct participants of the Depository and will receive and transmit distributions of principal and interest on the Securities to
such direct participants; and (iv) the direct participants of the Depository shall have no rights under this Indenture, or any supplement hereto, under or with respect to any of the Securities held on their behalf by the Depository, and the
Depository may be treated by the Trustee and its agents, employees, officers and directors as the absolute owner of the Securities for all purposes whatsoever.
| SECTION 2.15. |
CUSIP Numbers.
|
The Company in issuing the Securities may use “CUSIP”, “CCN”, “ISIN” or other identification numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”, “CCN”, “ISIN” or such other
identification numbers in notices of redemption as a convenience to Holders; provided 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 elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
| SECTION 3.01. |
Notice to Trustee.
|
The Company may, with respect to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof
prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee and Registrar in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least [
] days before the redemption date (or such shorter notice as may be acceptable to the Trustee and Registrar).
| SECTION 3.02. |
Selection of Securities to be Redeemed.
|
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be redeemed, the
Registrar shall select the Securities of the Series to be redeemed in accordance with its customary procedures. The Registrar shall make the selection from Securities of the Series outstanding not previously called for redemption. The Registrar may
select for redemption portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(g), the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series
called for redemption also apply to portions of Securities of that Series called for redemption.
14
| SECTION 3.03. |
Notice of Redemption.
|
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least [ ] days but not more than [ ] days before a redemption
date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(e) that interest on Securities of the Series called for redemption ceases to accrue on and after the
redemption date; and
(f) any other information as may be required by the terms of the particular Series or the Securities
of a Series being redeemed.
At the Company’s written request, the Trustee shall distribute the notice of redemption prepared by the Company in the Company’s name and at its expense.
| SECTION 3.04. |
Effect of Notice of Redemption.
|
Once notice of redemption is mailed or published as provided in Section 3.03, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price.
A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
15
| SECTION 3.05. |
Deposit of Redemption Price.
|
On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on
that date.
| SECTION 3.06. |
Securities Redeemed in Part.
|
Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
| SECTION 4.01. |
Payment of Principal and Interest.
|
The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with
the terms of such Securities and this Indenture.
Unless otherwise provided under the terms of a particular Series of Securities:
(a) an installment of principal or interest shall be considered paid on the date it is due if the
Paying Agent (other than the Company) holds by [ ] [a].m., New York City time, on that date money, deposited by the Company or an Affiliate thereof,
sufficient to pay such installment. The Company shall (in immediately available funds), to the fullest extent permitted by law, pay interest on overdue principal and overdue installments of interest at the rate borne by the Securities per annum; and
(b) payment of the principal of and interest on the Securities shall be made at the office or agency
of the Company maintained for that purpose in [ ] (which shall initially be [ ], the Paying Agent) in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address appears in the register; provided, further, that a Holder with an
aggregate principal amount in excess of $[] will be paid by wire transfer in immediately available funds at the election of such Holder if such Holder has provided wire transfer instructions to the Company at least [ ] Business Days prior to the
payment date.
| SECTION 4.02. |
SEC Reports.
|
So long as any Securities are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations and (ii) furnish to the Trustee and the Holders of
the Securities within [ ] days after the date on which the Company would be required to file the same with the SEC pursuant to its rules and regulations (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act), all
quarterly and annual financial information required to be furnished or filed with the SEC pursuant to Section 13 and Section 15(d) of the Exchange Act and, with respect to the annual consolidated financial statements only, a report thereon by the
Company’s independent auditors. The Company also shall comply with the other provisions of TIA Section 314(a).
16
Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Company shall not
be required to file any report or other information with the SEC if the SEC does not permit such filing, although such reports shall be furnished to the Trustee. Documents filed by the Company with the SEC via the SEC’s EDGAR system (or any
successor thereto) will be deemed furnished to the Trustee and the Holders of the Securities as of the time such documents are filed via EDGAR (or such successor).
| SECTION 4.03. |
Compliance Certificate.
|
The Company shall deliver to the Trustee, within [ ] days after the end of each fiscal year of the Company, an officers certificate signed by two of the Company’s officers stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge in reasonable
detail and the efforts to remedy the same). For purposes of this Section 4.03, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.
The Company shall deliver to the Trustee, within [ ] days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Event of Default described in Section 6.01(e),
(f), (g) or (h) and any event of which it becomes aware that with the giving of notice or the lapse of time would become such an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. For the
avoidance of doubt, a breach of a covenant under an Instrument that is not a payment default and that has not given rise to a right of acceleration under such Instrument shall not trigger the requirement to provide notice under this paragraph.
17
| SECTION 4.04. |
Stay, Extension and Usury Laws.
|
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
| SECTION 4.05. |
Corporate Existence.
|
Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other
existence of each Subsidiary in accordance with the respective organizational documents of each Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders.
| SECTION 4.06. |
Taxes.
|
The Company shall, and shall cause each of its Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate
proceedings.
| SECTION 4.07. |
Additional Interest Notice.
|
In the event that the Company is required to pay additional interest to Holders of Securities pursuant to Section 6.02(b) hereof, the Company shall provide a direction or order in the form of a
written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of the Company’s obligation to pay such additional interest no later than [ ] Business Days prior to date on which any such additional interest is
scheduled to be paid. Such notice shall set forth the amount of additional interest to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it
receives funds from the Company to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether additional interest is payable, or with respect to the nature, extent, or calculation of the amount of
additional interest owed, or with respect to the method employed in such calculation of additional interest.
| SECTION 4.08. |
Further Instruments and Acts.
|
The Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
18
ARTICLE V
SUCCESSORS
| SECTION 5.01. |
When Company May Merge, Etc.
|
The Company shall not consolidate with, enter into a binding share exchange, or merge into any other Person in a transaction in which it is not the surviving entity, or sell, assign, convey, transfer
or lease or otherwise dispose of all or substantially all of its properties and assets to any Person (a “successor person”), unless:
(a) the successor person (if any) is a corporation, partnership, trust or other entity organized and
validly existing under the laws of the Republic of the Marshall Islands, the United States of America, any State thereof, or the District of Columbia, the Commonwealth of the Bahamas, the Republic of Liberia, the Republic of Panama, the Commonwealth
of Bermuda, the British Virgin Islands, the Cayman Islands, the Isle of Man, Cyprus, Norway, Greece, Hong Kong, the United Kingdom, Malta, any Member State of the European Union, [ ] and any other jurisdiction generally
acceptable, as determined in good faith by the Board of Directors, to institutional lenders in the shipping industries, and expressly assumes by a supplemental indenture executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of, and any interest on, all Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to the transaction, no Default or Event of Default, shall have
occurred and be continuing; and
(c) the Company shall have delivered to the Trustee, prior to the consummation of the proposed
transaction, an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture.
| SECTION 5.02. |
Successor Corporation Substituted.
|
Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01, the successor person
formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor company in the case of a sale, lease, conveyance or other disposition of all or substantially all of the assets
of the Company shall not be released from the obligation to pay the principal of and interest, if any, on the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
| SECTION 6.01. |
Events of Default.
|
“Event of Default,” wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that Series when it becomes due and
payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or
(b) default in the payment of any principal of any Security of that Series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due in respect of any Security of
that Series; or
(d) the Company fails to perform or comply with any of its other covenants or agreements contained in
the Securities or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses (a), (b) or (c) of this Section 6.01) and the default continues for 60 days after notice is
given as specified below;
(e) any indebtedness under any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or any Subsidiary or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by, or any other payment obligation of, the
Company or any Subsidiary (an “Instrument”) with a principal amount then, individually or in the aggregate, outstanding in excess of $[], whether such indebtedness now exists or shall hereafter be created, is not paid at Maturity or when otherwise
due or is accelerated, and such indebtedness is not discharged, or such default in payment or acceleration is not cured or rescinded, within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least [ ]% in aggregate principal amount of the outstanding Securities of that Series a written notice specifying such default and requiring the Company to cause such indebtedness to be
discharged or cause such default to be cured or waived or such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder. A payment obligation (other than indebtedness under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the Company or any Subsidiary or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the
Company or any Subsidiary) shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the relevant obligor or obligors in good faith. For the avoidance of doubt, the Maturity of an Instrument is the
Maturity as set forth in that Instrument, as it may be amended from time to time in accordance with the terms of that Instrument;
20
(f) the Company or any Subsidiary fails to pay one or more final and non-appealable judgments entered
by a court or courts of competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $[ ], if the judgments are not paid,
discharged, waived or stayed within [ ] days;
(g) the Company or any Subsidiary of the Company, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary
case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property; or
(iv) makes a general assignment for the benefit of its creditors; or
(v) or generally is unable to pay its debts as the same become due; or
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Subsidiaries in an
involuntary case or proceeding;
(ii) appoints a Custodian of the Company or any of its Subsidiaries for all or
substantially all of the property of the Company or any such Subsidiary; or
(iii) orders the liquidation of the Company or any of its Subsidiaries;
and the case of each of clause (i), (ii) and (iii), the order or decree remains unstayed and in effect for [ ] consecutive days; or
(i) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.02(i).
A default under clause (d) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least [ ]% in aggregate principal amount of the Securities then outstanding
notify the Company and the Trustee, in writing of the default, and the Company does not cure the default within 60 days after receipt of such notice. The notice given pursuant to this Section 6.01 must specify the default, demand that it be remedied
and state that the notice is a “Notice of Default.” When any default under this Section 6.01 is cured, it ceases.
The Trustee shall not be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by the
Company, a Paying Agent, any Holder or any agent of any Holder.
21
|
|
SECTION 6.02. |
Acceleration of Maturity; Rescission and Annulment.
|
(a) If an Event of Default (other than an Event of Default specified in clause (g) or (h) of
Section 6.01) occurs and is continuing with respect to any Securities of any Series, then in every such case, the Trustee may, by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities of that Series
(or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) then outstanding may, by notice to the Company and the Trustee, declare all unpaid principal of,
and accrued and unpaid interest on to the date of acceleration, the Securities of that Series then outstanding (if not then due and payable) to be due and payable upon any such declaration, and the same shall become and be immediately due and
payable. If an Event of Default specified in clause (g) or (h) of Section 6.01 occurs, all unpaid principal of the Securities then outstanding, and all accrued and unpaid interest thereon to the date of acceleration, shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities of that Series then outstanding by notice to the Trustee may rescind
an acceleration of such Securities of that Series and its consequences if (a) all existing Events of Default, other than the nonpayment of the principal of the Securities which has become due solely by such declaration of acceleration, have been
cured or waived; (b) to the extent the payment of such interest is lawful, interest (calculated at the Default Rate) on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration,
has been paid; (c) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 7.07 have been made. No such rescission shall
affect any subsequent default or impair any right consequent thereto.
(b) Notwithstanding any of provision of this Article 6, at the election of the Company in its sole
discretion, the sole remedy under this Indenture for an Event of Default relating to the failure to comply with Section 4.02, and for any failure to comply with the requirements of Section 314(a)(1) of the TIA, will consist, for the 180 days after
the occurrence of such an Event of Default, exclusively of the right to receive additional interest on the Securities at a rate equal to 0.50% per annum of the aggregate principal amount of the Securities then outstanding up to, but not including,
the 181st day thereafter (or, if applicable, the earlier date on which the Event of Default relating to Section 4.02 is cured or waived). Any such additional interest will be payable in the same manner and on the same dates as the stated interest
payable on the Securities. In no event shall additional interest accrue under the terms of this Indenture at a rate in excess of 0.50% per annum, in the aggregate, for any violation or default caused by the failure of the Company to be current in
respect of its Exchange Act reporting obligations. If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure to comply with Section 4.02, the Securities will be subject to acceleration as provided in this
Section 6.02. The provisions of this Section 6.02(b) will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
In order to elect to pay additional interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with Section 4.02 in accordance
with the immediately preceding paragraph, the Company shall notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default otherwise
would occur. Upon a failure by the Company to timely give such notice or pay additional interest, the Securities will be immediately subject to acceleration as otherwise provided in this Section 6.02.
22
| SECTION 6.03. |
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders
of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
If an Event of Default in the payment of principal, interest, if any, specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or another obligor on the Securities for the whole amount of principal, and accrued interest remaining unpaid, if any, together with, to the extent that payment of such interest is lawful, interest on
overdue principal, on overdue installments of interest, if any, in each case at the Default Rate, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
| SECTION 6.04. |
Trustee May File Proofs of Claim.
|
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and
to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
23
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
| SECTION 6.05. |
Trustee May Enforce Claims Without Possession of Securities.
|
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
| SECTION 6.06. |
Application of Money Collected.
|
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: and
First: To the payment of all amounts due the Trustee under Section 7.07;
Second: To the payment of the amounts then due and unpaid for principal of and interest on
the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively;
and
Third: To the Company.
| SECTION 6.07. |
Limitation on Suits.
|
No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder (except actions for payment of overdue principal and interest), unless:
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that Series;
(b) the Holders of not less than [ ]% in principal amount of the outstanding Securities of that
Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
24
(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for [ ] days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such [
]-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all such Holders.
| SECTION 6.08. |
Unconditional Right of Holders to Receive Principal and Interest.
|
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if
any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
| SECTION 6.09. |
Restoration of Rights and Remedies.
|
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
| SECTION 6.10. |
Rights and Remedies Cumulative.
|
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
25
| SECTION 6.11. |
Delay or Omission Not Waiver.
|
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
| SECTION 6.12. |
Control by Holders.
|
The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction; and
(c) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability or would be unduly prejudicial to the rights of another Holder
or the Trustee.
| SECTION 6.13. |
Waiver of Past Defaults.
|
Subject to Section 9.02, the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series
waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount
of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
| SECTION 6.14. |
Undertaking for Costs.
|
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than [ ]% in principal amount of
the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or,
in the case of redemption, on the redemption date).
26
ARTICLE VII
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 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 his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set forth in
this Indenture and no implied duties, covenants or obligations shall be deemed to be imposed upon the Trustee.
(ii) 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 Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such
Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they
conform on their face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own its own negligent action, its own
negligent failure to act or willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of Section 7.01
herein.
(ii) The Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer.
(iii) The Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
27
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph
(a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives an
indemnity satisfactory to it against any loss, liability or expense.
(f) 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. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk or expend its own funds or
otherwise incur liability, financial or otherwise, in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to
it against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the same rights,
indemnities, protections and immunities afforded to the Trustee.
(i) The Trustee shall have no duty to monitor the performance or compliance of the Company with its
obligations hereunder or any under supplement hereto, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company. The Trustee shall have no liability in connection with compliance by the Company with statutory
or regulatory requirements related to this Indenture, any supplement or any Securities issued pursuant hereto or thereto.
| SECTION 7.02. |
Rights of Trustee.
|
(a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from
acting as a result of its reasonable belief that any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, direction, approval or other paper or document was genuine and had been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it sees fit.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence
of, or for the supervision of, any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
(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.
28
(e) The Trustee may consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by
or pursuant to this Indenture at the request, order or direction of any of the Holders of Securities, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or direction.
| 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 an Affiliate with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
| SECTION 7.04. |
Trustee’s Disclaimer.
|
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities and the recitals contained herein and in the Securities shall be taken as statements of the
Company and not of the Trustee, and the Trustee has no responsibility for such recitals. The Trustee shall not be accountable for the Company’s use or application of the proceeds from the Securities or for monies paid over to the Company pursuant to
this Indenture, and it shall not be responsible for any statement in the Securities other than its authentication.
| SECTION 7.05. |
Notice of Defaults.
|
If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer of the Trustee has knowledge or receives written notice of such
event, the Trustee shall mail to each Securityholder of the Securities of that Series, notice of a Default or Event of Default within [ ] days after it occurs or, if later, after a Responsible Officer of the Trustee has actual knowledge of such
Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, including any additional interest that may become payable pursuant to Section 6.02(b), the Trustee
may withhold the notice so long as the Trustee in good faith determines that withholding the notice is in the interests of Securityholders of that Series.
| SECTION 7.06. |
Reports by Trustee to Holders.
|
Within [ ] days after [ ] in each year, the Trustee shall transmit by mail to all Securityholders,
as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such [ ], in accordance with, and to the extent
required under, TIA Section 313.
A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed. The Company
shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
29
| SECTION 7.07. |
Compensation and Indemnity.
|
The Company shall pay to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents, counsel and other persons not regularly in its employ.
The Company shall indemnify, defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse the Trustee for any and all
claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property, or natural resources), penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney’s and
agent’s fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Trustee directly or indirectly relating to, or arising from, claims against the Trustee by reason of its participation in the
transactions contemplated hereby, including without limitation all reasonable costs required to be associated with claims for damages to persons or property, and reasonable attorneys’ and consultants’ fees and expenses and court costs except to the
extent caused by the Trustee’s negligence or willful misconduct. The provisions of this Section 7.07 shall survive the termination of this Agreement or the earlier resignation or removal of the Trustee. The Company shall defend any claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(g) or (h) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
| SECTION 7.08. |
Replacement of Trustee.
|
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
30
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take office within [ ] days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least [ ]% in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07, and subject to the payment of any and all amounts then due and owing to the retiring Trustee, 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 with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
| SECTION 7.09. |
Successor Trustee by Merger, etc.
|
If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein.
31
| SECTION 7.10. |
Eligibility; Disqualification.
|
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b).
| SECTION 7.11. |
Preferential Collection of Claims Against Company.
|
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TTA Section 311(a) to
the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
| SECTION 8.01. |
Satisfaction and Discharge of Indenture.
|
This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, on the demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than Securities
that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation
have become due and payable, or
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within [ ], or
(3) are to be called for redemption within [ ] under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to section 8.03, as applicable; and the
Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as
the case may be;
32
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
meeting the applicable requirements of Sections 10.04 and 10.05 and each stating that all conditions precedent herein relating to the satisfaction and discharge of this Indenture have been complied with and the Trustee receives written demand from
the Company to discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07, and, if money shall have been deposited with the Trustee pursuant
to clause (a) of this Section, the provisions of Sections 2.04, 2.07, 2.08, 8.01 8.02 and 8.05 shall survive.
| SECTION 8.02. |
Application of Trust Funds; Indemnification.
|
(a) Subject to the provisions of Section 8.05, all money deposited with the Trustee pursuant to
Section 8.01, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(b) The Company shall pay and shall indemnify the Trustee and the Agents against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and principal received in respect of such obligations other than any payable by or on
behalf of Holders.
(c) The Trustee shall, in accordance with the terms of this Indenture, deliver or pay to the Company
from time to time, upon Company Request and at the expense of the Company any U.S. Government Obligations or Foreign Government Obligations or money held by it pursuant to this Indenture as provided in Sections 8.03 or 8.04 which, in the opinion of a
nationally recognized firm of independent certified public accountants, expressed in a written certification thereof and delivered to the Trustee together with such Company Request, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations
or Foreign Government Obligations held under this Indenture.
33
| SECTION 8.03. |
Legal Defeasance of Securities of any Series.
|
Unless this Section 8.03 is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of such Series on the [ ] day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series,
shall no longer be in effect (and the Trustee, at the expense of the company, shall, at Company Request, execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive, from the trust funds described in
subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.04, 2.07, 2.08, 2.14, 8.02, 8.03 and 8.05; and
(c) the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following
conditions shall have been satisfied:
| a. |
the Company shall have deposited or caused to be deposited irrevocably with the Paying Agent as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit
of the Holders of such Securities: (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations,
or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee and the Paying Agent, to pay and discharge each installment of principal (including mandatory
sinking fund or analogous payments) of and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal are due;
|
| b. |
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
|
34
| c. |
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the [ ] day after such date;
|
| d. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect 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 execution 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 Holders of the Securities of such
Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not occurred;
|
| e. |
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the
company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
|
| f. |
such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from
regulation thereunder; and
|
| g. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
|
| SECTION 8.04. |
Covenant Defeasance.
|
Unless this Section 8.04 is otherwise specified pursuant to Section 2.02(s) to be inapplicable to Securities of any Series, on and after the [ ] day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision or condition set forth under Sections 4.02, 4.03, 4.04, 4.05, 4.06, and 5.01 as well as any additional covenants contained in a supplemental indenture hereto for a
particular Series of Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.02(s) (and the failure to comply with any such covenants shall not constitute a Default or Event of Default under Section 6.01) and the
occurrence of any event described in clause (e) of Section 6.01 shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
35
(a) With reference to this Section 8.04, the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 8.02(c)) with the Paying Agent as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series
denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency
(other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Paying Agent), not later than [ ] day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Paying Agent, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of such Series shall have occurred
and be continuing on the date of such deposit or during the period ending on the [ ] day after such date;
(d) the company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of
the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and 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 deposit and defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers’ Certificate stating the deposit was
not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated by this Section have been complied with.
36
| SECTION 8.05. |
Repayment to Company.
|
The Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to
the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and all liability of the Paying Agent with respect to that money shall cease.
ARTICLE IX
AMENDMENTS AND WAIVERS
| SECTION 9.01. |
Without Consent of Holders.
|
The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to make any change that does not adversely affect the rights of any Securityholder;
(e) to provide for the issuance of and establish the form and terms and conditions of Securities of
any Series as permitted by this Indenture;
(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
(g) to comply with requirements of the TIA and any rules promulgated under the TIA; and
(h) to add to the covenants of the Company for the equal and ratable benefit of the Holders or to
surrender any right, power or option conferred upon the Company.
Any amendment or supplement made solely to conform the provisions of this Indenture or the Securities of any Series to the description thereof contained in the final prospectus relating to such
Series will be deemed not to adversely affect the rights of any Holder.
37
| SECTION 9.02. |
With Consent of Holders.
|
The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of all Series
affected by such supplemental indenture, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a
majority in principal amount of the outstanding Securities of all Series affected by such waiver by notice to the Trustee, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities
of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly describing the
supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
| SECTION 9.03. |
Limitations.
|
Without the consent of each Securityholder affected, an amendment or waiver may not:
(a) change the amount of Securities whose Holders must consent to an amendment, supplement or waiver,
except to increase any such amount or to provide that certain provisions of this Indenture cannot be modified, amended or waived without the consent of the Holder of each outstanding Security affected thereby;
(b) reduce the amount of interest, or change the interest payment time, on any Security;
(c) waive a redemption payment or alter the redemption provisions (other than any alteration that
would not materially adversely affect the legal rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities;
(d) reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(e) reduce the principal amount payable of any Security upon Maturity;
(f) waive a Default or Event of Default in the payment of the principal of or interest, if any, on any
Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such
acceleration);
(g) change the place or currency of payment of principal of or interest, if any, on any Security other
than that stated in the Security;
38
(h) impair the right of any Holder to receive payment of principal or, or interest on, the Securities
of such Holder on or after the due dates therefor;
(i) impair the right to institute suit for the enforcement of any payment on, or with respect to, any
Security;
(j) make any change in Sections 10.16 or 10.17;
(k) change the ranking of the Securities; or
(l) make any other change which is specified in a Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate as a limitation under this Section.
| SECTION 9.04. |
Compliance with Trust Indenture Act.
|
Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
| SECTION 9.05. |
Revocation and Effect of Consents.
|
Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of
Section 9.03 in that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
| SECTION 9.06. |
Notation on or Exchange of Securities.
|
If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee and the Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company shall issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the changed terms.
| SECTION 9.07. |
Trustee Protected.
|
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel or an Officer’s Certificate, or both stating that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties or indemnities.
39
| SECTION 9.08. |
Effect of Supplemental Indenture.
|
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and each such supplemental indenture shall form part of this Indenture
for all purposes with respect to the relevant Series; and every Holder of Securities of the relevant Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X
MISCELLANEOUS
| SECTION 10.01. |
Trust Indenture Act Controls.
|
If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision
shall control.
| SECTION 10.02. |
Notices.
|
Any notice or communication by the Company, the Trustee, the Paying Agent or the Registrar to another is duly given if in writing and delivered in person or mailed by first-class mail:
if to the Company:
TORM PLC
Birchin Court
20 Birchin Lane
London, EC3V 9DU
United Kingdom
Attention: Mr. Jacob Meldgaard
Tel: +44 203 713 4560
Fax: [ ]
if to the Trustee:
[ ]
Attn: [ ]
Fax: [ ]
Attn: [ ]
Fax: [ ]
40
if to the Registrar or Paying Agent:
[ ]
Attn: [ ]
Fax: [ ]
with copy to:
[ ]
Attn: [ ]
Fax: [ ]
The Company, the Trustee and each Agent by notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the company mails a notice or communication to Securityholders, it will mail a copy to the Trustee and each Agent at the same time.
Whenever a notice is required to be given by the Company, such notice may be given by the Trustee or Registrar on the Company’s behalf (and the Company will make any notice it is required to give to
Holders available on its website).
| SECTION 10.03. |
Communication by Holders with Other Holders.
|
Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the
Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
| SECTION 10.04. |
Certificate and Opinion as to Conditions Precedent.
|
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate 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
(b) an Opinion of Counsel stating that, in the opinion of counsel, all such conditions precedent
(including any covenants, compliance with which constitutes a condition precedent) have been complied with.
41
| SECTION 10.05. | Statements Required in Certificate or Opinion. |
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply
with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or
condition;
(b) 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;
(c) a statement that, in the opinion of such person, 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
(d) a statement as to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
provided, however, that with respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.
| SECTION 10.06. |
Record Date for Vote or Consent of Holders.
|
The Company (or, in the event deposits have been made pursuant to Section 11.02, the Trustee) may set a record date for purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture, which record date shall not be more than [ ] days prior to the date of the commencement of solicitation of such action. Notwithstanding the provisions of Section 9.05, if a
record date is fixed, those persons who were Holders of Securities at the close of business on such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders after such record date.
| SECTION 10.07. |
Rules by Trustee and Agents.
|
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
| SECTION 10.08. |
Legal Holidays.
|
Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
42
| SECTION 10.09. |
No Recourse Against Others.
|
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
| SECTION 10.10. |
Counterparts.
|
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
| SECTION 10.11. |
Governing Laws and Submission to Jurisdiction.
|
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
The Company agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to the fullest extent permitted
by law, waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in any suit, action or proceeding. The Company, as long as any
Securities remain outstanding or the parties hereto have any obligation under this Indenture, shall have an authorized agent in the United States upon whom process may be served in any such legal action or proceeding. Service of process upon such
agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding and, if it fails to maintain such agent,
any such process or summons may be served by mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. The Company hereby appoints Seward &
Kissel LLP, One Battery Park Plaza, New York, NY, 10004, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.
| SECTION 10.12. |
No Adverse Interpretation of Other Agreements.
|
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
| SECTION 10.13. |
Successors.
|
All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
43
| SECTION 10.14. |
Severability.
|
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
| SECTION 10.15. |
Table of Contents, Headings, Etc.
|
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof,
and shall in no way modify or restrict any of the terms or provisions hereof.
| SECTION 10.16. |
Securities in a Foreign Currency or in Euros.
|
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.02 of this Indenture with respect to a particular Series
of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding
and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars (including euros), then the principal amount of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.16, “Market Exchange Rate” shall mean the noon Dollar buying rate in New
York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however, in the case of euros, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or
any successor thereto) as published in the Official Journal of the European Union (such publication or any successor publication, the “Journal”). If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee
shall use, without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of euros, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or, in the case of euros,
rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency in question or, in the case of euros, in Luxembourg or such other quotations or, in the case of euros, rates of exchange as the Trustee,
upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection
with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Holders.
44
| SECTION 10.17. |
Judgment Currency.
|
The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the Securities of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day,
then, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday,
Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.
| SECTION 10.18. |
Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
|
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist
activities and money laundering (“Applicable Law”), the Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the
parties agree to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
ARTICLE XI
SINKING FUNDS
| SECTION 11.01. |
Applicability of Article.
|
The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such
Series issued pursuant to this Indenture.
45
The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided for
by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 11.02. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the securities of such Series.
| SECTION 11.02. |
Satisfaction of Sinking Fund Payments with Securities.
|
The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking
fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Registrar, together with an Officers’ Certificate with
respect thereto, not later than [ ] days prior to the date on which the Registrar begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Registrar at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.02, the principal
amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $[], the Registrar need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be
taken, and such cash payment shall be held by the Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the
Company any cash payment so being held by the Paying Agent upon delivery by the Company to the Registrar of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the
Company.
| SECTION 11.03. |
Redemption of Securities for Sinking Fund.
|
Not less than [ ] days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers’ Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee and the Paying Agent an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the
terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.02, and the
optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than [ ] days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.03. Such notice having been duly given, the redemption of such Securities
shall proceed as stated in Sections 3.04, 3.05 and 3.06.
[The remainder of this page is intentionally left blank]
46
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
TORM PLC
By:__________________________
Name:
Its:
[ ]
as Trustee
By:__________________________
Name:
Its:
By:__________________________
Name:
Its:
[ ]
as Registrar and Paying Agent
as Registrar and Paying Agent
By:__________________________
Name:
Its:
By:__________________________
Name:
Its:
Exhibit 5.1
|
Torm plc
Birchin Court
20 Birchin Lane
London EC3V 9DU
United Kingdom
|
||
|
Our reference: MELJ1/31499.50001/EUROPE/69549846v4
|
||
6 December 2021
Dear Sir or Madam
Torm plc: Registration Statement on Form F-3: Exhibit 5.1 Opinion
| 1 |
SUBJECT MATTER
|
| 1.1 |
Background. We have acted as English legal advisers to Torm
plc, a company registered in England and Wales with registered number 09818726 (the "Company"), in connection with the preparation of a
Registration Statement on Form F-3 (the "Registration Statement") filed on or around today by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, and the rules and regulations thereunder (the "Securities Act")
with respect to the registration from time to time of:
|
| (a) |
the issue by the Company of:
|
| (i) |
Class A common shares with a par value of $0.01 per share ("Class A
Common Shares") to be issued by the Company;
|
| (ii) |
any class of common, preferred or other shares (other than Class A Common Shares) in the capital of the Company (together referred to as "Other Shares");
|
| (iii) |
debt securities in one or more series, under one or more indentures in the forms filed as Exhibits 4.6 and 4.7 to the Registration Statement ("Debt Securities" or “Indentures”);
|
| (iv) |
warrants to purchase any of the Company's debt or equity securities ("Warrants");
|
| (b) |
purchase contracts entitling the holder thereof to purchase or sell, and obliging the Company to sell or purchase, on specified dates, such securities or currencies
at a specified purchase price, which may be based on a formula ("Purchase Contracts");
|
| (c) |
rights to purchase the Company's equity securities ("Rights");
|
|
Watson Farley & Williams LLP 15 Appold Street London EC2A 2HB T +44 20 7814 8000 F +44 20 7814 8141/2
wfw.com
|
|
|
Watson Farley & Williams LLP is a limited liability
partnership registered in England and Wales with registered number 0C312252. It is authorised and regulated by the Solicitors Regulation Authority and its members are solicitors or registered foreign lawyers. A list of members of Watson Farley
& Williams LLP and their professional qualifications is open to inspection at the address above. Any reference to a 'partner' means a member of Watson Farley & Williams LLP or a member or partner in WFVV Affiliated Entities, or an
employee or consultant with equivalent standing and qualification. Watson Farley & Williams LLP or WFW Affiliated Entities has an office in each of the cities listed above.
Page 2
| (d) |
units consisting of one or more of the Company's Rights, Purchase Contracts, Warrants, Debt Securities, Class A Common Shares, Other Shares or any combination of such
securities pursuant to a unit agreement("Units");
|
| (e) |
securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above,
|
(together, the "Securities"); and
| (f) |
the sale of up to 53,812,988 Class A Common Shares (the "Sale Shares")
by OCM Njord Holdings S.à r.l. (the "Selling Shareholder").
|
| 1.2 |
The Securities and the Sale Shares will be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the "Prospectus") and supplements to the Prospectus (the "Prospectus Supplements").
|
| 2 |
DEFINITIONS
|
| 2.1 |
Definitions. In this opinion, in addition to the terms defined
in paragraph 1:
|
"Allotment
Date(s)" has the meaning given to it in paragraph 2(c) of Schedule 2.
"Articles"
means the Company’s articles of association as approved by the Company’s shareholders on 12 October 2015, and amended on 14 January 2016,15 March 2016 and 14 April 2021, as from time to time further amended, and "Article" shall be construed accordingly.
"Central
Registry" has the meaning given to it in paragraph 2(b) of Schedule 1.
"Certificate
of Good Standing" has the meaning given to it in paragraph 1(f) of Schedule 1.
"Company
Search" has the meaning given to it in paragraph 2(a) of Schedule 1.
"Director
Certificate" has the meaning given to it in paragraph 1(e) of Schedule 1.
"FSMA"
has the meaning given to it in paragraph 17(m) of Schedule 2.
“Relevant
Document” means each and every issue of, or agreement to issue, Securities including each and every Indenture, Warrant, Purchase Contract, Right or Unit or agreement to issue any of the foregoing.
"Shareholder
Resolutions" means the resolutions of shareholders of the Company dated 15 March 2020.
| 2.2 |
Certain expressions. References in this opinion to:
|
| (a) |
"any other jurisdiction" or "another jurisdiction" means a jurisdiction other than England; and
|
| (b) |
"insolvency proceedings" includes winding-up, the appointment
of a provisional liquidator, an administration (whether appointed by the court or out of court), a voluntary arrangement, a moratorium, and a scheme of arrangement, including any form of territorial, secondary or ancillary insolvency
proceeding; also any form of receivership or administrative receivership, whether the receiver is appointed by the court or otherwise and any other English insolvency proceedings without limitation; and any proceedings or procedure under
the laws of any other jurisdiction which is comparable to any of the foregoing.
|
Page 3
| 2.3 |
Section and paragraph headings. In this opinion, the section
and paragraph headings and descriptions are for ease of reference only and shall not affect its meaning.
|
| 3 |
SCOPE OF OPINION
|
| 3.1 |
Structure and basis of opinion. The opinions in paragraph 4
are given expressly:
|
| (a) |
on the basis of, and in reliance on:
|
| (i) |
the documents, searches and enquiries referred to in Schedule 1 (Documents,
Searches and Enquiries); and
|
(ii) the assumptions set out in Schedule 2 (Assumptions); and
| (b) |
subject to the qualifications set out in Schedule 3 (Qualifications).
|
This opinion letter is not to be read as implying an opinion on any matter not covered by its express terms,
including, without limitation, any tax, financial or accounting matters.
| 3.2 |
English law only. This opinion letter is confined to matters
of English law in force on the date of this opinion letter as currently applied and interpreted by the English courts. No opinion is expressed as to the laws or procedures of any other jurisdiction.
|
| 3.3 |
No updating. We assume no responsibility to update this
opinion letter to take account of changes in law, fact or other matters taking place after its date of issue.
|
| 3.4 |
Fact. No opinion is expressed on matters of fact, commercial
matters or intention.
|
| 4 |
OPINION
|
We are of the opinion that:
| 4.1 |
Status
|
The Company is validly existing as a public limited company under the laws of England.
| 4.2 |
Capacity and authorisation
|
| (a) |
The Company has the capacity and power to issue the Securities.
|
| (b) |
The Class A Common Shares, if and when allotted and issued, and registered in the name of the recipient in the books and registers of the Company, will be duly and
validly authorised and issued.
|
| (c) |
The Class A Common Shares will, subject to the receipt by the Company of valid consideration for the issue thereof in full, be fully paid or credited as fully paid
and will not be subject to any further call for payment of further capital.
|
| (d) |
The Other Shares, if and when duly and validly created, authorised, allotted and issued, and registered in the name of the recipient in the books and registers of the
Company, will be duly and validly created, authorised and issued.
|
| (e) |
The Other Shares will, subject to the receipt by the Company of valid consideration for the issue thereof in full, be fully paid or credited as fully paid or credited
as fully paid and will not be subject to any further call for payment of further capital.
|
| (f) |
When duly and validly created, authorised, allotted and issued pursuant to a Relevant Document and when issued, sold and fully paid for as contemplated in any
Prospectus Supplement, the Class A Common Shares and Other Shares will be validly issued, fully paid or credited as fully paid and not subject to any further call for payment of further capital.
|
| (g) |
The Company has the capacity and power (including under its Articles) to execute and deliver the Relevant Documents and to exercise its respective rights and perform
its respective obligations thereunder.
|
| (h) |
The Sale Shares have been validly issued and are fully paid or credited as fully paid.
|
Page 4
| (i) |
For the purposes of this opinion, in respect of Class A Common Shares, Other Shares or Sale Shares which have been fully paid or credited as fully paid, no further
amounts are payable by a shareholder in respect of those Sale Shares.
|
| 5 |
DISCLOSURE, CONSENT, RELATIONSHIP AND APPLICABLE LAW
|
| 5.1 |
Disclosure. We consent to the filing of this opinion as an
exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement, and the references to our firm under the caption “Legal Matters” contained in the Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations promulgated thereunder, nor do we admit that we are experts with respect to any part of the
Registration Statement within the meaning of the term “expert” as used in the Securities Act.
|
| 5.2 |
Relationship.
|
We are providing this opinion on the strict understanding and condition that:
| (a) |
we are acting exclusively for the Company and we are not acting as legal advisers to any other person and no solicitor-client relationship shall be established
between any person other than the Company on the one hand, and us, on the other;
|
| (b) |
our sole and exclusive duty in providing this opinion is a duty to take reasonable care in ensuring that the opinions (based upon the assumptions set out in Schedule
2 and subject to the qualifications set out in Schedule 3) in this opinion reflect the current English law position; and
|
| (c) |
we will only be liable for any loss or damage to the extent that such loss or damage results directly and exclusively from our negligence but not otherwise.
|
| 5.3 |
Governing Law
|
All matters relating to this opinion, or any non-contractual obligations or any matters arising out of or in
connection with this opinion, will be governed by and construed in accordance with English law.
| 5.4 |
Jurisdiction
|
The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in
connection with this opinion.
Yours faithfully
/s/
Watson Farley & Williams LLP
Watson Farley & Williams LLP
Page 5
SCHEDULE 1
DOCUMENTS, SEARCHES AND ENQUIRIES
DOCUMENTS, SEARCHES AND ENQUIRIES
| 1 |
Documents reviewed
|
We have examined:
| (a) |
the following parts of the Registration Statement (excluding the exhibits and any documents incorporated by reference into the Registration Statement, other than the
Indentures exhibited thereto): the sections headed "About this Prospectus" and "Description of Share Capital", “Description of Debt Securities”, “Description of Warrants”, “Description of Purchase Contracts”, “Description of Rights”,
“Description of Units” and the Indentures;
|
| (b) |
copies, certified by a director of the Company to be true and correct as of 6 December 2021, of the certificate of incorporation, certificates of incorporation on
change of name, certificate of re-registration from a private limited company to a public limited company and memorandum of association and Articles of the Company;
|
| (c) |
a copy, certified by a director of the Company to be a true copy, of the Shareholder Resolutions;
|
| (d) |
a copy, certified by a director of the Company to be a true copy, of the written resolutions of the board of directors of the Company, passed on 3 December 2021 to
approve, among other things, the filing of the Registration Statement including the forms of the Indentures exhibited thereto;
|
| (e) |
a certificate dated 6 December 2021 addressed to us signed by a director of the Company and the documents annexed thereto (the "Director Certificate"); and
|
| (f) |
a copy of a certificate of good standing dated 18 November 2021 issued by Companies House in respect of the Company (the "Certificate of Good Standing").
|
| 2 |
Searches and enquiries
|
We have carried out the following searches and made the following enquiries in respect of the Company:
| (a) |
on 6 December 2021 at 10.07 a.m. a search of those documents in respect of the Company which were available for public inspection via the "Companies House Direct"
services accessible through the Companies House website situated at www.companieshouse.gov.uk (and which includes copies of the documents referred to at
paragraphs 1(b) and 1(c) above (the "Company Search"); and
|
| (b) |
on 6 December 2021 at 10.07 a.m. the Central Registry of Winding-Up Petitions of the Companies Court (the "Central Registry") (using Legalinx Limited) in respect of the current name of the Company.
|
(c)
Page 6
SCHEDULE 2
ASSUMPTIONS
ASSUMPTIONS
We have assumed the following:
| 1 |
Genuineness and authenticity
|
The genuineness of all signatures on, and the authenticity and the completeness of, all documents submitted to
us and that the persons who purported to execute any such documents were the persons authorised to do so.
| 2 |
Conformity
|
| (a) |
The conformity to original documents of all documents submitted to us as copies.
|
| (b) |
The conformity to final documents of all documents submitted to us as drafts or specimens.
|
| (c) |
The copies of the Articles and any resolutions and agreements that affect the constitution of the Company in the form referred to in paragraphs 1(b) and 1(c) of
Schedule 1 and examined by us were, are and would remain complete, accurate and as at the date of this opinion letter and up to the date(s) of the offer, sale and/or allotment and issue, or agreement to do any of the foregoing, (as
applicable) of the Securities (the "Allotment Date(s)") and, without verifying this, we have assumed that those forms are identical to
the copies contained in the Company Search.
|
| 3 |
Signature
|
| (a) |
All documents submitted to us have been duly signed by a person authorised to do so.
|
| (b) |
Each party to the documents submitted has executed the same in accordance with all applicable laws.
|
| 4 |
Other parties: capacity etc.
|
| (a) |
The due incorporation and valid existence under the laws of its jurisdiction of incorporation of each of the parties (other than the Company) to any Relevant
Document.
|
| (b) |
The capacity and authority of each of those parties (other than the Company) to execute any Relevant Documents and to exercise its rights and perform its duties under
it.
|
| (c) |
The due execution by each of the parties to any future issues of Securities of the Relevant Documents regarding the same.
|
| (d) |
Each of the parties to each Relevant Document (other than the Company) will have the necessary capacity and corporate power to execute, deliver and perform its
obligations under each such Relevant Document, and the Relevant Documents will be duly authorised, executed and delivered by each of the parties thereto in accordance with all applicable laws.
|
| 5 |
Accuracy of statements
|
All statements set out in each document referred to in paragraph 1 of Schedule 1 (Documents, Searches and Enquiries) (including the Director Certificate and Certificate of Good Standing) are complete, accurate and up-to-date at the date of this
opinion letter.
| 6 |
Searches and enquiries
|
The information provided to us pursuant to the searches and enquiries referred to in paragraph 2 of Schedule 1
(Documents, Searches and Enquiries) was complete, accurate and up-to-date at the time of the relevant search or enquiry and since that time
there have been no changes affecting the results of such searches and enquiries. Please also note the qualification in relation to searches and enquiries in paragraph 2 (Searches) of Schedule 3 (Qualifications).
| 7 |
Directors' duties
|
The directors of the Company, in authorising the approval of the Registration Statement and the approval,
execution and performance of any Relevant Document, have exercised and will exercise their powers in accordance with their statutory and fiduciary duties including, without limitation, their duty under Section 172 Companies Act 2006 to promote the
success of the Company having regard (amongst other things) to the matters listed in Section 172(1)(a) to (f) Companies Act 2006; that they have acted or will act in good faith and that each director has disclosed or will disclose to the other
directors of the Company any interest required to be disclosed pursuant to Sections 175 or 177 or 182 of the Companies Act 2006 or the Articles and that no director has any such interest except to the extent permitted by the Articles.
Page 7
| 8 |
Board Resolutions
|
The written board resolutions of the Company referred to in paragraph 1(d) of Schedule 1:
| (a) |
were duly passed by the board of directors (each of whom were duly appointed directors of the Company); and
|
| (b) |
have not been amended, revoked, superseded or rescinded and are in full force and effect and will remain so as at the Allotment Date(s).
|
| 9 |
Shareholder resolution
|
The Shareholder Resolutions referred to in paragraph 1(c) of Schedule 1 (i) were duly passed as ordinary or
special, as the case may be, resolutions of the Company and (ii) have not been amended, revoked, superseded or rescinded and are in full force and effect and will remain so as at the Allotment Date(s). The authorisation of the issue of Class A
Common Shares and rights to subscribe for, or to convert any security into, Class A Common Shares conferred by the Shareholder Resolutions will apply until the close of business on 14 April 2025 (unless renewed, revoked or varied in general
meeting). Between the date of the Shareholder Resolutions and the close of business on 14 April 2025 the Company may make offers and enter into agreements which would, or might, require Class A Common Shares to be allotted or rights to be granted
after the authority ends and the Board may allot shares or grant rights to subscribe for or convert securities into shares under any such offer or agreement as if the authority had not ended.
| 10 |
Other laws etc.
|
The laws of any other jurisdiction will not affect any of the conclusions stated in this opinion letter.
| 11 |
Choice of law
|
The choice of the laws of any country to govern any further issue of Securities or any Relevant Document is a
valid choice under the laws of that jurisdiction.
| 12 |
No contravention
|
Neither the execution nor the performance of any Relevant Document will be contrary to any contractual
obligation or any judicial or other order or award which binds the Company including any borrowing limits or any limits on the granting of security imposed by the Articles and which may apply to any issue of Securities.
| 13 |
Fraud etc.
|
Any Relevant Documents are not void, voidable, repudiated, rescinded, frustrated or capable of being so by
reason of fraud, misrepresentation, undue influence, duress, mistake, bribery, corruption or any other reason.
| 14 |
Solvency
|
The Company is not unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) and
will not become so as a result of entering into or performing any Relevant Document.
| 15 |
No insolvency proceedings
|
There are no insolvency proceedings in respect of the Company, and no steps taken with a view to any such
insolvency proceedings, which have not been disclosed in the searches and enquiries referred to in paragraph 2 of Schedule 1 (it being possible for actions in relation to, or by way of, insolvency proceedings to have been taken which do not yet
appear on the applicable registers or which are not required to be filed on the registers we have searched. Please also refer to paragraph 2 of Schedule 3 in this regard).
Page 8
| 16 |
Relevant Documents
|
| (a) |
Each Relevant Document will be delivered by the parties to each such Relevant Document and will not be subject to any escrow or other similar arrangement.
|
| (b) |
The Relevant Documents and the Debt Securities, and the obligations created by them, constitute the legal, valid, binding and enforceable obligations of each of the
parties to them under the laws by which they are expressed to be governed; and that the Relevant Documents and the Debt Securities will remain in full force and effect at all relevant times and, in the case of each Indenture, in the form
examined by us.
|
| (c) |
All consents, licences, approvals, notices, filings, recordations, publications and registrations which are necessary under any applicable laws in order to permit the
execution, delivery or performance of the Relevant Documents or to perfect, protect or preserve any of the interests created by the Indenture, have been made or obtained, or will be made or obtained within the period permitted or required
by such laws or regulations.
|
| (d) |
The Relevant Documents when issued will be accurately and properly completed, duly authorised, executed and delivered on behalf of the Company and authenticated,
issued and paid for and registered in the register of holders of the Relevant Documents maintained for this purpose, in each case in accordance with the Relevant Documents, the Articles and all applicable laws (for the avoidance of doubt,
as in force at all relevant times).
|
| (e) |
None of the parties is or will be seeking to achieve any purpose not apparent from any of the Relevant Documents which might render it illegal or void.
|
| (f) |
The choice of the law to govern the Relevant Documents was made for bona fide purposes and there is no reason for avoiding that choice on the grounds of public
policy. In addition, that choice of law was made in good faith and without any intention to evade the laws of the jurisdiction with which any transaction under the Relevant Documents has or may have the closest and most real connection.
|
| (g) |
There is no bad faith, fraud, coercion, duress or undue influence on the part of any of the parties to the Relevant Documents, and their respective directors,
employees, agents and advisers.
|
| 17 |
Approval and implementation of future issues of Securities
|
| (a) |
If the Securities to be issued are Class A Common Shares or rights to subscribe for, or to convert any security into, Class A Common Shares, such Class A Common
Shares or rights to subscribe for, or to convert any security into, Class A Common Shares will be duly allotted by the board of directors of the Company in accordance with the Articles (for the avoidance of doubt, as in force at all
relevant times) and pursuant to (i) the Shareholder Resolutions or another valid authorisation under section 551 Companies Act 2006 and (ii) the Shareholder Resolutions or another valid power under section 570 or section 571 Companies Act
2006 to allot the Securities as if section 561 of that Act did not apply to the allotment; and that those sections of the Companies Act 2006 will continue in force unamended at all relevant times.
|
| (b) |
If the Securities to be issued are Other Shares or rights to subscribe for, or to convert any security into, Other Shares, such Other Shares or rights to subscribe
for, or to convert any security into, Other Shares will be (i) duly and validly created or permitted to be created by all necessary resolutions of each of the board of directors, the shareholders of the Company and, if required, each
separate class of shareholders of the Company and otherwise in accordance with the Articles and all applicable laws (including any shareholder resolutions required to amend the Articles under section 21 Companies Act 2006) (ii) duly
allotted by the board of directors of the Company in accordance with the Articles (for the avoidance of doubt, as in force at all relevant times) and pursuant to (A) a valid authorisation under section 551 Companies Act 2006 and (B) a valid
power under section 570 or section 571 Companies Act 2006 to allot the Securities as if section 561 of that Act did not apply to the allotment and that those sections of the Companies Act 2006 will continue in force unamended at all
relevant times. The Shareholder Resolutions do not authorise the allotment or issue of any class of shares other than Class A Common Shares.
|
| (c) |
The board of directors of the Company approves the issue of the Securities, or agreement to do so, in accordance with the Articles and receives or has received any
and every fairness opinion required pursuant to and for the purposes of the Articles from a person meeting the requirements set out in the Articles.
|
Page 9
| (d) |
In relation to any allotment of Class A Common Shares or Other Shares, the Company will comply with section 586 of the Companies Act 2006, which prohibits the Company
from allotting a share except as paid up at least as to one quarter of its nominal value and the whole of any premium on it.
|
| (e) |
On the relevant Allotment Date(s), the Company will comply with the Articles (including, without limitation, Articles 4 to 8 and 137 inclusive), the Companies Act
2006 (including, if relevant, section 191 thereof concerning substantial property transactions) and all other applicable laws to allot and issue the Class A Common Shares and the Company will receive such amounts of “cash consideration” (as
defined in section 583(3) of the Companies Act 2006) as are necessary to pay fully the nominal value of the Class A Common Shares or Other Shares to be issued and any applicable share premium (such that they are not in any way only partly
paid up); and that all other Securities will be fully paid (such that they are not in any way only partly paid up) when issued.
|
| (f) |
To the extent that any Class A Common Shares or Other Shares are to be issued for non-cash consideration, the provisions of section 593 et seq of the Companies Act
2006 are fully complied with.
|
| (g) |
To the extent that any Securities or Relevant Documents incorporate any right for the Company to buy back, purchase redeem or repurchase any Securities or any right
for any other party thereto to require the Company to do so, the Company will comply with the Articles, the Companies Act 2006 and all other applicable laws and obtain all required resolutions of the shareholders and/or any class of
shareholders of the Company to do so and, where relevant, prior to entering into the Relevant Document.
|
| (h) |
The right to convert or exchange Securities into Class A Common Shares and/or Other Shares will be exercised, and that Class A Common Shares of Other Shares to which
holders of Securities are entitled thereupon will be allotted and issued, in accordance with the terms of the Relevant Documents and the relevant Securities.
|
| (i) |
As at each date on which the Company allots and/or issues any Securities, or agrees to do so, the documents examined, and the results of the searches and enquiries
made, as set out in Schedule 1, would not be rendered untrue, inaccurate, incomplete or out-of-date in any relevant respect by reference to subsequent facts, matters, circumstances or events.
|
| (j) |
There are no agreements, letters or other arrangements having contractual effect which modify the terms of, or affect, the offer, sale and/or allotment and issue (as
applicable) of the Securities or the Relevant Documents.
|
| (k) |
In relation to the Company and its members:
|
| (i) |
the offer, sale and/or allotment and issue, or agreement to do so, (as applicable) of the Securities by the Company would be a proper use of the powers of its
directors acting in accordance with their duties and in good faith and would be most likely to promote the success of the Company for the benefit of its members as a whole; and
|
| (ii) |
the offer, sale and/or allotment and issue, or agreement to do so, (as applicable) of the Securities by the Company would be of material commercial benefit to the
Company.
|
| (l) |
The Company would remain solvent immediately after each offer, sale and/or allotment and issue, or agreement to do so, (as applicable) of the Securities, and:
|
| (i) |
there are no insolvency proceedings in respect of the Company, and no steps taken with a view to any such insolvency proceedings;
|
| (ii) |
the Company is not unable or capable of being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (for which purpose account
is to be taken of its contingent and prospective liabilities);
|
| (iii) |
no steps have been taken by any person to obtain a moratorium in relation to the Company;
|
| (iv) |
there is no composition or arrangement with the Company’s creditors in place, including (without prejudice to the generality of the foregoing) a voluntary arrangement
under the Insolvency Act 1986 or a scheme of arrangement under the Companies Act 2006 and there are no proposals for any such composition or arrangement to be entered into; and
|
| (v) |
no proceedings have been commenced under any law, regulation or procedure relating to the reconstruction or adjustment of the Company’s debts.
|
Page 10
| (m) |
The Company is not and will not be seeking to achieve any purpose not apparent from the Registration Statement which might render the offer, sale and/or allotment and
issue, or agreement to do so, (as applicable) of the Securities illegal or void.
|
| (n) |
Each of the parties to any future issue of Securities and any Relevant Document have complied and will comply with all applicable provisions of the Financial Services
and Markets Act 2000 ("FSMA"), the UK version of Regulation (EU) No. 2017/1129 which is part of UK law by virtue of the European Union
(Withdrawal) Act 2018/EUWA and the UK version of Regulation (EU) No. 596/2014 which is part of UK law by virtue of the European Union (Withdrawal) Act 2018/EUWA, and any related or similar legislation, and all applicable regulations and
rules from time to time in effect thereunder or in connection therewith or issued by any regulatory body which regulates the business or services of any such party or any of its branches or offices with respect to anything done by it in
relation thereto in, from or otherwise involving the United Kingdom. Without limiting the foregoing:
|
| (i) |
no Securities have been or shall be offered to the public in the United Kingdom in breach of FSMA or of any other United Kingdom laws or regulations concerning offers
of securities to the public, and no communication has been or shall be made in relation to any Securities in breach of section 21 of FSMA or any other United Kingdom laws or regulations relating to offers or invitations to subscribe for, or
to acquire rights to subscribe for or otherwise acquire, shares or other securities; and
|
| (ii) |
none of the Securities have been or will be offered to the public in the United Kingdom except in circumstances which do not require the publication by the Company of
a prospectus pursuant to Part VI of FSMA.
|
| (o) |
The Company has fully complied and will comply with all applicable anti-terrorism, anti-corruption, anti-money laundering, sanctions and human rights and anti-slavery
and similar laws and regulations.
|
Page 11
SCHEDULE 3
QUALIFICATIONS
QUALIFICATIONS
| 1 |
Sanctions
|
The opinions expressed in this opinion letter are subject to the effect of sanctions imposed by the laws of
the United Kingdom (including sanctions imposed by the European Union or the United Nations which are, or are made, a part of English law) (i) on parties which are expressly designated by such sanctions, (ii) on parties resident or incorporated in
a country which is the subject of such general, country-wide sanctions, (iii) on parties controlled by or connected with parties referred to in (i) or (ii), or (iv) on activities which are the subject of such sanctions.
| 2 |
Searches
|
The searches and enquiries referred to in paragraph 2 of Schedule 1 are not conclusive about the status of the
Company, the existence of any insolvency proceedings in respect of the Company or the existence of security interests created by the Company. The reasons for this include, without limitation:
| (a) |
Companies House and the Central Registry are reliant on third parties to provide them with information;
|
| (b) |
there may be a delay between the occurrence of an event (such as the passing of a resolution) and its notification to, and subsequent appearance on the public records
of, Companies House and the Central Registry;
|
| (c) |
records of certain insolvency proceedings (including, without limitation, an application for an administration order made to a County Court and certain proceedings
relating to the appointment of an administrator out of court) are not kept by the Central Registry or Companies House;
|
| (d) |
we have searched against the current registered name of the Company. We have not searched against any former names or other spellings or permutations of the current
registered name of the Company; and
|
| (e) |
insolvency proceedings commenced in a jurisdiction other than England will not be revealed.
|
| 3 |
Securities
|
The Shareholder Resolutions only authorise the issue of Class A Common Shares and rights to subscribe for, or
to convert any security into, Class A Common Shares and only up to the limits of the authorisations remaining under the Shareholder Resolutions (after any prior issues of Class A Common Shares or rights to subscribe for, or to convert any security
into, Class A Common Shares). They do not authorise the issue of any other class of shares or any debt securities, options, warrants, purchase contracts, rights and units in the Company which are exercisable, convertible or exchangeable into any
class of shares other than the Class A Common Shares. The authorisation of the issue of Class A Common Shares and rights to subscribe for, or to convert any security into, Class A Common Shares conferred by the Shareholder Resolutions will apply
until the close of business on 14 April 2025 (unless renewed, revoked or varied in general meeting). Between the date of the Shareholder Resolutions and the close of business on 14 April 2025 the Company may make offers and enter into agreements
which would, or might, require Class A Common Shares to be allotted or rights to be granted after the authority ends and the Board may allot shares or grant rights to subscribe for or convert securities into shares under any such offer or agreement
as if the authority had not ended.
| 4 |
Transfers and shareholder rights
|
| (a) |
Restrictions on transfers of shares issued by an English company may arise through the operation of English law or the order of an English court. For instance a court
may freeze assets including shares. Further, the operation of settlement mechanisms and markets in which the shares are traded may restrict or prohibit transferability. Certain provisions of the Companies Act 2006 may restrict or prohibit
the transfer of shares in an English company where the shareholder is in default or breaches a provision of that Act. For instance where a person has failed to comply with a notice requiring a disclosure of an interest in shares pursuant to
Section 793 of the Companies Act 2006.
|
Page 12
| (b) |
We express no opinion as to the rules and regulations of Depository Trust Company or its associated persons and bodies or Computershare DR Nominees Limited and its
associated persons. Such rules or regulations may, for instance, affect the free transferability of the Securities or the ability of the holders (or beneficial owners) of such Securities from exercising (in whole or part) rights attaching
to such Securities.
|
| (c) |
Generally, the Companies Act 2006 only permits a shareholder whose name is on the register of members to enforce certain rights of a shareholder (including, without
limitation, making a derivative claim against a company pursuant to Part 11 of the Companies Act 2006 or requiring a company to give notice of a resolution pursuant to Part 13 of the Companies Act 2006).
|
| (d) |
It should be noted that the register of members of the Company shows the legal ownership of the Company’s shares but is not required to record the beneficial
ownership of such shares or any trust affecting them nor the existence of any mortgage, charge, pledge, lien or other encumbrance or adverse interest; accordingly we express no opinion on the beneficial ownership of the Company’s shares or
on the existence or absence of any such other matters.
|
| (e) |
We express no opinion as to any restrictions which may arise after issue or which may arise otherwise than pursuant to the Articles.
|
| 5 |
Solvency
|
We express no opinion as to (i) the financial condition or solvency of the Company; or (ii) the ability
(financial or otherwise) of the Company or any other party to meet their respective obligations under any applicable documents.
| 6 |
Registration Statement
|
| (a) |
For the purposes of this opinion letter we have not investigated and make no comments with regard to the accuracy of the facts, including statements of foreign law,
or the reasonableness of any statements of opinion, contained in the Registration Statement, or whether any material facts have been omitted from it.
|
| (b) |
The opinions set out in this opinion letter relate only to Securities offered or sold from time to time pursuant to the Registration Statement. We express no opinion
in respect of any other securities which may be offered or sold from time to time otherwise than pursuant to the Registration Statement.
|
| (c) |
We express no other opinion in relation to any other aspect of the Registration Statement.
|
Exhibit 5.2
|
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
|
|
|
|
|
|
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
|
|
|
|
|
|
December 6, 2021
|
|
TORM plc
Birchin Court
20 Birchin Lane
London EC3V 9DU
United Kingdom
| Re: |
TORM plc
|
Ladies and Gentlemen:
We have acted as counsel to TORM plc (the "Company"), a company organized under the laws of England and Wales, in connection with the Company's registration statement on Form F-3 (File No. 333- ) (the "Registration Statement"), as filed with the U.S. Securities and Exchange Commission (the "Commission") and as thereafter
amended or supplemented, relating to the registration under the U.S. Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of $250,000,000 of
the Company's securities, which may include shares of common stock, par value $0.01 per share, of the Company (the "Common Shares"), shares of preferred stock, par
value $0.01 per share, of the Company (the "Preferred Shares"), debt securities of the Company (the "Debt Securities"), warrants to purchase the Company's securities (the "Warrants"), rights to purchase the Company's securities (the "Rights"), purchase contracts to purchase the Company's securities (the "Purchase Contracts"),
and units comprised of any of the foregoing securities (the "Units" and, together with the Common Shares, Preferred Shares, Debt Securities, Warrants, Rights and
Purchase Contracts, the "Primary Securities"). The Registration Statement also registers for resale under the Securities Act an aggregate of 53,812,989 Common
Shares (the "Secondary Shares") of the Company held by the selling shareholder named in the Prospectus (defined below).
We have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement, (ii) the prospectus of the Company included in the Registration Statement (the "Prospectus"), and (iii) such corporate documents and records
of the Company and such other instruments, certificates and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or capacity of persons or entities to complete the
execution of documents. As to various questions of fact that are material to the opinions hereinafter expressed, we have relied upon statements or certificates of public officials, directors and officers of the Company and others.
Based upon and subject to the foregoing, and having regard to such other legal considerations which we
deem relevant, we are of the opinion that under the laws of the State of New York:
| 1. |
The Common Shares and the Preferred Shares constituting a portion of the Primary Securities have been duly authorized and when (i) the Company has taken all
necessary action to approve the issuance of such Common Shares and Preferred Shares, the terms of the offering thereof and related matters and (ii) the Common Shares and Preferred Shares constituting a portion of the Primary Securities have
been issued and delivered in accordance with the terms of the applicable definitive purchase agreement, underwriting agreement or similar agreement approved by the Company and as contemplated in the Prospectus or prospectus supplement
related thereto, upon payment of the consideration thereof or provided for therein, and assuming the total number of such issued Common Shares or Preferred Shares,
together with such total number of Common Shares or Preferred Shares reserved for issuance upon the exercise, exchange or conversion, as the case may be, of any exercisable, exchangeable or convertible security then outstanding, will not
exceed the total number of such authorized Common Shares or Preferred Shares under the Company's Amended and Restated Articles of Incorporation, as amended and then in effect, then such Common Shares and Preferred Shares
constituting a portion of the Primary Securities will be validly issued, fully paid and non-assessable.
|
| 2. |
The Common Shares constituting the Secondary Shares have been duly authorized and are validly issued, fully paid and non-assessable.
|
| 3. |
With respect to the Warrants, Rights and Purchase Contracts (together the "Subscription
Securities"), when (i) the Company has taken all necessary action to approve the issuance and terms of such Subscription Securities, the terms of the offering and related matters, (ii) such Subscription Securities shall have
been duly authorized and executed by the parties thereto other than the Company and shall be a valid and binding obligation of such parties, enforceable against such parties in accordance with its terms and shall purport to be governed by
the laws of the State of New York, and (iii) the Subscription Securities have been issued, executed and delivered in accordance with the terms of the applicable warrant agreement, purchase contract, rights agreement or similar agreement
approved by the Company and as contemplated in the Prospectus or prospectus supplement related thereto, and upon payment of the consideration therefor, if any, provided for therein and in any applicable definitive purchase agreement,
underwriting agreement or similar agreement approved by the Company, then the Subscription Securities will constitute valid and legally binding obligations of the Company in accordance with their terms, except as the enforcement thereof (i)
may be limited by any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, fraudulent obligation, moratorium or other similar laws affecting generally the enforceability of creditors' rights and
remedies or the collection of debtor's obligations from time to time in effect, and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, including the
application of principles of good faith, fair dealing, course of dealing, course of performance, commercial reasonableness, materiality, unconscionability and conflict with public policy and other similar principles; or other law relating
to or affecting creditors' rights generally and general principles of equity.
|
| 4. |
With respect to the Debt Securities, when (i) the applicable indenture relating to such Debt Securities (the "Indenture") has been duly qualified and the Company has taken all necessary action to approve the issuance and terms of the Debt Securities and the terms of the offering thereof and related matters
and the Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and the other applicable agreements approved by the Company and as contemplated in the Prospectus or
prospectus supplement related thereto, and upon payment of the consideration thereof or provided for therein, and (ii) such Debt Securities shall have been duly authorized and executed by the parties thereto other than the Company and shall
be a valid and binding obligation of such parties, enforceable against such parties in accordance with its terms and shall purport to be governed by the laws of the State of New York, the Debt Securities will be legally issued and will
constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof (i) may be limited by any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, fraudulent transfer, fraudulent obligation, moratorium or other similar laws affecting generally the enforceability of creditors' rights and remedies or the collection of debtor's obligations from time to time in
effect, and (ii) is subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, including the application of principles of good faith, fair dealing, course of
dealing, course of performance, commercial reasonableness, materiality, unconscionability and conflict with public policy and other similar principles; or other law relating to or affecting creditors' rights generally and general principles
of equity.
|
| 5. |
With respect to the Units, when (i) the Company has taken all necessary action to approve the issuance of the Units, the terms of the offering thereof and
related matters and (ii) the Units have been issued and delivered in accordance with the terms of the applicable agreement(s) approved by the Company and as contemplated in the Prospectus or prospectus supplement related thereto, and upon
payment of the consideration thereof or provided for therein, then the Units will be validly issued, fully paid, and non-assessable.
|
This opinion is limited to the laws of the State of New York as in effect on the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to each
reference to us and the discussions of advice provided by us under the heading "Legal Matters" in the Prospectus, without admitting we are "experts" within the meaning of the Securities Act or the rules and regulations of the Commission promulgated
thereunder with respect to any part of the Registration Statement.
|
Very truly yours,
/s/ Seward & Kissel LLP
|
Exhibit 8.1
|
Torm plc
Birchin Court
20 Birchin Lane
London EC3V 9DU
United Kingdom
|
|
|
Our Reference JART11/31499.50001/EUROPE/69564680v3
|
6 December 2021
Dear Sir or Madam
TORM plc: Registration Statement on Form F-3: Exhibit 8.1
| 1 |
INTRODUCTION
|
| 1.1 |
We have acted as special counsel as to matters of United Kingdom tax law ("UK Tax Law") for TORM plc, a company registered in England and Wales with registered number 09818726 (the "Company"),
in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations promulgated thereunder ("Rules"), of a registration statement on Form F-3 (such registration statement and any additional registration statement filed pursuant to
Rule 462(b) is referred to as the "Registration Statement") for the registration of the offer and sale from time to time of:
|
| (a) |
Class A common shares with a par value of $0.01 per share ("Common
Shares") to be issued by the Company;
|
| (b) |
up to 53,812,988 Common Shares by OCM Njord Holdings S.à r.l.;
|
| (c) |
preferred shares;
|
| (d) |
debt securities in one or more series, under one or more indentures in the forms filed as Exhibits 4.6 and 4.7 to the Registration Statement ("Debt Securities");
|
| (e) |
warrants to purchase any of the Company's debt or equity securities ("Warrants");
|
|
Watson Farley & Williams LLP 15 Appold Street London EC2A 2HB T +44 20 7814 8000 F +44 20 7814 8141/2 wfw.com
|
|
|
Watson Farley & Williams LLP is a limited liability
partnership registered in England and Wales with registered number 0C312252. It is authorised and regulated by the Solicitors Regulation Authority and its members are solicitors or registered foreign lawyers. A list of members of Watson Farley
& Williams LLP and their professional qualifications is open to inspection at the address above. Any reference to a 'partner' means a member of Watson Farley & Williams LLP or a member or partner in WFVV Affiliated Entities, or an
employee or consultant with equivalent standing and qualification. Watson Farley & Williams LLP or WFW Affiliated Entities has an office in each of the cities listed above.
Page 2
| (f) |
purchase contracts entitling the holder thereof to purchase or sell, and obliging the Company to sell or purchase, on specified dates, such securities or currencies
at a specified purchase price, which may be based on a formula ("Purchase Contracts");
|
| (g) |
rights to purchase the Company's equity securities ("Rights");
|
| (h) |
units consisting of one or more of the Company's Rights, Purchase Contracts, Warrants, Debt Securities, preferred shares, Common Shares or any combination of such
securities pursuant to a unit agreement ("Units"); and
|
| (i) |
securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above;
|
(together, the "Securities").
| 1.2 |
The Securities will be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the "Prospectus") and supplements to the Prospectus (the "Prospectus
Supplements").
|
| 2 |
DOCUMENTS EXAMINED AND ASSUMPTIONS
|
| 2.1 |
In rendering this opinion, we have examined originals or photocopies of all such documents, including (i) the Registration Statement and the Prospectus and (ii)
certificates of public officials and of representatives of the Company as we have deemed necessary. In such examination, we have assumed:
|
| (a) |
the legal capacity of each natural person;
|
| (b) |
the genuineness of all signatures and the authenticity of all documents submitted to us as originals;
|
| (c) |
the conformity to original documents of all documents submitted to us as conformed or photostatic copies;
|
| (d) |
that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct and complete; and
|
| (e) |
the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within the due diligence review undertaken by us.
|
| 2.2 |
As to any questions of fact material to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid certificates. We
have also assumed that (i) the Company is and will at all times be resident in the United Kingdom for tax purposes, (ii) the Registration Statement and any amendments or supplements thereto (including any necessary post‑effective
amendments) shall have become effective under the Securities Act, and (iii) a Prospectus Supplement shall have been prepared and filed with the Commission describing the Securities offered thereby.
|
Page 3
| 3 |
OPINION
|
| 3.1 |
This opinion is limited to UK Tax Law and is as of the date hereof. We expressly disclaim any responsibility to advise of any development or circumstance of any
kind, including any change of law or fact that may occur after the date of this opinion letter that might affect the opinion expressed herein.
|
| 3.2 |
Based on the facts as set forth in the Prospectus and having regard to legal considerations which we deem relevant, and subject to the qualifications and
limitations and based upon the assumptions in each case set forth herein, we hereby confirm that we have reviewed the discussion of the material United Kingdom tax consequences under the caption "Tax Considerations—United Kingdom Tax
Considerations" set forth in the Prospectus. We confirm that the statements in such discussion, to the extent they constitute summaries of law or legal conclusions, unless otherwise noted, are the opinion of Watson Farley & Williams
LLP with respect to the United Kingdom tax consequences that may be relevant to prospective investors in the Company's Common Shares as of the date of the Prospectus (except for the representations and statements of fact of the Company
included under such caption, as to which we express no opinion).
|
| 4 |
DISCLOSURE, CONSENT, RELATIONSHIP AND APPLICABLE LAW
|
| 4.1 |
Disclosure. We consent to the filing of this opinion as an
exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement and to the references to our firm in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or related Rules nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term "expert" as used in the Securities
Act or related Rules.
|
| 4.2 |
Relationship.
|
We are providing this opinion on the strict understanding and condition that:
| (a) |
we are acting exclusively for the Company and we are not acting as legal advisers to any other person and no solicitor-client relationship shall be established
between any person other than the Company on the one hand, and us, on the other;
|
| (b) |
our sole and exclusive duty in providing this opinion is a duty to take reasonable care in ensuring that the opinions (based upon the assumptions and subject to the
qualifications in each case set forth herein) in this opinion reflect the current UK Tax Law position; and
|
| (c) |
We are only providing this opinion on the strict understanding and condition that we will only be liable for any loss or damage to the extent that such loss or
damage results directly and exclusively from our negligence but not otherwise.
|
| 4.3 |
Governing law. All matters relating to this opinion, or any
non-contractual obligations or any matters arising out of or in connection with this opinion, will be governed by and construed in accordance with English law.
|
Page 4
| 4.4 |
Jurisdiction. The English courts shall have exclusive
jurisdiction in relation to all disputes arising out of or in connection with this opinion.
|
Yours faithfully
/s/ Watson Farley & Williams LLP
Watson Farley & Williams LLP
Exhibit 8.2
|
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
|
|
|
|
|
|
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
|
|
|
|
|
|
December 6, 2021
|
|
TORM plc
Birchin Court
20 Birchin Lane
London EC3V 9DU
United Kingdom
| Re: |
TORM plc
|
Ladies and Gentlemen:
We have acted as United States and New York counsel to TORM plc (the "Company"), a company organized under the laws of England and Wales, in connection with the Company's registration statement on Form F-3, as filed with the U.S. Securities and Exchange Commission
(the "Commission"), as thereafter amended or supplemented (the "Registration Statement"),
relating to the registration under the U.S. Securities Act of 1933, as amended (the "Securities Act") of an aggregate of $250,000,000 of the Company's securities,
which may include shares of common stock, par value $0.01 per share, of the Company (the "Common Shares"), shares of preferred stock, par value $0.01 per share, of
the Company (the "Preferred Shares"), debt securities of the Company (the "Debt Securities"),
warrants to purchase the Company's securities (the "Warrants"), rights to purchase the Company's securities (the "Rights"), purchase contracts to purchase the Company's securities (the "Purchase Contracts"), and units comprised of any of
the foregoing securities (the "Units" and, together with the Common Shares, Preferred Shares, Debt Securities, Warrants, Rights and Purchase Contracts, the "Primary Securities"). The Registration Statement also registers for resale under the Securities Act an aggregate of 53,812,989 Common Shares (the "Secondary Shares") of the Company held by the selling shareholder named in the Prospectus (defined below).
In formulating our opinion, we have examined such documents as we have deemed appropriate, including the
Registration Statement and the prospectus contained therein (the "Prospectus"). We have also obtained such additional information as we have deemed relevant and
necessary from representatives of the Company.
Based on the facts as set forth in the Registration Statement and the Company's annual report on Form
20-F for the fiscal year ended December 31, 2020 (the "Annual Report"), which is incorporated by reference into the Registration Statement, and in particular, on
the representations, covenants, assumptions, conditions and qualifications described in the Registration Statement in the sections entitled "Item 10. Additional Information—E. Taxation—United States Federal Income Taxation of the Company" and "Item
10. Additional Information—E. Taxation—U.S. Federal Income Taxation of U.S. Holders", and "Item 10. Additional Information—E. Taxation—U.S. Federal Income Taxation of “Non-U.S. Holders”", we hereby confirm that the opinions of Seward & Kissel
LLP and discussions of United States federal income tax matters expressed in the Registration Statement in the sections entitled "Item 10. Additional Information—E. Taxation—United States Federal Income Taxation of the Company" and "Item 10.
Additional Information—E. Taxation—U.S. Federal Income Taxation of U.S. Holders", and "Item 10. Additional Information—E. Taxation—U.S. Federal Income Taxation of “Non-U.S. Holders”" accurately state our views as to the tax matters discussed
therein.
Our opinions are based on the current provisions of the U.S. Internal Revenue Code of 1986, as amended,
the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, which may be cited or used as precedents, and case law, any of which may be changed at any time with retroactive effect. No opinion is
expressed on any matters other than those specifically referred to above by reference to the Annual Report.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to each
reference to us and the discussions of advice provided by us in the Registration Statement, including by reference to the Company's Annual Report, without admitting we are "experts" within the meaning of the Securities Act or the rules and
regulations of the Commission promulgated thereunder with respect to any part of the Registration Statement.
|
Very truly yours,
/s/ Seward & Kissel LLP
|
Exhibit 8.3
Bech•Bruun
|
TORM A/S
Lars Bo Aarup
Tuborg Havnevej 18
2900 Hellerup
|
Copenhagen 6 December 2021
Thomas Frøbert
Partner
T +45 72 27 34 33
thf@bechbruun.com
Our ref. 021321-0098 thf/jjl
Doc.No. 28461318.1
|
Dear Sir or Madam
TORM plc: Registration statement on Form F-3: Exhibit 8.3
| 1. |
INTRODUCTION
|
We have acted as Danish outside counsel as to matters of Danish tax law (“Danish Tax Law”) for TORM plc, a company registered in England and Wales with
registered number 09818726 (the “Company”), in connection with the preparation and filing with the United States Securities and Exchange Commission (the “Commission”) of a
registration statement on Form F-3 (such registration statement and any additional registration statement filed pursuant to Rule 462(b) is referred to as the “Registration Statement”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder (“Rules”) for the registration of the offer and sale from time to time
of:
| 1. |
Class A common shares with a par value of $0.01 per share (“Common Shares”) to be issued by the Company;
|
| 2. |
up to 53,812,989 Common Shares by OCM Njord Holdings S.a
|
| 3. |
debt securities in one or more series, under one or more indentures in the forms filed as Exhibits 4.6 and 4.7 to the Registration Statement (“Debt Securities”);
|
| 4. |
warrants to purchase any of the Company’s debt or equity securities, in the form filed as Exhibit 4.2 to the Registration Statement (“Warrants”);
|
| 5. |
purchase contracts entitling the holder thereof to purchase or sell, and obliging the Company to sell or purchase, on specified dates, such securities or currencies at a specified purchase price, which may be based on a formula, in the form
filed as Exhibit 4.4 to the Registration Statement (“Purchase Contracts”);
|
| 6. |
rights to purchase the Company’s equity securities, in the form filed as Exhibit 4.5 to the Registration Statement (“Rights”);
|
| 7. |
units consisting of one or more of the Company’s Rights, Purchase Contracts, Warrants, Debt Securities, preferred shares, Common Shares or any combination of such securities pursuant to a unit agreement in the form filed as Exhibit 4.8 to
the Registration Statement (“Units”); and
|
Bech•Bruun
|
2/4
Doc No. 28461318.1
|
| 8. |
securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above;
|
(together, the “Securities”).
The Securities will be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and supplements to
the Prospectus (the “Prospectus Supplements”).
| 2. |
DOCUMENTS
|
For the Purpose of this Opinion Letter, we have examined the following:
| 1. |
the Registration Statement; and
|
| 2. |
the Prospectus
|
The Registration Statement, including the Prospectus, is enclosed as Appendix A.
| 3. |
ASSUMPTIONS
|
For the purposes of this opinion letter (the “Opinion Letter”), we have assumed:
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the genuineness of all signatures;
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the completeness and conformity to originals of all documents purporting to be copies of originals and the authenticity of all documents submitted to us as originals;
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the accuracy and completeness of all factual representations made in the Registration Statement and the Prospectus and any other documents or information reviewed by, supplied to or disclosed to us; and
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that there are no provisions of the laws of any jurisdiction outside Denmark which would have any adverse implication on the opinions we express.
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OPINION
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This Opinion Letter is limited to Danish Tax Law and is as of the date hereof. We expressly disclaim any responsibility to advise on any development or circumstance of any kind, including any change of
law or fact that may occur after the date of this Opinion Letter that might affect the opinion expressed herein.
Based on the facts as set forth in the Prospectus and having regard to legal considerations which we deem relevant, and subject to the qualifications and limitations and based upon the assumptions in
each case set forth herein, we hereby confirm that we have reviewed the discussions of the material Danish tax consequences under the captions
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“Danish Tax Considerations”;
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“Sale of Class A common shares by TORM plc”;
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“Dividends distributed to the holders of Class A common shares of TORM A/S to TORM plc”;
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“Share transfer tax and stamp duties”; and
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“Danish Tax Risks” including
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“The Danish Tax Authorities may challenge whether TORM plc is entitled to Danish withholding tax exemption on dividends from TORM A/S.”
set forth in the Prospectus.
We are of the opinion that the statements in the captions set forth above in each case, insofar as such statements constitute summaries of Danish law, fairly summarise the matters set forth therein in
all material respects. We stress that we do not express any opinion on the representations and statements of fact made by the Company and included under the above captions.
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QUALIFICATIONS
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This Opinion Letter is subject to the following qualifications:
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This Opinion Letter is based on the Danish Tax Law in force as of the date of the Opinion Letter and as enacted by Danish legislative authorities and no opinion is expressed as to the laws of any other jurisdiction.
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This Opinion Letter expresses and describes Danish legal concepts in English and not in their original Danish terms; these concepts may not be identical to the concepts described by the English translations; this opinion may therefore be
relied upon only on the express condition that it shall be governed by and that all words and expressions used herein shall be construed and interpreted in accordance with the laws of Denmark.
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This Opinion Letter is strictly limited to matters stated herein and is not to be read as extending by implication to any other matters.
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RELIANCE
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We are providing this opinion on the strict understanding and condition that:
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we are acting exclusively for the Company and we are not acting as legal advisers to any other person and no solicitor-client relationship shall be established between any person other than the Company on the one hand, and us, on the other;
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our sole and exclusive duty in providing this opinion is a duty to take reasonable care in ensuring that the opinions (based upon the assumptions and subject to the qualifications in each case set forth herein) in this opinion reflect the
current Danish Tax Law position; and
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We are only providing this opinion on the strict understanding and condition that we will only be liable for any loss or damage to the extent that such loss or damage results directly and exclusively from our negligence but not otherwise.
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We encourage investors to consult their own tax advisors or counsel.
This Opinion Letter may only be relied upon under the express condition that this Opinion Letter and any issues of interpretation arising hereunder are governed by Danish law and any disputes arising
in connection with this Opinion Letter will be brought before a Danish court. The courts of Denmark shall have exclusive jurisdiction with respect to any matters of liability arising hereunder.
We consent to the filing of this opinion as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement and to the references to our firm in the Prospectus.
The liability of Bech-Bruun, its partners and staff in relation to this Opinion Letter is in any event limited to an aggregate amount of DKK 100 million irrespective of the number of losses incurred
and the amount incurred in losses by one or more claimants.
Bech-Bruun, its partners and staff are not liable for any consequential loss or other indirect loss, including operating loss and profits.
Yours sincerely
/s/ Thomas Frobert
Thomas Frobert
Exhibit 23.4
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form F-3)
and related Prospectus of TORM plc for the registration of Common Shares, Preferred Shares, Debt Securities, Warrants, Purchase Contracts, Rights and Units, with an aggregate offering price of all such securities not to exceed $250,000,000, and
53,812,988 Class A Common Shares offered by the Selling Shareholder, and to the incorporation by reference therein of our report dated March 1, 2021, with respect to the consolidated financial statements of TORM plc included in its Annual Report
(Form 20-F) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ EY Godkendt Revisionspartnerselskab
Copenhagen, Denmark
December 6, 2021
Exhibit 23.5
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated March 11, 2020, relating to the financial
statements of TORM plc appearing in the Annual Report on Form 20-F of TORM plc for the year ended December 31, 2020. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
Deloitte Statsautoriseret Revisionspartnerselskab
Copenhagen, Denmark
December 6, 2021
/s/ Kim Takata Mücke
State Authorised
Public Accountant
Public Accountant