Republic of the Marshall Islands | | | 98-0439758 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☒ | |
Non-accelerated filer | | | ☐ | | | | | Smaller reporting company | | | ☒ | |
| | | | | | Emerging growth company | | | ☐ |
Title of Each Class of Securities to be Registered | | | Amount to be Registered(1)(2)(3) | | | Proposed Maximum Offering Price per Unit(1)(2) | | | Proposed Maximum Aggregate Offering Price(3) | | | Amount of Registration Fee(3) |
Debt Securities(5) | | | | | | | | | ||||
Common Stock, par value $.01 per share(6) | | | | | | | | | ||||
Preferred Stock(7) | | | | | | | | | ||||
Rights(8) | | | | | | | | | ||||
Warrants(9) | | | | | | | | | ||||
Units(10) | | | | | | | | | ||||
Depositary Shares(11) | | | | | | | | | ||||
Purchase Contracts(12) | | | | | | | | | ||||
Total | | | | | | | $— | | | $— |
(1) | Pursuant to this Registration Statement, there are being registered such indeterminate number of debt securities, shares of common stock, shares of preferred stock, rights, warrants, units, depositary shares, and purchase contracts as may be offered at various times and at indeterminate prices, pursuant to the prospectus contained in the Registration Statement. There are also being registered hereunder an indeterminate amount or number of shares of the securities as may be issuable upon conversion or exchange of preferred stock, warrants, rights or units or pursuant to anti-dilution provisions thereof. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. |
(2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares of common stock and preferred stock being registered hereunder include such indeterminate number of additional shares of common stock and preferred stock as may be offered with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
(3) | In accordance with Rules 456(b) and 457(r), the Registrant is deferring payment of all of the registration fee. Pursuant to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this Registration Statement include unsold securities previously registered by the registrant on its Registration Statement on Form S-3 (File No. 333-226016), filed with the Securities and Exchange Commission on June 29, 2018 and declared effective on July 20, 2018 (the “Prior Registration Statement”). The Prior Registration Statement registered the offer and sale of an indeterminate number of debt securities, shares of common stock, shares of preferred stock, rights, warrants, units, depositary shares, and purchase contracts having an aggregate offering price of $750,000,000, which remain unsold as of the date of filing of this Registration Statement. Pursuant to Rule 415(a)(6) under the Securities Act, this Registration Statement includes the unsold securities under the Prior Registration Statement, and filing fees of $88,111 relating to such unsold securities. Pursuant to Rule 415(a)(6) under the Securities Act, the offering of the unsold securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement. |
(4) | Excluding accrued interest, distributions and dividends, if any. |
(5) | Debt securities may be issued (a) separately, (b) upon exercise of warrants, rights or units to purchase debt securities that are registered hereby, (c) upon conversion of securities that are registered hereby or (d) pursuant to purchase contracts that are registered hereby. |
(6) | Common stock may be issued (a) separately, (b) upon the exercise of warrants, rights or units to purchase common stock that are registered hereby, (c) upon conversion of securities that are registered hereby or (d) pursuant to purchase contracts that are registered hereby. Shares of common stock issued upon conversion of securities will be issued without the payment of additional consideration. |
(7) | Preferred stock may be issued (a) separately, (b) upon exercise of warrants, rights or units to purchase preferred stock that are registered hereby, (c) upon conversion of securities that are registered hereby or (d) pursuant to purchase contracts that are registered hereby. |
(8) | Rights represent rights to purchase any other securities registered hereby. |
(9) | Warrants representing rights to purchase debt securities, common stock, preferred stock, units or depositary shares (as shall be designated by the registrant at the time of the offering), each of which is registered hereby. |
(10) | Units that may consist of any combination of other securities registered hereby. |
(11) | Depositary shares, represent a fractional share or multiple shares of our preferred stock, such preferred stock being registered hereby. Depositary shares may be issued (a) separately, (b) upon exercise of warrants, rights or units to purchase depositary shares that are registered hereby, (c) upon conversion of securities that are registered hereby or (d) pursuant to purchase contracts that are registered hereby. Each depositary share will be issued under a deposit agreement and will be evidenced by a depositary receipt. |
(12) | Purchase contracts are for the purchase and sale of securities registered hereby. |
• | Continue to pay down debt through regularly scheduled quarterly repayments and prepayments from a combination of cash flow generation and cash on the balance sheet; |
• | Opportunistically grow our fleet on a low levered basis utilizing proceeds from previous vessel sales; and |
• | Refinance credit facilities to increase flexibility, improve key terms and lower cash flow breakeven rates |
• | title and aggregate principal amount; |
• | whether the securities will be senior or subordinated; |
• | applicable subordination provisions, if any; |
• | conversion or exchange into other securities; |
• | whether securities issued by us will be secured or unsecured, and if secured, what the collateral will consist of; |
• | percentage or percentages of principal amount at which such securities will be issued; |
• | maturity date(s); |
• | the date(s) on which the principal of the debt securities will be payable or the method used to determine or extend such date(s); |
• | interest rate(s) or the method for determining the interest rate(s); |
• | dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable; |
• | redemption (including upon a “change of control”) or early repayment provisions; |
• | the provision of a sinking fund, if any, for the debt securities; |
• | authorized denominations; |
• | form; |
• | amount of discount or premium, if any, with which such securities will be issued; |
• | whether such securities will be issued in whole or in part in the form of one or more global securities; |
• | identity of the depositary for global securities; |
• | whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto; |
• | the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities; |
• | any covenants applicable to the particular debt securities being issued; |
• | any defaults and events of default applicable to the particular debt securities being issued; |
• | currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, such securities will be payable; |
• | time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can select the payment currency; |
• | securities exchange(s) on which the securities will be listed, if any; |
• | whether any underwriter(s) will act as market maker(s) for the securities; |
• | extent to which a secondary market for the securities is expected to develop; |
• | additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium and interest with respect to such securities to be due and payable; |
• | provisions relating to covenant defeasance and legal defeasance; |
• | provisions relating to satisfaction and discharge of the indenture; |
• | provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; |
• | the name of the trustee, the nature of any material relationship the trustee may have with us or any of our affiliates, and the percentage of debt securities of the class necessary to require the trustee to take action; |
• | additional terms not inconsistent with the provisions of the indenture. |
• | the designation of the series; |
• | the number of shares of the series; |
• | the voting rights, if any, of the holders of the series; and |
• | the preferences and relative, participating, optional or other special rights, if any, of the series, and any qualifications, limitations or restrictions applicable to such rights. |
• | the designation of the shares and the number of shares that constitute the series; |
• | the dividend rate (or the method of calculation thereof), if any, on the shares of the series and the priority as to payment of dividends with respect to other classes or series of our capital stock and the payment date of dividends; |
• | the dividend periods (or the method of calculation thereof); |
• | the date from which dividends on the preferred stock shall accumulate, if applicable; |
• | the voting rights of the shares; |
• | the liquidation preference and the priority as to payment of the liquidation preference with respect to other classes or series of our capital stock and any other rights of the shares of the series upon our liquidation or winding-up; |
• | whether the preferred stock will rank senior or junior to or on a parity with any other class or series of preferred stock; |
• | whether or not and on what terms the shares of the series will be subject to redemption or repurchase at our option; |
• | whether and on what terms the shares of the series will be convertible into or exchangeable for other securities; |
• | the provision of a sinking fund, if any, for the preferred stock; |
• | whether the shares of the series of preferred stock will be listed on a securities exchange; |
• | whether interests in the preferred stock will be represented by depositary shares; |
• | the transfer agent for the series of preferred stock; |
• | any special United States federal income tax considerations applicable to the series; and |
• | any other preferences and rights and any qualifications, limitations or restrictions of the preferences and rights of the series. |
• | the title of such rights; |
• | the securities for which such rights are exercisable; |
• | the exercise price for such rights; |
• | the number of such rights issued to each shareholder; |
• | the extent to which such rights are transferable; |
• | if applicable, a discussion of the material United States federal income tax considerations applicable to the issuance or exercise of such rights; |
• | the date on which the right to exercise such rights shall commence, and the date on which such rights shall expire (subject to any extension); |
• | the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities; |
• | if applicable, the material terms of any standby underwriting or other purchase arrangement that we may enter into in connection with the rights offering; and |
• | any other terms of such rights, including terms, procedures and limitations relating to the exchange and exercise of such rights. |
• | the title of the warrants; |
• | the aggregate number of the warrants; |
• | the number and type of securities purchasable upon exercise of the warrants; |
• | the designation and terms of the securities, if any, with which the warrants are issued and the number of the warrants issued with each such offered security; |
• | the date, if any, on and after which the warrants and the related securities will be separately transferable; |
• | the price at which each security purchasable upon exercise of the warrants may be purchased and any provisions for changes to or adjustments to such price; |
• | the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
• | the minimum or maximum amount of the warrants which may be exercised at any one time; |
• | any circumstances that will cause the warrants to be deemed to be automatically exercised; |
• | the exchanges, if any, on which such warrants may be listed; and |
• | any other material terms of the warrants. |
• | the terms of the units and of the constituent securities comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately; |
• | a description of the terms of any unit agreement governing the units; and |
• | a description of the provisions for the payment, settlement, transfer or exchange of the units. |
• | the price of the securities or other property subject to the purchase contracts (which may be determined by reference to a specific formula described in the purchase contracts); |
• | whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase contract and one or more of our other securities or securities of an unaffiliated entity, including U.S. Treasury securities, securing the holder’s obligations under the purchase contract; |
• | any requirement for us to make periodic payments to holders or vice versa, and whether the payments are unsecured or pre-funded; |
• | any provisions relating to any security provided for the purchase contracts; |
• | whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts; |
• | whether the purchase contracts are to be prepaid or not; |
• | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract; |
• | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; |
• | a discussion of certain United States federal income tax considerations applicable to the purchase contracts; |
• | whether the purchase contracts will be issued in fully registered or global form; and |
• | any other terms of the purchase contracts and any securities subject to such purchase contracts. |
• | at a fixed price or prices, which may be changed; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; or |
• | at negotiated prices. |
• | our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on February 24, 2021; |
• | our quarterly report on Form 10-Q for the quarter ended March 31, 2021, filed with the SEC on May 5, 2021; |
• | our current reports on Form 8-K filed with the SEC on March 12, 2021, March 22, 2021, May 13, 2021, and June 1, 2021; and |
• | the description of our common stock included in Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019 filed with the Commission on February 27, 2020. |
Item 14. | Other Expenses of Issuance and Distribution |
Item | | | Amount |
Securities and Exchange Commission Registration Fee | | | * |
Legal Fees and Expenses | | | ** |
Printing and Related Expenses | | | ** |
Accounting Fees and Expenses | | | ** |
Total | | | ** |
* | Applicable SEC registration fees have been deferred in accordance with Rules 456(b) and 457(r) of the Securities Act of 1933 and are not estimable at this time. |
** | These fees and expenses payable in connection with the issuance and distribution of the securities registered hereby cannot be estimated at this time as they are calculated based on the securities offered and the number of issuances. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement, an amendment to this registration statement, a Rule 424 filing or a Current Report on Form 8-K in connection with an offering of securities hereunder. |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
Item 17. | Undertakings |
1.1 | | | Form(s) of Underwriting Agreement with respect to Debt Securities.* |
| | ||
1.2 | | | Form of Underwriting Agreement with respect to Preferred Stock.* |
| | ||
1.3 | | | Form of Underwriting Agreement with respect to Common Stock.* |
| | ||
| | Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 15, 2014). | |
| | ||
| | Articles of Amendment of Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 17, 2015). | |
| | ||
| | Articles of Amendment of Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 15, 2016). | |
| | ||
| | Articles of Amendment of Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 2016). | |
| | ||
| | Articles of Amendment of Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 4, 2017). | |
| | ||
| | Articles of Amendment to Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited dated July 15, 2020 (incorporated by reference to Genco Shipping & Trading Limited’s Report on Form 8-K, filed with the Securities and Exchange Commission on July 15, 2020). | |
| | ||
| | Articles of Amendment to Second Amended and Restated Articles of Incorporation of Genco Shipping & Trading Limited, dated May 13, 2021 (incorporated by reference to Genco Shipping & Trading Limited’s Report on Form 8-K, filed with the Securities and Exchange Commission on May 13, 2021). | |
| | ||
| | Amended and Restated Bylaws of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 15, 2014). | |
| | ||
| | Amendment to Amended and Restated By-Laws of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 5, 2018). | |
| | ||
| | Second Amendment to Amended and Restated By-Laws, dated July 15, 2020 (incorporated by reference to Genco Shipping & Trading Limited’s Report on Form 8-K, filed with the Securities and Exchange Commission on July 15, 2020). | |
| | ||
| | Third Amendment to Amended and Restated By-laws, dated January 11, 2021(incorporated by reference to Genco Shipping & Trading Limited’s Report on Form 8-K, filed with the Securities and Exchange Commission on January 11, 2021). | |
| |
| | Form of Indenture. | |
| | ||
4.2 | | | Form(s) of Debt Securities.* |
| | ||
| | Specimen Stock Certificate of Genco Shipping & Trading Limited (incorporated by reference to Genco Shipping & Trading Limited’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 15, 2014). | |
| | ||
4.4 | | | Certificate of Designation of Preferred Stock.* |
| | ||
4.5 | | | Form of Preferred Stock Certificate.* |
| | ||
4.6 | | | Form of Warrant Agreement (including form of warrant).* |
| | ||
4.7 | | | Form of Unit Agreement (including form of unit certificate).* |
| | ||
4.8 | | | Form of Deposit Agreement* |
| | ||
4.9 | | | Form of Depositary Receipt* |
| | ||
4.10 | | | Form of Purchase Contract (including form of related security certificate)* |
| | ||
| | Opinion of Reeder & Simpson P.C., Marshall Islands counsel to Genco, as to the legality of securities being registered. | |
| | ||
| | Opinion of Kramer Levin Naftalis & Frankel LLP, U.S. counsel to Genco, as to the legality of securities being registered. | |
| | ||
| | Consent of Reeder & Simpson P.C. (included as part of Exhibit 5.1). | |
| | ||
| | Consent of Kramer Levin Naftalis & Frankel LLP (included as part of Exhibit 5.2). | |
| | ||
| | Consent of Deloitte & Touche LLP | |
| | ||
| | Power of attorney (included on signature page). | |
| | ||
| | Statement of Eligibility of Trustee on Form T-1. |
* | To be filed, if necessary, by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities registered hereunder. |
| | GENCO SHIPPING & TRADING LIMITED | ||||
| | | | |||
| | By: | | | /s/ John C. Wobensmith | |
| | | | John C. Wobensmith, Chief Executive Officer and President |
Signature | | | Title |
| | ||
| | ||
/s/ John C. Wobensmith | | | Chief Executive Officer, President, and Director (Principal Executive Officer) |
John C. Wobensmith | | ||
| | ||
/s/ Apostolos D. Zafolias | | | Chief Financial Officer (Principal Financial Officer) |
Apostolos D. Zafolias | | ||
| | ||
/s/ Joseph Adamo | | | Chief Accounting Officer (Principal Accounting Officer) |
Joseph Adamo | | ||
| | ||
/s/ James G. Dolphin | | | Chairman of the Board and Director |
James G. Dolphin | | ||
| | ||
/s/ Kathleen C. Haines | | | Director |
Kathleen C. Haines | | | |
| | ||
/s/ Basil G. Mavroleon | | | Director |
Basil G. Mavroleon | | | |
| | ||
/s/ Karin Y. Orsel | | | Director |
Karin Y. Orsel | | | |
| | ||
/s/ Arthur L. Regan | | | Director |
Arthur L. Regan | | | |
| | ||
/s/ Bao D. Truong | | | Director |
Bao D. Truong | | |
Trust Indenture
Act Section
|
Indenture Section
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N.A.
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.10
|
|
(c)
|
N.A.
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N.A.
|
|
312(a)
|
2.06
|
|
(b)
|
11.03
|
|
(c)
|
11.03
|
|
313(a)
|
7.06
|
|
(b)(1)
|
N.A.
|
|
(b)(2)
|
7.06; 7.07
|
|
(c)
|
7.06; 11.02
|
|
(d)
|
7.06
|
|
314(a)
|
4.03; 11.02
|
|
(b)
|
N.A.
|
|
(c)(1)
|
11.04
|
|
(c)(2)
|
11.04
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
11.05
|
|
Trust Indenture
Act Section
|
Indenture Section
|
|
(f)
|
N.A.
|
|
315(a)
|
7.01
|
|
(b)
|
7.05; 11.02
|
|
(c)
|
7.01
|
|
(d)
|
7.01
|
|
(e)
|
6.11
|
|
316(a) (last sentence)
|
2.10
|
|
(a)(1)(A)
|
6.05
|
|
(a)(1)(B)
|
6.04
|
|
(a)(2)
|
N.A.
|
|
(b)
|
6.07
|
|
(c)
|
2.13
|
|
317(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
(b)
|
2.05
|
|
318(a)
|
11.01
|
|
(b)
|
N.A.
|
|
(c)
|
11.01
|
*
|
This Cross-Reference Table is not part of this Indenture.
|
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
|
Section 1.01
|
Definitions.
|
1
|
Section 1.02
|
Other Definitions
|
5
|
Section 1.03
|
Incorporation by Reference of Trust Indenture Act
|
5
|
Section 1.04
|
Rules of Construction.
|
6
|
ARTICLE 2. THE NOTES
|
6
|
|
Section 2.01
|
Issuable in Series.
|
6
|
Section 2.02
|
Establishment of Terms of Series of Notes.
|
6
|
Section 2.03
|
Execution and Authentication.
|
8
|
Section 2.04
|
Registrar and Paying Agent.
|
9
|
Section 2.05
|
Paying Agent to Hold Money in Trust.
|
9
|
Section 2.06
|
Holder Lists.
|
10
|
Section 2.07
|
Transfer and Exchange.
|
10
|
Section 2.08
|
Replacement Notes.
|
10
|
Section 2.09
|
Outstanding Notes.
|
10
|
Section 2.10
|
Treasury Notes.
|
11
|
Section 2.11
|
Temporary Notes.
|
11
|
Section 2.12
|
Cancellation.
|
11
|
Section 2.13
|
Defaulted Interest.
|
11
|
Section 2.14
|
Global Notes.
|
11
|
Section 2.15
|
CUSIP Number.
|
13
|
ARTICLE 3. REDEMPTION AND PREPAYMENT
|
13
|
|
Section 3.01
|
Notice to Trustee.
|
13
|
Section 3.02
|
Selection of Notes to Be Redeemed.
|
13
|
Section 3.03
|
Notice of Redemption.
|
14
|
Section 3.04
|
Effect of Notice of Redemption.
|
14
|
Section 3.05
|
Deposit of Redemption Price.
|
14
|
Section 3.06
|
Notes Redeemed in Part.
|
15
|
ARTICLE 4. COVENANTS
|
15
|
|
Section 4.01
|
Payment of Principal and Interest.
|
15
|
Section 4.02
|
Maintenance of Office or Agency.
|
15
|
Section 4.03
|
Reports.
|
15
|
Section 4.04
|
Compliance Certificate.
|
16
|
Section 4.05
|
Taxes.
|
16
|
Section 4.06
|
Stay, Extension and Usury Laws.
|
17
|
Section 4.07
|
Corporate Existence.
|
17
|
ARTICLE 5. SUCCESSORS
|
17
|
|
Section 5.01
|
Merger, Consolidation or Sale of Assets.
|
17
|
Section 5.02
|
Successor Person Substituted.
|
18
|
ARTICLE 6. DEFAULTS AND REMEDIES
|
18
|
|
Section 6.01
|
Events of Default.
|
18
|
Section 6.02
|
Acceleration.
|
19
|
Section 6.03
|
Other Remedies.
|
19
|
Section 6.04
|
Waiver of Past Defaults.
|
20
|
Section 6.05
|
Control by Majority.
|
20
|
Section 6.06
|
Limitation on Suits.
|
20
|
Section 6.07
|
Rights of Holders of Notes to Receive Payment.
|
20
|
Section 6.08
|
Collection Suit by Trustee.
|
20
|
Section 6.09
|
Trustee May File Proofs of Claim.
|
21
|
Section 6.10
|
Priorities.
|
21
|
Section 6.11
|
Undertaking for Costs.
|
21
|
ARTICLE 7. TRUSTEE
|
22
|
|
Section 7.01
|
Duties of Trustee.
|
22
|
Section 7.02
|
Rights of Trustee.
|
22
|
Section 7.03
|
Individual Rights of Trustee.
|
24
|
Section 7.04
|
Trustee’s Disclaimer.
|
24
|
Section 7.05
|
Notice of Defaults.
|
24
|
Section 7.06
|
Reports by Trustee to Holders of the Notes.
|
24
|
Section 7.07
|
Compensation and Indemnity.
|
24
|
Section 7.08
|
Replacement of Trustee.
|
25
|
Section 7.09
|
Successor Trustee by Merger, Etc.
|
26
|
Section 7.10
|
Eligibility; Disqualification.
|
26
|
Section 7.11
|
Preferential Collection of Claims Against Company.
|
26
|
Section 7.12
|
Trustee’s Application for Instructions from the Company.
|
27
|
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
27
|
|
Section 8.01
|
Option to Effect Legal Defeasance or Covenant Defeasance.
|
27
|
Section 8.02
|
Legal Defeasance and Discharge.
|
27
|
Section 8.03
|
Covenant Defeasance.
|
28
|
Section 8.04
|
Conditions to Legal or Covenant Defeasance.
|
28
|
Section 8.05
|
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
|
29
|
Section 8.06
|
Repayment to Company.
|
29
|
Section 8.07
|
Reinstatement.
|
30
|
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
|
30
|
|
Section 9.01
|
Without Consent of Holders of Notes.
|
30
|
Section 9.02
|
With Consent of Holders of Notes.
|
31
|
Section 9.03
|
Compliance with Trust Indenture Act.
|
31
|
Section 9.04
|
Revocation and Effect of Consents.
|
32
|
Section 9.05
|
Notation on or Exchange of Notes.
|
32
|
Section 9.06
|
Trustee Protected.
|
32
|
Section 9.07
|
Notice of Supplemental Indenture.
|
32
|
ARTICLE 10. SATISFACTION AND DISCHARGE
|
32
|
|
Section 10.01
|
Satisfaction and Discharge.
|
32
|
Section 10.02
|
Application of Trust Money.
|
33
|
ARTICLE 11. MISCELLANEOUS
|
33
|
|
Section 11.01
|
Trust Indenture Act Controls.
|
33
|
Section 11.02
|
Notices.
|
33
|
Section 11.03
|
Communication by Holders of Notes with Other Holders of Notes.
|
35
|
Section 11.04
|
Certificate and Opinion as to Conditions Precedent.
|
35
|
Section 11.05
|
Statements Required in Certificate.
|
35
|
Section 11.06
|
Rules by Trustee and Agents.
|
35
|
Section 11.07
|
Calculation of Foreign Currency Amounts.
|
35
|
Section 11.08
|
Legal Holidays.
|
36
|
Section 11.09
|
No Personal Liability of Directors, Officers, Employees and Stockholders.
|
36
|
Section 11.10
|
Governing Law.
|
36
|
Section 11.11
|
No Adverse Interpretation of Other Agreements.
|
36
|
Section 11.12
|
Successors.
|
36
|
Section 11.13
|
Severability.
|
36
|
Section 11.14
|
Counterpart Originals.
|
36
|
Section 11.15
|
Table of Contents, Headings, Etc.
|
37
|
Section 11.16
|
Foreign Account Tax Compliance Act (FATCA).
|
37
|
Section 11.17
|
U.S.A. Patriot Act.
|
37
|
ARTICLE 12. SINKING FUNDS
|
37
|
|
Section 12.01
|
Applicability of Article.
|
37
|
Section 12.02
|
Satisfaction of Sinking Fund Payments with Notes.
|
38
|
Section 12.03
|
Redemption of Notes for Sinking Fund.
|
38
|
Section 1.01 |
Definitions.
|
(1) |
with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
|
(2) |
with respect to a partnership, the Board of Directors of the general partner of the partnership;
|
(3) |
with respect to a limited liability company, the managing member or members or any controlling committee of managing members or managers thereof; and
|
(4) |
with respect to any other Person, the board or committee of such Person serving a similar function.
|
(1) |
in the case of a corporation, corporate stock;
|
(2) |
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents, however designated, of corporate stock;
|
(3) |
in the case of a partnership or limited liability company, partnership or membership interests, whether general or limited; and
|
(4) |
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
|
(1) |
interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and
|
(2) |
other agreements or arrangements in respect of such Person’s exposure to fluctuations in commodity prices, currency exchange rates or interest rates and, in each case, not entered into for speculative purposes.
|
(1) |
in respect of borrowed money;
|
(2) |
evidenced by bonds, notes, debentures or similar instruments or letters of credit, or reimbursement agreements in respect thereof;
|
(3) |
in respect of banker’s acceptances;
|
(4) |
representing Capital Lease Obligations;
|
(5) |
representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or
|
(6) |
representing any Hedging Obligations,
|
(1) |
the accreted value of the Indebtedness, in the case of any Indebtedness that does not require the current payment of interest; and
|
(2) |
principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.
|
(1) |
any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled, without regard to the occurrence of any contingency, to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person; and
|
(2) |
partnership (a) the sole general partner or the managing general partner of which is such Person or an entity described in clause (1) and related to such Person or (b) the only general partners of which are such Person or one or more
entities described in clause (1) and related to such Person, or any combination thereof.
|
Section 1.02 |
Other Definitions
|
Term
|
Defined in
Section
|
|
“Authentication Order”
|
2.03
|
|
“Covenant Defeasance”
|
8.03
|
|
“Event of Default”
|
6.01
|
|
“Legal Defeasance”
|
8.02
|
|
“Mandatory Sinking Fund Payment”
|
12.01
|
|
“Optional Sinking Fund Payment”
|
12.01
|
|
“Paying Agent”
|
2.04
|
|
“Registrar”
|
2.04
|
Section 1.03 |
Incorporation by Reference of Trust Indenture Act
|
Section 1.04 |
Rules of Construction..
|
(1) |
a term has the meaning assigned to it;
|
(2) |
an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;
|
(3) |
“or” is not exclusive;
|
(4) |
words in the singular include the plural, and in the plural include the singular;
|
(5) |
the words “hereof,” “herein,” “hereunder” and similar words refer to this Indenture as a whole and not to any particular provisions of this Indenture; and any subsection, Section, Article and Exhibit references are to this Indenture
unless otherwise specified;
|
(6) |
“including” means including without limitation;
|
(7) |
provisions apply to successive events and transactions; and
|
(8) |
references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time.
|
Section 2.01 |
Issuable in Series.
|
Section 2.02 |
Establishment of Terms of Series of Notes.
|
Section 2.03 |
Execution and Authentication.
|
Section 2.04 |
Registrar and Paying Agent.
|
Section 2.05 |
Paying Agent to Hold Money in Trust.
|
Section 2.06 |
Holder Lists.
|
Section 2.07 |
Transfer and Exchange.
|
Section 2.08 |
Replacement Notes.
|
Section 2.09 |
Outstanding Notes.
|
Section 2.10 |
Treasury Notes.
|
Section 2.11 |
Temporary Notes.
|
Section 2.12 |
Cancellation.
|
Section 2.13 |
Defaulted Interest.
|
Section 2.14 |
Global Notes.
|
Section 2.15 |
CUSIP Number.
|
Section 3.01 |
Notice to Trustee.
|
Section 3.02 |
Selection of Notes to Be Redeemed.
|
Section 3.03 |
Notice of Redemption.
|
(1) |
the redemption date;
|
(2) |
the redemption price;
|
(3) |
the name and address of the Paying Agent;
|
(4) |
Notes of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
|
(5) |
that, if applicable, interest on Notes of the Series called for redemption ceases to accrue on and after the redemption date;
|
(6) |
the “CUSIP”, “ISIN” or other similar number, if any;
|
(7) |
that the redemption is for a sinking fund, if such is the case; and
|
(8) |
any other information as may be required by the terms of the particular Series of the Notes or the Notes of a Series being redeemed.
|
Section 3.04 |
Effect of Notice of Redemption.
|
Section 3.05 |
Deposit of Redemption Price.
|
Section 3.06 |
Notes Redeemed in Part.
|
Section 4.01 |
Payment of Principal and Interest.
|
Section 4.02 |
Maintenance of Office or Agency.
|
Section 4.03 |
Reports.
|
(1) |
all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports; and
|
(2) |
all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
|
Section 4.04 |
Compliance Certificate.
|
Section 4.05 |
Taxes.
|
Section 4.06 |
Stay, Extension and Usury Laws.
|
Section 4.07 |
Corporate Existence.
|
Section 5.01 |
Merger, Consolidation or Sale of Assets.
|
Section 5.02 |
Successor Person Substituted.
|
Section 6.01 |
Events of Default.
|
(1) |
default in the payment of any interest on any Note of that Series when it becomes due and payable, and continuance of such default for a period of 30 days; or
|
(2) |
default in payment when due of the principal of, or premium, if any, on any Note of that Series; or
|
(3) |
default in the deposit of any sinking fund payment, when and as due in respect of any Note of that Series; or
|
(4) |
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Notes other than that
Series), which default continues uncured for a period of 60 days after written notice given by the Trustees for Notes of that Series or Holders of not less than 25% in principal amount of the outstanding Notes of that Series; or
|
(5) |
default under a mortgage, indenture or instrument under such conditions as may be provided pursuant to Section 2.02(w) in respect of Notes of that Series; or
|
(6) |
one or more judgments for the payment of money in an aggregate amount in excess of $50.0 million (excluding therefrom any amount reasonably expected to be covered by insurance) shall be rendered against the Company, any Subsidiary or any
combination thereof and the same shall not have been paid, discharged or stayed for a period of 60 days after such judgment became final and nonappealable; or
|
(7) |
the Company pursuant to or within the meaning of any Bankruptcy Law:
|
(9) |
any other Event of Default provided with respect to Notes of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance with Section 2.02.
|
Section 6.02 |
Acceleration.
|
Section 6.03 |
Other Remedies.
|
Section 6.04 |
Waiver of Past Defaults.
|
Section 6.05 |
Control by Majority.
|
Section 6.06 |
Limitation on Suits.
|
Section 6.07 |
Rights of Holders of Notes to Receive Payment.
|
Section 6.08 |
Collection Suit by Trustee.
|
Section 6.09 |
Trustee May File Proofs of Claim.
|
Section 6.10 |
Priorities.
|
Section 6.11 |
Undertaking for Costs.
|
Section 7.01 |
Duties of Trustee.
|
Section 7.02 |
Rights of Trustee.
|
Section 7.03 | Individual Rights of Trustee. |
Section 7.04 |
Trustee’s Disclaimer.
|
Section 7.05 |
Notice of Defaults.
|
Section 7.06 |
Reports by Trustee to Holders of the Notes.
|
Section 7.07 |
Compensation and Indemnity.
|
Section 7.08 |
Replacement of Trustee.
|
Section 7.09 |
Successor Trustee by Merger, Etc.
|
Section 7.10 |
Eligibility; Disqualification.
|
Section 7.11 |
Preferential Collection of Claims Against Company.
|
Section 7.12 |
Trustee’s Application for Instructions from the Company.
|
Section 8.01 |
Option to Effect Legal Defeasance or Covenant Defeasance.
|
Section 8.02 |
Legal Defeasance and Discharge.
|
Section 8.03 |
Covenant Defeasance.
|
Section 8.04 |
Conditions to Legal or Covenant Defeasance.
|
Section 8.05 |
Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
|
Section 8.06 |
Repayment to Company.
|
Section 8.07 |
Reinstatement.
|
Section 9.01 |
Without Consent of Holders of Notes.
|
(1) |
to cure any ambiguity, defect or inconsistency;
|
(2) |
to provide for uncertificated Notes in addition to or in place of certificated Notes;
|
(3) |
to provide for the assumption of the Company’s obligations to the Holders of the Notes of a given Series by a successor to the Company pursuant to Article 5 hereof;
|
(4) |
to make any change that would provide any additional rights or benefits to the Holders of Notes of a given Series or, as determined by the Company, that does not adversely affect the legal rights hereunder of any Holder of a Note of such
Series in any material respect;
|
(5) |
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
|
(6) |
to provide for the issuance of and establish the form and terms and conditions of Notes of any Series as permitted by this Indenture;
|
(7) |
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes 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; or
|
(8) |
to comply with the rules of any securities exchange or automated quotation system on which the Notes of such Series may be listed or traded.
|
Section 9.02 |
With Consent of Holders of Notes.
|
Section 9.03 |
Compliance with Trust Indenture Act.
|
Section 9.04 |
Revocation and Effect of Consents.
|
Section 9.05 |
Notation on or Exchange of Notes.
|
Section 9.06 |
Trustee Protected.
|
Section 9.07 |
Notice of Supplemental Indenture.
|
Section 10.01 |
Satisfaction and Discharge.
|
(1) |
either:
|
(2) |
no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other
instrument to which the Company is a party or by which the Company is bound;
|
(3) |
the Company has paid or caused to be paid all sums payable by it under this Indenture; and
|
(4) |
the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
|
Section 10.02 |
Application of Trust Money.
|
Section 11.01 |
Trust Indenture Act Controls.
|
Section 11.02 |
Notices.
|
Section 11.03 |
Communication by Holders of Notes with Other Holders of Notes.
|
Section 11.04 |
Certificate and Opinion as to Conditions Precedent.
|
Section 11.05 |
Statements Required in Certificate.
|
Section 11.06 |
Rules by Trustee and Agents.
|
Section 11.07 |
Calculation of Foreign Currency Amounts.
|
Section 11.08 |
Legal Holidays.
|
Section 11.09 |
No Personal Liability of Directors, Officers, Employees and Stockholders.
|
Section 11.10 |
Governing Law.
|
Section 11.11 |
No Adverse Interpretation of Other Agreements.
|
Section 11.12 |
Successors.
|
Section 11.13 |
Severability.
|
Section 11.14 |
Counterpart Originals.
|
Section 11.15 |
Table of Contents, Headings, Etc.
|
Section 11.16 |
Foreign Account Tax Compliance Act (FATCA).
|
Section 11.17 |
U.S.A. Patriot Act.
|
Section 11.18 |
Sanctions Representations.
|
Section 12.01 |
Applicability of Article.
|
Section 12.02 |
Satisfaction of Sinking Fund Payments with Notes.
|
Section 12.03 |
Redemption of Notes for Sinking Fund.
|
|
GENCO SHIPPING & TRADING LIMITED
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
[ ], as Trustee
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
P.O. Box 601
|
RMI Tel.: +692-625-3602
|
|
RRE Commercial Center
|
Honolulu Tel.: 808-352-0749
|
|
Majuro, MH 96960
|
Email:
|
dreeder.rmi@gmail.com |
Marshall Islands
|
r.simpson@simpson.gr |
I.
|
the Registration Statement;
|
II.
|
the form of Indenture, which is governed by the laws of the State of New York; and
|
III.
|
the organizational and governing documents of the Company.
|
![]() |
1177 Avenue of the Americas
New York, NY 10036 212.715.9100 |
![]() |
1. |
the Registration Statement; and
|
2. |
the form of Indenture attached as an exhibit to the Registration Statement.
|
|
KRAMER LEVIN NAFTALIS & FRANKEL LLP
|
NEW YORK | SILICON VALLEY | PARIS
|
Genco Shipping & Trading Limited
|
![]() |
New York
(Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382
(I.R.S. employer identification no.) |
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) |
10286
(Zip code) |
Republic of the Marshall Islands (State or other jurisdiction of
incorporation or organization) |
98-0439758
(I.R.S. employer identification no.) |
299 Park Avenue, 12th Floor
New York, New York (Address of principal executive offices) |
10171 (Zip code) |
1. |
General information. Furnish the following information as to the Trustee:
|
(a) |
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Superintendent of the Department of Financial Services of the State of New York
|
One State Street, New York, N.Y.
10004-1417, and Albany, N.Y. 12223
|
Federal Reserve Bank of New York
|
33 Liberty Street, New York, N.Y. 10045
|
Federal Deposit Insurance Corporation
|
550 17th Street, NW
Washington, D.C. 20429 |
The Clearing House Association L.L.C.
|
100 Broad Street
New York, N.Y. 10004 |
(b) |
Whether it is authorized to exercise corporate trust powers.
|
2. |
Affiliations with Obligor.
|
16. |
List of Exhibits.
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No.
333-152735).
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
|
THE BANK OF NEW YORK MELLON
|
|
|
|
|
|
By:
|
/s/ Francine Kincaid
|
|
Name:
|
Francine Kincaid
|
|
Title:
|
Vice President
|
ASSETS
|
Dollar amounts in thousands
|
|||
Cash and balances due from depository institutions:
|
||||
Noninterest-bearing balances and currency and coin
|
5,024,000
|
|||
Interest-bearing balances
|
145,894,000
|
|||
Securities:
|
||||
Held-to-maturity securities
|
48,027,000
|
|||
Available-for-sale debt securities
|
107,057,000
|
|||
Equity securities with readily determinable fair values not held for trading
|
65,000
|
|||
Federal funds sold and securities purchased under agreements to resell:
|
||||
Federal funds sold in domestic offices
|
0
|
|||
Securities purchased under agreements to resell
|
12,587,000
|
|||
Loans and lease financing receivables:
|
||||
Loans and leases held for sale
|
0
|
|||
Loans and leases held for investment
|
29,053,000
|
|||
LESS: Allowance for loan and lease losses
|
289,000
|
|||
Loans and leases held for investment, net of allowance
|
28,764,000
|
|||
Trading assets
|
9,403,000
|
|||
Premises and fixed assets (including capitalized leases)
|
3,016,000
|
|||
Other real estate owned
|
1,000
|
|||
Investments in unconsolidated subsidiaries and associated companies
|
1,625,000
|
|||
Direct and indirect investments in real estate ventures
|
0
|
|||
Intangible assets
|
6,974,000
|
|||
Other assets
|
15,502,000
|
|||
Total assets
|
383,939,000
|
LIABILITIES
|
||||
Deposits:
|
||||
In domestic offices
|
216,878,000
|
|||
Noninterest-bearing
|
89,989,000
|
|||
Interest-bearing
|
126,889,000
|
|||
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
120,977,000
|
|||
Noninterest-bearing
|
9,599,000
|
|||
Interest-bearing
|
111,378,000
|
|||
Federal funds purchased and securities sold under agreements to repurchase:
|
||||
Federal funds purchased in domestic offices
|
0
|
|||
Securities sold under agreements to repurchase
|
6,694,000
|
|||
Trading liabilities
|
2,444,000
|
|||
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)
|
320,000
|
|||
Not applicable
|
||||
Not applicable
|
||||
Subordinated notes and debentures
|
0
|
|||
Other liabilities
|
7,431,000
|
|||
Total liabilities
|
354,744,000
|
|||
EQUITY CAPITAL
|
||||
Perpetual preferred stock and related surplus
|
0
|
|||
Common stock
|
1,135,000
|
|||
Surplus (exclude all surplus related to preferred stock)
|
11,650,000
|
|||
Retained earnings
|
17,053,000
|
|||
Accumulated other comprehensive income
|
-643,000
|
|||
Other equity capital components
|
0
|
|||
Total bank equity capital
|
29,195,000
|
|||
Noncontrolling (minority) interests in consolidated subsidiaries
|
0
|
|||
Total equity capital
|
29,195,000
|
|||
Total liabilities and equity capital
|
383,939,000
|
Thomas P. Gibbons
Samuel C. Scott
Joseph J. Echevarria
|
Directors
|
'0 0V]P>7)I9VAT($AE=VQE='0@
M4&%C:V%R9"P@,C P- !S9C,R !#$0 7?___S)@ !Y0 /V/___[
MH?___:( /; # =?_; $, 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$!
M 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! ?_; $,! 0$!
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