Exhibit 4.1


 




 


 





DANAOS CORPORATION,


 


the Subsidiary Guarantors named herein


 


and


 


THE BANK OF NEW YORK,


 


Trustee


 


INDENTURE


 


Dated as of                     
     , 2007


 


Senior Debt Securities


 




 





 

















 


Danaos
Corporation


Certain
Sections of this Indenture relating to


Sections
3.10 through 3.18, inclusive, of the


Trust
Indenture Act of 1939:


 


	
  Trust Indenture

  Act Section

  	
   

  	
   

  	
  Indenture Section

  
	
  § 310

  	
  (a)(1)

  	
   

  	
  6.10

  
	
   

  	
  (a)(2)

  	
   

  	
  6.10

  
	
   

  	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(5)

  	
   

  	
  6.10

  
	
   

  	
  (b)

  	
   

  	
  6.08

  
	
   

  	
   

  	
   

  	
  6.10

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  § 311

  	
  (a)

  	
   

  	
  6.11

  
	
   

  	
  (b)

  	
   

  	
  6.11

  
	
   

  	
  (c)

  	
   

  	
  Not Applicable

  
	
  § 312

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
   

  	
   

  	
  7.02

  
	
   

  	
  (b)

  	
   

  	
  7.02

  
	
   

  	
  (c)

  	
   

  	
  7.02

  
	
  § 313

  	
  (a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
   

  	
  7.03

  
	
   

  	
  (b)

  	
   

  	
  6.06

  
	
   

  	
   

  	
   

  	
  7.03

  
	
   

  	
  (c)

  	
   

  	
  6.06

  
	
   

  	
   

  	
   

  	
  7.03

  
	
   

  	
  (d)

  	
   

  	
  7.03

  
	
  § 314

  	
  (a)

  	
   

  	
  7.04

  
	
   

  	
  (a)(4)

  	
   

  	
  1.01

  
	
   

  	
   

  	
   

  	
  10.05

  
	
   

  	
  (b)

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
  10.2

  
	
   

  	
  (c)(2)

  	
   

  	
  10.2

  
	
   

  	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
  10.2

  
	
  § 315

  	
  (a)

  	
   

  	
  6.01

  
	
   

  	
  (b)

  	
   

  	
  6.05

  
	
   

  	
  (c)

  	
   

  	
  6.01

  
	
   

  	
  (d)

  	
   

  	
  6.01

  
	
   

  	
  (e)

  	
   

  	
  5.14

  
	
  § 316

  	
  (a)

  	
   

  	
  10.1

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  5.02

  
	
   

  	
   

  	
   

  	
  5.12

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
   

  	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
  5.08

  
	
   

  	
  (c)

  	
   

  	
  10.4

  
	
  § 317

  	
  (a)(1)

  	
   

  	
  5.03

  
	
   

  	
  (a)(2)

  	
   

  	
  5.04

  
	
   

  	
  (b)

  	
   

  	
  10.03

  
					



 


NOTE:    This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINITIONS AND OTHER PROVISIONS
  OF GENERAL APPLICATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Compliance Certificates and Opinions

  	
  8

  
	
  Section 1.03

  	
  Form of Documents Delivered to Trustee

  	
  9

  
	
  Section 1.04

  	
  No Adverse Interpretation of Other Agreements; Use
  of English Language

  	
  9

  
	
  Section 1.05

  	
  Acts of Holders; Record Dates

  	
  10

  
	
  Section 1.06

  	
  Notices, Etc., to Trustee, Company and Subsidiary
  Guarantors

  	
  12

  
	
  Section 1.07

  	
  Notice to Holders; Waiver

  	
  12

  
	
  Section 1.08

  	
  Conflict with Trust Indenture Act

  	
  12

  
	
  Section 1.09

  	
  Effect of Headings and Table of Contents

  	
  13

  
	
  Section 1.10

  	
  Successors and Assigns

  	
  13

  
	
  Section 1.11

  	
  Separability Clause

  	
  13

  
	
  Section 1.12

  	
  Benefits of Indenture

  	
  13

  
	
  Section 1.13

  	
  Governing Law

  	
  13

  
	
  Section 1.14

  	
  Legal Holidays

  	
  13

  
	
  Section 1.15

  	
  Consent to Service; Jurisdiction

  	
  14

  
	
  Section 1.16

  	
  Waiver of Jury Trial

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  SECURITY AND SUBSIDIARY
  GUARANTEE FORMS

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Forms Generally

  	
  14

  
	
  Section 2.02

  	
  Form of Face of Security

  	
  15

  
	
  Section 2.03

  	
  Form of Reverse of Security

  	
  16

  
	
  Section 2.04

  	
  Form of Legend for Global Securities

  	
  22

  
	
  Section 2.05

  	
  Form of Trustee’s Certificate of Authentication

  	
  22

  
	
  Section 2.06

  	
  Form of Guarantee

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  THE SECURITIES

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Amount Unlimited; Issuable in Series

  	
  25

  
	
  Section 3.02

  	
  Denominations

  	
  28

  
	
  Section 3.03

  	
  Execution, Authentication, Delivery and Dating

  	
  28

  
	
  Section 3.04

  	
  Temporary Securities

  	
  29

  
	
  Section 3.05

  	
  Registration, Registration of Transfer and Exchange

  	
  30

  
	
  Section 3.06

  	
  Mutilated, Destroyed, Lost and Stolen Securities

  	
  31

  
				



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.07

  	
  Payment of Interest; Interest Rights Preserved

  	
  32

  
	
  Section 3.08

  	
  Persons Deemed Owners

  	
  33

  
	
  Section 3.09

  	
  Cancellation

  	
  33

  
	
  Section 3.10

  	
  Computation of Interest

  	
  34

  
	
  Section 3.11

  	
  CUSIP Numbers

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  SATISFACTION AND DISCHARGE

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Satisfaction and Discharge of Indenture

  	
  34

  
	
  Section 4.02

  	
  Application of Trust Money

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  REMEDIES

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  35

  
	
  Section 5.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  37

  
	
  Section 5.03

  	
  Collection of Indebtedness and Suits for Enforcement
  by Trustee.

  	
  38

  
	
  Section 5.04

  	
  Trustee May File Proofs of Claim

  	
  38

  
	
  Section 5.05

  	
  Trustee May Enforce Claims Without Possession of
  Securities

  	
  39

  
	
  Section 5.06

  	
  Application of Money Collected

  	
  39

  
	
  Section 5.07

  	
  Limitation on Suits

  	
  39

  
	
  Section 5.08

  	
  Unconditional Right of Holders to Receive Principal,
  Premium and Interest and to Convert

  	
  40

  
	
  Section 5.09

  	
  Restoration of Rights and Remedies

  	
  40

  
	
  Section 5.10

  	
  Rights and Remedies Cumulative

  	
  40

  
	
  Section 5.11

  	
  Delay or Omission Not Waiver

  	
  41

  
	
  Section 5.12

  	
  Control by Holders

  	
  41

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  41

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  41

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  THE TRUSTEE

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Duties of Trustee

  	
  42

  
	
  Section 6.02

  	
  Rights of Trustee

  	
  43

  
	
  Section 6.03

  	
  Individual Rights of Trustee

  	
  44

  
	
  Section 6.04

  	
  Trustee’s Disclaimer

  	
  44

  
	
  Section 6.05

  	
  Notice of Default

  	
  44

  
				



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.06

  	
  Reports by Trustee to Holders

  	
  44

  
	
  Section 6.07

  	
  Compensation and Indemnity

  	
  45

  
	
  Section 6.08

  	
  Replacement of Trustee

  	
  46

  
	
  Section 6.09

  	
  Successor Trustee by Merger, Etc

  	
  47

  
	
  Section 6.10

  	
  Eligibility; Disqualification

  	
  47

  
	
  Section 6.11

  	
  Preferential Collection of Claims against Company

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  HOLDERS’ LISTS AND REPORTS BY
  TRUSTEE AND COMPANY

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Company to Furnish Trustee Names and Addresses of
  Holders

  	
  47

  
	
  Section 7.02

  	
  Preservation of Information; Communications to
  Holders

  	
  47

  
	
  Section 7.03

  	
  Reports by Trustee

  	
  48

  
	
  Section 7.04

  	
  Reports by Company

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  CONSOLIDATION, AMALGAMATION,
  CONVEYANCE, TRANSFER OR LEASE

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
  48

  
	
  Section 8.02

  	
  Amalgamations, Mergers, Consolidations and Certain
  Sales of Assets by Subsidiary Guarantors

  	
  49

  
	
  Section 8.03

  	
  Successor Corporation Substituted

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  SUPPLEMENTAL INDENTURES

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures Without Consent of Holders

  	
  50

  
	
  Section 9.02

  	
  Supplemental Indentures with Consent of Holders

  	
  52

  
	
  Section 9.03

  	
  Execution of Supplemental Indentures

  	
  53

  
	
  Section 9.04

  	
  Effect of Supplemental Indentures

  	
  53

  
	
  Section 9.05

  	
  Conformity with Trust Indenture Act

  	
  53

  
	
  Section 9.06

  	
  Reference in Securities to Supplemental Indentures

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  COVENANTS

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Payment of Securities

  	
  54

  
	
  Section 10.02

  	
  Maintenance of Office or Agency

  	
  54

  
	
  Section 10.03

  	
  Money for Securities Payments to Be Held in Trust

  	
  54

  
	
  Section 10.04

  	
  Corporate Existence

  	
  55

  
	
  Section 10.05

  	
  Compliance Certificate; Notice of Default

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
  REDEMPTION OF SECURITIES

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Applicability of Article

  	
  56

  
				



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.02

  	
  Election to Redeem; Notice to Trustee

  	
  56

  
	
  Section 11.03

  	
  Selection by Trustee of Securities to Be Redeemed

  	
  56

  
	
  Section 11.04

  	
  Notice of Redemption

  	
  57

  
	
  Section 11.05

  	
  Deposit of Redemption Price

  	
  58

  
	
  Section 11.06

  	
  Securities Payable on Redemption Date

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
  SINKING FUNDS

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Applicability of Article

  	
  58

  
	
  Section 12.02

  	
  Satisfaction of Sinking Fund Payments with
  Securities

  	
  59

  
	
  Section 12.03

  	
  Redemption of Securities for Sinking Fund

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Company’s Option to Effect Defeasance or Covenant
  Defeasance

  	
  59

  
	
  Section 13.02

  	
  Defeasance and Discharge

  	
  60

  
	
  Section 13.03

  	
  Covenant Defeasance

  	
  60

  
	
  Section 13.04

  	
  Conditions to Defeasance or Covenant Defeasance

  	
  61

  
	
  Section 13.05

  	
  Deposited Money and U.S. Government Obligations to be
  Held in Trust; Other Miscellaneous Provisions

  	
  62

  
	
  Section 13.06

  	
  Reinstatement

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV

  	
  SUBSIDIARY GUARANTEE

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Subsidiary Guarantee

  	
  63

  
	
  Section 14.02

  	
  Execution and Delivery of Subsidiary Guarantees

  	
  65

  
	
  Section 14.03

  	
  Subsidiary Guarantors May Consolidate, Etc., on
  Certain Terms

  	
  65

  
	
  Section 14.04

  	
  Release of Subsidiary Guarantors

  	
  65

  
	
  Section 14.05

  	
  Additional Subsidiary Guarantors

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XV

  	
  CONVERSION OF SECURITIES

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Applicability; Conversion Privilege and Conversion
  Price

  	
  66

  
	
  Section 15.02

  	
  Exercise of Conversion Price

  	
  67

  
	
  Section 15.03

  	
  Fractions of Shares

  	
  68

  
	
  Section 15.04

  	
  Adjustment of Conversion Price

  	
  68

  
	
  Section 15.05

  	
  Notice of Adjustments of Conversion Price

  	
  70

  
	
  Section 15.06

  	
  Notice of Certain Corporate Action

  	
  71

  
	
  Section 15.07

  	
  Company to Reserve Common Stock

  	
  72

  
				



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 15.08

  	
  Taxes on Conversions

  	
  72

  
	
  Section 15.09

  	
  Covenant as to Common Stock

  	
  72

  
	
  Section 15.10

  	
  Cancellation of Converted Securities

  	
  72

  
	
  Section 15.11

  	
  Provisions in Case of Consolidation, Merger or Sale
  of Assets

  	
  72

  
	
  Section 15.12

  	
  Responsibility of Trustee

  	
  73

  



 


v

















 


INDENTURE,
dated as of                     
     , 2007, among Danaos Corporation, a Marshall Islands
company (herein called the “Company”), having its principal office at 14 Akti
Kondyli, 185 45, Piraeus, Greece, each of the Subsidiary Guarantors named
herein and The Bank of New York, as trustee (herein called the “Trustee”).


 


RECITALS OF THE COMPANY AND SUBSIDIARY
GUARANTORS


 


The Company
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (herein called the “Securities”), to be issued in one
or more series as in this Indenture provided.


 


The Company,
directly or indirectly, owns beneficially all or substantially all of the
Capital Stock of the entities set forth on the signature page attached hereto
(the “Subsidiary Guarantors”); the Company and the Subsidiary Guarantors are
members of the same consolidated group of companies and are engaged in related
businesses; the Subsidiary Guarantors will derive direct and indirect economic
benefits from the issuance of the Securities; accordingly, each of the
Subsidiary Guarantors has duly authorized the execution and delivery of this
Indenture to provide for the Subsidiary Guarantee (as hereinafter defined) by
each of them with respect to the Securities as set forth in this Indenture.


 


All things
necessary to make this Indenture a valid and legally binding agreement of the
Company and the Subsidiary Guarantors, in accordance with its terms, have been
done.


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


For and in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:


 


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION


 


Section 1.01           Definitions.


 


For all
purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:


 


(1)           the terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular;


 


(2)           all other terms used herein
which are defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;


 


(3)           all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
United States generally accepted accounting 


 


1

















 


principles, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation;


 


(4)           the words “Article” and “Section”
refer to an Article and Section, respectively, of this Indenture;


 


(5)           the words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and


 


(6)           certain terms used principally
in Articles VI, X, XIII and XIV, are defined in those Articles.


 


“Act”, when
used with respect to any Holder, has the meaning specified in
Section 1.05.


 


“Add On
Securities” has the meaning specified in Section 3.01.


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.


 


“Bankruptcy
Code” has the meaning specified in Section 14.01.


 


“Bankruptcy
Law” means Title 11, U.S. Code or any similar Federal, state or foreign law for
the relief of debtors.


 


“Board of
Directors” means, with respect to the Company or a Subsidiary Guarantor, either
the board of directors of such Person or any duly authorized committee of that
board.


 


“Board
Resolution” means, with respect to the Company or a Subsidiary Guarantor, a
copy of a resolution certified by the Secretary or an Assistant Secretary of
such Person to have been duly adopted by its Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.


 


“Business Day”,
when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close.


 


“Capital Lease
Obligation” means, at any time any determination thereof is made, the amount of
the liability in respect of a capital lease that would at such time be so
required to be capitalized on the balance sheet in accordance with generally
accepted accounting principles.


 


“Capital Stock”,
as applied to the stock of any corporation, means the capital stock of every
class whether now or hereafter authorized, regardless of whether such capital
stock shall 


 


2

















 


be limited to a fixed sum or
percentage with respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.


 


“Commission”
means the U.S. Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.


 


“Common Stock”
includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company. However, subject to the provisions of
Section 3.01(18) and (21) and Section 15.11, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.


 


“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by its Chairman of the Board, a Vice Chairman of the Board, its
Chief Executive Officer, its President, its Chief Operating Officer or a Vice
President, and by its Chief Financial Officer, Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.


 


“Conversion
Agent” means the transfer agent for the Company’s Common Stock, which as of the
date hereof is American Stock Transfer & Trust Company, or such other
Person as the Company may name from time to time.


 


“Corporate
Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which
office as of the date hereof is located at 101 Barclay Street, 4-E, New York,
New York 10286, Attn.: Corporate Trust Global Finance.


 


“Corporation”
means a corporation, association, company, joint-stock company or business
trust.


 


“Covenant
Defeasance” has the meaning specified in Section 13.03.


 


“Defaulted
Interest” has the meaning specified in Section 3.07.


 


“Defeasance”
has the meaning specified in Section 13.02.


 


“Defeasible
Series” has the meaning specified in Section 13.01.


 


3

















 


“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 3.01.


 


“Event of
Default” has the meaning specified in Section 5.01.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended from time to time,
and any statute successor thereto.


 


“GAAP” means
generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession.


 


“Global Security”
means a Security that evidences all or part of the Securities of any series and
is authenticated and delivered to, and registered in the name of, the
Depositary for such Securities or a nominee thereof.


 


“Guarantee” or
“guarantee” by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Indebtedness of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person, (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and “Guaranteed”,
“Guaranteeing” and “Guarantor” shall have meanings correlative to the
foregoing); provided,  however , that the Guarantee by any Person
shall not include endorsements by such Person for collection or deposit, in
either case, in the ordinary course of business.


 


“Hedging
Obligations” means, with respect to any Person, the Obligations of such Person
under interest rate swap agreements, interest rate cap agreements, and interest
rate collar agreements, and other agreements or arrangements designed to
protect such Person against fluctuations in interest rates.


 


“Holder” means
a Person in whose name a Security is registered in the Security Register.


 


“Indebtedness”
means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, and all deferrals, renewals, extensions
and refundings of obligations of any of the foregoing, if and to the extent any
of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, and also includes, to 


 


4

















 


the extent not otherwise
included, the Guarantee of any indebtedness of such Person or any other Person.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument, and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term “Indenture” shall
also include the terms of particular series of Securities established as
contemplated by Section 3.01.


 


“Interest”,
when used with respect to an Original Issue Discount Security which by its
terms bears interest only at Maturity, means interest payable at Maturity.


 


“Interest
Payment Date” shall be defined by the terms of the Security established in
accordance with Section 3.01.


 


“Maturity”,
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


“Notice of
Default” means a written notice of the kind specified in Section 5.01(5).


 


“Obligations”
means any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.


 


“Officer’s
Certificate” means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Accounting Officer, a Vice President, the Chief
Financial Officer, the Finance Director, the Treasurer or an Assistant
Treasurer, of the Company or of a Subsidiary Guarantor, and delivered to the
Trustee.


 


“Opinion of
Counsel” means, as to the Company or a Subsidiary Guarantor, a written opinion
of counsel, who may be counsel for the Company or such Subsidiary Guarantor,
and who shall be acceptable to the Trustee.


 


“Original
Issue Discount Security” means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02.


 


“Outstanding”,
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:


 


(1)           Securities theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation;


 


5

















 


(2)           Securities for whose payment
or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company or any Subsidiary
Guarantor) in trust or set aside and segregated in trust by the Company or a
Subsidiary Guarantor (if the Company or such Subsidiary Guarantor shall act as
its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;


 


(3)           Securities as to which
Defeasance has been effected pursuant to Section 13.02; and


 


(4)           Securities which have been
paid pursuant to Section 3.06 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;


 


provided , however
, that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (A) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof to such
date pursuant to Section 5.02, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.


 


“Person” means
any individual, corporation, partnership, joint venture, limited liability
company, joint stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.


 


6

















 


“Place of
Payment”, when used with respect to the Securities of any series, means the
place or places where the principal of and any premium and interest on the
Securities of that series are payable, as specified pursuant to Section 3.01.


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.06 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Prospectus”
means the Prospectus of the Company dated                 ,
2007 relating to the offering from time to time of the Securities.


 


“Redemption
Date”, when used with respect to any Security to be redeemed, means the date
fixed for such redemption by or pursuant to Article XI of this Indenture.


 


“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.


 


“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.


 


“Responsible
Officer”, when used with respect to the Trustee, means any vice president, any
assistant vice president, any assistant vice president, any assistant
treasurer, any trust officer or assistant trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.


 


“Securities”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.


 


“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.


 


“Security
Register” and “Security Registrar” have the respective meanings specified in
Section 3.05.


 


“Significant
Subsidiary” means any Subsidiary that would be a “significant subsidiary” of
the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by
the Commission.


 


“Special Record
Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.


 


7

















 


“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.


 


“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, “voting stock” means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.


 


“Subsidiary
Guarantees” means, with respect to the Securities of any series, the guarantees
with respect to the Securities of such series by a Subsidiary Guarantor
pursuant to Article XIV hereof or a supplemental indenture hereto.


 


“Subsidiary
Guarantor” means, with respect to the Securities of any series, any Subsidiary
of the Company that provides a Subsidiary Guarantee with respect to the
Securities of such series in this Indenture or pursuant to a supplemental
indenture hereto.


 


“Successor
Subsidiary Guarantor” has the meaning specified in Section 8.02.


 


“Trust
Indenture Act” means the U.S. Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed; provided, however,
that in the event the U.S. Trust Indenture Act of 1939 is amended after such
date, “Trust Indenture Act” means, to the extent required by any such amendment,
the U.S. Trust Indenture Act of 1939 as so amended.


 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean each Trustee with respect to Securities of that
series.


 


“U.S.
Government Obligations” has the meaning specified in Section 13.04.


 


Section 1.02           Compliance
Certificates and Opinions.


 


Upon any
application or request by the Company or by a Subsidiary Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act, together with an Officer’s Certificate stating
that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with. Each such certificate or opinion shall be given in the form of an
Officer’s Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.


 


8

















 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (including certificates provided for in Section
10.05) shall include


 


(1)           a statement that each
individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;


 


(2)           a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based;


 


(3)           a statement that, in the
opinion of each such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and


 


(4)           a statement as to whether, in
the opinion of each such individual, such condition or covenant has been
complied with.


 


Section 1.03           Form of
Documents Delivered to Trustee.


 


In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or any subsidiary of the Company stating
that the information with respect to such factual matters is in the possession
of the Company or any subsidiary of the Company, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 1.04           No
Adverse Interpretation of Other Agreements; Use of English Language. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


This Indenture has been executed in the English language. All certificates,
reports, notices and other documents and communications given or delivered
pursuant to this Agreement 


 


9

















 


(including any modifications or supplements
hereto) shall be in the English language, or accompanied by a certified English
translation thereof. In connection with the registration of security documents
outside of the United States of America, it may be necessary that this
Indenture be translated into other languages; provided that it is
understood and agreed that the sole official version of this Indenture is the
English language version executed by the parties hereto.


 


Section 1.05           Acts of
Holders; Record Dates.


 


Any request,
demand, authorization, direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.


 


The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.


 


The ownership
of Securities shall be proved by the Security Register.


 


Any request,
demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.


 


The Company
may, in the circumstances permitted by the Trust Indenture Act, set any day as
the record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities of
such series. With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of 


 


10

















 


Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this paragraph, the Company may, at its option, set an expiration
date after which no such action purported to be given or taken by any Holder
shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later
date. Nothing in this paragraph shall prevent any Holder (or any duly appointed
agent thereof) from giving or taking, after any such expiration date, any
action identical to, or, at any time, contrary to or different from, the action
or purported action to which such expiration date relates, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Nothing in this paragraph shall be construed to render ineffective any action
taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such action is so taken. Notwithstanding the foregoing or the Trust
Indenture Act, the Company shall not set a record date for, and the provisions
of this paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph.


 


The Trustee
may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.02, if an Event of Default with respect to Securities of such
series has occurred and is continuing and the Trustee shall not have given such
a declaration to the Company, (iii) any request to institute proceedings
referred to in Section 5.07(2) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. Promptly after
any record date is set pursuant to this paragraph, the Trustee shall notify the
Company and the Holders of Outstanding Series of such series of any such record
date so fixed and the proposed action. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to join in such notice, declaration or direction,
whether or not such Holders remain Holders after such record date; provided
that, unless such notice, declaration or direction shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
notice, declaration or direction shall automatically and without any action by
any Person be cancelled and of no further effect. Nothing in this paragraph
shall be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration or direction
to which such record date relates, in which event a new record date in respect
thereof shall be set pursuant to this paragraph. Nothing in this paragraph
shall be construed to render ineffective any notice, declaration or direction
of the type referred to in this paragraph given at any time to the Trustee and
the Company by Holders (or their duly appointed agents) of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such notice, declaration or direction is so given.


 


Without
limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may 


 


11

















 


do so pursuant to such
appointment with regard to all or any different part of such principal amount.


 


Section 1.06           Notices,
Etc., to Trustee, Company and Subsidiary Guarantors.


 


Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,


 


(1)           the Trustee by any Holder or
by the Company or any Subsidiary Guarantor shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing (which may be
via facsimile) to or with the Trustee at its Corporate Trust Office, Attention:
Danaos Corporation Administrator, or


 


(2)           the Company or any Subsidiary
Guarantor by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.


 


Section 1.07           Notice
to Holders; Waiver. Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and delivered electronically or mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.


 


Section 1.08           Conflict
with Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be. Wherever this Indenture refers to a provision of
the Trust Indenture Act, such provision is incorporated by reference in and
made a part of this Indenture.


 


The following
Trust Indenture Act terms used in this Indenture have the following meanings:


 


“commission”
means the Commission;


 


“indenture
securities” means the Securities;


 


12

















 


“indenture security
holder” means a Holder;


 


“indenture to
be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee” means the Trustee; and


 


“obligor on
the indenture securities” means the Company, the Subsidiary Guarantors and any
other obligor on the Securities.


 


All other
Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by the Trust Indenture Act referenced to another statute
or defined by any Commission Rule and not otherwise defined herein have the
meanings defined to them thereby.


 


Section 1.09           Effect
of Headings and Table of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.


 


Section 1.10           Successors
and Assigns. All covenants and agreements in this Indenture by the Company
or any Subsidiary Guarantor shall bind its respective successors and assigns,
whether so expressed or not.


 


Section 1.11           Separability
Clause. In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


Section 1.12           Benefits
of Indenture. Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 1.13           Governing
Law. This Indenture, the Securities and the Subsidiary Guarantees shall be
governed by and construed in accordance with the law of the State of New York,
but without regard to principles of conflicts of laws.


 


Section 1.14           Legal
Holidays. In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last date on which a Holder has the
right to convert his Securities shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) or conversion of the Securities
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, or on such last day for conversion, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.


 


13














 


Section 1.15           Consent
to Service; Jurisdiction.


 


(a)           The Company, each
Subsidiary Guarantor and the Trustee agree that any legal suit, action or
proceeding arising out of or relating to this Indenture, and the Company and
each Subsidiary Guarantor agree that any legal suit, action or proceeding
arising out of or relating to the Securities, may be instituted in any federal
or state court in the Borough of Manhattan, the City of New York.  Each of the Company, each Subsidiary
Guarantor and the Trustee waives any objection which it may now or hereafter
have to the laying of the venue of any such legal suit, action or proceeding,
waives any immunity from jurisdiction or to service of process in respect of
any such suit, action or proceeding, and irrevocably submits to the exclusive
jurisdiction of any such court in any such suit, action or proceeding.


 


(b)           Each of the Company
and each Subsidiary Guarantor hereby designates and appoints Morgan, Lewis
& Bockius LLP, 101 Park Avenue, New York, New York 10178 as its authorized
agent upon which process may be served in any legal suit, action or proceeding
arising out of or relating to this Indenture or the Securities which may be
instituted in any federal or state court in the Borough of Manhattan, the City
of New York, and agrees that service of process upon such agent, and written
notice of said service to the Company and the Subsidiary Guarantors by the
Person serving the same, shall be deemed in every respect effective service of
process upon the Company and the Subsidiary Guarantors in any such suit, action
or proceeding and further designates its domicile, the domicile of New York,
New York specified above and any domicile it may have in the future as its
domicile to receive any notice hereunder (including service of process).
Service of process, to be effective upon the Trustee, must be served at the
Trustee’s Corporate Trust Office.  If for
any reason Morgan, Lewis & Bockius LLP (or any successor agent for this
purpose) shall cease to act as agent for service of process as provided above,
the Company and the Subsidiary Guarantors will promptly appoint a successor
agent.  Upon such change, the Company
shall notify the Trustee and the Holders. 
The Company and the Subsidiary Guarantors agree to take any and all
actions necessary to maintain such designation and appointment of such agent in
full force and effect.


 


Section 1.16           Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


ARTICLE II



SECURITY AND SUBSIDIARY GUARANTEE FORMS


 


Section 2.01           Forms
Generally.


 


The Securities
of each series and the Subsidiary Guarantees to be endorsed thereon shall be in
substantially the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or Subsidiary Guarantees, as the case may be, as evidenced by their execution
of the Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee 


 


14

















 


at or prior to the delivery of
the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Securities.


 


The definitive
Securities and the Subsidiary Guarantees to be endorsed thereon shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities or Subsidiary Guarantees, as the case may be, as evidenced by their
execution of such Securities.


 


Section 2.02           Form of
Face of Security.


 


[Insert any
legend required by the U.S. Internal Revenue Code and the regulations
thereunder.]


 


DANAOS CORPORATION


 


	
  No.

  	
   

  	
  $

  



 


Danaos
Corporation, a Marshall Islands company (herein called the “Company”, which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to                             
           
                                     
, or registered assigns, the principal sum of                                         
                            
Dollars on                                        
                              
[ if the Security is to bear interest prior to Maturity, insert —, and
to pay interest thereon from                             
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on                     
and              in
each year, commencing             
at the rate of             
% per annum, until the principal hereof is paid or made available for payment [
if applicable, insert — , and at the rate of             
% per annum on any overdue principal and premium and on any overdue installment
of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the             
or             
(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 said Indenture].


 


[If the
Security is not to bear interest prior to Maturity, insert — The principal
of this Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity,
and in such case the overdue principal of this Security shall bear interest at
the rate of             
% per annum, which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly 


 


15

















 


provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of             
% per annum, which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]


 


Payment of the
principal of (and premium, if any) and [ if applicable, insert — any
such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in [  ] , in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [ if applicable, insert —; provided
, however , that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].


 


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:


 


	
   

  	
  DANAOS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


Section 2.03           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 an
Indenture, dated as of                     
     , 2007 (herein called the “Indenture”), among the
Company, the Subsidiary Guarantors named therein and The Bank of New York, as
Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Subsidiary Guarantors, the Trustee and 


 


16

















 


the Holders of the Securities
and of the terms upon which the Securities and the Subsidiary Guarantees
endorsed thereon are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [ if applicable, insert
—, limited in aggregate principal amount to $                     
].


 


[If
applicable, insert — Subject to and upon compliance with the provisions of
the Indenture, the Holder of this Security is entitled, at his option, at any
time on or before the close of business on                 
, or in case this Security or a portion hereof is called for redemption, then
in respect of this Security or such portion hereof until and including, but
(unless the Company defaults in making the payment due upon redemption) not
after, the close of business on the 10th calendar day before the Redemption
Date, to convert this Security (or any portion of the principal amount hereof
which is $1,000 or an integral multiple thereof), at the principal amount
hereof, or of such portion, into fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100 of a share) of Common
Stock of the Company at a conversion price per share of Common Stock equal to $
             per
each share of Common Stock (or at the current adjusted conversion price if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency in                     
, accompanied by written notice to the Company that the Holder hereof elects to
convert this Security, or if less than the entire principal amount hereof is to
be converted, the portion hereof to be converted, and, in case such surrender
shall be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date (unless this Security or the portion thereof
being converted has been called for redemption on a Redemption Date within such
period), also accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
payment or adjustment is to be made on conversion for interest accrued hereon
or for dividends on the Common Stock issued on conversion. No fractions of
shares or scrip representing fractions of shares will be issued on conversion,
but instead of any fractional interest the Company shall pay a cash adjustment
as provided in the Indenture.  The
conversion price is subject to adjustment as provided in the Indenture.  In addition, the Indenture provides that in
case of certain consolidations or mergers to which the Company is a party or
the transfer of substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so that
this Security, if then outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above, only into the kind
and amount of securities, cash and other property receivable upon the
consolidation, merger or transfer by a holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or transfer (assuming such holder of Common Stock
failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares).]


 


[If
applicable, insert — The Securities of this series are subject to
redemption upon not less than 30 days’ notice delivered, [ if applicable,
insert — (1) on                     
in any year 


 


17

















 


commencing with the year 20     
and ending with the year 20      through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [ if applicable, insert on or
after                     
, 20      ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [ if applicable, insert — on or before                     
,      %, and if redeemed] during the 12-month period
beginning                     
of the years indicated,


 




	
  Year

  	
   

  	
  Redemption Price

  	
   

  	
  Year

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


and thereafter at a Redemption Price equal to
             % of
the principal amount, together in the case of any such redemption [ if
applicable, insert — (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]


 


[If
applicable, insert — The Securities of this series are subject to
redemption upon not less than 30 days’ notice delivered, (1) on
                    
in any year commencing with the year
             and
ending with the year
            
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [ if
applicable, insert — on or after
                    
], as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning                     
of the years indicated,


 




	
  Year

  	
   

  	
  Redemption Price

  for Redemption Through

  Operation of the Sinking Fund

  	
   

  	
  Redemption Price

  for Redemption

  Otherwise Than Through

  Operation of the Sinking Fund

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


and thereafter at a Redemption Price equal to
             % of
the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]


 


[If
applicable, insert — Notwithstanding the foregoing, the Company may not,
prior to
             redeem
any Securities of this series as contemplated by [if applicable, insert —
Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company 


 


18

















 


(calculated in accordance with
generally accepted financial practice) of less than
             % per
annum.]


 


[If applicable,
insert — The sinking fund for this series provides for the redemption on
                
in each year beginning with the year
                
and ending with the year
             of [ if
applicable, insert — not less than $
             (“mandatory
sinking fund”) and not more than]  $
             aggregate
principal amount of Securities of this series. 
Securities of this series acquired or redeemed by the Company otherwise
than through [if applicable, insert — mandatory] sinking fund payments [
if applicable, insert — and Securities surrendered for conversion] may
be credited against subsequent [ if applicable, insert — mandatory]
sinking fund payments otherwise required to be made [ if applicable, insert
— in the inverse order in which they become due.]


 


[If the
Security is subject to redemption of any kind, insert — In the event of
redemption or conversion of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]


 


[If
applicable, insert — The Indenture contains provisions for defeasance at
any time of [(l) the entire indebtedness of this Security or (2)] 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 the
Security is not an Original Issue Discount Security, insert — 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.]


 


[If the
Security is an Original Issue Discount Security, insert — If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to insert formula for determining the
amount .  Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest all of the Company’s obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]


 


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
Subsidiary Guarantors and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company, the
Subsidiary Guarantors and the Trustee with the consent of the Holders of a
majority 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 or the Subsidiary Guarantors
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 


 


19

















 


and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.


 


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 shall 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 premium, if any) and interest on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registerable 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 or the
Security Registrar 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
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof 


 


20

















 


for all purposes, whether or
not this Security be overdue, and neither the Company, the Subsidiary
Guarantors, 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.


 


[If
applicable, insert —


 


[FORM OF CONVERSION NOTICE]


 


To:        DANAOS
CORPORATION


 


The
undersigned owner of this Security hereby irrevocably exercises the option to
convert this Security, or portion hereof (which is $1,000 or an integral
multiple thereof) below designated, into shares of Common Stock of Danaos
Corporation, in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities, representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.  Any amount required to
be paid by the undersigned on account of interest accompanies this Security.


 


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
  Fill in for
  registration of shares of Common

  Stock and Securities if to be issued otherwise

  than to the registered holder.

  	
   

  
	
   

  	
   

  	
  Principal
  Amount to be converted (in an 

  integral multiple of $1,000, if less than all):

  
	
   

  	
  $

  
	
  Name

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Address

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  (Please
  print name and address, including zip

  code number)

  	
  Signature

  
	
   

  	
   

  
	
  SOCIAL
  SECURITY OR OTHER

  TAXPAYER IDENTIFYING

  	
  [SIGNATURE GUARANTEED —

  
	
  NUMBER

  	
  required
  only if Common

  Stock and Securities are to be

  



 


21

















 


	
   

  	
  issued and
  delivered to other than registered

  holder]

  
	
  [

  	
                                        
  

  	
   

  	
   

  
	
   

  	
                                          
     

  	
  ]

  	
   

  
						



 


Section 2.04           Form of
Legend for Global Securities.


 


Unless
otherwise specified as contemplated by Section 3.01 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:


 


This Security
is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee thereof.  This Security may not be transferred to, or
registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof and no such transfer may be
registered, except in the limited circumstances described in the
Indenture.  Every Security authenticated
and delivered upon registration of transfer of, or in exchange for or in lieu
of, this Security shall be a Global Security subject to the foregoing, except
in such limited circumstances.


 


Section 2.05           Form of
Trustee’s Certificate of Authentication. 
The Trustee’s certificates of authentication shall be in substantially
the following form:


 


This is one of
the Securities of the series designated herein with the Subsidiary Guarantees
endorsed hereon and referred to in the within-mentioned Indenture.


 


 


	
   

  	
  The Bank of
  New York,

  
	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  
				



 


Section 2.06           Form of
Guarantee.


 


GUARANTEE


 


For value
received, each of the Subsidiary Guarantors listed below hereby jointly and
severally unconditionally guarantees to the Holder of the Security upon which
this Guarantee is endorsed, and to the Trustee on behalf of such Holder, the
due and punctual payment of the principal of (and premium, if any) and interest
on such Security when and as the same shall become due and payable, whether at
the Stated Maturity, by acceleration, call for redemption, purchase or
otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, each of the Subsidiary Guarantors hereby jointly and severally agrees
to cause such payment to be made punctually 


 


22

















 


when and as the same shall
become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, and as if such payment were made by the
Company.


 


Each of the
Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of such Security or the Indenture, the absence of any action to
enforce the same or any release or amendment or waiver of any term of any other
Guarantee of, or any consent to departure from any requirement of any other
Guarantee of all or of any of the Securities, the election by the Trustee or
any of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code of
the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or
grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Trustee or any of
the Holders for payment of any of the Securities, any waiver or consent by the
Holder of such Security or by the Trustee or either of them with respect to any
provisions thereof or of the Indenture, the obtaining of any judgment against
the Company or any action to enforce the same or any other circumstances which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders exhaust any right or take any action against the Company or
any other Person, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that this
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in such Security and in this Subsidiary Guarantee.
Each of the Subsidiary Guarantors hereby agrees that, in the event of a default
in payment of principal (or premium, if any) or interest on such Security,
whether at the Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, legal proceedings may be instituted by the Trustee on behalf of,
or by, the Holder of such Security, subject to the terms and conditions set
forth in the Indenture, directly against each of the Subsidiary Guarantors to
enforce this Subsidiary Guarantee without first proceeding against the Company.
Each Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Subsidiary Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.


 


No reference
herein to the Indenture and no provision of this Subsidiary Guarantee or of the
Indenture shall alter or impair the Subsidiary Guarantee of any Subsidiary
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (and premium, if any) and interest on the Security upon which
this Subsidiary Guarantee is endorsed.


 


Each
Subsidiary Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid by such Subsidiary
Guarantor on account of this Security pursuant to the provisions of its
Subsidiary Guarantee or the Indenture; provided, 


 


23

















 


however,
that such Subsidiary Guarantor shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest on this Security and all other
Securities issued under the Indenture shall have been paid in full.


 


This
Subsidiary Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company’s assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities whether
as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.


 


The Subsidiary
Guarantors shall have the right to seek contribution from any non-paying
Subsidiary Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Subsidiary Guarantee.


 


The Subsidiary
Guarantors or any particular Subsidiary Guarantor shall be released from this
Subsidiary Guarantee upon the terms and subject to certain conditions provided
in the Indenture.


 


By delivery of
a Supplemental Indenture to the Trustee in accordance with the terms of the
Indenture, each Person that becomes a Subsidiary Guarantor after the date of
the Indenture will be deemed to have executed and delivered this Guarantee for
the benefit of the Holder of this Security with the same effect as if such
Subsidiary Guarantor was named below.


 


All terms used
in this Subsidiary Guarantee which are defined in the Indenture referred to in
the Security upon which this Subsidiary Guarantee is endorsed shall have the
meanings assigned to them in such Indenture.


 


This
Subsidiary Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Subsidiary
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.


 


Reference is
made to Article XIV of the Indenture for further provisions with respect to
this Subsidiary Guarantee.


 


THIS
SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.


 


IN WITNESS
WHEREOF, each of the Subsidiary Guarantors has caused this Subsidiary Guarantee
to be duly executed.


 


24

















 


	
   

  	
  [Insert
  Subsidiary Guarantors, as applicable]

  
	
   

  	
   

  
	
   

  	
  Each as
  Subsidiary Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


ARTICLE III



THE SECURITIES


 


Section 3.01           Amount
Unlimited; Issuable in Series.


 


The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.


 


The Securities
may be issued in one or more series. 
There shall be established in or pursuant to a Board Resolution and,
subject to Section 3.03, set forth, or determined in the manner provided, in an
Officer’s Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,


 


(1)           the title of the Securities of
the series, including CUSIP Numbers (which shall distinguish the Securities of
the series from Securities of any other series);


 


(2)           any limit upon the aggregate
principal amount of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.04, 3.05, 3.06 or 9.06 and
except for any Securities which, pursuant to Section 3.03, are deemed never to
have been authenticated and delivered hereunder);


 


(3)           the Person to whom any
interest on a Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest;


 


(4)           the date or dates on which the
principal of the Securities of the series is payable;


 


(5)           the rate or rates at which the
Securities of the series shall bear interest, if any, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;


 


(6)           the place or places where the
principal of and any premium and interest on Securities of the series shall be
payable;


 


25

















 


(7)           the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of
the Company;


 


(8)           the obligation, if any, of the
Company to redeem or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;


 


(9)           if other than denominations of
$1,000 and any integral multiple thereof, the denominations in which Securities
of the series shall be issuable;


 


(10)         the currency, currencies or
currency units in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes
of the definition of “Outstanding” in Section 1.01;


 


(11)         if the amount of payments of
principal of or any premium or interest on any Securities of the series may be
determined with reference to an index, the manner in which such amounts shall
be determined;


 


(12)         if the principal of or any
premium or interest on any Securities of the series is to be payable, at the
election of the Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on Securities of such series as to
which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;


 


(13)         if other than the principal
amount thereof, the portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;


 


(14)         the applicability,
nonapplicability, or variation, of Article XIV with respect to the Securities
of such Series;


 


(15)         if applicable, that the
Securities of the series shall be subject to either or both of Defeasance or
Covenant Defeasance as provided in Article XIII; provided that no series
of Securities that is convertible into Common Stock as provided in Article XV
or convertible into or exchangeable for any other securities pursuant to
Section 3.01(18) shall be subject to Defeasance pursuant to Section 13.02;


 


(16)         if and as applicable, that the
Securities of the series shall be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than
those set forth in Section 3.05 in which any such Global Security may be
transferred to, and 


 


26

















 


registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be registered;


 


(17)         the terms and conditions, if
any, pursuant to which the Securities are convertible into Common Stock of the
Company pursuant to Article XV, and any variation thereof;


 


(18)         the terms and conditions, if
any, pursuant to which the Securities are convertible into or exchangeable for
any other securities;


 


(19)         any addition to or change in the
Events of Default set forth in Section 5.01 or the covenants set forth in
Article X which applies to Securities of the series;


 


(20)         any requirements for Subsidiary
Guarantees by any Subsidiary Guarantors; and


 


(21)         any other terms of the series
(which terms shall not be inconsistent with the provisions of this Indenture,
except as permitted by Section 9.01(5)).


 


All Securities
of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 3.03) set forth, or determined in the
manner provided, in the Officer’s Certificate referred to above or in any such
indenture supplemental hereto.


 


If any of the
terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officer’s Certificate setting forth
the terms of the series.


 


The Company
may, from time to time, by adoption of a Board Resolution and subject to
compliance with any other applicable provisions of this Indenture, without the
consent of the Holders, create and issue pursuant to this Indenture additional
securities of any series of Securities (“Add On Securities”) having terms and
conditions identical to those of such series of Outstanding Securities, except
that such Add On Securities:


 


(A)          may have a different issue date from
such series of Outstanding Securities;


 


(B)           may have a different amount of
interest payable on the first Interest Payment Date after issuance than is
payable on such series of Outstanding Securities; and


 


(C)           may have terms specified in such
Board Resolution for such Add On Securities making appropriate adjustments to
this Article III applicable to such Add On Securities in order to conform to
and ensure compliance with the Securities Act (or applicable securities laws)
which are not adverse in any material respect to the Holder of any Outstanding
Securities (other than such Add On Securities) and which shall not affect the
rights or duties of the Trustee.


 


27

















 


Section 3.02           Denominations.  The Securities of each series shall be
issuable only in registered form without coupons in such denominations as shall
be specified as contemplated by Section 3.01. 
In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.


 


Section 3.03           Execution,
Authentication, Delivery and Dating. 
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President, its Chief
Operating Officer or one of its Vice Presidents attested by its Chief Financial
Officer, Finance Director, its Treasurer or an Assistant Treasurer, its Secretary
or one of its Assistant Secretaries.  The
signature of any of these officers on the Securities may be manual or
facsimile.


 


Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company and having
endorsed thereon the Subsidiary Guarantees executed pursuant to Section 14.02
by the Subsidiary Guarantors to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities with the
Subsidiary Guarantees endorsed thereon, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities with the
Subsidiary Guarantees endorsed thereon. If the form or terms of the Securities
of the series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating,


 


(1)           if the form of such Securities
has been established by or pursuant to Board Resolution as permitted by Section
2.01, that such form has been established in conformity with the provisions of
this Indenture;


 


(2)           if the terms of such
Securities have been established by or pursuant to Board Resolution as
permitted by Section 3.01, that such terms have been established in conformity
with the provisions of this Indenture; and


 


(3)           that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


 


28

















 


If such form or terms have been so
established, the Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.


 


Notwithstanding
the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required
pursuant to Section 3.01 or the Opinion of Counsel otherwise required pursuant
to such preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.


 


Each Security
shall be dated the date of its authentication. 



 


No Security or
Subsidiary Guarantee shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security and the Subsidiary Guarantee endorsed thereon have been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


Section 3.04           Temporary
Securities.  Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and having endorsed
thereon the Subsidiary Guarantees substantially of the tenor of the definitive
Subsidiary Guarantees in lieu of which they are issued duly executed by the
Subsidiary Guarantors and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
and Subsidiary Guarantees may determine, as evidenced by their execution of
such Securities and Subsidiary Guarantees.


 


If temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay.  After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and having endorsed thereon Subsidiary
Guarantees of the same tenor executed by the Subsidiary Guarantors.  Until so exchanged, the temporary 


 


29

















 


Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.


 


Section 3.05           Registration,
Registration of Transfer and Exchange. 
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities.  The Trustee is hereby appointed “Security
Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided.


 


Upon surrender
for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of a like tenor and aggregate principal
amount, each such Security having endorsed thereon the Subsidiary Guarantees
executed by the Subsidiary Guarantors.


 


At the option
of the Holder, Securities of any series may be exchanged for other Securities
of the same series, of any authorized denominations and of a like tenor and
aggregate principal amount, and having the Subsidiary Guarantee endorsed
thereon executed by each Subsidiary Guarantor, upon surrender of the Securities
to be exchanged at such office or agency. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, the Subsidiary Guarantors shall execute the Subsidiary
Guarantees endorsed on, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.


 


All Securities
and the Subsidiary Guarantees endorsed thereon issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
Company and the respective Subsidiary Guarantors, evidencing the same debt and
Subsidiary Guarantees, and entitled to the same benefits under this Indenture,
as the Securities and Subsidiary Guarantees surrendered upon such registration
of transfer or exchange.


 


Every Security
presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.


 


No service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company or Security Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04 or 9.06 not involving any transfer.


 


The Company
shall not be required (1) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption 


 


30

















 


of Securities of that series
selected for redemption under Section 11.03 and ending at the close of business
on the day of such mailing, or (2) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.


 


Notwithstanding
any other provision in this Indenture, no Global Security may be transferred
to, or registered or exchanged for Securities registered in the name of, any
Person other than the Depositary for such Global Security or any nominee
thereof, and no such transfer may be registered, unless (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered
under the Exchange Act, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable
and exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Securities
evidenced by such Global Security or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 3.01. Notwithstanding any other provision in this Indenture, a
Global Security to which the restriction set forth in the preceding sentence
shall have ceased to apply may be transferred only to, and may be registered
and exchanged for Securities registered only in the name or names of, such
Person or Persons as the Depositary for such Global Security shall have
directed and no transfer thereof other than such a transfer may be registered.


 


Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security to which the restriction set forth in the
first sentence of the preceding paragraph shall apply, whether pursuant to this
Section, Section 3.04, 3.06 or 9.06 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security.


 


Section 3.06           Mutilated,
Destroyed, Lost and Stolen Securities. 
If any mutilated Security is surrendered to the Trustee, the Company
shall execute, the Subsidiary Guarantors shall execute the Subsidiary
Guarantees endorsed thereon, and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.


 


If there shall
be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them, each Subsidiary
Guarantor and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding and having endorsed thereon the
Subsidiary Guarantees executed by the Subsidiary Guarantors.


 


In case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.


 


31

















 


Upon the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) in connection therewith.


 


Every new
Security of any series issued pursuant to this Section in exchange for any
mutilated Security or in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company and the
respective Subsidiary Guarantors, whether or not the mutilated, destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.


 


The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


 


Section 3.07           Payment
of Interest; Interest Rights Preserved. 
Except as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.


 


Any interest
on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:


 


(1)           The Company may elect to make
payment of any Defaulted Interest to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment.  The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be delivered
electronically or mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been 


 


32

















 


so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).


 


(2)           The Company may make payment
of any Defaulted Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.


 


Subject to the
foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.


 


Subject to the
provisions of Section 15.02, in the case of any Security which is converted
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date, interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence,
in the case of any Security which is converted, interest whose Stated Maturity
is after the date of conversion of such Security shall not be payable.


 


Section 3.08           Persons
Deemed Owners.  Prior to due
presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of and any premium and (subject to Section 3.07) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Subsidiary Guarantors, the
Trustee nor any agent of the Company, the Subsidiary Guarantors or the Trustee
shall be affected by notice to the contrary.


 


Section 3.09           Cancellation.  All Securities surrendered for payment,
redemption, registration of transfer or exchange or conversion or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it.  The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee.  No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in its customary manner.


 


33














 


Section 3.10           Computation
of Interest.  Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.


 


Section 3.11           CUSIP
Numbers.  The Company in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any changes in
the “CUSIP” numbers.


 


ARTICLE IV



SATISFACTION AND DISCHARGE


 


Section 4.01           Satisfaction
and Discharge of Indenture.  This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when


 


(1)           either


 


(A)          all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or


 


(B)                              all such
Securities not theretofore delivered to the Trustee for cancellation;


 


(i)                                     have become due
and payable, or


 


(ii)                                  will become due
and payable at their Stated Maturity   within
one year, or


 


(iii)                               are to be
called for redemption within one year under   arrangements
satisfactory to the Trustee for the giving of   notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company and/or a Subsidiary Guarantor, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for 


 


34

















 


cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;


 


(2)           the Company and/or a
Subsidiary Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company and the Subsidiary Guarantors; and


 


(3)           the Company has delivered to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.07, and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 4.02, shall survive such
satisfaction and discharge.


 


Section 4.02          Application
of Trust Money.  All money deposited
with the Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.


 


ARTICLE V



REMEDIES


 


Section 5.01          Events
of Default.  “Event of Default”,
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(1)           default in the payment of any
interest upon any Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or


 


(2)           default in the payment of the
principal of (or premium, if any, on) any Security of that series at its
Maturity; or


 


(3)           default in the deposit of any
sinking fund payment, when and as due by the terms of a Security of that
series; or


 


(4)           default in the performance, or
breach, of Section 8.01 or Section 8.02; or


 


35

















 


(5)           default in the performance, or
breach, of any covenant or warranty of the Company in this Indenture (other
than (i) the obligations under Section 7.04 hereof or (ii) a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or


 


(6)           the Company shall fail to pay
any Indebtedness in excess of $50,000,000  owing by the
Company, or any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, or the Company shall
fail to perform any term, covenant or agreement on its part to be performed
under any agreement or instrument evidencing or securing or relating to any
such Indebtedness, if the effect of such failure in either case is that the
maturity of such Indebtedness is duly accelerated, without such Indebtedness having
been discharged or such acceleration having been rescinded or annulled, in each
such case, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by Holders of at least 25% in principal amount of the
Outstanding Securities of that series, a written notice specifying such default
and requiring the Company to cause such Indebtedness to be discharged or cause
such acceleration to be rescinded or annulled, as the case may be, and stating
that such notice is a “Notice of Default” hereunder (the Trustee shall not be
deemed to have knowledge of a default under this subsection (6) unless it shall
have actual knowledge thereof); provided, however, that, subject to
the provisions of Sections 6.01 and 6.05, the Trustee shall not be deemed to
have knowledge of such failure to pay unless either (A) a Responsible Officer
of the Trustee shall have actual knowledge of such failure to pay or (B) the
Trustee shall have received written notice thereof from the Company, from any
Holder, from the holder of any such Indebtedness or from the trustee
thereunder; or


 


(7)           the entry by a court having
jurisdiction in the premises of (A) a decree or order for relief in respect of
the Company or any Subsidiary Guarantor that is a Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal, State or foreign
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any Subsidiary Guarantor that is a Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Subsidiary Guarantor that is a Significant Subsidiary
under any applicable Federal, State or foreign law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary Guarantor that is a Significant Subsidiary or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
90 consecutive days; or


 


36

















 


(8)           the commencement by the
Company or any Subsidiary Guarantor that is a Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal, State or foreign
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company or
any Subsidiary Guarantor that is a Significant Subsidiary in an involuntary
case or proceeding under any applicable Federal, State or foreign bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under any
applicable Federal, State or foreign law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary Guarantor that is a Significant Subsidiary or of any
substantial part of their respective property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Subsidiary Guarantor that is a
Significant Subsidiary in furtherance of any such action;


 


(9)           except as permitted by the
terms hereof and the Securities, the cessation of effectiveness of any
Subsidiary Guarantee of a Significant Subsidiary or the finding by any judicial
proceeding that any such Subsidiary Guarantee is unenforceable or invalid or
the denial or disaffirmation by any Subsidiary Guarantor that is a Significant
Subsidiary of its obligations under its Subsidiary Guarantee; or


 


(10)         any other Event of Default
provided with respect to Securities of that series.


 


Section 5.02          Acceleration
of Maturity; Rescission and Annulment. 
If an Event of Default (other than an Event of Default specified in
Section 5.01(7) or 5.01(8)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) and unpaid interest of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 5.01(7) or 5.01(8) with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, in the case of any Security of that
series which specifies an amount to be due and payable thereon upon
acceleration of the Maturity thereof, such amount as may be specified by the
terms thereof) and unpaid interest shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable without any action by the indenture trustee of the
holder of the debt securities of that series.


 


At any time
after such a declaration of acceleration with respect to Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in 


 


37

















 


principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if


 


(1)           the Company and/or any
Subsidiary Guarantor has paid or deposited with the Trustee a sum sufficient to
pay


 


(A)          all overdue interest on all Securities
of that series,


 


(B)           the principal of (and premium, if
any, on) any Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,


 


(C)           to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and


 


(D)          all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and


 


(2)           all Events of Default with
respect to Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.


 


No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


Section 5.03           Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants
that if:


 


(1)           default is made in the payment
of any interest on any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or


 


(2)           default is made in the payment
of the principal of (or premium, if any, on) any Security at the Maturity
thereof,


 


the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


 


If an Event of
Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem necessary to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


38

















 


Section 5.04           Trustee
May File Proofs of Claim.  In case of
any judicial proceeding relative to the Company or any Subsidiary Guarantor (or
any other obligor upon the Securities), or any of the property or creditors of
the Company or any Subsidiary Guarantor (or any other obligor upon the
Securities), the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.


 


No provision
of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or
other similar committee.


 


Section 5.05           Trustee
May Enforce Claims Without Possession of Securities.  All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.


 


Section 5.06           Application
of Money Collected.  Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:


 


FIRST: To the
payment of all amounts due the Trustee under Section 6.07;


 


SECOND: To the
payment of the amounts then due and unpaid for principal of and any premium and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively; and


 


39

















 


THIRD: To the
Company, or to the extent the Trustee collects any amount from any Subsidiary
Guarantor, to the Subsidiary Guarantor.


 


Section 5.07           Limitation
on Suits.  No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless


 


(1)           such Holder has previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series;


 


(2)           the Holders of not less than
25% in principal amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;


 


(3)           such Holder or Holders have
offered to the Trustee reasonable indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with such request;


 


(4)           the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and


 


(5)           no direction inconsistent with
such written request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Securities of
that series;


 


it being understood and intended that no one
or more of such Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.


 


Section 5.08           Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert.  Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.07) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to convert such Security in accordance with Article XV and
to institute suit for the enforcement of any such payment and right to convert,
and such rights shall not be impaired without the consent of such Holder.


 


40

















 


Section 5.09           Restoration
of Rights and Remedies.  If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Subsidiary Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.


 


Section 5.10           Rights
and Remedies Cumulative.  Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.


 


Section 5.11           Delay or
Omission Not Waiver.  No delay or
omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.


 


Section 5.12           Control
by Holders.  The Holders of a
majority in principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series, provided
that


 


(1)           such direction shall not be in
conflict with any rule of law or with this Indenture,


 


(2)           the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction, and


 


(3)           subject to the provisions of
Section 6.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine, and the Trustee shall have received a legal
opinion stating, that the proceedings so directed would involve the Trustee in
personal liability.


 


Section 5.13           Waiver
of Past Defaults.  The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default


 


(1)           in the payment of the
principal of or any premium or interest on any Security of such series, or


 


41

















 


(2)           in respect of a covenant or
provision hereof which under Article IX cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such series affected.


 


Upon any such
waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.


 


Section 5.14           Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall apply to any suit
instituted by the Trustee, to any suit instituted by any Holders of the
Securities, or group of Holders of the Securities, holding in the aggregate
more than 10% of principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of the Outstanding Securities for the
enforcement of the payment of principal of or interest on any Outstanding
Securities held by such Holder, on or after the respective due dates expressed
in such Outstanding Securities, and provided, further, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or any Subsidiary Guarantor or the Trustee or,
if applicable, in any suit for the enforcement of the right to convert any
Security in accordance with Article XV.


 


Section 5.15           Waiver
of Usury, Stay or Extension Laws. 
Each of the Company and each Subsidiary Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and each of the Company and each Subsidiary Guarantor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


ARTICLE VI



THE TRUSTEE


 


The Trustee
hereby accepts the trust imposed upon it by this Indenture and covenants and
agrees to perform the same, as herein expressed.


 


Section 6.01           Duties
of Trustee.


 


(a)           If an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.


 


42

















 


(b)           Except during the
continuance of an Event of Default:


 


(1)           The Trustee need perform only
those duties as are specifically set forth in this Indenture and no others, and
no covenants or obligations shall be implied in or read into this Indenture.


 


(2)           In the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they substantially conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).


 


(c)           The Trustee may not
be relieved from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that:


 


(1)           This paragraph does not limit
the effect of paragraph (b) of this Section 6.01.


 


(2)           The Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was grossly negligent in ascertaining the
pertinent facts.


 


(3)           The Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.12.


 


(d)           No provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or to take or omit to take any action under this Indenture.


 


(e)           Every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (d) and (f) of this Section 6.01.


 


(f)            The Trustee shall
not be liable for interest on any assets received by it except as the Trustee
may agree in writing with the Company or any Subsidiary Guarantor. Assets held
in trust by the Trustee need not be segregated from other assets except to the
extent required by law.


 


Section 6.02           Rights
of Trustee.


 


Subject to
Section 6.01:


 


(a)           The Trustee may rely
conclusively on any document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in any
document.


 


43

















 


(b)           Before the Trustee
acts or refrains from acting, it may require an Officer’s Certificate or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion.


 


(c)           The Trustee may act
through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.


 


(d)           The Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.


 


(e)           The Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond, debenture, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company or any Subsidiary Guarantor,
personally or by agent or attorney at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such
investigation.


 


(f)            The Trustee shall
be under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Holders,
pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby.


 


(g)           The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection of
any action taken, suffered or omitted by the Trustee hereunder in good faith
and in reliance thereon.


 


(h)           The Trustee shall
not be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.


 


(i)            The rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder.


 


(j)            In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.


(k)           In no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


 


Section 6.03           Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or any Subsidiary Guarantor,
or their respective Affiliates, with the same rights it would have if it were
not Trustee. Any Paying Agent or Security Registrar may do the same with like
rights.


 


Section 6.04           Trustee’s
Disclaimer.  The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities or any Subsidiary Guarantee and it shall not be accountable for the
Company’s or any Subsidiary Guarantor’s use of the proceeds from 


 


44

















 


the Securities, and it shall not be
responsible for any statement in the Securities or any Subsidiary Guarantee,
other than the Trustee’s certificate of authentication, or the use or
application of any funds received by a Paying Agent other than the Trustee.


 


Section 6.05           Notice
of Default.  If an Event of Default
with respect to Securities of any series occurs and is continuing and if it is
known to the Trustee, the Trustee shall deliver to each Holder of Securities of
such series notice of the uncured Event of Default within 90 days after such
Event of Default occurs.  Except in the
case of an Event of Default in payment of principal (or premium, if any) of, or
interest on, any Security, the Trustee may withhold the notice if and so long
as a Responsible Officer in good faith determines that withholding the notice
is in the interest of the Holders of Securities of such series.


 


Section 6.06           Reports
by Trustee to Holders.  Within 60
days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of
such date that complies with Trust Indenture Act Section 313(a) if such report
is required by such Trust Indenture Act Section 313(a). The Trustee also shall
comply with Trust Indenture Act Section 313(b)(2).  The Trustee shall also transmit by mail all
reports as required by Trust Indenture Act Sections 313(c) and 313(d).


 


The Company
shall promptly notify the Trustee in writing if the Securities of any series
become listed on any stock exchange or automatic quotation system.


 


A copy of each
report at the time of its mailing to Holders shall be mailed to the Company and
filed with the Commission and each stock exchange, if any, on which the
Securities are listed.


 


Section 6.07           Compensation
and Indemnity.  The Company and the
Subsidiary Guarantors shall pay to the Trustee from time to time such
compensation for its services as the Company and the Trustee shall from time to
time agree in writing. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company and the
Subsidiary Guarantors shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee’s agents, accountants, experts and counsel.


 


The Company
and the Subsidiary Guarantors, jointly and severally, shall indemnify each of
the Trustee and Paying Agent and any predecessor Trustee and each of their
respective officers, directors, attorneys-in-fact and agents for, and hold it
harmless against, any claim, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel), loss, charges (including taxes (other than taxes based upon the
income of the Trustee)) or liability incurred by them without gross negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of this trust and their rights or duties hereunder including
the reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company and the Subsidiary
Guarantors promptly of any claim asserted against the Trustee for which it may
seek indemnity. The Company and the Subsidiary Guarantors shall defend the
claim and the 


 


45

















 


Trustee shall provide
reasonable cooperation at the Company’s expense in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company and the Subsidiary Guarantors need not
pay for any settlement made without their written consent, which consent shall
not be unreasonably withheld. The Company and the Subsidiary Guarantors need
not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee to the extent determined by a court of competent jurisdiction to
have been caused by its own gross negligence, bad faith or willful misconduct.


 


To secure the
Company’s and the Subsidiary Guarantors’ payment obligations in this Section
6.07, the Trustee shall have a lien prior to the Securities on all assets held
or collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on any series of
Securities.


 


When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.01(7) or (8) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.


 


The Company’s
and the Subsidiary Guarantors’ obligations under this Section 6.07 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company’s and the Subsidiary Guarantors’ obligations pursuant
to Article IV or Article XIV of this Indenture and any rejection or termination
of this Indenture under any Bankruptcy Law.


 


Section 6.08           Replacement
of Trustee.  The Trustee may resign
at any time with respect to the Securities of one or more series by so
notifying the Company and the Subsidiary Guarantors in writing. The Holder or
Holders of a majority in principal amount of the Outstanding Securities of a
series may remove the Trustee with respect to Securities of such series by so
notifying the Company and the Trustee in writing and may appoint a successor
trustee with respect to Securities of such series with the Company’s consent.
The Company may remove the Trustee if:


 


(1)           the Trustee fails to comply
with Section 6.10;


 


(2)           the Trustee is adjudged
bankrupt or insolvent;


 


(3)           a receiver, custodian, or
other public officer takes charge of the Trustee or its property; or


 


(4)           the Trustee becomes incapable
of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee, with
respect to the Securities of one or more series, for any reason, the Company
shall promptly appoint a successor Trustee, with respect to Securities of that
or those series. Within one year after the successor Trustee with respect to a
series of Securities takes office, the Holder or Holders of a majority in principal
amount of the Outstanding Securities of such series may appoint a successor
Trustee with respect to such series to replace the successor Trustee appointed
by the Company.


 


46

















 


A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that and provided that all sums
owing to the Trustee provided for in Section 6.07 have been paid, the retiring
Trustee shall transfer all property held by it as Trustee with respect to such
series of Securities to the successor Trustee, subject to the lien provided in
Section 6.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee with respect to
one or more series of Securities shall mail notice of its succession to each
Holder of Securities of that or those series.


 


If a successor
Trustee with respect to a series of Securities does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company, the Subsidiary Guarantors or the Holder or Holders of at least 10%
in principal amount of the Outstanding Securities of that series may petition
at the expense of the Company any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.


 


If the Trustee
fails to comply with Section 6.10, any Holder of Securities of a series may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee with
respect to such series.


 


Notwithstanding
replacement of the Trustee pursuant to this Section 6.08, the Company’s
obligations under Section 6.07 shall continue for the benefit of the retiring
Trustee.


 


Section 6.09           Successor
Trustee by Merger, Etc.  If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
resulting, surviving or transferee corporation without any further act shall,
if such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.


 


Section 6.10           Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of Trust Indenture Act Section 310(a)(1)
and Trust Indenture Act Section 310(a)(5). 
The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act Section 310(b).


 


Section 6.11           Preferential
Collection of Claims against Company. 
The Trustee shall comply with Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated.


 


ARTICLE VII



HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section 7.01           Company
to Furnish Trustee Names and Addresses of Holders.


 


The Company
will furnish or cause to be furnished to the Trustee:


 


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(1)           semi-annually, not more than 15
days after each Regular Record Date, a list for each series of Securities, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of such series as of the Regular Record Date, as the
case may be, and


 


(2)           at such other times as the
Trustee may request in writing, within 30 days after the receipt by the Company
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;


 


excluding from any
such list names and addresses received by the Trustee in its capacity as
Security Registrar.


 


Section 7.02           Preservation
of Information; Communications to Holders. 
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.


 


The rights of
the Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust Indenture Act.


 


Every Holder
of Securities, by receiving and holding the same, agrees with the Company, the
Subsidiary Guarantors and the Trustee that neither the Company, the Subsidiary
Guarantors nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.


 


Section 7.03           Reports
by Trustee.  The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.


 


A copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee, in
writing, when any Securities are listed on any stock exchange or delisted
therefrom.


 


Section 7.04           Reports
by Company.  The Company and each of
the Subsidiary Guarantors shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any 


 


48

















 


of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer’s Certificates).


 


ARTICLE VIII



CONSOLIDATION, AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE


 


Section 8.01           Company
May Consolidate, Etc., Only on Certain Terms.


 


The Company
may not, in a single transaction or a series of related transactions:


 


(a)           consolidate or
amalgamate or merge with or into any other Person or permit any other Person to
amalgamate, consolidate or merge with or into the Company, or


 


(b)           directly or
indirectly transfer, sell, lease (other than a charter or lease of a vessel in
the ordinary course of business) or otherwise dispose of all or substantially
all of its assets, unless:


 


(1)           in a transaction in which the
Company does not survive or in which the Company sells, leases or otherwise
disposes of all or substantially all of its assets, the successor entity to the
Company (A) is organized under the laws of (i) the United States or any State
thereof or the District of Columbia, (ii) Bahamas, Bermuda, China, Hong Kong,
New Zealand, the Republic of Singapore, the Republic of Liberia, the Republic
of Cyprus, the Republic of Malta, the Republic of Panama, the Republic of the
Marshall Islands and the Republic of Korea, (iii) a member state of the
European Union or (iv) any other country recognized by the United States and
(B) shall expressly assume, by a supplemental indenture executed and delivered
to the Trustee in a form reasonably satisfactory to the Trustee, all of the
Company’s obligations under the Indenture;


 


(2)           immediately before and after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and


 


(3)           the Company and the successor
Person have delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel each stating that such consolidation, amalgamation, merger, conveyance,
lease, sale, disposition or transfer and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.


 


Section 8.02           Amalgamations,
Mergers, Consolidations and Certain Sales of Assets by Subsidiary Guarantors.


 


(a)           Except with respect
to the Securities of any series whose terms permit such transactions as an
asset sale, no Subsidiary Guarantor shall, and the Company shall not permit any
Subsidiary Guarantor to, (i) amalgamate, consolidate or merge with or into, or
(ii) directly or indirectly, transfer, sell, lease or otherwise dispose of
(other than pursuant to a charter or lease of a vessel in the ordinary course
of business) its properties and assets substantially as an entirety to, any
other Person (other than the Company or another Subsidiary Guarantor) unless,
in any such transaction:


 


49

















 


(1)           in the case such Subsidiary
Guarantor shall amalgamate, consolidate or merge with or into another Person or
shall directly or indirectly convey, transfer or lease (other than a charter or
lease of a vessel in the ordinary course of business) its properties and assets
substantially as an entirety, the Person formed by such consolidation with or
into which such Subsidiary Guarantor is amalgamated or merged, or the Person
which acquires by conveyance, transfer or lease (other than a charter or lease
of a vessel in the ordinary course of business) the properties and assets of
such Subsidiary Guarantor substantially as an entirety (for purposes of this
Article VIII, a “Successor Subsidiary Guarantor”), shall be organized under the
laws of (i) the United States or any State thereof or the District of Columbia,
(ii) Bahamas, Bermuda, China, Hong Kong, New Zealand, the Republic of
Singapore, the Republic of Liberia, the Republic of Cyprus, the Republic of
Malta, the Republic of Panama, the Republic of the Marshall Islands and the
Republic of Korea, (iii) a member state of the European Union or (iv) any other
country recognized by the United States;


 


(2)           the Successor Subsidiary
Guarantor shall expressly assume by an indenture supplemental hereto executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of all obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee and the Indenture and the performance of every covenant of
this Indenture on the part of such Subsidiary Guarantor to be performed or
observed;


 


(3)           immediately before and after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and


 


(4)           the Company has delivered to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.


 


The provisions
of this Section 8.02 shall not be applicable to any series of Securities
unless, and only to the extent that, the terms of a particular series of
Securities so provide.


 


Section 8.03           Successor
Corporation Substituted.  Upon any
consolidation or merger or any transfer of assets in accordance with Section
8.01, the surviving Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such surviving Person had been named
as the Company herein. When a surviving Person duly assumes all of the
obligations of the Company pursuant hereto and pursuant to the Securities, the
predecessor shall be relieved of the performance and observance of all
obligations and covenants of this Indenture and the Securities, including but
not limited to the obligation to make payment of the principal of (and premium,
if any) and interest on all the Securities then outstanding, and the Company
may thereupon or any time thereafter be liquidated and dissolved.


 


Except with
respect to the Securities of any series whose terms permit such transactions as
an asset sale, upon any consolidation, amalgamation or merger of a Subsidiary
Guarantor with or into, or any conveyance, transfer or lease (other than a
charter or lease of a vessel in the 


 


50

















 


ordinary course of business) of
the properties and assets of such Subsidiary Guarantor substantially as an
entirety in accordance with Section 8.02 to a Person other than the Company or
another Subsidiary Guarantor, the Successor Subsidiary Guarantor shall succeed
to, and be substituted for, and may exercise every right and power of, such
Subsidiary Guarantor under this Indenture with the same effect as if such
Successor Subsidiary Guarantor had been named as a Subsidiary Guarantor herein,
and thereafter, except in the case of a lease, the predecessor Subsidiary
Guarantor shall be relieved of all obligations and covenants under this
Indenture and the Securities.


 


ARTICLE IX



SUPPLEMENTAL INDENTURES


 


Section 9.01           Supplemental
Indentures Without Consent of Holders. 
Without the consent of any Holders, the Company, when authorized by a
Board Resolution of the Company, the Subsidiary Guarantors, when authorized by
respective Board Resolutions of the Subsidiary Guarantors, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:


 


(1)           to evidence the succession of
another Person to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;


 


(2)           to add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred
upon the Company;


 


(3)           to add any additional Events
of Default;


 


(4)           to add to or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form;


 


(5)           to add to, change or eliminate
any of the provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security with
respect to such provision or (B) shall become effective only when there is no
such Security Outstanding;


 


(6)           to secure the Securities;


 


(7)           to establish the form or terms
of Securities of any series as permitted by Sections 2.01 and 3.01;


 


(8)           to comply with Section 8.01
and 8.02;


 


51

















 


(9)           to provide for uncertificated
Securities in addition to or in place of certificated Securities;


 


(10)         to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.08;


 


(11)         to make provisions with respect
to the conversion rights of Holders pursuant to the requirements of Article XV;


 


(12)         to cure any ambiguity, to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause (12) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect;


 


(13)         to add new Subsidiary Guarantors
pursuant to Section 14.05;


 


(14)         to conform any provision of this
Indenture to the “Description of Debt Securities” contained in the Prospectus
or any similar provision contained in any supplement to the Prospectus relating
to an offering of debt securities under this Indenture; or


 


(15)         to comply with any requirements
of the Trust Indenture Act of the requirements of the Commission in connection
with maintaining the qualification of this Indenture under the Trust Indenture
Act.


 


Section 9.02           Supplemental
Indentures with Consent of Holders. 
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Subsidiary Guarantors and the Trustee, the Company, when authorized by a Board
Resolution of the Company, the Subsidiary Guarantors, when authorized by
respective Board Resolutions of the Subsidiary Guarantors, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security,


 


(1)           change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate of interest or the
time of payment of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.02, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable or the right of selection thereof, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, 


 


52

















 


in the case of redemption, on or after the
Redemption Date), or adversely affect the right to convert any Security as
provided in Article XV, or modify the provisions of this Indenture with respect
to the ranking of the Securities in a manner adverse to the Holders;


 


(2)           reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;


 


(3)           modify any of the provisions
of this Section or Section 5.13, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the references
to “the Trustee” and concomitant changes in this Section, or the deletion of
this proviso, in accordance with the requirements of Sections 6.08 and
9.01(10);


 


(4)           change any obligations of the
Company to maintain an office or agency, or modify or waive the provisions of
Article XI;


 


(5)           change any obligation of the
Company to pay additional amounts;


 


(6)           adversely affect any right of
repayment or repurchase at the option of the Holder; or


 


(7)           reduce or postpone any sinking
fund or similar provision.


 


A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.


 


It shall not
be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.


 


Section 9.03           Execution
of Supplemental Indentures.  In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent in
the Indenture to the execution of the supplemental indenture have been complied
with. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


53














 


Section 9.04           Effect
of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


 


Section 9.05           Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust Indenture Act.


 


Section 9.06           Reference
in Securities to Supplemental Indentures. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company and the Subsidiary Guarantors shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee, the Company and the Subsidiary Guarantors, to any such
supplemental indenture may be prepared and executed by the Company, and the
Subsidiary Guarantees endorsed thereon may be executed by the Subsidiary
Guarantors, and such new Securities may be authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.


 


ARTICLE X



COVENANTS


 


Section 10.01         Payment
of Securities. The Company covenants and agrees for the benefit of each
series of Securities that it will pay the principal of and interest on the
Securities of that series on the dates and in the manner provided in the
Securities of that series and this Indenture. An installment of principal,
premium, if any, or interest on the Securities shall be considered paid on the
date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds for the benefit of the Holders, on that date,
immediately available funds deposited and designated for and sufficient to pay
the installment.


 


The Company
shall pay interest on overdue principal and on overdue installments of interest
at the rate specified in the Securities compounded semi-annually, to the extent
lawful.


 


Section 10.02         Maintenance
of Office or Agency. The Company shall maintain in the Place of Payment for
any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange, where Securities
of any series that is convertible may be surrendered for conversion, and where
notices and demands to or upon the Company or any Subsidiary Guarantor in
respect of the Securities of that series, any Subsidiary Guarantees endorsed thereon
and this Indenture may be served. The Company and the Subsidiary Guarantors
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company or any
Subsidiary Guarantor shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and each of the Company and each
Subsidiary Guarantor 


 


54

















 


hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.


 


The Company
may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby initially designates the principal corporate trust office of the
Trustee as such office of the Company.


 


Section 10.03         Money for
Securities Payments to Be Held in Trust. If the Company shall at any time
act as its own Paying Agent with respect to any series of Securities, it will,
on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.


 


Whenever the
Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.


 


The Company
will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.


 


The Company
may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.


 


Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any
Security of any series and remaining unclaimed for two years after such
principal, premium or interest has 


 


55

















 


become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York City,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.


 


Section 10.04         Corporate
Existence. Subject to Article VIII, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence in accordance with the respective organizational documents
of each of them and the rights (charter and statutory) and corporate franchises
of the Company and each of its Subsidiaries; provided , however ,
that the Company shall not be required to preserve, with respect to itself, any
right or franchise, and with respect to any of its Subsidiaries, any such
existence, right or franchise, if (a) the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and (b) the loss thereof is not
disadvantageous in any material respect to the Holders.


 


Section 10.05         Compliance
Certificate; Notice of Default.


 


(a)           The Company shall
deliver to the Trustee annually an officer’s certificate complying with Section
314(a)(4) of the Trust Indenture Act and stating that a review of its
activities and the activities of its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture (all without regard to periods of grace, which
shall be deemed fulfilled unless and until the expiration of such periods, or
notice requirements) and further stating, as to each such officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in
this Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The officer’s certificate
shall also notify the Trustee should the relevant fiscal year end on any date
other than the current fiscal year end date.


 


(b)           The Company shall,
so long as any of the Securities of any series are outstanding, deliver to the
Trustee, within 30 days after becoming aware of any Event of Default with
respect to such series under this Indenture, an Officer’s Certificate
specifying such Event of Default and what action the Company or the Subsidiary
Guarantors are taking or propose to take with respect thereto. The Trustee
shall not be deemed to have knowledge of an Event of Default unless one of its
Responsible Officers receives notice of the Event of Default from the Company
or any of the Holders.


 


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ARTICLE XI



REDEMPTION OF SECURITIES


 


Section 11.01         Applicability
of Article. Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.


 


Section 11.02         Election
to Redeem; Notice to Trustee. The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer’s Certificate evidencing compliance with such
restriction.


 


Section 11.03         Selection
by Trustee of Securities to Be Redeemed. If less than all the Securities of
any series are to be redeemed (unless all of the Securities of such series and
of a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for
Securities of that series. If less than all of the Securities of such series
and of a specified tenor are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee from the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance with the preceding
sentence.


 


If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.


 


The Trustee
shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.


 


For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to 


 


57

















 


be redeemed only in part, to
the portion of the principal amount of such Securities which has been or is to
be redeemed.


 


Section 11.04         Notice of
Redemption. Notice of redemption shall be delivered electronically or by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.


 


All notices of
redemption shall state:


 


(1)           the Redemption Date,


 


(2)           the Redemption Price,


 


(3)           if less than all the
Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed,


 


(4)           that on the Redemption Date
the Redemption Price will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,


 


(5)           in the case of any Securities
that are convertible pursuant to Article XV, the conversion price or rate, the
date on which the right to convert the principal of the Securities to be
redeemed will terminate and the place or places where such Securities may be
surrendered for conversion,


 


(6)           the place or places where such
Securities are to be surrendered for payment of the Redemption Price,


 


(7)           that the redemption is for a
sinking fund, if such is the case, and


 


(8)           applicable CUSIP Numbers.


 


Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company and shall be irrevocable.


 


Section 11.05         Deposit
of Redemption Price. Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date other than any Securities called for redemption on that
date which have been converted prior to the date of such deposit.


 


If any
Security called for redemption is converted, any money deposited with the
Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of such
Security or any Predecessor Security to receive 


 


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interest as provided in the
last paragraph of Section 3.07) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.


 


Section 11.06         Securities
Payable on Redemption Date. Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.01, installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.


 


If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the Security.


 


ARTICLE XII



SINKING FUNDS


 


Section 12.01         Applicability
of Article. The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.


 


The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a “mandatory sinking fund payment”, and any
payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 12.02. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.


 


Section 12.02         Satisfaction
of Sinking Fund Payments with Securities. The Company (1) may deliver
Outstanding Securities of a series (other than any Securities previously called
for redemption) and (2) may apply as a credit Securities of a series which have
been converted pursuant to Article XV or which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.


 


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Section 12.03         Redemption
of Securities for Sinking Fund. Not less than 60 days prior to each sinking
fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02, and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 11.03 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
11.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 11.06.


 


ARTICLE XIII


 


DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.01         Company’s
Option to Effect Defeasance or Covenant Defeasance. The Company may elect,
at its option by Board Resolution at any time, to have either Section 13.02 or
Section 13.03 applied to the Outstanding Securities of any series designated
pursuant to Section 3.01 as being defeasible pursuant to this Article XIII
(hereinafter called a “Defeasible Series”), upon compliance with the conditions
set forth below in this Article XIII; provided that Section 13.02 shall not
apply to any series of Securities that is convertible into Common Stock as
provided in Article XV or convertible into or exchangeable for any other
securities pursuant to Section 3.01(18).


 


Section 13.02         Defeasance
and Discharge. Upon the Company’s exercise of the option provided in
Section 13.01 to have this Section 13.02 applied to the Outstanding Securities
of any Defeasible Series, the Company shall be deemed to have been discharged
from its obligations, and the provisions of Article XIV shall cease to be
effective, with respect to the Outstanding Securities of such series and the
Subsidiary Guarantors shall be deemed to have been discharged from their
obligations with respect to their Subsidiary Guarantees for such Outstanding
Securities, as provided in this Section on and after the date the conditions
set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”) and
the Trustee shall deliver to the Company and the Subsidiary Guarantors
appropriate instruments of satisfaction, discharge and release. For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and this Indenture, and the Subsidiary Guarantors
shall be deemed to have satisfied all of their obligations under their
Subsidiary Guarantees and this Indenture insofar as the Securities of such
series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Securities of such series to receive, solely from the
trust fund described in Section 13.04 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest
on such Securities of such series when payments are due, (2) the Company’s
obligations with respect to the Securities of such series under Sections 3.04,
3.05, 3.06, 10.02 and 10.03, (3) the rights, 


 


60

















 


powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article XIII. Subject to compliance with this
Article XIII, the Company may exercise its option provided in Section 13.01 to
have this Section 13.02 applied to the Outstanding Securities of any Defeasible
Series notwithstanding the prior exercise of its option provided in Section
13.01 to have Section 13.03 applied to the Outstanding Securities of such
series.


 


Section 13.03         Covenant
Defeasance. Upon the Company’s exercise of the option provided in Section
13.01 to have this Section 13.03 applied to the Outstanding Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Section 7.04 and Section 8.01 and Section 10.04 and the Subsidiary Guarantors
shall be released from their obligations under Section 8.02 and Article XIV,
and (2) the occurrence of any event specified in Sections 5.01(3), 5.01(5)
(with respect to any of Sections 8.01, 8.02 and 10.04), 5.01(6) and 5.01(9)
shall be deemed not to be or result in an Event of Default and (3) the
provisions of Article XIV shall cease to be effective, in each case with
respect to the Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in Section 13.04 are
satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
5.01(5)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be unaffected thereby. In
addition, Covenant Defeasance means that each Subsidiary Guarantor, if any,
shall be released from its obligations under its Subsidiary Guarantee to the
extent that the Company is released from its obligations under this Indenture.


 


Section 13.04         Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions
to application of either Section 13.02 or Section 13.03 to the Outstanding
Securities of any Defeasible Series:


 


(1)           The Company shall irrevocably
have deposited or caused to be deposited with the Trustee (or another trustee
that satisfies the requirements contemplated by Section 6.09 and agrees to
comply with the provisions of this Article XIII applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and interest on
the Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such series.
As used herein, “U.S. Government Obligation” means (x) any security that is (i)
a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of 


 


61

















 


which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation specified in Clause (x) and held by such custodian for the account
of the holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any such U.S. Government Obligation,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.


 


(2)           In the case of an election under
Section 13.02, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date first
set forth hereinabove, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
the Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.


 


(3)           In the case of an election
under Section 13.03, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
the Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.


 


(4)           No Event of Default or event
that (after notice or lapse of time or both) would become an Event of Default
shall have occurred and be continuing at the time of such deposit or, with
regard to any Event of Default or any such event specified in Sections 5.01(7)
and (8), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until
after such 90th day).


 


(5)           Such Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a
party or by which it is bound.


 


(6)           The Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that any
trust resulting from the deposit does not require registration under the U.S.
Investment Company Act of 1940, as amended.


 


(7)           No event or condition shall
exist that, pursuant to the provisions of Article XIII, would prevent the
Company from making payments of the principal of (and any premium) or interest
on the Securities of such series on the date of such deposit or at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until such 90th day shall
have ended).


 


62

















 


(8)           The Company shall have
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.


 


Section 13.05         Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.


 


All money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.06, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 13.04 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.


 


The Company
and the Subsidiary Guarantors (on a joint and several basis) shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
13.04 or the principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of the Holders of
Outstanding Securities.


 


Anything in
this Article XIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.04 with respect to
Securities of any Defeasible Series that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Defeasance or Covenant Defeasance with respect to the Securities of such
series.


 


Section 13.06         Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance
with this Article XIII with respect to the Securities of any series by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s obligations
under this Indenture and the Securities of such series and such Subsidiary
Guarantor’s obligation under its Subsidiary Guarantee and this Indenture shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article XIII with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 13.05 with respect to Securities of such series in accordance with
this Article XIII; provided, however, that if the Company or a Subsidiary
Guarantor makes any payment of principal of or any premium or interest on any
Security of such series following the reinstatement of its obligations, the
Company or the Subsidiary Guarantor, as the case may be, shall be subrogated to
the rights of the Holders of Securities of such series to receive such payment
from the money so held in trust.


 


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ARTICLE XIV



SUBSIDIARY GUARANTEE


 


Section 14.01         Subsidiary
Guarantee. Each of the Subsidiary Guarantors hereby jointly and severally
unconditionally Guarantees to each Holder of a Security of a series as to which
it is a Subsidiary Guarantor authenticated and delivered by the Trustee, and to
the Trustee on behalf of such Holder, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as
the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, and all other
obligations of the Company to the Holders or the Trustee under this Indenture
or under the Securities will be promptly paid in full or performed, in
accordance with the terms of such Security and of this Indenture. In case of
the failure of the Company punctually to make any such payment, each of the
Subsidiary Guarantors hereby jointly and severally agrees to cause such payment
to be made punctually when and as the same shall become due and payable,
whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, and as if such payment were made by the Company.


 


Each of the
Subsidiary Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of such Security or this Indenture, the absence of any action to
enforce the same, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee of all or any of the Securities, the election by the Trustee or
any of the Holders in any proceeding under Chapter 11 of Title 11 of the United
States Code (the “Bankruptcy Code”) of the application of Section 1111(b)(2) of
the Bankruptcy Code, any borrowing or grant of a security interest by the
Company, as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Company or any other Person or any
collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that this
Subsidiary Guarantee will not be discharged in respect of such Security except
by complete performance of the obligations contained in such Security and in
this Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at their Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in this Indenture, directly against each of the
Subsidiary Guarantors to enforce this Subsidiary Guarantee without first
proceeding against the Company. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default with respect
to the Securities of the series as to which it is a Subsidiary Guarantor, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Securities of such
series, to 


 


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collect interest on the
Securities of such series, or to enforce or exercise any other right or remedy
with respect to the Securities of such series, such Subsidiary Guarantor agrees
to pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.


 


Each
Subsidiary Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Subsidiary Guarantee is endorsed against the Company
in respect of any amounts paid by such Subsidiary Guarantor on account of such
Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall
be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any)
and interest on all Securities issued hereunder as to which such Subsidiary
Guarantor is a Subsidiary Guarantor shall have been paid in full.


 


Each
Subsidiary Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company’s assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities, whether
as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.


 


The Subsidiary
Guarantors shall have the right to seek contribution from any non-paying
Subsidiary Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Subsidiary Guarantee.


 


Section 14.02         Execution
and Delivery of Subsidiary Guarantees. The Subsidiary Guarantees to be
endorsed on the Securities of any series shall include the terms of the
Subsidiary Guarantee set forth in Section 14.01 and any other terms that may be
set forth in the form established pursuant to Section 2.06. Each of the
Subsidiary Guarantors hereby agrees to execute its Subsidiary Guarantee, in a form
established pursuant to Section 2.06, to be endorsed on each Security as to
which it is a Subsidiary Guarantor authenticated and delivered by the Trustee.


 


The Subsidiary
Guarantee shall be executed on behalf of each respective Subsidiary Guarantor
by any one of such Subsidiary Guarantor’s Chairman of the Board, Vice Chairman
of the Board, President, Vice President or other person duly authorized by the
Board of Directors of such Subsidiary Guarantor, attested by its Secretary or
Assistant Secretary or other appropriate officer of such Subsidiary Guarantor. The
signature of any or all of these persons on the Subsidiary Guarantee may be
manual or facsimile.


 


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A Subsidiary
Guarantee bearing the manual or facsimile signature of individuals who were at
any time the proper officers of a Subsidiary Guarantor shall bind such
Subsidiary Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the
Security on which such Subsidiary Guarantee is endorsed or did not hold such
offices at the date of such Subsidiary Guarantee.


 


The delivery
of any Security by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Subsidiary Guarantee endorsed thereon on
behalf of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby
jointly and severally agrees that its Subsidiary Guarantee set forth in Section
14.01 shall remain in full force and effect notwithstanding any failure to
endorse a Subsidiary Guarantee on any Security.


 


Section 14.03         Subsidiary
Guarantors May Consolidate, Etc., on Certain Terms. Except as set forth in
Section 14.04 and in Article VIII and the terms of the Securities, nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation, amalgamation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor or shall prevent any conveyance,
transfer or lease of the property and assets of a Subsidiary Guarantor
substantially as an entirety to the Company or another Subsidiary Guarantor.


 


Section 14.04         Release
of Subsidiary Guarantors.


 


(a)           Concurrently with the
sale or other disposition of a Subsidiary Guarantor (including by way of any
consolidation, amalgamation or merger) or any conveyance, transfer or lease
(other than pursuant to the charter or lease of a vessel in the ordinary course
of business) of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, in each case as permitted by Section 14.03
hereof, and upon delivery by the Company to the Trustee of an Officer’s
Certificate and an Opinion of Counsel to the effect that such consolidation,
amalgamation, merger, conveyance, transfer or lease was made in accordance with
Section 14.03 hereof, the Trustee shall execute any documents reasonably
required in order to acknowledge the release of such Subsidiary Guarantor from
its obligations under its Subsidiary Guarantee endorsed on the Securities and
under this Article XIV. Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantee endorsed on the Securities and under
this Article XIV shall remain liable for the full amount of principal of (and
premium, if any) and interest on the Securities of a series as to which it is a
Subsidiary Guarantor and for the other obligations of a Subsidiary Guarantor
under its Subsidiary Guarantee endorsed on such Securities and under this
Article XIV.


 


(b)           Concurrently with
the defeasance of the Securities under Section 13.02 hereof, the Subsidiary
Guarantors shall be released from all of their obligations under their
Subsidiary Guarantees endorsed on the Securities and under this Article XIV,
without any action on the part of the Trustee or any Holder of Securities.


 


(c)           Upon the sale or
disposition (by merger or otherwise) of any Subsidiary Guarantor by the Company
or by any Subsidiary Guarantor of the Company constituting an asset sale
permitted under the terms of the Securities of any series to a Person other
than the Company or a Subsidiary Guarantor of the Company and which is
otherwise in compliance with the terms of this Indenture and the terms of the
Securities of such series, such Subsidiary Guarantor shall 


 


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automatically be released from all
obligations under its Subsidiary Guarantees endorsed on the Securities of such
series and under this Article XIV, provided, that all obligations of such
Subsidiary Guarantor with respect to any Indebtedness of the Company or any
Subsidiary of the Company shall also terminate upon such transaction. Notice of
such release pursuant to this paragraph (c) shall be provided to the Trustee.


 


Section 14.05         Additional
Subsidiary Guarantors.


 


(a)           The Company may
cause any of its Subsidiaries to become a Subsidiary Guarantor with respect to
the Securities by executing and delivering to the Trustee (a) a supplemental
indenture, in form and substance satisfactory to the Trustee, which subjects
such Person to the provisions (including the representations and warranties) of
this Indenture as a Subsidiary Guarantor and (b) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed
by such Person and constitutes the legal, valid, binding and enforceable
obligation of such Person (subject to such customary exceptions concerning
creditors’ rights and equitable principles as may be acceptable to the Trustee
in its discretion).


 


(b)           The Company will
cause any Subsidiary of the Company that is required under the terms of the
Securities of any series to become a Subsidiary Guarantor to execute a
supplemental indenture pursuant to which it shall become a Subsidiary
Guarantor.


 


ARTICLE XV



CONVERSION OF SECURITIES


 


Section 15.01         Applicability;
Conversion Privilege and Conversion Price. Securities of any series which
are convertible into Common Stock of the Company shall be convertible in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this
Article.


 


Subject to and
upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Security or any portion of the outstanding principal amount
thereof which is $1,000 or an integral multiple of $1,000 may be converted at
the principal amount thereof, or of such portion thereof, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100 of
a share) of Common Stock of the Company at the conversion price, determined as
hereinafter provided, in effect at the time of conversion. Such conversion
right shall expire at the close of business on the date specified for
Securities of such series. In case a Security or portion thereof is called for
redemption at the election of the Company, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
10th calendar day before the Redemption Date, unless the Company defaults in making
the payment due upon redemption.


 


The price at
which shares of Common Stock shall be delivered upon conversion (herein called
the “conversion price”) shall be the price specified in relation to Securities
of such series pursuant to Section 3.01, as it shall be adjusted in certain
instances as provided in this Article.


 


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Section 15.02         Exercise
of Conversion Price. In order to exercise the conversion privilege, the
Holder of any Security to be converted shall surrender such Security, duly
endorsed or assigned to the Company or in blank, at any office or agency of the
Company maintained for that purpose pursuant to Section 10.02, accompanied by
written notice to the Company (which shall be substantially in the form set
forth in Section 2.03) at such office or agency that the Holder elects to
convert such Security or, if less than the entire principal amount thereof is
to be converted, the portion thereof to be converted. Securities surrendered
for conversion during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date shall (except in the case of Securities or
portions thereof which have been called for redemption on a Redemption Date
within such period) be accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for conversion.
Subject to the provisions of Section 3.07 relating to the payment of Defaulted
Interest by the Company, the interest payment with respect to a Security called
for redemption on a Redemption Date during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall be payable on such
Interest Payment Date to the Holder of such Security at the close of business
on such Regular Record Date notwithstanding the conversion of such Security
after such Regular Record Date and prior to such Interest Payment Date, and the
Holder converting such Security need not include a payment of such interest
payment amount upon surrender of such Security for conversion. Except as
provided in the preceding sentence and subject to the final paragraph of
Section 3.07, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the Common Stock issued upon conversion.


 


Securities
shall be deemed to have been converted immediately prior to the close of
business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 15.03.


 


Section 15.03         Fractions
of Shares. No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the daily closing
price per share of Common Stock (consistent with Section 15.04(6) below) at the
close of business on the day of conversion.


 


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Section 15.04         Adjustment
of Conversion Price.


 


(1)           In case the Company shall pay
or make a dividend or other distribution on any class of capital stock of the
Company in Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such dividend or other distribution shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination and the denominator shall be the sum of
such number of shares and the total number of shares constituting such dividend
or other distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(2)           In case the Company shall
issue rights or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in paragraph (6) of
this Section) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants (other than pursuant
to a dividend reinvestment plan), the conversion price in effect at the opening
of business on the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.


 


(3)           In case outstanding shares of
Common Stock shall be subdivided into a greater number of shares of Common
Stock, the conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of Common
Stock shall each be combined into a smaller number of shares of Common Stock,
the conversion price in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.


 


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(4)           In case the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock evidences
of its indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend or distribution
paid in cash out of the earned surplus of the Company and any dividend or
distribution referred to in paragraph (1) of this Section), the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in paragraph (6) of this
Section) of the Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed with
the Trustee) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock and the denominator shall
be such current market price per share of the Common Stock, such adjustment to
become effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such distribution.


 


(5)           The reclassification of Common
Stock into securities other than Common Stock (other than any reclassification
upon a consolidation or merger to which Section 15.11 applies) shall be deemed
to involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be “the date fixed for the determination of stockholders entitled
to receive such distribution” and “the date fixed for such determination”
within the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the effective
date of such reclassification shall be deemed to be “the day upon which such
subdivision becomes effective” or “the day upon which such combination becomes
effective”, as the case may be, and “the day upon which such subdivision or
combination becomes effective” within the meaning of paragraph (3) of this
Section).


 


(6)           For the purpose of any
computation under paragraphs (2) and (4) of this Section, the current market
price per share of Common Stock on any day shall be deemed to be the average of
the daily closing prices for the five consecutive trading days ( i.e .,
Business Days on which the Common Stock is traded) selected by the Board of
Directors commencing not more than 20 trading days before, and ending not later
than, the earlier of the day in question and the day before the “ex” date with
respect to the issuance or distribution requiring such computation. For this
purpose, the term “ex” date, when used with respect to any issuance or
distribution, shall mean the first date on which the Common Stock trades
regular way on the applicable exchange or in the applicable market without the
right to receive such issuance or distribution. The closing price for each day
shall be the reported last sale price regular way or, in case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such exchange, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the average of the closing bid and
asked prices in the over-the-


 


70

















 


counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose.


 


(7)           The Company may make such
reductions in the conversion price, in addition to those required by paragraphs
(1), (2), (3) and (4) of this Section, as it considers to be advisable in order
to avoid or diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error pursuant to this section
and its actions in so doing shall be final and conclusive.


 


(8)           No adjustment in the
conversion price shall be required unless such adjustment would require an
increase or decrease of at least one percent in such conversion price; provided
, however , that any adjustment which by reason of this paragraph (8) is
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be.


 


Section 15.05         Notice of
Adjustments of Conversion Price.


 


Whenever the
conversion price is adjusted as herein provided:


 


(a)           the Company shall
compute the adjusted conversion price in accordance with Section 15.04 and
shall prepare a certificate signed by the Treasurer or other appropriate
officer of the Company setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee and with the Conversion
Agent at each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.02; and


 


(b)           a notice stating
that the conversion price has been adjusted and setting forth the adjusted
conversion price shall forthwith be required, and as soon as practicable after
it is required, such notice shall be delivered electronically or mailed by the
Company to all Holders at their last addresses as they shall appear in the
Security Register.


 


Section 15.06         Notice of
Certain Corporate Action.


 


In case:


 


(a)           the Company shall
declare a dividend (or any other distribution) on its Common Stock payable
otherwise than in cash out of its earned surplus; or


 


(b)           the Company shall
authorize the granting to the holders of its Common Stock of rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of any
other rights; or


 


(c)           of any
reclassification of the Common Stock of the Company (other than a subdivision
or combination of its outstanding shares of Common Stock), or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any 


 


71

















 


stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or


 


(d)           of the voluntary or
involuntary dissolution, liquidation or winding up of the Company;


 


then the Company shall cause to be filed at
each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.02, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at least 20 days
(or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up. Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(a) through (d) of this Section 15.06. If at the time the Trustee shall not be
the Conversion Agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.


 


Not less than
seven days prior to any date fixed for the determination of stockholders
entitled to receive such distribution, the Company shall cause to be filed at
each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.02, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, a notice stating
the date on which such determination is to be made, and briefly describing the
import thereof. If at the time the Trustee shall not be the Conversion Agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.


 


Section 15.07         Company
to Reserve Common Stock. The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock then issuable upon the conversion of all Outstanding Securities.


 


Section 15.08         Taxes on
Conversions. The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.


 


Section 15.09         Covenant
as to Common Stock. The Company covenants that all shares of Common Stock
which may be issued upon conversion of Securities will upon issue be fully paid



 


72

















 


and nonassessable and, except as provided in
Section 15.08, the Company will pay all taxes, liens and charges with respect
to the issue thereof.


 


Section 15.10         Cancellation
of Converted Securities. All Securities delivered for conversion shall be
delivered to the Trustee to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.09.


 


Section 15.11         Provisions
in Case of Consolidation, Merger or Sale of Assets. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company) or any sale
or transfer of all or substantially all of the assets (other than pursuant to
the charter or lease of a vessel in the ordinary course of business) of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each
convertible Security then outstanding shall have the right thereafter, during
the period such Security shall be convertible as specified in Section 15.01, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Company
failed to exercise his, her or its rights of election, if any, as to the kind
or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the Company
in respect of which such rights of election shall not have been exercised (“non-electing
share”), then for the purpose of this Section the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.


 


Section 15.12         Responsibility
of Trustee. Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder of Securities to determine
whether any fact exists which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the registration,
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Security, or for monitoring the price of the Common Stock
or effecting any calculations hereunder; and neither the Trustee nor any Conversion
Agent makes any representation with respect thereto. Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to
issue or transfer or deliver any Common Stock or stock certificates or other
securities or property or to make any cash payment upon the surrender of any
Security for the 


 


73

















 


purpose of conversion or to comply with any
of the covenants of the Company contained in this Article XV.


 


The Trustee
makes no representations as to the validity or sufficiency of this Indenture;
the recitals and statements herein are deemed to be those of the Company and
not of the Trustee.


 


This
instrument 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.


 


(Signature
Pages to Follow)


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed as
of the day and year first above written.


 


 


	
   

  	
  DANAOS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Guarantors:

  
	
   

  	
   

  
	
   

  	
  APPLETON
  NAVIGATION S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AUCKLAND
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BAKER
  INTERNATIONAL S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BALTICSEA
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BAYARD
  MARITIME LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BAYVIEW
  SHIPPING INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BLACKSEA
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BOUNTY
  INVESTMENT INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 1) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BOXCARRIER
  (NO. 2) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 3) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 4) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 5) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 6) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOXCARRIER
  (NO. 7) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BOXCARRIER
  (NO. 8) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CELLCONTAINER
  (NO. 1) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CELLCONTAINER
  (NO. 2) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CELLCONTAINER
  (NO. 3) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CELLCONTAINER
  (NO. 4) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CELLCONTAINER
  (NO. 5) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  CHANNELVIEW
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COBALTIUM
  SHIPPING INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMMODORE
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONSTANTIA
  MARITIME INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CONTAINERS
  LINES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  CONTAINERS
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONTINENT
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DELEAS
  SHIPPING LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DUKE MARINE
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ERATO
  NAVIGATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXPRESSCARRIER
  (NO. 1) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  EXPRESSCARRIER
  (NO. 2) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXPRESSCARRIER
  (NO. 3) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXPRESSCARRIER
  (NO. 4) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXPRESSCARRIER
  (NO. 5) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FEDERAL
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  FERROUS
  SHIPPING INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEOFFREY
  SHIPHOLDING LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HELDERBERG
  MARITIME INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEPENDENCE
  NAVIGATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KARLITA
  SHIPPING COMPANY LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LACEY
  NAVIGATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  LATO
  SHIPPING (PRIVATE) LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LITO
  NAVIGATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LYDIA INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDSEA
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEGACARRIER
  (NO.1) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEGACARRIER
  (NO.2) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEGACARRIER
  (NO.3) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 

















 


	
   

  	
  MEGACARRIER
  (NO.4) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEGACARRIER
  (NO.5) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OCEANEW
  SHIPPING LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OCEANPRIZE
  NAVIGATION LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PENINSULA
  MARITIME INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RAMONA
  MARINE COMPANY LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SAPFO
  NAVIGATION INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 

















 


	
   

  	
  SARATOGA
  TRADING S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEACARAVEL
  SHIPPING LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEACARRIERS
  LINES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  SEACARRIERS
  SERVICES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEASENATOR
  SHIPPING LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEDERBERG
  MARITIME INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STRONDIUM
  SHIPPING INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TEUCARRIER (NO.
  1) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEUCARRIER
  (NO. 2) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  TEUCARRIER
  (NO. 3) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEUCARRIER
  (NO. 4) CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEUCARRIER
  (NO. 5) CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TITANIUM
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TULLY
  ENTERPRISES S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TYRON
  ENTERPRISES S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  VICTORY SHIPHOLDING
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLINGTON
  MARINE INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTWOOD
  MARINE S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WINTERBERG
  MARITIME INC.

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  Trustee:

  
	
   

  	
   

  
	
   

  	
  The Bank of
  New York, as trustee

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: