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United States FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the February 13, 2004 Overseas Shipholding Group, Inc.
Securities and Exchange Commission
Washington, D.C. 20549
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
(Exact Name of Registrant as Specified in Charter)
1-6479-1
Commission File Number
Delaware |
13-2637623 |
511 Fifth Avenue
New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code
(212) 953-4100
Item 5. Other Events and Required FD Disclosure.
On February 13, 2004, Overseas Shipholding Group, Inc. (the "Company") entered into an Underwriting Agreement with UBS Securities LLC relating to the sale by the Company of $150 million aggregate principal amount of 7.50% Senior Notes due 2024 (the "Senior Notes"), pursuant to a Registration Statement on Form S-3 (File No. 333-111890). A copy of the Underwriting Agreement and the form of First Supplemental Indenture, containing the terms of the Senior Notes, are attached as exhibits.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
1.1 |
Underwriting Agreement between the Company and UBS Securities LLC, dated as of February 13, 2004. |
4.1 |
Form of First Supplemental Indenture (including form of Senior Notes). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
OVERSEAS SHIPHOLDING GROUP, INC. |
|
(Registrant) |
|
Date: February 18, 2004 |
By: /s/Myles R. Itkin |
Name: Myles R. Itkin |
|
Title: Senior Vice President, Chief |
Exhibit 1.1
Overseas Shipholding Group, Inc.
$150,000,000
7.50% Senior Notes due 2024
Underwriting Agreement
February 13, 2004
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Ladies and Gentlemen:
Overseas Shipholding Group, Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to UBS Securities LLC (the "Underwriter") an aggregate of $150,000,000 principal amount of the Senior Notes of the Company specified above (the "Securities").
b. The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriter pursuant to Section 7 hereof, will be delivered at such time and date at the offices of Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019 (the "Closing Location"), and the Securities will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at 5:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Agreement, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
b. The Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement or the Preliminary Prospectus or the Prospectus or any such amendment or supplement in reliance upon and in conformity with writt en information furnished to the Company by the Underwriter expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
c. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent, not to be unreasonably withheld, of the indemnified part y, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
d. If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect no t only such relative benefits but also the relative fault of the Company on the one hand and the Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from the offering received by the Company bear to the total underwriting discounts and commissions received by the Underwriter. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriter on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriter agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
e. The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Underwriter within the meaning of the Act; and the obligations of the Underwriter under this Section 8 shall be in addition to any liability which the Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Act.
Very truly yours, |
|
Overseas Shipholding Group, Inc. |
|
By: /s/Myles R. Itkin |
|
Name: Myles R. Itkin |
|
Title: Senior Vice President, Chief |
Accepted as of the date hereof:
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
By: /s/Simon Smith
Name: Simon Smith
Title: Director
By: /s/Gero Wendenburg
Name: Gero Wendenburg
Title: Associate Director
Form of Opinion of Proskauer Rose LLP
February 19, 2004
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Ladies and Gentlemen:
We have represented Overseas Shipholding Group, Inc., a Delaware corporation (the "Company"), in connection with a public offering by the Company of $150,000,000 principal amount of 7.50% Notes due 2024. This opinion is being rendered pursuant to Section 7(c) of the Underwriting Agreement (the "Agreement"), dated February 13, 2004, between you and the Company. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Agreement.
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including: (a) the Amended and Restated Certificate of Incorporation of the Company; (b) the Amended and Restated By-laws of the Company; (c) resolutions adopted by the Board of Directors of the Company on January 13, 2004, January 21, 2004 and February 5, 2004; (d) resolution of the Pricing Committee of the Board of Directors of the Company dated February 11, 2004; (e) the Registration Statement on Form S-3 (Registration No. 333-111890) filed with the Securities and Exchange Commission (the "Commission") on January 13, 2004 and any subsequent amendment, with respect to the registration of the Notes under the Securities Act of 1933, as amended (the "Securities Act") (such Registration Statem ent, as amended by such Amendments, including the final Prospectus dated February 13, 2004 forming a part thereof, as filed with the Commission pursuant to Rule 424(b)(5) under the Securities Act (the "Prospectus"), being hereinafter referred to as the "Registration Statement"); (f) the Preliminary Prospectus; (g) the Prospectus; (h) the Underwriting Agreement; (i) the Indenture, dated March 7, 2003 (the "Indenture"), (j) the first supplement to the Indenture dated February 12, 2004 (the "Supplemental Indenture"); and (k) a copy of the Notes. We have also relied upon advice from the Commission that the Registration Statement was declared effective on January 21, 2004.
Based upon the foregoing, and subject to the qualifications below, it is our opinion that:
(i) Based solely on certificates of public officials in the appropriate jurisdiction, the Company has been duly qualified for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(ii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Delaware, with all requisite corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(iii) The Notes conform in all material respects to the description of the Notes contained in the Prospectus;
(iv) Based solely on certificates of public officials in the appropriate jurisdiction, each subsidiary of the Company listed on Annex A to this opinion is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation or formation;
(v) We have no knowledge that, other than as set forth in the Prospectus and incorporated by reference therein, there are any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, we have no knowledge that such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The Notes have been duly authorized, executed, authenticated and issued by the Company and, when the Notes are authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Underwriter in accordance with the Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, enforceable against the Company in accordance with its terms, except as such may be limited by the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws relating to creditor's rights generally, by general principles of equity (regardless of whether enforcement is sought in equity or law), including principles regarding good faith, fair dealing and commercial reasonableness, or by the discretion of any court before which any proceeding therefor may be brought.
(vii) The Indenture and the Supplemental Indenture have been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitute valid and legally binding instruments, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by the laws of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws relating to creditors' rights generally, by general principles of equity (regardless of whether enforcement is sought in equity or law), including principles regarding good faith, fair dealing and commercial reasonableness, or by the discretion of any court before which any proceeding therefor may be brought.
(viii) The Agreement has been duly authorized, executed and delivered by the Company;
(ix) The compliance by the Company with all of the provisions of the Notes, the Indenture, the Supplemental Indenture and the Agreement and the consummation of the transactions therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to the Registration Statement to which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (it being understood that we express no opinion with respect to any financial covenant in any agreement or instrument insofar as the covenant requires a computation and we note the disclosure in the Prospectus that the terms of the Company's revolving credit facilities could, under certain circumstances require the Company to defease covenants under the Company's existing notes and debentures), nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order or rule known to us of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by the Indenture, the Supplemental Indenture and the Agreement, except the registration under the Act of the Notes, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws (as to which we express no opinion) in connection with the purchase and distribution of the Notes by the Underwriter;
(xi) The statements set forth in the Prospectus under the caption "Description of Notes", insofar as they purport to constitute a summary of the terms of the Notes, fairly summarize the matters therein described and are accurate, complete and fair in all material respects;
(xii) The Company is not an "investment company", as such term is defined in the Investment Company Act of 1940;
(xiii) The documents incorporated by reference in the Preliminary Prospectus and the Prospectus or any further amendment or supplement thereto made by the Company prior to the date hereof (other than the financial statements and related financial data and schedules therein or incorporated by reference therein, as to which we express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(xiv) The Registration Statement and the Preliminary Prospectus and the Prospectus and any further amendments and supplements thereto made by the Company prior to the date hereof (other than the financial statements and related financial data and schedules contained therein or omitted therefrom, as to which express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and we do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Preliminary Prospectus and the Prospectus or required to be described in the Registration Statement or such prospectus which are not filed or incorporated by reference or described as required.
In addition, we have participated in conferences with officers and other representatives of the Company, representatives of the Underwriter, counsel to the Underwriter and representatives of the independent public accountants for the Company, at which conferences we made inquiries of such officers, representatives and accountants and discussed the contents of the Registration Statement and the Preliminary Prospectus and the Prospectus and related matters and (without taking any further action to verify independently the statements made in the Registration Statement and the Prospectus and, without assuming responsibility for the accuracy, completeness or fairness of such statements, no fact has come to our attention that causes us to believe that the Registration Statement at the time the Registration Statement became effective or on the date hereof contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the sta tements therein not misleading, or that the Preliminary Prospectus and the Prospectus as of its date or on the date hereof contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that we express no opinion with respect to the financial statements and related financial data and schedules included or incorporated by reference in, or omitted from, the Registration Statement or the Preliminary Prospectus and the Prospectus.
Whenever in this opinion "our knowledge," "known to us" or similar phrases or words are used, it means that none of the attorneys in our firm who has been directly involved in acting as counsel to the Company in connection with the Agreement and the transactions contemplated thereby presently has actual knowledge and conscious awareness of any fact that would render the statement inaccurate.
The foregoing opinions relate only to matters of the internal law of the State of New York and to the Delaware General Corporation Law and to matters of Federal law (excluding any admiralty or maritime laws or regulations) and do not purport to express any opinion on the laws of any other jurisdiction..
This opinion is rendered to you and is solely for your benefit in connection with the transaction contemplated by the Agreement. This opinion may not be relied upon by you for any other purpose or furnished to, quoted or relied upon by any person or other entity for any purpose without my prior written consent.
A partner of this firm is a director of the Company.
Very truly yours,
SUBSIDIARY |
JURISDICTION OF ORGANIZATION |
398 Equity Corporation |
Delaware |
399 Equity Corporation |
Delaware |
400 Equity Corporation |
Delaware |
401 Equity Corporation |
Delaware |
Ambrit Holdings, Inc. |
Delaware |
Amity Products Carriers, Inc. |
Delaware |
Delphina Tanker Corporation |
Delaware |
New Orleans Tanker Corporation |
Delaware |
Ocean Bulk Ships, Inc. |
Delaware |
OSG Financial Corp. |
Delaware |
OSG Ship Management, Inc. |
Delaware |
Philadelphia Tanker Corporation |
Delaware |
Ship Paying Corporation No. 1 |
Delaware |
Transbulk Carriers, Inc. |
Delaware |
Vega Tanker Corporation |
Delaware |
American Shipholding Group, Inc. |
New York |
Cambridge Tankers, Inc. |
New York |
Juneau Tanker Corporation |
New York |
OSG Bulk Ships, Inc. |
New York |
OSG Car Carriers, Inc. |
New York |
U.S. Shipholding Group, Inc. |
New York |
Vivian Tankships Corporation |
New York |
Form of Opinion of James I. Edelson
February 19, 2004
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Ladies and Gentlemen:
I am the Associate General Counsel of Overseas Shipholding Group, Inc., a Delaware corporation (the "Company"), and acted as counsel to the Company in connection with a public offering by the Company of $150,000,000 principal amount of 7.50% Notes due 2024. This opinion is being rendered pursuant to Section 7(d) of the Underwriting Agreement (the "Agreement"), dated February 13, 2004, between you and the Company. I have been the Associate General Counsel since February 2000. Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
I have examined originals, or copies certified or otherwise identified to my satisfaction, of such documents, corporate records and other instruments as I have deemed necessary or appropriate for the purposes of this opinion, including: (a) the Amended and Restated Certificate of Incorporation of the Company; (b) the Amended and Restated By-laws of the Company; (c) resolutions adopted by the Board of Directors of the Company on January 13, 2004, January 21, 2004, and February 5, 2004 and by the Pricing Committee of the Board of Directors of the Company on February 12, 2004, authorizing the filing of the Registration Statement, the entry into the Agreement and the pricing of the Notes to be sold pursuant thereto; (d) the Registration Statement on Form S-3 (Registration No. 333-111890) filed with the Securities and Exchange Commission (the "Commission") on January 13, 2004, with respect to the registration of the Notes under the Securities Act of 1933, as amended (the "Sec urities Act") (such Registration Statement, as amended by final Prospectus Supplement dated February 13, 2004 forming a part thereof, as filed with the Commission pursuant to Rule 424(b)(5) under the Securities Act (together, the "Prospectus"), including the documents incorporated by reference in the Prospectus, being hereinafter referred to as the "Registration Statement"); (e) the Preliminary Prospectus; (f) the Prospectus; (g) the Agreement; and (h) a specimen certificate representing the Notes. The Registration Statement was declared effective on January 21, 2004.
As to various questions of fact material to my opinion, I have relied upon the representations made in the Agreement, upon certificates of officers of the Company and upon certificates of public officials. I believe that you and I are justified in relying upon such certificates. I have also made such investigations, as I have deemed necessary in order to render the opinion hereinafter set forth. I have assumed the authenticity of all documents submitted to me as originals, the genuineness of all signatures, the legal capacity of natural persons and conformity to the originals of all documents submitted to me as copies. I have also assumed that all documents examined by me have been duly and validly authorized, executed and delivered by each of the parties thereto (other than the Company).
Based upon and subject to the foregoing, I render the following opinion:
I have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Underwriter and counsel to the Underwriter at which the contents of the Registration Statement and the Preliminary Prospectus and the Prospectus and related matters were discussed and, although I am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Preliminary Prospectus and the Prospectus, no facts have come to my attention that lead me to believe either that the Registration Statement at the time the Registration Statement became effective or on the date hereof contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Preliminary Prospectus and the Prospectus as of its date or on the d ate hereof contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that I express no comment or opinion with respect to the financial statements and schedules and other financial data included or incorporated by reference in the Registration Statement or the Preliminary Prospectus and the Prospectus). I do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Preliminary Prospectus and the Prospectus which are not filed or incorporated by reference or described as required.
The opinion set forth herein is limited to the internal law of the State of New York, the corporate law of the State of Delaware and the federal laws of the United States (excluding any admiralty or maritime laws or regulations).
This opinion is rendered to you and is solely for your benefit in connection with the transactions contemplated by the Agreement. This opinion may not be relied upon by you for any other purpose or furnished to, quoted or relied upon by any person, firm, corporation or other entity for any purpose without my prior written consent.
Very truly yours,
James I. Edelson
ANNEX A
SUBSIDIARY |
JURISDICTION OF |
1320 Tanker Corporation |
Marshall Islands |
1321 Tanker Corporation |
Marshall Islands |
1372 Tanker Corporation |
Marshall Islands |
1395 Tanker Corporation |
Marshall Islands |
Ania Tanker Corporation |
Marshall Islands |
Bravery Tanker Corporation |
Marshall Islands |
Caribbean Tanker Corporation |
Marshall Islands |
Chrismir Cape Corporation |
Marshall Islands |
Diane Tanker Corporation |
Marshall Islands |
Edindun Shipping Corporation |
Marshall Islands |
Eighth Aframax Tanker Corporation |
Marshall Islands |
Fifth Aframax Tanker Corporation |
Marshall Islands |
First Pacific Corporation |
Marshall Islands |
First Products Tankers, Inc. |
Marshall Islands |
First Union Tanker Corporation |
Marshall Islands |
Fourth Aframax Tanker Corporation |
Marshall Islands |
Fourth Products Tankers, Inc. |
Marshall Islands |
Imperial Tankers Corporation |
Marshall Islands |
Lion Tanker Corporation |
Marshall Islands |
Majestic Tankers Corporation |
Marshall Islands |
Marina Tanker Corporation |
Marshall Islands |
Matilde Cape Corporation |
Marshall Islands |
Meridian Tanker Corporation |
Marshall Islands |
Ninth Aframax Tanker Corporation |
Marshall Islands |
Northanger Shipping Corporation |
Marshall Islands |
Northwestern Tanker Corporation |
Marshall Islands |
Olympia Tanker Corporation |
Marshall Islands |
OSG International, Inc. |
Marshall Islands |
Regency Tankers Corporation |
Marshall Islands |
Rio Grande Bulk Carriers, Inc. |
Marshall Islands |
Rosalyn Tanker Corporation |
Marshall Islands |
Royal Tankers Corporation |
Marshall Islands |
Ruby Tanker Corporation |
Marshall Islands |
Sapphire Tanker Corporation |
Marshall Islands |
Sargasso Tanker Corporation |
Marshall Islands |
Second Products Tankers, Inc. |
Marshall Islands |
Seventh Aframax Tanker Corporation |
Marshall Islands |
Sixth Aframax Tanker Corporation |
Marshall Islands |
Tenth Aframax Tanker Corporation |
Marshall Islands |
Third Aframax Tanker Corporation |
Marshall Islands |
Third Products Tankers, Inc. |
Marshall Islands |
Third United Shipping Corporation |
Marshall Islands |
Timor Navigation Ltd. |
Marshall Islands |
Tubarao Bulk Carriers, Inc. |
Marshall Islands |
Venus Tanker Corporation |
Marshall Islands |
First Shipco Inc. |
Liberia |
International Seaways, Inc. |
Liberia |
Hyperion Shipping Corporation |
Liberia |
Ship Paying Corporation No. 3 |
Liberia |
East Coast Gaugings Limited |
England |
OSG Group Purchasing Limited |
England |
OSG Ship Management (London) Limited |
England |
OSG Ship Management (UK) Ltd. |
England |
Western Ship Agencies Limited |
England |
398 Equity Corporation |
Delaware |
399 Equity Corporation |
Delaware |
400 Equity Corporation |
Delaware |
401 Equity Corporation |
Delaware |
Ambrit Holdings, Inc. |
Delaware |
Amity Products Carriers, Inc. |
Delaware |
Delphina Tanker Corporation |
Delaware |
New Orleans Tanker Corporation |
Delaware |
Ocean Bulk Ships, Inc. |
Delaware |
OSG Financial Corp. |
Delaware |
OSG Ship Management, Inc. |
Delaware |
Philadelphia Tanker Corporation |
Delaware |
Ship Paying Corporation No. 1 |
Delaware |
Transbulk Carriers, Inc. |
Delaware |
Vega Tanker Corporation |
Delaware |
American Shipholding Group, Inc. |
New York |
Cambridge Tankers, Inc. |
New York |
Juneau Tanker Corporation |
New York |
OSG Bulk Ships, Inc. |
New York |
OSG Car Carriers, Inc. |
New York |
U.S. Shipholding Group, Inc. |
New York |
Vivian Tankships Corporation |
New York |
Form of Opinion of Special Admiralty Counsel
February 19, 2004
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Ladies and Gentlemen:
We have acted as special admiralty counsel to Overseas Shipholding Group, Inc., a Delaware corporation (the "Company") in connection with a public offering by the Company of $150,000,000 principal amount of 7.50% Notes due 2024. This opinion is being rendered pursuant to 7(e) of the Underwriting Agreement (the "Agreement"), dated February 13, 2004, between you and the Company. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Agreement.
In rendering this opinion, we have examined executed originals, or copies certified or otherwise identified to our satisfaction, of the following documents (the "Transaction Documents"):
1. the Agreement;
2. Registration Statement;
3. Prospectus;
4. The Indenture and the Supplemental Indenture;
5. Certificate of Incorporation of the Company;
6. By-Laws of the Company, as amended January 28, 1994; and
7. Affidavit of U.S. Citizenship of the Company dated June 23, 2003 and filed with the Maritime Administration of the U.S. Department of Transportation.
We have also examined such other documents, corporate and official records and other instruments, and such laws and regulations as we have deemed necessary or appropriate for the purposes of this opinion. When, in our professional opinion, we deemed it appropriate, we have relied upon affidavits of corporate officers as to the existence of underlying facts, including the Affidavit of U.S. Citizenship of the Company referred to above.
In expressing this opinion, please note that we are admitted to practice only in the District of Columbia, and we do not purport to be experts in the law of any jurisdiction other than the District of Columbia and the Federal laws of the United States. For purposes of this opinion, we have assumed that:
(a) each party to the Transaction Documents has full corporate power and authority to enter into the Transaction Documents to which it is a party and to perform its obligations thereunder;
(b) all action, corporate and otherwise, necessary to authorize the execution and delivery of the Transaction Documents by each party thereto and the performance of each such party of its respective obligations thereunder, has been duly taken;
(c) each Transaction Document has been duly executed and delivered on behalf of each of the parties thereto;
(d) all approvals by governmental authority of the execution and delivery of each of the Transaction Documents and the performance by each of the respective parties thereto of their respective obligations thereunder, have been obtained; and
(e) each of the Transaction Documents is the valid and binding obligation of each party thereto, enforceable in accordance with its terms.
In addition, we have assumed, without investigation, the genuineness of all signatures (excluding however the genuineness of the signature of the Company), the correctness of all affidavits, and the authenticity of all instruments submitted to us as originals and the conformity with the originals of all instruments submitted to us as copies.
Based upon and subject to the foregoing and the qualifications and exceptions set forth below, we are of the opinion that:
1. the sale of the Notes by the Company and the compliance by the Company with all of the provisions of the Agreement, the Indenture and the Supplemental Indenture, and the consummation of the transactions herein contemplated will not conflict with, or violate (i) any U.S. Federal maritime or admiralty law or regulation, or (ii) any judgment, writ, injunction, decree or order binding on the Company or any of its subsidiaries of which we are aware from any U.S. Federal court or governmental authority having jurisdiction or who enforce or interpret any maritime or admiralty laws or promulgate any regulations as to such matters;
2. no consent, approval, waiver, license or other authorization by or filing with any U.S. governmental authority having jurisdiction over any maritime or admiralty matters is required for the sale of the Notes by the Company, or the consummation by the Company of the transactions contemplated herein;
3. immediately prior to the sale of the Notes by the Company pursuant to the terms of this Agreement, the Company was a citizen of the United States within the meaning of Section 2 of the Shipping Act and was qualified to engage in the coastwise trade of the United States; and
4. immediately following the sale of the Notes by the Company and the compliance by the Company and the Underwriter with all of the provisions of the Agreement (and the consummation of the transactions herein contemplated), the Company will remain a citizen of the United States within the meaning of Section 2 of the Shipping Act and will continue to be qualified to engage in the coastwise trade of the United States.
In rendering the opinion set out in clause 3 above we have relied solely on the U.S. Citizenship Affidavit of the company dated June 25, 2003 as executed by a Company official and the inferences permitted to be drawn therefrom pursuant to the regulations issued by the Maritime Administration of the U.S. Department of Transportation regarding citizenship requirements of Section 2 of the Shipping Act of 1916, as amended. (46 C.F.R. Part 355).
Where the foregoing opinion relates to our "knowledge", such knowledge means the conscious awareness of facts or other information by the attorney who signed the opinion letter and any attorney in this firm who was actively involved in preparing this opinion letter.
The opinions expressed herein are expressed as of the date hereof, and we assume no obligation to advise the addressee of these opinions of any changes concerning the above, whether or not deemed material, which may hereafter come or be brought to our attention, including, but not limited to, changes which could result from pending or future regulations, legislation, law and jurisprudence. This opinion is limited to (i) applicable federal and maritime laws, and (ii) the laws of the District of Columbia, in each case as of the date hereof, and we express no opinion with respect to the laws of any other state or jurisdiction.
This opinion is rendered to you and is solely for your benefit in connection with the transaction contemplated by the Agreement. This opinion may not be relied upon by you for any other purpose or furnished to, quoted or relied upon by any person, firm or corporation for any purpose without my prior written consent.
Very truly yours,
Preston½
Gates½
Ellis &
Rouvelas½
Meeds LLP
By:
Form of Opinion of Special Admiralty Counsel
UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
We have acted as special admiralty counsel to Overseas Shipholding Group, Inc., a Delaware corporation (the "Company") in connection with certain aspects of the transactions contemplated by an underwriting agreement dated February 13, 2004 (the "Underwriting Agreement"), between the Company and you. This opinion is rendered in partial satisfaction of the requirements of Section 7(e) of the Underwriting Agreement. Capitalized terms used but not defined herein are defined in the Underwriting Agreement.
The Company has requested us to review certain provisions contained in the Prospectus Supplement dated February 13, 2004, to Prospectus dated January 13, 2003, which appear under the following captions:
Risk Factors
The Company has also requested us to review certain provisions contained in its Form 10-K for the fiscal year ended December 31, 2002, which appear under the following captions:
Part I - Item 1. Business
These provisions (a) through (e) are hereinafter collectively referred to as the "Admiralty Opinion Provisions".
In conducting this review, we have considered the maritime laws of the United States as contained in Title 33 (Navigation), Title 46 and the Appendix thereto (Shipping), and Title 42, Chapter 103 (Comprehensive Environmental Response, Compensation, and Liability) of the United States Code, the maritime regulations issued under those Titles, and with respect to foreign law, the typical maritime law provisions of countries having an established maritime jurisprudence and the international maritime conventions typically adopted by the countries in which the Company has registered its vessels (collectively, the "Maritime Laws").
Certain of the Admiralty Opinion Provisions describe, in part, maritime matters that may be governed by the laws of a vessel's foreign flag or the laws of a country other than the United States in which the vessel may be found. We are admitted to practice only in the State of New York and in the courts of the United States, and our opinions with respect to such foreign maritime laws are based on the international and foreign maritime legal materials available to us as well as the advice of foreign maritime counsel in prior cases.
Based upon and subject to the foregoing and having regard to the legal considerations which we deem relevant, we are of the opinion that the Admiralty Opinion Provisions fairly present and summarize the Maritime Laws referred to therein, and fairly describe the regulation pursuant thereto to which the Company is subject.
Our opinions are as of the date of this letter. We disclaim any undertaking to advise you of changes which thereafter may be brought to our attention.
The opinions expressed above are solely for your benefit and that of your successors and assigns, and must not be relied upon by any other party.
Very truly yours,
BURKE & PARSONS
By:
EXHIBIT 4.1
OVERSEAS SHIPHOLDING GROUP, INC.
and
WILMINGTON TRUST COMPANY,
as Trustee
__________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 19, 2004
___________________________________________
7.50% Senior Notes due 2024
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, effective as of February 19, 2004 (the "First Supplemental Indenture"), is entered into between Overseas Shipholding Group, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), having its principal office at 511 Fifth Avenue, New York, New York 10017, and Wilmington Trust Company, a Delaware banking corporation, as trustee (the "Trustee") under and pursuant to the Indenture dated as of March 7, 2003, between the Company and the Trustee (the "Original Indenture").
WHEREAS, Section 301 of the Original Indenture provides that Securities may be issued under the Original Indenture in one or more series;
WHEREAS, Section 901 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, may enter into one or more supplemental indentures to establish the form or terms of Securities of any series;
WHEREAS, the Company desires to create a new series of Securities having the terms set forth in this First Supplemental Indenture; and
WHEREAS, the Board of Directors of the Company has adopted resolutions authorizing and approving the creation and issuance of $150,000,000 aggregate principal amount of 7.50% Senior Notes due 2024 (the "2004 Notes"), and the Company and the Trustee are executing and delivering this First Supplemental Indenture in order to provide for the establishment of such Securities;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this First Supplemental Indenture hereby agree as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Relation to Original Indenture. This First Supplemental Indenture constitutes an integral part of the Original Indenture.
Section 102 Definition of Terms.
(a) Capitalized terms used herein without definition shall have the meanings specified in the Original Indenture; and
(b) the following terms have the meanings given to them in this Section 102(b):
"2004 Notes" has the meaning set forth in the recitals to this First Supplemental Indenture.
"Designated Debt" means any debt for borrowed money in the form of bonds, notes, debentures or other debt securities issued by way of a public offering or private placement, but excluding loans made by banks and other financial institutions, customers and strategic partners.
"First Supplemental Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplement hereto entered into pursuant to the applicable provisions hereof."
"Original Indenture" has the meaning set forth in the recitals to this First Supplemental Indenture.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE 2004 NOTES
Section 201 Designation and Principal Amount. There is hereby authorized a series of Securities designated as 7.50% Senior Notes due 2024 limited in aggregate principal amount to $150,000,000. The 2004 Notes may be issued from time to time upon written order of the Company for authentication and delivery of the 2004 Notes pursuant to Section 303 of the Original Indenture.
Section 202 Maturity. The date upon which the 2004 Notes will become due and payable at final maturity, together with any accrued and unpaid interest, is February 15, 2024.
Section 203 Interest.
(a) The 2004 Notes will accrue interest at a rate of 7.50% per annum from February 19, 2004, payable in cash on February 15 and August 15 in each year, commencing August 15, 2004 to the Person in whose name the 2004 Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name the 2004 Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the 2004 Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the 2004 Notes may be listed, and upon such notice as may be required by such exchange.
(b) Payment of the principal of (and premium, if any) and interest on the 2004 Notes will be made at the office or agency of the Company maintained for that purpose in 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.
Section 204 Redemption. The Company shall not be entitled to redeem the 2004 Notes prior to the maturity of the Notes.
Section 205 Legal Defeasance and Covenant Defeasance.
(a) Pursuant to Section 1302 of the Original Indenture, the Company may, at its option and at any time, elect to have its obligations discharged with respect to the outstanding 2004 Notes.
(b) Pursuant to Section 1303 of the Original Indenture, the Company may, at its option and at any time, elect to have its obligations released with respect to certain covenants that are described in the Original Indenture and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the 2004 Notes.
Section 206 Global Note. The 2004 Notes shall be issuable in one or more definitive Global Securities in book-entry form, which will be deposited by or on behalf of the Company, through the facilities of The Depository Trust Company ("DTC") or its designated custodian. Every Global Security evidencing all or part of the 2004 Notes that is authenticated and delivered shall bear the legend set forth on the face of the form of the 2004 Notes attached as Exhibit A to this First Supplemental Indenture.
Section 207 Maintenance of Insurance. Section 1007 of the Original Indenture shall not apply to the 2004 Notes.
Section 208 Limitation on Liens. Section 1009 of the Original Indenture as applied to the 2004 Notes is hereby amended in its entirety to read as follows:
"The Company may not, directly or indirectly, Incur, assume or suffer to exist any Mortgage on or with respect to any property or assets, now owned or hereafter acquired, to secure any present or future Designated Debt without making effective provision for securing the 2004 Notes: (1) in the event such Designated Debt is pari passu with the 2004 Notes, equally and ratably with such Designated Debt as to such property or assets for so long as such Designated Debt will be so secured, or (2) in the event such Designated Debt is subordinate in right of payment to the 2004 Notes, prior to such Designated Debt as to such property or assets for so long as such Designated Debt will be so secured."
Section 209 Limitation on Sales and Leasebacks. Section 1010 of the Original Indenture shall not apply to the 2004 Notes.
Section 210 Limitation on Incurrence of Indebtedness by Restricted Subsidiaries. Section 1011 of the Original Indenture shall not apply to the 2004 Notes.
ARTICLE THREE
FORM OF THE 2004 NOTES
Section 301. Form of the 2004 Notes. The 2004 Notes and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the forms attached as Exhibit A to this First Supplemental Indenture, with such changes thereto as the officers of the Company executing the 2004 Notes (by manual or facsimile signature) may approve, such approval to be conclusively evidenced by their execution thereof.
ARTICLE FOUR
GENERAL PROVISIONS
Section 401. Effectiveness. The provisions of this First Supplemental Indenture shall become effective immediately upon the execution and delivery by the Trustee of this First Supplemental Indenture.
Section 402. Ratification of Indenture. The Original Indenture is in all respects acknowledged, ratified and confirmed, and shall continue in full force and effect in accordance with the terms thereof and as supplemented by this First Supplemental Indenture. The Original Indenture and this First Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Section 403. Effect of Headings. The Article and Section headings in this First Supplemental Indenture are for convenience only and shall not affect the construction of this First Supplemental Indenture.
Section 404. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 405. Multiple Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 406. Successors and Assigns. All agreements of the Company in this First Supplemental Indenture shall bind its successors. All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.
Section 407 Trustee Not Responsible for Recitals. The recitals in this First Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the correctness of such recitals.
[Remainder of Page Left Blank Intentionally; Signature Page Follows]
IN WITNESS WHEREOF, the parties to this First Supplemental Indenture have caused the First Supplemental Indenture to be duly executed as of day and year first above written.
OVERSEAS SHIPHOLDING GROUP, INC. |
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Name: |
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Title: |
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WILMINGTON TRUST COMPANY |
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Title: |
EXHIBIT A
IF THIS SECURITY IS TO BE A GLOBAL SECURITY, INSERT:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
OVERSEAS SHIPHOLDING GROUP, INC.
7.50% Senior Notes due 2024
No. ___ $_____________
Overseas Shipholding Group, Inc., a corporation duly organized and existing under the laws of Delaware (herein called the "Company", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________________________, as nominee for The Depository Trust Company (the "Holder"), or to its registered assigns, the principal sum of ___________________ Dollars on February 15, 2024, and to pay interest thereon from February 19, 2004 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on February 15 and August 15 in each year, commencing August 15, 2004, at the rate of 7.50% per annum, until the principal hereof is paid or made available for payment. This Security is issued under an Indenture, dated as of March 7, 2003, as supplemented by the First Supplemental Indenture dated as of February 19, 2004 (herein called the "Indenture" which term shall have the meaning as signed to it in such instrument), between the Company and Wilmington Trust Company, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture). The interest 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 February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either 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 Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Payment by the Company of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in 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.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed under its corporate seal.
Dated as of ___________ ___, _____
Overseas Shipholding Group, Inc.
By:_________________________
Name:
Title:
Attest:
______________________
, Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Wilmington Trust Company,
as Trustee
By:__________________________
Authorized Officer
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under the Indenture, and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, 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, limited in aggregate principal amount to $150,000,000.
The Company shall not be entitled to redeem the Securities prior to the maturity of the Securities.
If a Change of Control shall occur, Holders of the Securities will have the right to require the Company to redeem such Holder's Securities, in whole or in part, in integral multiples of $1,000, at a Redemption Price equal to 101.00% of the principal amount thereof and unpaid interest, if any, to the Redemption Date, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66-2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company 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 Security and of any Security issued upon the registration of transfer here of or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing s hall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium 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 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 of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder 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.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company 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 Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.