Exhibit 4.2


 




 





DANAOS
CORPORATION,


 


the
Subsidiary Guarantors named herein


 


and


 


THE
BANK OF NEW YORK,


 


Trustee


 


INDENTURE


 


Dated
as of
                    
    , 2007


 


Subordinated
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

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 1.03

  	
  Form of Documents
  Delivered to Trustee

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 1.04

  	
  No Adverse Interpretation
  of Other Agreements; Use of English Language

  	
  10

  
	
   

  	
   

  	
   

  
	
  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

  	
  23

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE III

  	
  THE SECURITIES

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Amount Unlimited; Issuable
  in Series

  	
  26

  	 

	
   

  	
   

  	
   

  
	
  Section 3.02

  	
  Denominations

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 3.03

  	
  Execution, Authentication,
  Delivery and Dating

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 3.04

  	
  Temporary Securities

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 3.05

  	
  Registration, Registration
  of Transfer and Exchange

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 3.06

  	
  Mutilated, Destroyed, Lost
  and Stolen Securities

  	
  32

  
						



 


i

















 


	
   

  	
   

  	
  Page

  	 

	
   

  	
   

  	
   

  
	
  Section 3.07

  	
  Payment of Interest;
  Interest Rights Preserved

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 3.08

  	
  Persons Deemed Owners

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 3.09

  	
  Cancellation

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Computation of Interest

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  CUSIP Numbers

  	
  34

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Satisfaction and Discharge
  of Indenture

  	
  35

  	 

	
   

  	
   

  	
   

  
	
  Section 4.02

  	
  Application of Trust Money

  	
  36

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE V

  	
  REMEDIES

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Events of Default

  	
  36

  	 

	
   

  	
   

  	
   

  
	
  Section 5.02

  	
  Acceleration of Maturity;
  Rescission and Annulment

  	
  38

  
	
   

  	
   

  	
   

  
	
  Section 5.03

  	
  Collection of Indebtedness
  and Suits for Enforcement by Trustee

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.04

  	
  Trustee May File Proofs of
  Claim

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.05

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.06

  	
  Application of Money
  Collected

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.07

  	
  Limitation on Suits

  	
  40

  
	
   

  	
   

  	
   

  
	
  Section 5.08

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

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.09

  	
  Restoration of Rights and
  Remedies

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.10

  	
  Rights and Remedies
  Cumulative

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.11

  	
  Delay or Omission Not
  Waiver

  	
  41

  
	
   

  	
   

  	
   

  
	
  Section 5.12

  	
  Control by Holders

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.13

  	
  Waiver of Past Defaults

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.14

  	
  Undertaking for Costs

  	
  42

  
	
   

  	
   

  	
   

  
	
  Section 5.15

  	
  Waiver of Usury, Stay or
  Extension Laws

  	
  43

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE VI

  	
  THE TRUSTEE

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Duties of Trustee

  	
  43

  	 

	
   

  	
   

  	
   

  
	
  Section 6.02

  	
  Rights of Trustee

  	
  44

  
	
   

  	
   

  	
   

  
	
  Section 6.03

  	
  Individual Rights of
  Trustee

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.04

  	
  Trustee’s Disclaimer

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.05

  	
  Notice of Default

  	
  45

  
						



 


ii

















 


	
   

  	
   

  	
  Page

  	 

	
   

  	
   

  	
   

  	 

	
  Section 6.06

  	
  Reports by Trustee to Holders

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 6.07

  	
  Compensation and Indemnity

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 6.08

  	
  Replacement of Trustee

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 6.09

  	
  Successor Trustee by
  Merger, Etc

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Eligibility;
  Disqualification

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Preferential Collection of
  Claims against Company

  	
  48

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE VII

  	
  HOLDERS’ LISTS AND REPORTS
  BY TRUSTEE AND COMPANY

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Company to Furnish Trustee
  Names and Addresses of Holders

  	
  48

  	 

	
   

  	
   

  	
   

  
	
  Section 7.02

  	
  Preservation of
  Information; Communications to Holders

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 7.03

  	
  Reports by Trustee

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 7.04

  	
  Reports by Company

  	
  49

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE VIII

  	
  CONSOLIDATION,
  AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE

  	
  49

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Company May Consolidate,
  Etc., Only on Certain Terms

  	
  49

  	 

	
   

  	
   

  	
   

  
	
  Section 8.02

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

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 8.03

  	
  Successor Corporation
  Substituted

  	
  51

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
  51

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental Indentures
  Without Consent of Holders

  	
  51

  	 

	
   

  	
   

  	
   

  
	
  Section 9.02

  	
  Supplemental Indentures
  with Consent of Holders

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 9.03

  	
  Execution of Supplemental
  Indentures

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 9.04

  	
  Effect of Supplemental
  Indentures

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 9.05

  	
  Conformity with Trust
  Indenture Act

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 9.06

  	
  Reference in Securities to
  Supplemental Indentures

  	
  54

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE X

  	
  COVENANTS

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Payment of Securities

  	
  55

  	 

	
   

  	
   

  	
   

  
	
  Section 10.02

  	
  Maintenance of Office or
  Agency

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 10.03

  	
  Money for Securities
  Payments to Be Held in Trust

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 10.04

  	
  Corporate Existence

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 10.05

  	
  Compliance Certificate;
  Notice of Default

  	
  57

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XI

  	
  REDEMPTION OF SECURITIES

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Applicability of Article

  	
  57

  	 

								



 


iii

















 


	
   

  	
   

  	
  Page

  	 

	
   

  	
   

  	
   

  	 

	
  Section 11.02

  	
  Election to Redeem; Notice
  to Trustee

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 11.03

  	
  Selection by Trustee of
  Securities to Be Redeemed

  	
  57

  
	
   

  	
   

  	
   

  
	
  Section 11.04

  	
  Notice of Redemption

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 11.05

  	
  Deposit of Redemption
  Price

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 11.06

  	
  Securities Payable on
  Redemption Date

  	
  59

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XII

  	
  SINKING FUNDS

  	
  59

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Applicability of Article

  	
  59

  	 

	
   

  	
   

  	
   

  
	
  Section 12.02

  	
  Satisfaction of Sinking
  Fund Payments with Securities

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 12.03

  	
  Redemption of Securities
  for Sinking Fund

  	
  60

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XIII

  	
  DEFEASANCE AND COVENANT
  DEFEASANCE

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Company’s Option to Effect
  Defeasance or Covenant Defeasance

  	
  60

  	 

	
   

  	
   

  	
   

  
	
  Section 13.02

  	
  Defeasance and Discharge

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 13.03

  	
  Covenant Defeasance

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 13.04

  	
  Conditions to Defeasance
  or Covenant Defeasance

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 13.05

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

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section 13.06

  	
  Reinstatement

  	
  64

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XIV

  	
  SUBSIDIARY GUARANTEE

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Subsidiary Guarantee

  	
  64

  	 

	
   

  	
   

  	
   

  
	
  Section 14.02

  	
  Execution and Delivery of
  Subsidiary Guarantees

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 14.03

  	
  Subsidiary Guarantors May
  Consolidate, Etc., on Certain Terms

  	
  66

  
	
   

  	
   

  	
   

  
	
  Section 14.04

  	
  Release of Subsidiary
  Guarantors

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 14.05

  	
  Additional Subsidiary
  Guarantors

  	
  67

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XV

  	
  CONVERSION OF SECURITIES

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Applicability; Conversion
  Privilege and Conversion Price

  	
  68

  	 

	
   

  	
   

  	
   

  
	
  Section 15.02

  	
  Exercise of Conversion
  Price

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 15.03

  	
  Fractions of Shares

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 15.04

  	
  Adjustment of Conversion
  Price

  	
  69

  
	
   

  	
   

  	
   

  
	
  Section 15.05

  	
  Notice of Adjustments of
  Conversion Price

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 15.06

  	
  Notice of Certain
  Corporate Action

  	
  72

  
	
   

  	
   

  	
   

  
	
  Section 15.07

  	
  Company to Reserve Common
  Stock

  	
  73

  
						



 


iv

















 


	
   

  	
   

  	
  Page

  	 

	
   

  	
   

  	
   

  	 

	
  Section 15.08

  	
  Taxes on Conversions

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.09

  	
  Covenant as to Common
  Stock

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.10

  	
  Cancellation of Converted
  Securities

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.11

  	
  Provisions in Case of
  Consolidation, Merger or Sale of Assets

  	
  73

  
	
   

  	
   

  	
   

  
	
  Section 15.12

  	
  Responsibility of Trustee

  	
  74

  
	
   

  	
   

  	
   

  	 

	
  ARTICLE XVI

  	
  SUBORDINATION OF
  SECURITIES

  	
  74

  
	
   

  	
   

  	
   

  
	
  Section 16.01

  	
  Securities Subordinate to
  Senior Indebtedness

  	
  74

  	 

	
   

  	
   

  	
   

  
	
  Section 16.02

  	
  Payment Over of Proceeds
  Upon Dissolution, Etc

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 16.03

  	
  Prior Payment to Senior
  Indebtedness Upon Acceleration of Securities

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 16.04

  	
  No Payment When Senior
  Indebtedness in Default

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 16.05

  	
  Payment Permitted If No
  Default

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 16.06

  	
  Subrogation to Rights of
  Holders of Senior Indebtedness

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 16.07

  	
  Provisions Solely to
  Define Relative Rights

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 16.08

  	
  Trustee to Effectuate
  Subordination

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 16.09

  	
  No Waiver of Subordination
  Provisions

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 16.10

  	
  Notice to Trustee

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 16.11

  	
  Reliance on Judicial Order
  or Certificate of Liquidating Agent

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 16.12

  	
  Trustee Not Fiduciary for
  Holders of Senior Indebtedness

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 16.13

  	
  Rights of Trustee as
  Holder of Senior Indebtedness; Preservation of Trustee’s Rights

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 16.14

  	
  Article Applicable to
  Paying Agents

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 16.15

  	
  Certain Conversions Deemed
  Payment

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 16.16

  	
  Trust Moneys Not
  Subordinated

  	
  80

  
						



 


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 principles, and, except as otherwise herein
expressly provided, the term “generally accepted


 


1

















 


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 be
limited to a fixed sum or percentage with respect to the rights of the holders
thereof to


 


2

















 


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.


 


“Guarantor Senior
Indebtedness” has the meaning specified in Section 16.09.


 


“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


 


4

















 


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 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,
a Vice President, the Chief Financial Officer, the Chief Accounting 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 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 Article XI of 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 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.


 


“Senior Indebtedness” means
the principal of (and premium, if any), accrued interest (including interest
accruing on or after the filing in bankruptcy or reorganization relating to the
Company or a Subsidiary Guarantor whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, guarantees and other amounts owing with respect to
all Indebtedness of the Company and the Subsidiary Guarantors (including
Indebtedness of others guaranteed by the Company) other than the Securities and
the Subsidiary Guarantees, in any such case whether outstanding on the date of
this Indenture or the date Securities of any series are issued hereunder or
thereafter created, incurred or assumed,


 


7

















 


unless in any case in the
instrument creating or evidencing any such Indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such Indebtedness
or obligation is not superior in right of payment to the Securities and the
Subsidiary Guarantees, or it is provided that such obligation is subordinated
to senior indebtedness to substantially the same extent as the Securities and
the Subsidiary Guarantees, are subordinated to Senior Indebtedness.


 


“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.


 


“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.


 


8

















 


 


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.


 


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.


 


9

















 


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 (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.


 


10

















 


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 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


 


11

















 


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 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.


 


12

















 


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


 


“commission” means the
Commission;


 


“indenture securities” means
the Securities;


 


“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, the holders of Senior
Indebtedness 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


 


13

















 


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.


 


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


 


14

















 


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 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


 


15

















 


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 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


 


16

















 


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, the holders of Senior Indebtedness and 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


 


17

















 


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 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.]


 


18

















 


[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
(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.]


 


The indebtedness evidenced
by this Security is, to the extent provided in the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take action as may be necessary or appropriate
to effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.


 


As provided in the Indenture
and subject to certain limitations therein set forth, the obligations of the
Company under the Indenture and this Security are Guaranteed on a subordinated
basis pursuant to Subsidiary Guarantees endorsed hereon. The Indenture provides
that a Subsidiary Guarantor shall be released from its Subsidiary Guarantee
upon compliance with certain conditions.


 


[If applicable, insert
— The Indenture contains provisions for defeasance at any time of [(1) 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.]


 


19














 


[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 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.


 


Subject to the
rights of holders of Senior Indebtedness, as set forth in the Indenture, no
other reference herein to the Indenture and no other 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


 


20

















 


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 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:


 


21

















 


	
  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 

  NUMBER

  	
   

  	
  [SIGNATURE GUARANTEED —

  required
  only if

  Common Stock
  and Securities are to be 

  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:


 


22

















 


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 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


 


23

















 


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.


 


The
indebtedness of each Subsidiary Guarantor evidenced by this Subsidiary
Guarantee is, to the extent provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness of
such Subsidiary Guarantor, and this Subsidiary Guarantee is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such Holder’s behalf to
take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee as such Holder’s
attorney-in-fact for any and all such purposes.


 


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 , 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


 


24

















 


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 and Article XVI 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.


 


	
   

  	
  [Insert
  Subsidiary Guarantors, as applicable]

  Each as Subsidiary
  Guarantor

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Authorized Signatory

  



 


25

















 


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;


 


(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;


 


26

















 


(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 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;


 


27

















 


(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:


 


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


 


(ii)           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


 


(iii)          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.


 


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


 


28

















 


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.


 


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.


 


29

















 


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
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


 


30

















 


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 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


 


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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.


 


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.


 


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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 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.


 


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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.


 


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


 


34

















 


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 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;


 


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(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 occasioned by the provisions of
Article XVI or 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


 


(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


 


36

















 


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


 


(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


 


37

















 


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 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,


 


38

















 


(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.


 


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


 


39

















 


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


 


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;


 


40

















 


(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, but subject to Article XVI, 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.


 


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.


 


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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


 


(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


 


42

















 


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.


 


(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:


 


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(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.


 


(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.


 


44

















 


(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 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).


 


45














 


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 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


 


46

















 


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.


 


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.


 


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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:


 


(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.


 


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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 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


 


49

















 


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:


 


(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


 


50

















 


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 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


 


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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;


 


(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


 


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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, 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


 


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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)                                  modify or change any provision of this
Indenture or the related definitions affecting the subordination or ranking of
the Securities or any Subsidiary Guarantee in a manner which adversely affects
the Holders;


 


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


 


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


 


(8)                                  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.


 


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


 


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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 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


 


55

















 


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 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


 


56

















 


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.


 


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


 


57

















 


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 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,


 


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(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 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.


 


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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.


 


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.


 


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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, 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


 


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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 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,


 


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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).


 


(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


 


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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.


 


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.


 


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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 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.


 


The indebtedness evidenced
by each Subsidiary Guarantee of a Subsidiary Guarantor is, to the extent
provided in this Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness of such Subsidiary Guarantor,
and the Subsidiary Guarantees are issued subject to the provisions of this
Indenture with respect thereto. Each Holder of such Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.


 


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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.


 


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.


 


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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 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.


 


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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.


 


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


 


68

















 


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.


 


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


 


69

















 


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.


 


(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


 


70

















 


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-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


 


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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 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;


 


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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 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.


 


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


 


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ARTICLE XVI



SUBORDINATION OF SECURITIES


 


Section 16.01                          Securities Subordinate to Senior Indebtedness. Each of the Company and each Subsidiary
Guarantor covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness of the Company and the Subsidiary Guarantors. The terms of
the subordination provisions described in this Article XVI with respect to the
Company’s Obligations under the Securities apply equally to each Subsidiary
Guarantor and the Obligations of such Subsidiary Guarantor under its respective
Subsidiary Guarantee.


 


Section 16.02                          Payment Over of Proceeds Upon Dissolution,
Etc. In the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company, a Subsidiary Guarantor or to their respective
creditors, as such, or to their respective assets, or (b) any liquidation,
dissolution or other winding up of the Company or any Subsidiary Guarantor,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company or any Subsidiary
Guarantor, then and in any such event the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Indebtedness, or provision shall be made for such
payment in money or money’s worth, before the Holders of the Securities are
entitled to receive any payment on account of principal of (or premium, if any)
or interest on the Securities, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.


 


In the event that,
notwithstanding the foregoing provisions of this Section, the Trustee or the
Holder of any Security shall have received any payment or distribution of
assets of the Company or any Subsidiary Guarantor of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company or any
Subsidiary Guarantor for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.


 


For purposes of this Article
only, the words “cash, property or securities” shall not be deemed to include
shares of stock of the Company or a Subsidiary Guarantor as reorganized or
readjusted, or securities of the Company or a Subsidiary Guarantor or any other
corporation provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this


 


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Article. The consolidation
of the Company or a Subsidiary Guarantor with, or the merger of the Company or
a Subsidiary Guarantor into, another Person or the liquidation or dissolution
of the Company or a Subsidiary Guarantor following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company or a
Subsidiary Guarantor for the purposes of this Section if the Person formed by
such consolidation or into which the Company or a Subsidiary Guarantor is
merged or which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VIII.


 


Section 16.03                          Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of such Senior Indebtedness, or provision shall be made for such
payment in money or money’s worth, before the Holders of the Securities are entitled
to receive any payment by the Company or a Subsidiary Guarantor on account of
the principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities; provided , however
, that nothing in this Section shall prevent the satisfaction of any sinking
fund payment in accordance with Article XII by delivering and crediting
pursuant to Section 12.02 Securities which have been acquired (upon redemption
or otherwise) prior to such default or which have been converted pursuant to
Article XV.


 


In the event that,
notwithstanding the foregoing, the Company or a Subsidiary Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company or to a Subsidiary Guarantor.


 


The provisions of this
Section shall not apply to any payment with respect to which Section 16.02
would be applicable.


 


Section 16.04                          No Payment When Senior Indebtedness in
Default.


 


(a)                                  In the event and during the continuation of
any default in the payment of principal of (or premium, if any) or interest on
any Senior Indebtedness beyond any applicable grace period with respect
thereto, or in the event that any event of default with respect to any Senior
Indebtedness shall have occurred and be continuing and shall have resulted in
such Senior Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, unless and
until such event of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been rescinded or annulled, or
(b) in the event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no payment shall be made by
the Company nor by any Subsidiary Guarantor on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities; provided,


 


76

















 


however , that nothing in this Section shall prevent
the satisfaction of any sinking fund payment in accordance with Article XII by
delivering and crediting pursuant to Section 12.02 Securities which have been
acquired (upon redemption or otherwise) prior to such default or which have
been converted pursuant to Article XV.


 


In the event that,
notwithstanding the foregoing, the Company or a Subsidiary Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to
the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company or to a Subsidiary Guarantor.


 


The provisions of this
Section shall not apply to any payment with respect to which Section 16.02
would be applicable.


 


Section 16.05                          Payment Permitted If No Default. Nothing contained in this Article or
elsewhere in this Indenture or in any of the Securities shall prevent the
Company or any Subsidiary Guarantor, at any time except during the pendency of
any case, proceeding, dissolution, liquidation or other winding up, assignment
for the benefit of creditors or other marshaling of assets and liabilities of
the Company or any Subsidiary Guarantor referred to in Section 16.02 or under
the conditions described in Section 16.03 or 16.04, from making payments at any
time of principal of (and premium, if any) or interest on the Securities.


 


Section 16.06                          Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the
payment in full of all Senior Indebtedness, the Holders of the Securities shall
be subrogated (equally and ratably with the holders of all indebtedness of the
Company and each Subsidiary Guarantor which by its express terms is
subordinated to indebtedness of the Company and each Subsidiary Guarantor to
substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company and any Subsidiary Guarantor, its respective
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company or any
Subsidiary Guarantor to or on account of the Senior Indebtedness.


 


Section 16.07                          Provisions Solely to Define Relative Rights. The provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article or elsewhere in this Indenture or
in the Securities is intended to or shall (a) impair, as among the Company or
any Subsidiary Guarantor, their respective creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligations of the
Company and the Subsidiary Guarantors, which are absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Indebtedness, are intended to rank


 


77

















 


equally with all other
general obligations of the Company and the Subsidiary Guarantors), to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company and the Subsidiary Guarantors of the Holders of the Securities and
creditors of the Company and the Subsidiary Guarantors other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.


 


Section 16.08                          Trustee to Effectuate Subordination. Each holder of a Security by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.


 


Section 16.09                          No Waiver of Subordination Provisions. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or any Subsidiary Guarantor or by any act or failure to
act, in good faith, by any such holder, or by any non-compliance by the Company
or any Subsidiary Guarantor with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.


 


Without in any way limiting
the generality of the foregoing paragraph, the holders of Senior Indebtedness
or Senior Indebtedness of any Subsidiary Guarantor (“Guarantor Senior
Indebtedness”) may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Indebtedness
or Guarantor Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness or Guarantor Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or Guarantor
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness or Guarantor Senior Indebtedness is
outstanding; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness or Guarantor
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness or Guarantor Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company and any
other Person.


 


Section 16.10                          Notice to Trustee. The Company and the Subsidiary Guarantors
shall give prompt written notice to the Trustee of any fact known to the
Company which would prohibit the making of any payment to or by the Trustee in
respect of the Securities or under any Subsidiary Guarantee. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company, a


 


78

















 


Subsidiary Guarantor, a
holder of Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 6.01, shall be entitled in all respects to assume that no such facts
exist; provided , however , that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.


 


Subject to the provisions of
Section 6.01, the Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.


 


Section 16.11                          Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any
payment or distribution of assets of either the Company or a Subsidiary
Guarantor referred to in this Article, the Trustee, subject to the provisions
of Section 6.01, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.


 


Section 16.12                          Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to a Subsidiary Guarantor or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.


 


Section 16.13                          Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee’s Rights. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article with respect to
any Senior Indebtedness which may at any time be held by it, to the


 


79

















 


same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.


 


Nothing in this Article
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.07.


 


Section 16.14                          Article Applicable to Paying Agents. In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or
in place of the Trustee.


 


Section 16.15                          Certain Conversions Deemed Payment. For the purposes of this Article only, (1)
the issuance and delivery of junior securities upon conversion of Securities in
accordance with Article XV shall not be deemed to constitute a payment or
distribution on account of the principal of or premium or interest on
Securities or on account of the purchase or other acquisition of Securities,
and (2) the payment, issuance or delivery of cash, property or securities
(other than junior securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the
purposes of this Section, the term “junior securities” means (a) shares of any
stock of any class of the Company and (b) securities of the Company which are
subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in
accordance with Article XV.


 


Section 16.16                          Trust Moneys Not Subordinated. Notwithstanding anything contained herein
to the contrary, payments from moneys or the proceeds of U.S. Government
Obligations held in trust under Article XIII by the Trustee for the payment of
principal of, premium, if any, and interest on the Securities from the date of
deposit (if made in compliance with this Indenture) shall not be subordinated
to the prior payment of any Senior Indebtedness or subject to the restraints
set forth in this Article, and none of the Holders of Securities shall be obligated
to pay over any such amount to the Company or any holder of Senior Indebtedness
of the Company or any other creditor of the Company.


 


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)


 


80

















 


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: