Exhibit 4.2
  EXECUTION COPY
 


BRITANNIA BULK PLC


AND


THE
GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO


 


11%
SENIOR SECURED NOTES DUE 2011


INDENTURE


Dated as of November 16,
2006


 


WILMINGTON
TRUST COMPANY


Trustee



   
 














	
  Table of Contents

  
	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  	
  1

  
	
  SECTION
  1.01.

  	
   

  	
  Definitions.

  	
   

  	
  1

  
	
  SECTION
  1.02.

  	
   

  	
  Other Definitions.

  	
   

  	
  26

  
	
  SECTION
  1.03.

  	
   

  	
  Incorporation by Reference of Trust Indenture Act.

  	
   

  	
  27

  
	
  SECTION
  1.04.

  	
   

  	
  Rules of Construction.

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  	
   

  	
   

  
	
  THE NOTES

  	
   

  	
   

  	
   

  	
  28

  
	
  SECTION
  2.01.

  	
   

  	
  Form and Dating.

  	
   

  	
  28

  
	
  SECTION
  2.02.

  	
   

  	
  Execution and Authentication.

  	
   

  	
  29

  
	
  SECTION
  2.03.

  	
   

  	
  Registrar and Paying Agent.

  	
   

  	
  29

  
	
  SECTION
  2.04.

  	
   

  	
  Paying Agent to Hold Money in Trust.

  	
   

  	
  30

  
	
  SECTION
  2.05.

  	
   

  	
  Holder Lists.

  	
   

  	
  30

  
	
  SECTION
  2.06.

  	
   

  	
  Transfer and Exchange.

  	
   

  	
  30

  
	
  SECTION
  2.07.

  	
   

  	
  Replacement Notes.

  	
   

  	
  37

  
	
  SECTION
  2.08.

  	
   

  	
  Outstanding Notes.

  	
   

  	
  38

  
	
  SECTION
  2.09.

  	
   

  	
  Treasury Notes.

  	
   

  	
  38

  
	
  SECTION
  2.10.

  	
   

  	
  Temporary Notes.

  	
   

  	
  38

  
	
  SECTION
  2.11.

  	
   

  	
  Cancellation.

  	
   

  	
  39

  
	
  SECTION
  2.12.

  	
   

  	
  Calculation of Interest; Computation of Interest.

  	
   

  	
  39

  
	
  SECTION
  2.13.

  	
   

  	
  Defaulted Interest.

  	
   

  	
  39

  
	
  SECTION
  2.14.

  	
   

  	
  CUSIP, Common Code and ISIN Numbers.

  	
   

  	
  39

  
	
  SECTION
  2.15.

  	
   

  	
  Book-Entry System.

  	
   

  	
  39

  
	
  SECTION
  2.16.

  	
   

  	
  Additional Notes.

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  	
   

  	
  40

  
	
  SECTION
  3.01.

  	
   

  	
  Notices to Trustee.

  	
   

  	
  40

  
	
  SECTION
  3.02.

  	
   

  	
  Selection of Notes to be Redeemed.

  	
   

  	
  40

  
	
  SECTION
  3.03.

  	
   

  	
  Notice of Redemption.

  	
   

  	
  41

  
	
  SECTION
  3.04.

  	
   

  	
  Effect of Notice of Redemption.

  	
   

  	
  41

  
	
  SECTION
  3.05.

  	
   

  	
  Deposit of Redemption Price.

  	
   

  	
  41

  
	
  SECTION
  3.06.

  	
   

  	
  Notes Redeemed in Part.

  	
   

  	
  42

  
	
  SECTION
  3.07.

  	
   

  	
  Optional Redemption.

  	
   

  	
  42

  
	
  SECTION
  3.08.

  	
   

  	
  Mandatory Redemption.

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  	
   

  	
   

  	
  43

  
	
  SECTION
  4.01.

  	
   

  	
  Payment of Notes.

  	
   

  	
  43

  
	
  SECTION
  4.02.

  	
   

  	
  Maintenance of Office or Agency.

  	
   

  	
  43

  
	
  SECTION
  4.03.

  	
   

  	
  Reports.

  	
   

  	
  44

  
	
  SECTION
  4.04.

  	
   

  	
  Compliance Certificate.

  	
   

  	
  44

  
	
  SECTION
  4.05.

  	
   

  	
  Taxes.

  	
   

  	
  45

  
	
  SECTION
  4.06.

  	
   

  	
  Waiver of Stay, Extension and Usury Laws.

  	
   

  	
  46

  
	
  SECTION
  4.07.

  	
   

  	
  Limitation on Indebtedness.

  	
   

  	
  46

  
	
  SECTION
  4.08.

  	
   

  	
  Limitation on Restricted Payments.

  	
   

  	
  48

  



 



 i
 








 


	
  

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.09.

  	
   

  	
  Limitation on Restrictions on Distributions from
  Restricted Subsidiaries.

  	
   

  	
  50

  
	
  SECTION 4.10.

  	
   

  	
  Limitation on Sales of Assets.

  	
   

  	
  51

  
	
  SECTION 4.11.

  	
   

  	
  Limitation on Affiliate Transactions.

  	
   

  	
  54

  
	
  SECTION 4.12.

  	
   

  	
  Limitation on Liens.

  	
   

  	
  55

  
	
  SECTION 4.13.

  	
   

  	
  Limitation on Sale/Leaseback Transactions.

  	
   

  	
  56

  
	
  SECTION 4.14.

  	
   

  	
  Future Guarantors.

  	
   

  	
  56

  
	
  SECTION 4.15.

  	
   

  	
  Limitation on Business Activities.

  	
   

  	
  56

  
	
  SECTION 4.16.

  	
   

  	
  Offer to Repurchase upon Change of Control.

  	
   

  	
  56

  
	
  SECTION 4.17.

  	
   

  	
  Offer to Repurchase upon Unused Proceeds in the
  Vessel Acquisition Account.

  	
   

  	
  58

  
	
  SECTION 4.18.

  	
   

  	
  Offer to Repurchase upon Excess Cash Flow.

  	
   

  	
  60

  
	
  SECTION 4.19.

  	
   

  	
  Corporate Existence.

  	
   

  	
  62

  
	
  SECTION 4.20.

  	
   

  	
  Calculation of Original Issue Discount.

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  	
   

  	
   

  
	
  SUCCESSORS

  	
   

  	
   

  	
   

  	
  62

  
	
  SECTION 5.01.

  	
   

  	
  Merger, Consolidation, or Sale of Assets.

  	
   

  	
  62

  
	
  SECTION 5.02.

  	
   

  	
  Successor Corporation Substituted.

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  	
  63

  
	
  SECTION 6.01

  	
   

  	
  Events of Default.

  	
   

  	
  63

  
	
  SECTION 6.02.

  	
   

  	
  Acceleration.

  	
   

  	
  65

  
	
  SECTION 6.03.

  	
   

  	
  Other Remedies.

  	
   

  	
  65

  
	
  SECTION 6.04.

  	
   

  	
  Waiver of Past Defaults.

  	
   

  	
  66

  
	
  SECTION 6.05.

  	
   

  	
  Control by Majority.

  	
   

  	
  66

  
	
  SECTION 6.06.

  	
   

  	
  Limitation on Suits.

  	
   

  	
  66

  
	
  SECTION 6.07.

  	
   

  	
  Rights of Holders of Notes to Receive Payment.

  	
   

  	
  66

  
	
  SECTION 6.08.

  	
   

  	
  Collection Suit by Trustee.

  	
   

  	
  67

  
	
  SECTION 6.09.

  	
   

  	
  Trustee May File Proofs of Claim.

  	
   

  	
  67

  
	
  SECTION 6.10.

  	
   

  	
  Priorities.

  	
   

  	
  67

  
	
  SECTION 6.11.

  	
   

  	
  Undertaking for Costs.

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  	
   

  	
   

  
	
  TRUSTEE

  	
   

  	
   

  	
   

  	
  68

  
	
  SECTION 7.01.

  	
   

  	
  Duties of Trustee.

  	
   

  	
  68

  
	
  SECTION 7.02.

  	
   

  	
  Rights of Trustee.

  	
   

  	
  69

  
	
  SECTION 7.03.

  	
   

  	
  Individual Rights of Trustee.

  	
   

  	
  70

  
	
  SECTION 7.04.

  	
   

  	
  Trustee’s Disclaimer.

  	
   

  	
  70

  
	
  SECTION 7.05.

  	
   

  	
  Notice of Defaults.

  	
   

  	
  71

  
	
  SECTION 7.06.

  	
   

  	
  Reports by Trustee to Holders of the Notes.

  	
   

  	
  71

  
	
  SECTION 7.07.

  	
   

  	
  Compensation and Indemnity.

  	
   

  	
  71

  
	
  SECTION 7.08.

  	
   

  	
  Replacement of Trustee.

  	
   

  	
  72

  
	
  SECTION 7.09.

  	
   

  	
  Successor Trustee by Merger, Etc.

  	
   

  	
  73

  
	
  SECTION 7.10.

  	
   

  	
  Eligibility; Disqualification.

  	
   

  	
  73

  
	
  SECTION 7.11.

  	
   

  	
  Preferential Collection of Claims Against Company.

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE; DEFEASANCE

  	
   

  	
  73

  
	
  SECTION 8.01.

  	
   

  	
  Satisfaction and Discharge of Indenture.

  	
   

  	
  73

  
	
  SECTION 8.02.

  	
   

  	
  Application of Trust Money.

  	
   

  	
  74

  



 



 ii
 








 


	
  SECTION 8.03.

  	
   

  	
  Option to Effect Legal Defeasance or Covenant
  Defeasance.

  	
   

  	
  74

  
	
  SECTION 8.04.

  	
   

  	
  Legal Defeasance.

  	
   

  	
  74

  
	
  SECTION 8.05.

  	
   

  	
  Covenant Defeasance.

  	
   

  	
  75

  
	
  SECTION 8.06.

  	
   

  	
  Conditions to Legal or Covenant Defeasance.

  	
   

  	
  75

  
	
  SECTION 8.07.

  	
   

  	
  Deposited Money and Government Securities to be Held
  in Trust; Other Miscellaneous Provisions.

  	
   

  	
  76

  
	
  SECTION 8.08.

  	
   

  	
  Repayment to Company.

  	
   

  	
  77

  
	
  SECTION 8.09.

  	
   

  	
  Reinstatement.

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
   

  	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  	
  78

  
	
  SECTION 9.01.

  	
   

  	
  Without Consent of Holders of Notes.

  	
   

  	
  78

  
	
  SECTION 9.02.

  	
   

  	
  With Consent of Holders of Notes.

  	
   

  	
  79

  
	
  SECTION 9.03.

  	
   

  	
  Compliance with Trust Indenture Act.

  	
   

  	
  80

  
	
  SECTION 9.04.

  	
   

  	
  Revocation and Effect of Consents.

  	
   

  	
  80

  
	
  SECTION 9.05.

  	
   

  	
  Notation on or Exchange of Notes.

  	
   

  	
  80

  
	
  SECTION 9.06.

  	
   

  	
  Trustee to Sign Amendments, Etc.

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
   

  	
   

  	
   

  
	
  COLLATERAL AND SECURITY

  	
   

  	
  81

  
	
  SECTION 10.01.

  	
   

  	
  Security Documents.

  	
   

  	
  81

  
	
  SECTION 10.02.

  	
   

  	
  Recordings and Opinions.

  	
   

  	
  81

  
	
  SECTION 10.03.

  	
   

  	
  Possession, Use and Release of Collateral.

  	
   

  	
  82

  
	
  SECTION 10.04.

  	
   

  	
  Suits To Protect Collateral.

  	
   

  	
  85

  
	
  SECTION 10.05.

  	
   

  	
  Powers Exercisable by Receiver or Trustee.

  	
   

  	
  85

  
	
  SECTION 10.06.

  	
   

  	
  Determinations Relating to Collateral.

  	
   

  	
  85

  
	
  SECTION 10.07.

  	
   

  	
  Certificates of the Trustee.

  	
   

  	
  86

  
	
  SECTION 10.08.

  	
   

  	
  Recording, Registration and Opinions; Trustee’s Disclaimer
  regarding Collateral.

  	
   

  	
  86

  
	
  SECTION 10.09.

  	
   

  	
  Reflagging Vessels.

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
   

  	
   

  	
   

  
	
  GUARANTEES

  	
   

  	
   

  	
   

  	
  88

  
	
  SECTION 11.01.

  	
   

  	
  Subsidiary Guarantees.

  	
   

  	
  88

  
	
  SECTION 11.02.

  	
   

  	
  Execution and Delivery of Subsidiary Guarantee or
  Supplemental Indenture; Notation of Subsidiary Guarantee.

  	
   

  	
  90

  
	
  SECTION 11.03.

  	
   

  	
  Termination, Release and Discharge.

  	
   

  	
  90

  
	
  SECTION 11.04.

  	
   

  	
  Limitation on Guarantor Liability; Contribution.

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  	
   

  	
  92

  
	
  SECTION 12.01.

  	
   

  	
  Trust Indenture Act Controls.

  	
   

  	
  92

  
	
  SECTION 12.02.

  	
   

  	
  Notices.

  	
   

  	
  92

  
	
  SECTION 12.03.

  	
   

  	
  Communication by Holders of Notes with Other Holders
  of Notes.

  	
   

  	
  93

  
	
  SECTION 12.04.

  	
   

  	
  Certificate and Opinion as to Conditions Precedent.

  	
   

  	
  93

  
	
  SECTION 12.05.

  	
   

  	
  Statements Required in Certificate or Opinion.

  	
   

  	
  93

  
	
  SECTION 12.06.

  	
   

  	
  Rules by Trustee and Agents.

  	
   

  	
  93

  
	
  SECTION 12.07.

  	
   

  	
  No Personal Liability of Directors, Officers,
  Employees and Stockholders.

  	
   

  	
  93

  
	
  SECTION 12.08.

  	
   

  	
  Governing Law.

  	
   

  	
  94

  
	
  SECTION 12.09.

  	
   

  	
  Submission to Jurisdiction; Service of Process.

  	
   

  	
  94

  
	
  SECTION 12.10.

  	
   

  	
  Indemnification for Foreign Currency Judgments.

  	
   

  	
  95

  



 



 iii
 








 


	
  SECTION 12.11.

  	
   

  	
  No Adverse Interpretation of Other Agreements.

  	
   

  	
  95

  
	
  SECTION 12.12.

  	
   

  	
  Successors.

  	
   

  	
  95

  
	
  SECTION 12.13.

  	
   

  	
  Severability.

  	
   

  	
  95

  
	
  SECTION 12.14.

  	
   

  	
  Counterpart Originals.

  	
   

  	
  96

  
	
  SECTION 12.15.

  	
   

  	
  Table of Contents, Headings, Etc.

  	
   

  	
  96

  
	
  SECTION 12.16.

  	
   

  	
  Language of Notices, Etc.

  	
   

  	
  96

  



 


	
  EXHIBIT A

  	
   

  	
  Form of Note

  	
   

  	
  A-1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
   

  	
  Form of Certificate of Transfer

  	
   

  	
  B-1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
   

  	
  Form of Certificate of Exchange

  	
   

  	
  C-1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT D

  	
   

  	
  Form of Certificate from Acquiring Institutional
  Accredited Investor

  	
   

  	
  D-1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT E

  	
   

  	
  Form of Supplemental Indenture — Subsidiary
  Guarantees

  	
   

  	
  E-1

  



 



 iv
 








CROSS-REFERENCE
TABLE


	
   

  	
  Trust
  Indenture Act Section

  	
   

  	
   

  	
  Indenture
  Section

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311 

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312 

  	
  (a)

  	
   

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
   

  	
  12.03

  
	
  313 

  	
  (a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)(1)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
   

  	
  7.06, 7.07

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.06, 12.02

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.06

  
	
  314 

  	
  (a)

  	
   

  	
   

  	
  4.03

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  12.04

  
	
   

  	
  (b)

  	
   

  	
   

  	
  10.02

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  10.02

  
	
   

  	
  (e)

  	
   

  	
   

  	
  12.05.

  
	
   

  	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315 

  	
  (a)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.05

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316 

  	
  (a)(last sentence)

  	
   

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
   

  	
  2.12

  
	
  317 

  	
  (a)(1)

  	
   

  	
   

  	
  6.09

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
   

  	
  2.04

  
	
  318 

  	
  (a)

  	
   

  	
   

  	
  12.01

  
	
   

  	
  (b)

  	
   

  	
   

  	
  12.01

  
	
   

  	
  (c)

  	
   

  	
   

  	
  12.01

  



N.A. means not applicable.







This
Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.


 



 v















INDENTURE dated as of November 16, 2006 between BRITANNIA BULK PLC, a corporation
incorporated under the laws of England and Wales (the “Company”), the guarantors listed on the signature pages
hereto (each, a “Guarantor” and, collectively,
the “Guarantors”) and WILMINGTON TRUST COMPANY,
Delaware banking corporation, as trustee (the “Trustee”).


The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of (i) the
Company’s 11% Senior Secured Notes due 2011 including any Additional Notes
issued after the date hereof pursuant to Section 2.16 (the “Initial Notes”) and (ii) if and when
issued, the series of the Company’s 11% Senior Secured Notes due 2011 issued in
exchange for any Initial Notes in an Exchange Offer (the “Exchange Notes” and,
together with the Initial Notes, the “Notes”):


ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE


SECTION
1.01.                    Definitions.


“Accreted Value” means as of any date as of
which Notes are to be purchased, redeemed or otherwise repaid prior to Stated
Maturity (the “Specified Date”),
with respect to each $1,000 principal amount at maturity of the Notes:


(1)           if the Specified
Date is one of the following dates (each, a “Semi-Annual
Accrual Date”), the amount set forth opposite such date
below:




	
  Semi-Annual Accrual Date

  	
   

  	
  Accreted Value

  	
   

  
	
  Issue Date

  	
   

  	
  $

  	
  936.22

  	
   

  
	
  June 1, 2007

  	
   

  	
  $

  	
  941.31

  	
   

  
	
  December 1, 2007

  	
   

  	
  $

  	
  946.34

  	
   

  
	
  June 1, 2008

  	
   

  	
  $

  	
  951.69

  	
   

  
	
  December 1, 2008

  	
   

  	
  $

  	
  957.38

  	
   

  
	
  June 1, 2009

  	
   

  	
  $

  	
  963.43

  	
   

  
	
  December 1, 2009

  	
   

  	
  $

  	
  969.87

  	
   

  
	
  June 1, 2010

  	
   

  	
  $

  	
  976.72

  	
   

  
	
  December 1, 2010

  	
   

  	
  $

  	
  984.00

  	
   

  
	
  June 1, 2011

  	
   

  	
  $

  	
  991.76

  	
   

  
	
  December 1, 2011

  	
   

  	
  $

  	
  1,000.00

  	
   

  






 


(2)           if the Specified
Date occurs between two Semi-Annual Accrual Dates, the sum of (A) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding the Specified Date and
(B) an amount equal to the product of (a) the difference of (x) the Accreted
Value for the immediately following Semi-Annual Accrual Date and (y) the
Accreted Value for the immediately preceding Semi-Annual Accrual Date and (b) a
fraction, the numerator of which is the number of days elapsed from, but not
including, the immediately preceding Semi-Annual Accrual Date to the Specified
Date, calculated on a basis of a 360 day year comprised of twelve 30 day
months, and the denominator of which is 180 days, except for the period from
the Issue Date to the first Semi-Annual Accrual Date immediately succeeding the
Issue Date, which is 195 days.


“Additional Assets” means:


(1)           any property, equipment or other tangible assets
used in a Related Business; or













 


(2)           the Capital Stock of a Person primarily engaged in
a Related Business that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted
Subsidiary.


“Additional Interest” means “Additional Interest” then owing pursuant to the
Registration Rights Agreement.


“Affiliate” of any specified
Person means:


(1)           any other Person, directly or indirectly,
controlling or controlled by; or


(2)           under direct or
indirect common control with such specified Person.


For the purposes of this definition, “control”
when used with respect to any 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. The term “Affiliate”
shall be deemed to include any owner of 10% or more of the Capital Stock of the
Company (on a fully diluted basis) and any Person who would be an Affiliate of
such an owner pursuant to the first sentence of this definition.


“Agent” means any Registrar, Paying Agent or
Authenticating Agent.


“Applicable Premium” means with respect to any Redemption Date, the greater of
(x) 1.0% of the Accreted Value of such Note and (y) the excess of (A) the
present value at such time of (1) the redemption price of such Note at December
1, 2009 (without regard to accrued and unpaid interest) plus (2) all required
interest payments due on such Note through December 1, 2009, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
Accreted Value of such Note.


“Applicable Procedures” means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.


“Asset Disposition” means any sale, lease, transfer, exchange or other
disposition (other than a vessel charter that is not a bareboat charter with a
purchase option) (or series of related sales, leases, transfers, exchanges or
dispositions) by the Company or any Restricted Subsidiary, including, without
limitation, any disposition by means of a merger, consolidation or similar
transaction, by the way of a sale and leaseback or pursuant to loss,
destruction, damage, condemnation or similar taking, (each referred to for the
purposes of this definition as a “disposition”),
of:


(1)           any shares of Capital Stock of a Restricted
Subsidiary (other than directors’ qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary);


(2)           all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary;


(3)           any other assets or rights of the Company or any
Restricted Subsidiary outside of the ordinary course of business of the Company
or such Restricted Subsidiary; or


(4)           any Collateral;


in each case, other than (x) grants of Liens
permitted by Section 4.12 or made pursuant to any Security Document and
dispositions pursuant thereto or (y) dispositions of assets that are
damaged, worn out,



 2
 









 


obsolete or otherwise no longer useful in the
business of the Company or the Restricted Subsidiaries, and other than, in the
case of clauses (1), (2) and (3) above


(A)          any modification or termination of a vessel
charter in the ordinary course of business;


(B)           a disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly-Owned
Restricted Subsidiary;


(C)           for purposes of Section 4.10 only,
(y) a disposition that constitutes a Restricted Payment permitted by Section
4.08 or a Permitted Investment and (z) a disposition of all or
substantially all the assets of the Company, by merger or otherwise, in
accordance with the provisions of Section 5.01; or


(D)          a
disposition of assets in a single disposition or a series of related
dispositions, with an aggregate fair market value of less than $500,000 or of
Incidental Assets.


“Attributable Debt” in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate then borne by the Notes, compounded semiannually) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which
such lease has been extended); provided
that if such Sale/Leaseback Transaction results in a Capital Lease Obligation,
the amount of Indebtedness represented thereby will be determined in accordance
with the definition of “Capital Lease Obligation.”


“Average Life” means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing:


(1)           the sum of the products of the numbers of years
from the date of determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with respect to such
Indebtedness multiplied by the amount of such payment by


(2)           the sum of all such payments.


“Bankruptcy Law” means Title 11, United States Code, any
bankruptcy, insolvency, reorganization or other similar law of England and
Wales, the European Union or other foreign jurisdiction or any federal,
state or foreign law for the relief of debtors.


“Board of Directors” in respect of a Person means the Board of
Directors of such Person or any committee thereof duly authorized to act on
behalf of such Board.


“Business Day” means each day which is not a Legal Holiday.


“Capital Lease Obligations” means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined
in accordance with GAAP; and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without
payment of a penalty.


“Capital
Stock” of any Person means any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such
Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.


 



 3
 









 


“Change of Control” means the occurrence of one or more of the
following events:


(1)           any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more Permitted Holders, is or becomes the “beneficial owner” (as
defined in Rule 13d 3 and 13d 5 under the Exchange Act, except that for
purposes of this clause (1) such person shall be deemed to have “beneficial
ownership” of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting power of the
Voting Stock of the Company or otherwise has the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of the Company;


(2)           individuals who on
the Issue Date constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the shareholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors on the Issue Date or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office;


(3)           the adoption or
approval by the Board of Directors or shareholders of the Company, of a plan
relating to the liquidation or dissolution of the Company; or


(4)           the merger (which
for purposes of this clause includes a statutory share exchange) or
consolidation of the Company with or into another Person or the merger or
consolidation of another Person with or into the Company, or the sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all the assets of the Company (determined
on a consolidated basis) to another Person (other than, in all such cases, a
Person that is controlled by one or more Permitted Holders) or group of related
persons for purposes of Section 13(d) of the Exchange Act, other than a
transaction following which (A) in the case of a merger or consolidation
transaction, securities that represented 100% of the Voting Stock of the
Company immediately prior to such transaction (or other securities into which
such securities are converted as part of such merger or consolidation
transaction) constitute at least a majority of the voting power of the Voting
Stock of the surviving Person (or any parent thereof) in such merger or
consolidation transaction and (B) in the case of such a sale, lease, exchange
or other transfer of assets transaction, the transferee Person becomes a
Subsidiary of the transferor of such assets.


“Clearstream” means Clearstream Banking, societe
anonyme


“Code” means the Internal Revenue Code of 1986, as amended.


“Collateral” means all of the following property, as more
particularly described in the Security Documents and together with any other
property or assets subject to Liens to secure the Note Obligations pursuant to
the Security Documents:


(1)           all
of the Company’s existing Vessels and Vessels acquired through funds out of the
Vessel Acquisition Account, together with related fixtures, equipment and other
items belonging to such Vessels and related earnings and insurance;


(2)           amounts
on deposit in the Vessel Acquisition Account;


(3)           any
proceeds of the foregoing;


(4)           any
assets substituted for such Collateral as provided for in the Security
Documents.



 4
 









 


Notwithstanding the foregoing, none of the Company’s
or any of its Restricted Subsidiaries’ right to payment of a monetary
obligation in respect of a Vessel, whether or not earned by performance (a) for
services rendered or to be rendered or (b) for the use or hire of a Vessel
under a charter or lease the duration of which does not exceed one calendar
year will be deemed to be Collateral.


“Collateral Disposition” means any Asset Disposition to the extent
involving assets or other rights or property that constitute Collateral under
the Security Documents.


“Commodity Hedging Agreements”
means, in respect of a Person, any
agreements or arrangements designed to protect such Person against fluctuations
in the price of any commodity (which shall be deemed to include any forward
freight agreements), in each case, entered into in the ordinary course of
business and in connection with the conduct of such Person’s business and not
for speculative purposes.


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


“Consolidated Coverage Ratio” as of any date of determination means the ratio of
(x) the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters for which financial statements are available on or
prior to the date of such determination to (y) Consolidated Interest
Expense for such four fiscal quarters; provided
that:


(1)           if the Company or any Restricted Subsidiary has
Incurred any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma
basis to such Indebtedness as if such Indebtedness had been Incurred on the
first day of such period (except that in making such computation, the amount of
Indebtedness under any revolving credit facility outstanding on the date of
such calculation will be computed based on (y) the average daily balance
of such Indebtedness during such four fiscal quarters or such shorter period
for which such facility was outstanding or (z) if such facility was
created after the end of such four fiscal quarters, the average daily balance
of such Indebtedness during the period from the date of creation of such
facility to the date of such calculation) and the discharge of any other Indebtedness
repaid, repurchased, defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the first day of such
period;


(2)           if the Company or any Restricted Subsidiary has
repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such Indebtedness
has been permanently repaid and has not been replaced) on the date of the
transaction giving rise to the need to calculate the Consolidated Coverage
Ratio, EBITDA and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis
as if such discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary has not earned the interest income
actually earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness;


(3)           if since the beginning of such period the Company
or any Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA (if
negative), directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Company or any Restricted Subsidiary 


 



 5
 









 


repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale);


(4)           if since the beginning of such period the Company
or any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition or improvement of assets, including
any acquisition of assets occurring in connection with a transaction requiring
a calculation to be made hereunder, which constitutes all or substantially all
of an operating unit of a business (which for purposes of the foregoing, shall
be deemed to include any vessel acquired for use in a Related Business), EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; and


(5)           if since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition, any Investment or acquisition of assets
that would have required an adjustment pursuant to clause (3) or
(4) above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition occurred
on the first day of such period.


For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro
forma calculations shall be determined in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months).


“Consolidated Interest Expense”
means, for any period, the total interest
expense of the Company and its consolidated Restricted Subsidiaries, determined
in accordance with GAAP, plus, to the extent not included in such total
interest expense, and to the extent incurred by the Company or its Restricted
Subsidiaries, without duplication:


(1)           interest expense attributable to Capital Lease
Obligations and the interest expense attributable to leases constituting part
of a Sale/Leaseback Transaction;


(2)           amortization of debt discount, premium and debt
issuance cost;


(3)           capitalized interest;


(4)           non-cash interest
payments and expense;


(5)           the interest
component of any deferred payment obligations;


(6)           commissions, discounts and other fees and charges
Incurred in respect to letters of credit and bankers’ acceptance financing;



 6
 









 


(7)           net payments pursuant to, and other net costs
associated with, Hedging Obligations (including amortization of fees);


(8)           dividends in respect of all Disqualified Stock of
the Company or Preferred Stock of any Restricted Subsidiary held by Persons
other than the Company or a Wholly-Owned Restricted Subsidiary (other
than dividends payable solely in Capital Stock (other than Disqualified Stock)
of the issuer of such Disqualified stock or Preferred Stock);


(9)           interest incurred in connection with Investments
in discontinued operations; and


(10)         the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or trust;


in each case, whether paid, accrued or scheduled
to be paid or accrued during such period (except to the extent accrued in a
prior period).


“Consolidated Net Income” means, for any period, the consolidated net income
of the Company and its consolidated Restricted Subsidiaries determined in
accordance with GAAP; provided
that there shall not be included in such Consolidated Net Income:


(1)           any net income of any Person (other than the
Company) that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting, except that:


(A)          subject to the exclusion contained in clauses
(3)-(6) below, the Company’s equity in the net income of any such Person for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to a Restricted
Subsidiary, to the limitations contained in clauses (3)-(6) below); and


(B)           the Company’s equity in a net loss of any such
Person for such period shall be included in determining such Consolidated Net
Income;


(2)           any net income of any Restricted Subsidiary (other
than a Guarantor) if such Restricted Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or indirectly, to the
Company, except that:


(A)          subject
to the exclusion contained in clause (3) below, the Company’s equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
that could have been distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid to
another Restricted Subsidiary, to the limitation contained in this clause); and


(B)           the Company’s equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income;


(3)           any gain or loss realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries
(including pursuant to any Sale/Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of any Person;



 7
 









 


(4)           extraordinary gains or losses (which shall not
include gains or losses on Vessels sold in the ordinary course of business);


(5)           the cumulative effect of a change in accounting
principles; and


(6)           any unrealized non-cash gains or losses in respect
of currency fluctuations.


Notwithstanding the foregoing, for the purposes of
Section 4.08 only, there shall be excluded from Consolidated Net Income
any repurchases, repayments or redemptions of Investments, proceeds realized on
the sale of Investments or return of capital to the Company or a Restricted
Subsidiary to the extent such repurchases, repayments, redemptions, proceeds or
returns increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (a)(3)(D) thereof.


“Consolidated Net Worth” means the total of the amounts shown on the
consolidated balance sheet of the Company and its Restricted Subsidiaries,
determined in accordance with GAAP, as of the end of the most recent fiscal
quarter of the Company for which financial statements have been made publicly
available on or prior to the taking of any action for the purpose of which the
determination is being made, as the sum of:


i.              the par or stated value of all outstanding Capital
Stock of the Company plus


ii.             paid-in capital or capital surplus relating to such
Capital Stock plus


iii.            any retained earnings or earned
surplus less


(A)          any accumulated
deficit and (B) any amounts attributable to Disqualified Stock.


“Corporate Trust Office of the Trustee”
shall be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee
may give notice to the Company.


“Currency Agreement” means, in respect of a Person, any agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates, in each case, entered into in the ordinary course of business
and in connection with the conduct of such Person’s business and not for
speculative purpose.


“Custodian” means any
receiver, trustee, assignee, liquidator, sequester or similar official under
the Bankruptcy Laws.


“Default” means any event which is, or after notice or
passage of time or both would be, an Event of Default.


“Definitive Note” means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and shall not have the “Schedule of Exchanges of Interests in the Global
Note” attached thereto.


“Depositary” means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



 8
 









 


“Disqualified Stock” means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:


(1)           matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise;


(2)           is convertible or exchangeable at the option of
the holder for Indebtedness or Disqualified Stock; or


(3)           is mandatorily redeemable or must be purchased
upon the occurrence of certain events or otherwise, in whole or in part;


in each case on or prior to the 91st day following
the Stated Maturity of the Notes; provided,
however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an “asset sale” or “change of control” occurring prior to the
91st day following the Stated Maturity of the Notes shall not constitute
Disqualified Stock if:


(1)           the “asset sale” or “change of control” provisions
applicable to such Capital Stock are not more favorable to the Holders of such
Capital Stock than the terms applicable to the Notes and described in Sections
4.10 and 4.16; and


(2)           any such requirement only becomes operative after
compliance with such terms applicable to the Notes, including the purchase of
any Notes tendered pursuant thereto.


The amount of any Disqualified Stock that does not
have a fixed redemption, repayment or repurchase price will be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were redeemed, repaid or repurchased on any date on which the amount of
such Disqualified Stock is to be determined pursuant to the Indenture; provided that if such Disqualified Stock
could not be required to be redeemed, repaid or repurchased at the time of such
determination, the redemption, repayment or repurchase price will be the book
value of such Disqualified Stock as reflected in the most recent financial
statements of such Person.


“EBITDA” for any period means
the sum of Consolidated Net Income, plus, without duplication, the following to
the extent deducted in calculating such Consolidated Net Income:


(1)           all income tax expense of the Company and its
consolidated Restricted Subsidiaries;


(2)           Consolidated
Interest Expense;


(3)           depreciation and amortization expense of the
Company and its consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid item that was paid in cash in a prior
period); and


(4)           all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (excluding any such non-cash charge to the
extent that it represents an accrual of, or reserve for, cash expenditures in
the future);


in each case for such period. Notwithstanding the
foregoing, the provision for taxes based on the income or profits of, and the
depreciation and amortization and non-cash charges of, a Restricted Subsidiary
shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only



 9
 









 


if a corresponding amount would be permitted at
the date of determination to be distributed to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.


“Equity Offering” means any private or public offering for cash of
Capital Stock (other than Disqualified Stock) of the Company other than any
issuance of securities to a Restricted Subsidiary or to or under any benefit
plan of the Company or a Restricted Subsidiary.


“Euroclear” means
Euroclear Bank S.A./N.V.


“Excess Cash Flow” means, for any
Relevant Period, the following all determined on a consolidated basis for the
Company and its Restricted subsidiaries: the excess of (1) EBITDA for such
period, plus any decrease in working capital (excluding cash and cash
equivalents) during such period, less (2) the sum of (a) capital expenditures
(other than to purchase a Vessel) made in cash during such period, (b) the
aggregate principal amount of Indebtedness permanently repaid or prepaid during
such period, (c) the cash portion of Consolidated Interest Expense paid plus
the accretion on the Notes during such period (other than from the Vessel
Acquisition Account), (d) the aggregate amount (without duplication) of all
income and franchise taxes paid in cash during such period and (e) any increase
in working capital (excluding cash and cash equivalents) during such period.


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


“Exchange Notes” has the meaning set forth in the preamble of this
Indenture.


“Exchange Offer Registration Statement”
has the meaning set forth in the
Registration Rights Agreement or any similar exchange offer effected with
respect to Additional Notes.


“fair market value” means, with respect to any Asset Disposition or
Restricted Payment, the price that would be negotiated in an arm’s-length
transaction for cash between a willing seller and a willing and able buyer,
neither of which is under any compulsion to complete the transaction, as such
price is determined in good faith by an officer of the Company if such value is
less than $3.0 million; provided,
however, if the value of such Asset Sale or Restricted Payment is
$3.0 million or greater, such determination shall be made in good faith by
the Board of Directors of the Company; and provided
further, if the
value of such Asset Sale or Restricted Payment is $10.0 million or
greater, such determination shall be made by an Independent Qualified Party.


“Fuel Hedging Agreement” means any spot, forward
or option fuel price protection agreements and other types of fuel hedging
agreements designed to protect against or manage exposure to fluctuations in
fuel prices, in each case, entered into in the ordinary course of business and
in connection with the conduct of such Person’s business and not for
speculative purpose.


“GAAP” means generally accepted accounting principles in the United States as
in effect from time to time.


“Global Note Legend” means the legend set forth in Section
2.06(e)(ii) hereof, which is required to be placed on all Global Notes
issued under this Indenture.


“Global Notes” means, individually and collectively, each of the
Notes (which may be either Restricted Global Notes or Unrestricted Global
Notes) issued or issuable in the global form of Exhibit A hereto issued
in accordance with Section 2.01, 2.06(b)(iv) or 2.06(d)
hereof.



 10
 









 


“Government Securities” means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clause (i) or (ii) above, are not callable or redeemable at the
option of the issuers thereof; or (iii) depository receipts issued by a
bank or trust company as custodian with respect to any such Government
Securities or a specific payment of interest on or principal of any such
Government Securities held by such custodian for the account of holder of a
depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities
evidenced by such depository receipt.


“Guarantee” means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:


(1)           to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness of such Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise); or


(2)           entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business. The term “Guarantee” used as a verb has a corresponding meaning.


“Guarantors” means each Restricted Subsidiary of the Company on
the Issue Date and each Restricted Subsidiary that becomes a guarantor of the
Notes pursuant to Section 4.14 or otherwise, by executing a supplemental
indenture in which such Restricted Subsidiary agrees to be bound by the terms
of this Indenture; provided that
any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its Subsidiary Guarantee is released in accordance
with the terms of this Indenture.


“Hedging Obligations” of any Person means the net obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement, Fuel
Hedging Agreement or Commodity Hedging Agreement.


“Holder” means the Person in whose name a Note is registered
on the Registrar’s books.


“Incidental Asset” means any equipment, outfit, furniture,
furnishings, appliances, spare or replacement parts or stores owned by the
Company or a Guarantor that have become obsolete or unfit for use or no longer
useful, necessary or profitable in the conduct of the business of the Company
or such Guarantor, as the case may be. In no event shall the term “Incidental
Asset” include a Vessel.


“IAI Global Note” means Notes sold to an Institutional Accredited
Investor in the United States of America which shall be in a permanent global
Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend, the Private Placement Legend, deposited with or on behalf of and
registered in the name of the Depositary or its nominee, and authenticated by
the Trustee as herein provided.


“Incur” means create, incur, issue, assume, Guarantee,
incur or otherwise become liable for or with respect to, contingently or
otherwise; provided, however, that
any Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be Incurred by such Person at the time it
becomes a Restricted 



 11
 









 


Subsidiary. The term “Incurrence”
when used as a noun shall have a correlative meaning. Solely for purposes of
determining compliance with Section 4.07, (1) amortization of debt
discount or the accretion of principal with respect to a non-interest bearing
or other discount security and (2) the payment of regularly scheduled
interest in the form of additional Indebtedness of the same instrument or the
payment of regularly scheduled dividends on Capital Stock in the form of
additional Capital Stock of the same class and with the same terms will not be
deemed to be the Incurrence of Indebtedness.


“Indebtedness” means, with respect to any Person on any date of
determination (without duplication):


(1)           the principal in respect of (A) indebtedness
of such Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;


(2)           all Capital Lease Obligations of such Person and
all Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person;


(3)           the principal component of all obligations of such
Person issued or assumed as the deferred purchase price of property due more
than six months after the acquisition of such property, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business);


(4)           the principal component of all obligations of such
Person for the reimbursement of any obligor on any letter of credit, banker’s
acceptance or similar credit transaction (other than obligations with respect
to letters of credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following payment on the letter of credit);


(5)           the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of any Disqualified
Stock of such Person or, with respect to any Subsidiary of such Person, the
liquidation preference with respect to any Preferred Stock (but excluding, in
each case, any accrued dividends);


(6)           the principal component of all obligations of the
type referred to in clauses (1) through (5) of other Persons and all
dividends of other Persons for the payment of which, in either case, such
Person is responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee;


(7)           the principal component of all obligations of the
type referred to in clauses (1) through (6) of other Persons secured
by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being deemed
to be the lesser of the value of such property or assets and the amount of the
obligation so secured; and


(8)           to the extent not otherwise included in this
definition, net Hedging Obligations of such Person.


The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence
of the contingency giving rise to the obligation, of any contingent obligations
at such date; provided, however, that
the principal amount of any non-interest bearing or other discount
security at any date will be the principal 


 



 12
 









 


amount thereof that
would be shown on a balance sheet of such Person dated such date prepared in
accordance with GAAP.


“Indenture” means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.


“Independent Qualified Party” means an independent investment banking firm,
accounting firm or appraisal firm, in each case of industry recognized
standing.


“Indirect Participant” means a Person who holds a beneficial interest in
a Global Note through a Participant.


“Initial Notes” has the meaning set forth in the preamble of this
Indenture.


“Initial Purchaser” has the meaning set forth in the respective
Purchase Agreement.


“Institutional Accredited Investor”
means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.


“Interest Rate Agreement” means, in respect of a Person, any agreements or
arrangements designed to protect such Person against fluctuations in interest
rates accruing on Indebtedness for which it is liable, in each case, entered
into in the ordinary course of business and in connection with conduct of such
Person’s business and not for speculative purposes and in respect to a notional
amount not in excess of the principal amount of such Indebtedness from time to
time outstanding.


“Investment” means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of any
direct or indirect advance, loan (other than advances to customers in the
ordinary course of business that are recorded as accounts receivable or
advances against supplies on the balance sheet of the lender) or other extension
of credit (including by way of Guarantee or similar arrangement) or capital
contribution to (by means of any transfer of cash or other property to others,
or any payment for property or services for the account or use of others), or
any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by such Person (in each case other than in exchange for
Capital Stock (other than Disqualified Stock) of the Company). Except as
otherwise provided for herein, the amount of an Investment shall be its fair
value at the time the Investment is made and without giving effect to
subsequent changes in value.


For purposes of the definition of “Unrestricted
Subsidiary,” the definition of “Restricted Payment” and Section 4.08:


(1)           “Investment” shall include the portion
(proportionate to the Company’s equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (A) the Company’s “Investment”
in such Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company’s equity interest in such Subsidiary) of the fair
market value of the net assets of such Subsidiary at the time of such
redesignation; and


(2)           any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined in good faith by the Board of
Directors of the Company.


 



 13














“Issue Date” means
November 16, 2006.


“Legal Holiday” means
a Saturday, a Sunday or a day on which banking institutions in the City of New
York or at a place of payment are authorized by law, regulation or executive
order to remain closed.  If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.


“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent
to all Holders of Initial Notes for use by such Holders in connection with an
Exchange Offer.


“Lien” means any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or lease in
the nature thereof, a ship or vessel mortgage or encumbrance, any option or
other agreement to sell or give a security interest in, and any filing of or
agreement to give any financing statement under, the Uniform Commercial Code
(or equivalent statute) of any jurisdiction).


“Moody’s” means Moody’s
Investors Service, Inc. and its successors.


“Net Available Cash” from
an Asset Disposition means the aggregate cash proceeds and cash equivalents
received by the Company or any Restricted Subsidiary therefrom (including any
cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or otherwise and proceeds from the sale or other
disposition of any securities received as consideration, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other non-cash
form), in each case net of:


(1)           all
accounting, investment banking, legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or be accrued as a
liability under GAAP, as a consequence of such Asset Disposition;


(2)           all
payments made on any Indebtedness which is secured by any assets subject to
such Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by
its terms, or in order to obtain a necessary consent to such Asset Disposition,
or by applicable law, be repaid out of the proceeds from such Asset Disposition;


(3)           all
distributions and other payments required to be made to minority interest
Holders in Restricted Subsidiaries as a result of such Asset Disposition;


(4)           the
deduction of appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the property or
other assets disposed in such Asset Disposition and retained by the Company or
any Restricted Subsidiary after such Asset Disposition;


(5)           all
Ready for Sale Costs incurred in connection with such Asset Disposition, but
only to the extent that such Ready for Sale Costs directly result, in the good
faith determination of the Board of Directors (which determination shall be
evidenced in the form of a resolution of the Board of Directors and delivered
to the Trustee), in the Company or a Restricted Subsidiary, as the case may be,
receiving greater cash proceeds in connection with such Asset Disposition than
the Company or such Restricted Subsidiary, as the case may be, would have
received if such Ready for Sale Costs were not incurred; and


(6)           in the
case of insurance proceeds in respect of an Asset Disposition resulting from
the total loss or constructive total loss of a Vessel, any amount received by
the Company or a Restricted Subsidiary in excess of the fair market value of
such Vessel at the time of such Asset Disposition, in the good faith 



 14
 








determination of the Board of Directors (which
determination shall be evidenced in the form of a resolution of the Board of
Directors and delivered to the Trustee).


“Net Cash Proceeds”, with
respect to any issuance or sale of Capital Stock, means the cash proceeds of
such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’
or placement agents’ fees, discounts or commissions and brokerage, consultant
and other fees actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.


“Non-Recourse Indebtedness” means Indebtedness or any other obligation:


(1)           as
to which neither the Company nor any Restricted Subsidiary, (a) provides
any guarantee or credit support of any kind (including any undertaking,
Guarantee, indemnity, agreement or instrument that would constitute
Indebtedness); or (b) is directly or indirectly liable (as a guarantor or
otherwise);


(2)           the
Incurrence of which will not result in any recourse against any of the assets
of the Company or any Restricted Subsidiary; and


(3)           no
default with respect to which would permit (upon notice, lapse of time or any
other event or condition, or any combination of the foregoing) any holder of
any other Indebtedness or other obligation of the Company or any Restricted
Subsidiary to declare pursuant to the express terms governing such Indebtedness
or other obligation a default on such other Indebtedness or other obligation or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity.


“Non-U.S. Person” means
a Person who is not a U.S. Person.


“Note Custodian” means
the Trustee, as custodian for the Depositary with respect to the Notes in
global form, or any successor entity thereto.


“Note Obligations” means
the Notes, Subsidiary Guarantees and all other obligations of any Obligor under
the Indenture or the Security Documents.


“Notes” has the
meaning assigned to it in the preamble to this Indenture.


“Obligor” means each
of the Company, the Guarantors and any other Persons that has granted to the
Trustee a Lien upon any of the Collateral as security for the Note Obligations.


“Offering” means the
offering of the Initial Notes issued by the Company on the Issue Date.


“Offering Circular” means
the final Offering Circular of the Company dated November 7, 2006 with respect
to the Offering.


“Officer” means, with
respect to any Person, the Chairman of the Board, the Chief Executive Officer,
any President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice
President or Director of such Person.


“Officers’ Certificate” means
a certificate signed on behalf of the Company by two Officers of the Company,
one of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company, that
meets the requirements of Sections 12.04 and 12.05 hereof.


“Opinion of Counsel” means
an opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Sections 12.04 and 12.05 hereof.  The counsel may be an employee



 15
 








of or counsel to the Company or any Subsidiary of
the Company.  Any Opinion of Counsel may
be based, as to matter of fact, upon certificates of Officers of the Company or
others, as the case may be.


“Participant” means,
with respect to DTC, Euroclear or Clearstream, a Person who has an account with
DTC, Euroclear or Clearstream, respectively (and, with respect to DTC, shall
include Euroclear or Clearstream).


“Participating Broker Dealer” has the meaning set forth in the Registration Rights Agreement.


“Permitted Collateral Liens” means Liens described in clauses (2), (4), (6), (21) and
(22) of the definition of “Permitted Liens”.


“Permitted Flag Jurisdiction” means the United Kingdom, the Isle of Man, the Commonwealth of Bermuda,
the British Virgin Islands, the Cayman Islands, the United States of America,
any State of the United States or the District of Columbia, the Commonwealth of
the Bahamas, the Republic of the Marshall Islands, the Republic of Liberia, the
Republic of Panama, Singapore, Cyprus, the Philippines, Denmark, Norway,
Greece, Malta, India, and any other jurisdiction generally acceptable to institutional
lenders in the shipping industry, as determined in good faith by the Board of
Directors.


“Permitted Holders” means
any of Arvid Tage, Serguei Zoudov or David Znak or any member of the immediate
family thereof or any trust or similar vehicle formed for the benefit of any of
the foregoing or any entity that is at least majority owned and controlled,
directly or indirectly by any of the foregoing.


“Permitted Investments” means
an Investment by the Company or any Restricted Subsidiary in:


(1)           the
Company, a Restricted Subsidiary or a Person that will, upon the making of such
Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is
a Related Business;


(2)           another
Person if as a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Restricted Subsidiary; provided that such Person’s primary business is a Related
Business;


(3)           cash
and Temporary Cash Investments;


(4)           receivables
owing to the Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided that
such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;


(5)           payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business;


(6)           stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted Subsidiary
or in satisfaction of judgments;


(7)           loans
or advances to employees made in the ordinary course of business in an
aggregate amount not to exceed $250,000 outstanding at any one time;


(8)           any
Person to the extent such Investment represents the non-cash portion of the
consideration received for an Asset Disposition as permitted pursuant to the
covenant described under Section 4.10;



 16
 








(9)           any
Person where such Investment was acquired by the Company or any of its
Restricted Subsidiaries (a) in exchange for any other Investment or
accounts receivable or other rights to payment held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other Investment
or accounts receivable or other rights to payment or (b) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with respect
to any secured Investment or other transfer of title with respect to any
secured Investment in default;


(10)         agreements
in respect of Hedging Obligations; and


(11)         any
other Investment not to exceed $1,000,000 at any one time.


“Permitted Liens” means,
with respect to any Person:


(1)           liens
for crews’ wages (including the wages of a master and the wages of stevedores
employed directly by a Vessel) and pledges or deposits by such Person under
workers’ compensation laws, unemployment insurance laws or similar legislation
or to support obligations to insurance companies in respect of deductibles,
co-insurance claims or self-insured retention (and letter of credit obligations
in respect thereof), or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Indebtedness), or leases to which such
Person is a party, or deposits to secure public or statutory obligations of
such Person or deposits of cash or cash equivalents to secure surety or appeal
bonds to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred in the
ordinary course of business;


(2)           Liens
imposed by law, such as carriers’, warehousemen’s, mechanics’ or similar
maritime Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings that are being diligently contested or other
Liens arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other proceedings
for review;


(3)           Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s Liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided, however, that (A) such
deposit account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board or similar regulatory
authority and (B) such deposit account is not intended by the Company or
any Restricted Subsidiary to provide collateral to the depository institution,
in each case, other than for the benefit of the Holders;


(4)           Liens
for taxes, assessments, governmental charges or claims not yet subject to
penalties for non-payment or which are being contested in good faith by
appropriate proceedings being diligently contested;


(5)           Liens
in favor of issuers of surety bonds or letters of credit and bankers’
acceptances issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; provided,
however, that such letters of credit and bankers’ acceptances do not
constitute Indebtedness;


(6)           minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person;



 17
 








(7)           Liens
securing Indebtedness Incurred in accordance with Section 4.07 to
finance the construction, purchase or lease of, or repairs, improvements or
additions to, property, plant or equipment of such Person, including one or
more Vessels; provided that the
Lien may not extend to any Collateral or other property owned by such Person or
any of its Restricted Subsidiaries at the time the Lien is Incurred (other than
assets and property that do not constitute Collateral and that are affixed or
appurtenant thereto), and the Indebtedness (other than any interest thereon)
secured by the Lien may not be Incurred more than 180 days after the later
of the acquisition, completion of construction, repair, improvement, addition
or commencement of full operation of the property subject to the Lien;


(8)           Liens
to secure Indebtedness incurred under clause (b)(1) of Section 4.07;


(9)           Liens
outstanding on the Issue Date and amendments thereto that are not more
restrictive, taken on a whole, than the corresponding Lien on the Issue Date;


(10)         Liens
on property or shares of Capital Stock of another Person at the time such other
Person becomes a Subsidiary of such Person; provided,
however, that such Liens are not created, Incurred or assumed in
connection with, or in contemplation of, such other Person becoming a
Subsidiary; provided further, however, that
any such Liens may not extend to any other property owned by such Person or any
of its Restricted Subsidiaries (other than assets and property affixed or
appurtenant thereto);


(11)         Liens
on property at the time such Person or any of its Restricted Subsidiaries
acquires the property, including any acquisition by means of a merger or
consolidation with or into such Person or a Subsidiary of such Person; provided, however, that such Liens are not
created, Incurred or assumed in connection with, or in contemplation of, such
acquisition; provided further, however, that
such Liens may not extend to any other property owned by such Person or any of
its Restricted Subsidiaries (other than assets and property affixed or
appurtenant thereto);


(12)         Liens
securing obligations under Interest Rate Agreements entered into to protect
against fluctuations in interest rates in the ordinary course of business, so
long as such obligations relate to Indebtedness that is, and is permitted to be
under the Indenture, secured by a Lien on the same property securing such
obligations;


(13)         Liens
securing obligations related to Currency Agreements or Commodity Hedging
Agreements or Fuel Hedging Agreements entered into to protect against
fluctuations in exchange rates and commodity prices and fuel prices in the
ordinary course of business;


(14)         any
Lien which arises in favor of an unpaid seller in respect of goods, plant or
equipment sold and delivered to the Company in the ordinary course of business
until payment of the purchase price for such goods or plant or equipment or any
other goods, plant or equipment previously sold and delivered by that seller
(except to the extent that such Lien secures Indebtedness or arises otherwise
than due to deferment of payment of purchase price);


(15)         any
Lien or pledge created or subsisting in the ordinary course of business over
documents of title, insurance policies or sale contracts in relation to
commercial goods to secure the purchase price thereof;


(16)         Liens
to secure any Refinancing (or successive Refinancings) as a whole, or in part,
of any Indebtedness secured by any Lien permitted under the Indenture (other
than Liens in respect of Indebtedness that is retired by the Company or any
Restricted Subsidiary with the proceeds of the Initial Notes); provided that:



 18
 








(A)          such
new Lien shall be limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien arose,
could secure the original Lien (plus improvements and accessions to, such
property or proceeds or distributions thereof):


(B)           the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (x) the outstanding principal amount or, if
greater, committed amount of the Indebtedness being Refinanced at the time the
original Lien became a Permitted Lien and (y) an amount necessary to pay
any fees and expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement;


(17)         Liens
representing the interest or title of a lessor in connection with any operating
lease or similar contract permitted under the Indenture;


(18)         (A)
Liens in favor of the Company or any Subsidiary Guarantor, (B) Liens
arising from the rendering of a final judgment or order against such Person
that does not give rise to an Event of Default, and (C)  Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other property relating to such letters of credit and products
and proceeds thereof;


(19)         Liens
in favor of customers and revenue authorities arising as a matter of law to
secure payment of custom duties in connection with the importation of goods;


(20)         precautionary filings under the UCC or
equivalent statute of any applicable jurisdiction;


(21)
        Liens securing the Notes and
Subsidiary Guarantees; and


(22)
        Liens for salvage or general
average, or charters out of Vessels in the ordinary course of business.


For
purposes of this definition, the term Indebtedness shall be deemed to include
interest on such Indebtedness.


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


“Preferred Stock”, as
applied to the Capital Stock of any Person, means Capital Stock of any class or
classes (however designated) which is preferred as to the payment of dividends
or distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Capital
Stock of any other class of such Person.


“Private Placement Legend” means the legend set forth in Section 2.06(e)(i) to be placed on
all Notes issued under this Indenture except where otherwise permitted by the
provisions of this Indenture.


“Purchase Agreement” means
the purchase agreement dated November 7, 2006 entered into among the Company,
the Guarantors and Jefferies & Company, Inc., ABN AMRO
Incorporated and DAVY as initial purchasers.


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


“Rating Agency” means
each of S&P and Moody’s or if S&P or Moody’s or both shall not make a
rating on the Notes publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Company (as
certified by a resolution of the Board of Directors) which shall be substituted
for S&P or Moody’s, or both, as the case may be.



 19
 








“Ready for Sale
Cost”
means, with respect to a Vessel or Vessels (including any Mortgaged Vessel) to
be sold or leased (under a Capital Lease Obligation) by the Company or any
Guarantor, the aggregate amount of all expenditures incurred to bring such
Vessel or Vessels to the condition and location necessary or desirable to
market such Vessel or Vessels for sale or lease, or necessary for its intended
use by the purchaser or lessor thereof, including any and all Vessel
preparation and transportation expenses (including crew wages and transit
insurance), loading and discharge expenses, inspections, appraisals, repairs,
modifications, additions, improvements, permits and licenses in connection with
such sale or lease.


“Ready
for Sea Cost” means with respect to a Vessel or Vessels to be acquired
or leased (under a Capital Lease Obligation) by the Company or any Restricted
Subsidiary, the aggregate amount of all expenditures incurred to acquire or
construct and bring such Vessel or Vessels to the condition and location
necessary for its or their intended use, including any and all Vessel
preparation and transportation expenses, loading and discharge expenses,
inspections, appraisals, repairs, modifications, additions, improvements,
permits and licenses in connection with such acquisition or lease.


“Refinance” means, in
respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or to issue other Indebtedness in exchange
or replacement for, such indebtedness. “Refinanced”
and “Refinancing” shall have
correlative meanings.


“Refinancing Indebtedness” means Indebtedness that Refinances any Indebtedness of the Company or
any Restricted Subsidiary existing on the Issue Date or Incurred in compliance
with the Indenture, including Indebtedness that Refinances Refinancing
Indebtedness; provided, however, that:


(1)           such Refinancing Indebtedness has a
Stated Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced;


(2)           such Refinancing Indebtedness has an Average Life
at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced;


(3)           such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; and


(4)           if the Indebtedness being Refinanced is
subordinated in right of payment to the Notes or Subsidiary Guarantees, such
Refinancing Indebtedness has a final maturity date later than the maturity of,
and is subordinated in right of payment to, the Notes and Subsidiary
Guarantees, as the case may be, on terms at least as favorable to the Holders
as those contained in the documentation governing the Indebtedness being
Refinanced;


provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of
a Restricted Subsidiary that is not a Guarantor which Refinances Indebtedness
of the Company or a Guarantor, or (B) Indebtedness of the Company or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.


“Registered Exchange Offer” has the meaning set forth in the Registration Rights Agreement or any
similar exchange offer effected with respect to Additional Notes.


“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Issue Date, by
and among the Company, Guarantors, Jefferies & Company, Inc., ABN AMRO
Incorporated and 



 20
 








DAVY as Initial Purchasers relating to the
Offering, and any similar registration rights agreement entered into with
respect to an offering of Additional Notes.


“Regulation S” means
Regulation S promulgated under the Securities Act.


“Regulation S Global Note” means a Global Note in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.


“Related Business” means
the ownership or operation of Vessels and any activities within the ship owning
and shipping industries and all businesses which are complementary, incidental,
related or ancillary to any such activities, industries and businesses, in each
case as reasonably determined by the Board of Directors of the Company in good
faith.


“Responsible Officer” means
any officer, including, without limitation, any vice president, assistance vice
president, assistant treasurer or secretary within the Corporate Trust
Administration group of the Trustee (or any successor group of the Trustee), or
any other officer of the Trustee, customarily performing functions similar to
those performed by any of the above designated officers, in each case, with
direct responsibility for the administration of this Indenture, and also means,
with respect to any particular corporate trust matter, any other officer or
employee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.


“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.


“Restricted Global Note” means a Global Note bearing the Private Placement Legend.


“Restricted Payment” with
respect to any Person means:


(1)           the
declaration or payment of any dividends or any other payments or distributions
of any sort in respect of its Capital Stock or similar payment to the direct or
indirect holders of its Capital Stock (other than (i) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock), or
(ii) dividends or distributions payable solely to the Company or a
Restricted Subsidiary);


(2)           the
making of any payment on, or with respect to, or the purchase, redemption or
other acquisition or retirement for value of, any Capital Stock of the Company
or any parent of the Company held by any Person or of any Capital Stock of a
Restricted Subsidiary held by any Affiliate of the Company (other than a
Restricted Subsidiary), including the exercise of any option to exchange any
Capital Stock (other than into Capital Stock of the Company that is not
Disqualified Stock);


(3)           the
making of any payment on, or with respect to, or the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of,
any Subordinated Obligations of such Person or any of its Subsidiaries; or


(4)           the
making of any Investment (other than a Permitted Investment).


“Restricted Period” means
the 40 day distribution compliance period as set forth in Regulation S.


“Restricted Subsidiary” means
any Subsidiary of the Company that is not an Unrestricted Subsidiary.



 21
 








“Revolving Credit Facility” means, one or more revolving credit agreements or facilities among the
Company, any Guarantor, and one or more commercial lending institutions
providing for revolving credit loans or letters of credit.


“Rule 144” means Rule
144 promulgated under the Securities Act.


“Rule 144A” means Rule
144A promulgated under the Securities Act.


“Rule 144 Global Note” means
the Global Note in the form of Exhibit A hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule
144A.


“Rule 903” means Rule
903 promulgated under the Securities Act.


“Rule 904” means
Rule 904 promulgated under the Securities Act.


“S&P” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.


“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Company or a
Restricted Subsidiary on the Issue Date or thereafter acquired by the Company
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.


“SEC” means the Securities
and Exchange Commission.


“Securities Act” means
the Securities Act of 1933, as amended.


“Security Documents” means
any one or more security agreements, pledge agreements, collateral assignments,
mortgages, vessel mortgages, marine mortgages, deeds of covenants, assignments
of earnings and insurances, share pledges, collateral agency agreements, deeds
of trust or other grants or transfers for security, including without
limitation, the documents listed on Schedule A to this Indenture
executed and delivered by the Company and any other Obligor creating, or
purporting to create, a Lien upon Collateral in favor of the Trustee for the
benefit of the Holders of the Notes, in each case as amended, modified,
supplemented, renewed, restated or replaced, in whole or part, from time to
time, in accordance with its terms.


“Senior Indebtedness” means,
with respect to any Person, Indebtedness of such Person that is not a
Subordinated Obligation of such Person.


“Shelf Registration Statement” has the meaning set forth in the Registration Rights Agreement.


“Significant Subsidiary” means any Restricted Subsidiary that (i) owns any Collateral or
(ii) would be a “Significant Subsidiary” of the Company within the meaning
of Rule 1-02 under Regulation S-X promulgated by the SEC.


“Stated Maturity” means,
with respect to any security, the date specified in such security as the fixed
date on which the final payment of principal of such security is due and
payable, including pursuant to any mandatory redemption provision (but excluding
any provision providing for the repurchase of such security at the option of
the holder thereof upon the happening of any contingency unless such
contingency has occurred).



 22
 








“Subordinated Obligation” means with respect to a Person, any Indebtedness of such Person (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Notes or a Subsidiary Guarantee of such
Person, as the case may be, pursuant to a written agreement to that effect.


“Subsidiary” means,
with respect to any Person:


(1)           any
corporation, association or other business entity of which more than 50% of the
Voting Stock is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and


(2)           any
partnership (whether general or limited), limited liability company or joint
venture (a) the sole general partner or the managing general partner or
managing member of which is such Person or a Subsidiary of such Person, or
(b) if there are more than a single general partner or member, either
(i) the only general partners or managing members of which are such Person
and/or one or more Subsidiaries of such Person (or any combination thereof) or
(ii) such Person owns or controls, directly or indirectly, a majority of
the outstanding general partner interests, member interests or other Voting
Stock of such partnership, limited liability company or joint venture,
respectively.


“Subsidiary Guarantee” means
any guarantee of the Note Obligations by any Guarantor pursuant to Article
XI hereof.


“Temporary Cash Investments” means any of the following:


(1)           any
investment in direct obligations of, or obligations guaranteed by, the United
States of America or any agency thereof;


(2)           investments
in time deposit accounts, certificates of deposit and money market deposits
maturing within 180 days of the date of acquisition thereof issued by a
bank or trust company which is organized under the laws of the United States of
America, any state thereof, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $250,000,000 (or the
foreign currency equivalent thereof) and has outstanding debt which is rated “A”
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under
the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor;


(3)           repurchase
obligations with a term of not more than 30 days for underlying securities
of the types described in clause (1) above entered into with a bank
meeting the qualifications described in clause (2) above;


(4)           investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than the Company or an Affiliate of
the Company) organized and in existence under the laws of the United States of
America with a rating at the time as of which any investment therein is made of
“P-1” (or higher) according to Moody’s or “A-1” (or higher) according to
S&P;


(5)           investments
in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least “A” by S&P or “A2” by Moody’s; or



 23
 








(6)           investments
in money market funds which invest exclusively in U.S. dollar denominated money
market securities of domestic or foreign issuers rated in the highest rating
category by Moody’s and S&P.


“TIA” means the Trust
Indenture Act of 1939 (15 U.S.C. §§ 77aaa 77bbbb), as amended, as in effect on
the date on which this Indenture is qualified under the TIA, except as
otherwise provided in Section 9.03.


“Treasury Rate” means the yield to maturity
at the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
business days prior to the Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source or similar market data))
most nearly equal to the period from the Redemption Date to December 1, 2009; provided however , that if the period from the Redemption
Date to December 1, 2009 is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the Redemption Date to December 1, 2009 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year shall be used.


“Trustee” means the
party named as such above until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required
to bear the Private Placement Legend.


“Unrestricted Global Note” means a permanent Global Note in the form of Exhibit A attached
hereto that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private Placement Legend.


“Unrestricted Subsidiary” means (1) any Subsidiary of the Company that at the time of
determination shall have been designated an Unrestricted Subsidiary by the
Board of Directors of the Company in the manner provided below, and
(2) any Subsidiary of an Unrestricted Subsidiary.


The Board of Directors of the Company may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary if it:


(1)           has
no indebtedness other than Non-Recourse Indebtedness;


(2)           is
not a party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained, in light of all
the circumstances, at the time from Persons who are not Affiliates of the
Company;


(3)           is
a Person with respect to which neither the Company nor any Restricted
Subsidiary has any direct or indirect obligation (x) to subscribe for
additional Capital Stock or (y) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results;



 24
 








(4)           does
not guarantee, secure with any of its assets or properties or otherwise
directly or indirectly provide credit support for any Indebtedness of the
Company or any Restricted Subsidiary;


(5)           does
not own any Capital Stock of or own or hold any Lien on any asset or property
of, the Company or any Restricted Subsidiary and does not own any Collateral;
and


(6)           would
constitute an Investment which the Company could make in compliance with Section
4.08.


If, at any time, any Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of the
Indenture, and any Indebtedness of such Subsidiary shall be deemed to be
Incurred as of such date and subject to immediate compliance with Section
4.07 the failure with which to so comply will constitute a Default.


The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving
effect to such designation (A) the Company could Incur $1.00 of additional
Indebtedness under paragraph (a) of Section 4.07; and (B) no
Default shall have occurred and be continuing. Any such designation by such
Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the resolution of such Board of Directors giving effect
to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.


“U.S. dollars” or “$” means
United States dollars.


“U.S. Person” means a
U.S. person as defined in Rule 902(k) under the Securities Act.


“U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than the
U.S. dollar, at or as of any time for the determination thereof, the amount of
U.S. dollars obtained by converting such foreign currency involved in such
computation into U.S. dollars at the spot rate for the purchase of U.S. dollars
with the applicable foreign currency as quoted by Reuters (or, if Reuters
ceases to provide such spot quotations, by any other reputable service as is
providing such spot quotations, as selected by the Company) at approximately
11:00 a.m. (New York City time) on the date not more than two business
days prior to such determination.


“Vessel” means a bulk carrier, barge, container vessel,
reefer vessel, tug boat, push boat, tanker, liquid petroleum gas/liquid natural
gas tanker, chemical carrier, off shore supply vessel, floating storage
production unit, barge and in general any floating craft whose purpose may be
partially or wholly to deploy, procure, process, transport, load, discharge,
transfer or store lawful commodities or to transport crew, personnel or
passengers, and all related spares, stores, equipment, additions and
improvement equipment related thereto whether it is attached to such Vessel.


“Vessel Acquisition Account” means
that certain account or accounts created pursuant to the Vessel Acquisition
Account Agreement.


“Vessel Acquisition Account Agreement” means that certain Vessel
Acquisition Account and Security Agreement by and between the Company and the
Trustee, dated the Issue Date, as it shall be amended, modified or replaced.


“Voting
Stock” of a Person
means all classes of Capital Stock of such Person then outstanding and normally
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof.



 25














“Wholly Owned Restricted Subsidiary” means a Restricted Subsidiary all the Capital
Stock of which (other than directors’ qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary) is owned by the Company or one or more Wholly-Owned Restricted
Subsidiaries.


SECTION
1.02.              Other Definitions.


	
  Term

  	
   

  	
  Defined in Section

  	
   

  
	
  “Additional Amounts”

  	
   

  	
  4.05

  	
   

  
	
  “Additional Notes”

  	
   

  	
  2.16

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Ancillary Security
  Instruments”

  	
   

  	
  7.02

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Asset Sale Proceeds Account”

  	
   

  	
  4.10

  	
   

  
	
  “Change in Tax Law”

  	
   

  	
  3.07

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.16

  	
   

  
	
  “Change of Control Payment”

  	
   

  	
  4.16

  	
   

  
	
  “Change of Control Payment
  Date”

  	
   

  	
  4.16

  	
   

  
	
  “Collateral Proceeds Offer”

  	
   

  	
  4.10

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  8.05

  	
   

  
	
  “CT”

  	
   

  	
  12.09

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “ERISA”

  	
   

  	
  2.06

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Excess Cash Flow Offer”

  	
   

  	
  4.18

  	
   

  
	
  “Excess Cash Flow Offer Amount”

  	
   

  	
  4.18

  	
   

  
	
  “Excess Cash Flow Purchase
  Date”

  	
   

  	
  4.18

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  	
   

  
	
  “Funding Guarantor”

  	
   

  	
  11.05

  	
   

  
	
  “Initial Period”

  	
   

  	
  4.18

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.04

  	
   

  
	
  “Offer Amount”

  	
   

  	
  4.10

  	
   

  
	
  “Offer Period”

  	
   

  	
  4.10

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Default”

  	
   

  	
  6.01

  	
   

  
	
  “Payor”

  	
   

  	
  4.05

  	
   

  
	
  “Purchase Date”

  	
   

  	
  4.10

  	
   

  
	
  “Redemption Date”

  	
   

  	
  3.07

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Released Interest “

  	
   

  	
  10.03(b)(i)

  	
   

  
	
  “Relevant Period”

  	
   

  	
  4.18

  	
   

  
	
  “Relevant Tax Jurisdiction”

  	
   

  	
  4.05

  	
   

  
	
  “Similar Laws”

  	
   

  	
  2.06

  	
   

  
	
  “Successor Company”

  	
   

  	
  5.01

  	
   

  
	
  “Unused Initial Deposit Offer”

  	
   

  	
  4.17

  	
   

  
	
  “Unused Initial Deposit Offer
  Amount”

  	
   

  	
  4.17

  	
   

  
	
  “Unused Initial Deposit
  Purchase Date”

  	
   

  	
  4.17

  	
   

  
	
  “Valuation Date”

  	
   

  	
  10.03(b)(i)(A)(2)

  	
   

  



 



 26
 








SECTION
1.03.              Incorporation by Reference of Trust
Indenture Act.


Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.


The
following TIA terms used in this Indenture have the following meanings:


“indenture
securities” means the Notes;


“indenture
security holder” means a Holder of a Note;


“indenture
to be qualified” means this Indenture;


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


“obligor”
on the Notes means the Company and if applicable, any Guarantor and any
successor obligor upon the Notes.


All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.


SECTION
1.04.              Rules of Construction.


Unless
the context otherwise requires:


(1)           a term has the meaning assigned to
it;


(2)           an accounting term not otherwise
defined has the meaning assigned to it in accordance with GAAP;


(3)           “or” is not exclusive, and “including”
means “including without limitation,” “including but not limited to” or words
of similar import;


(4)           the word “will” shall be construed to
have the same meaning and effect as the word “shall;”


(5)           words in the singular include the
plural, and in the plural include the singular;


(6)           provisions apply to successive events
and transactions;


(7)           references to sections of or rules
under the Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time;


(8)           references to “Sections,” “clauses,” “Articles,”
“Exhibits” and “Schedules” shall be to Sections, clauses, Articles, Exhibits
and Schedules, respectively, of this Indenture unless otherwise specifically
provided;


(9)           the use in this Indenture of the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Indenture in its entirety and not to any particular
provision hereof;



 27
 








(10)         this Indenture, the Security Documents
and any documents or instruments delivered pursuant hereto shall be construed
without regard to the identity of the party who drafted the various provisions
of the same.  Each and every provision of
this Indenture, the Security Documents and instruments and documents entered
into and delivered in connection therewith shall be construed as though the
parties participated equally in the drafting of the same.  Consequently, each of the parties acknowledges
and agrees that any rule of construction that a document is to be construed
against the drafting party shall not be applicable either to this Indenture, or
the Security Documents and instruments and documents entered into and delivered
in connection therewith; and


(11)         if the covenants or default provisions
or definitions in this Indenture refer to an amount in U.S. dollars, that
amount will be deemed to refer to the U.S. Dollar Equivalent of the amount of
any obligation denominated in any other currency or currencies, including
composite currencies; and the determination of U.S. Dollar Equivalent for any
purpose under this Indenture will be determined as of a date of determination
as described in the definition of “U.S. Dollar Equivalent” and, in any case, no
subsequent change in the U.S. Dollar Equivalent after the applicable date of
determination will cause such determination to be modified.


ARTICLE II

THE NOTES


SECTION
2.01.              Form and Dating.


The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A hereto. 
The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage.  Each Note
shall be dated the date of its authentication. 
The Notes shall be in minimum denominations of $100,000 and integral
multiples of $1,000, in excess thereof. 
Subject to Section 4.14 and 11.02 hereof, the Notes
may bear notations of Subsidiary Guarantees.


The
terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture, and the Company, Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.  However, to the extent any provision of any
Note or any notation of Subsidiary Guarantees thereon conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall,
to the extent not prohibited by applicable law, govern and be controlling.


Notes
issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend and the “Schedule of
Exchanges in the Global Note” attached thereto).  Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without
the Global Note Legend and without the “Schedule of Exchanges of Interests in
the Global Note” attached thereto).  Each
Global Note shall represent such aggregate principal amount of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges and redemptions. 
Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee, the Depositary or the Note Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.


The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of
Euroclear” and the “General Terms and Conditions of Clearstream Bank” and “Customer
Handbook” of Clearstream shall be applicable to transfers of beneficial
interests in



 28
 








Regulation S Global Notes that are held by members of,
or Participants, in DTC through Euroclear or Clearstream.


SECTION
2.02.              Execution and Authentication.


One
Officer shall sign the Notes for the Company by manual or facsimile signature.


If
an Officer of the Company whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.


A
Note shall not be valid until authenticated by the manual signature of an
authorized signatory of the Trustee.  The
signature shall be conclusive evidence that the Note has been authenticated under
this Indenture.


The
Trustee shall authenticate (i) the Initial Notes for original issue on the
Issue Date in the aggregate principal amount of $185,000,000, (ii) any Exchange
Notes from time to time for issue only in exchange for a like principal amount
of Initial Notes, and (iii) Additional Notes issued in compliance with Section
2.16 in each case, upon a written order of the Company signed by one
Officer, which written order shall specify (a) the amount of Notes to be
authenticated and the date of original issue thereof, (b) whether the Notes are
Initial Notes or Exchange Notes and (c) the amount of Notes to be issued in
global form or definitive form.  The
aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited, subject to compliance with Section 2.16.


The
Initial Notes and the Exchange Notes shall be considered collectively as a
single class for all purposes of this Indenture.  Holders of the Initial Notes and the Exchange
Notes will vote and consent together on all matters to which such Holders are
entitled to vote or consent as one class, and none of the Holders of the
Initial Notes or the Exchange Notes shall have the right to vote or consent as
a separate class on any matter to which such Holders are entitled to vote or
consent.


The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes.  An authenticating
agent may authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an agent to deal with Holders or an Affiliate of the Company.


SECTION
2.03.              Registrar and Paying Agent.


The
Company shall maintain an office or agency within the United States of America
where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”).  The Registrar shall keep a register of the Notes
and of their transfer and exchange.  The
Company may appoint one or more co-registrars and one or more additional paying
agents.  The term “Registrar” includes
any co-registrar and the term “Paying Agent” includes any additional paying
agent.  The Company may change any Paying
Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing in advance of the name and address of any Agent not a party to this
Indenture.  If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, or fails to
give the foregoing notice, the Trustee shall act as such.  The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.


The
Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global
Notes.  The Trustee has been appointed by
DTC to act as Note Custodian with respect to the Global Notes.


The
Company initially appoints the Trustee to act as the Registrar or Paying Agent.



 29
 








The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture which agreement shall incorporate the provisions of the
TIA and implement the provisions of this Indenture that relate to that Agent.


SECTION
2.04.              Paying Agent to Hold Money in Trust.


The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
or premium or Additional Interest, if any, or interest on, the Notes, and will
notify the Trustee of any default by the Company in making any such
payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee.  The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money.  If the Company
or an Affiliate of the Company (including any Subsidiary) acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent. 
Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.


SECTION
2.05.              Holder Lists.


The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA §312(a). 
If the Trustee is not the Registrar, the Company shall provide to a
Responsible Officer of the Trustee at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes, which list may be
conclusively relied upon by the Trustee, and the Company shall otherwise comply
with TIA §312(a).


SECTION
2.06.              Transfer and Exchange.


(a)           Transfer and Exchange of Global Notes.  A Global Note may not be transferred as a
whole except by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.  Global Notes
will be exchanged by the Company for Definitive Notes only if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary for the Global Notes or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 90 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion notifies the Trustee in writing that it elects to cause issuance of
the Notes in certificated form.  Upon the
occurrence of either of the preceding events in (i) or (ii) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the
Trustee in writing.  Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof.  Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note.  A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b) or (d) hereof.


(b)           Transfer and Exchange of Beneficial Interests in the
Global Notes.  The transfer
and exchange of beneficial interests in the Global Notes shall be effected
through the Depositary, in accordance with the provisions of this Indenture and
the Applicable Procedures.  Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein



 30
 








to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs as applicable:


(i)                    Transfer of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Restricted Period transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser).  Beneficial interests
in any Unrestricted Global Note may be transferred only to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note.  No written orders or instructions
shall be required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).


(ii)                   All Other Transfers and Exchanges of Beneficial Interests in Global
Notes.  In connection with all
transfers and exchanges of beneficial interests (other than a transfer of a
beneficial interest in a Global Note to a Person who takes delivery thereof in
the form of a beneficial interest in the same Global Note), the transferor of
such beneficial interest must deliver to the Registrar: (A) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or (B) (1)
a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
by the Depositary to the Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (B)(1) above. 
Upon an Exchange Offer by the Company in accordance with Section 2.06(d)
hereof, the requirements of this Section 2.06(b)(ii) shall be
deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes.


(iii)                  Transfer of Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of clause (ii) above and the Registrar
receives the following:


(A)          if
the transferee will take delivery in the form of a beneficial interest in the
Rule 144A Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in Item (1)
thereof;


(B)           if
the transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
Item (2) thereof; and


(C)           if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by (3) thereof,
in each case, if applicable.



 31
 








(iv)              Transfer and
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in the Unrestricted Global Note.  A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of clause (ii) above and:


(A)          such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in
the case of a transfer, is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;


(B)           any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;


(C)           any
such transfer is effected by a Participating Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or


(D)          the Registrar receives the following:


(1)           if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in Item (1)(a) thereof;


(2)           if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in Item (4) thereof; and


(3)           in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the
Trustee and the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are not required in order
to maintain compliance with the Securities Act, and such Restricted Definitive
Note is being exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.


If
any such transfer is effected pursuant to subparagraph (B) or (D) above at a
time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.


Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.


(c)           Transfer and Exchange of Definitive Notes for
Definitive Notes.  Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.06(c), the Registrar shall register
the transfer or exchange of Definitive Notes. 
Prior to such registration of transfer



 32
 








or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing.  In addition, the requesting Holder shall
provide any additional certifications, documents and information, as
applicable, pursuant to the provisions of this Section 2.06(c).


(i)                    Restricted Definitive Notes
may be transferred to and registered in the name of Persons who take delivery
thereof if the Registrar receives the following:


(A)          if the transfer will be made pursuant
to Rule 144A under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in Item (1) thereof;


(B)           if the transfer will be made pursuant
to Rule 903 or Rule 904 of the Securities Act, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in Item (2) thereof; and


(C)           if the transfer will be made pursuant
to any other exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel
required by Item (3) thereof, if applicable.


(ii)                   Any Restricted Definitive
Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Note if:


(A)          such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;


(B)           any
such transfer is effected pursuant to a Shelf Registration Statement in
accordance with the Registration Rights Agreement;


(C)           any
such transfer is effected by a Participating Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or


(D)          the Registrar receives the following:


(1)           if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto,
including the certifications in Item (1)(b) thereof;


(2)           if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in Item (4) thereof; and


(3)           in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the
Trustee and the Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on transfer contained
herein and in the Private Placement Legend are not



 33
 








required in order to
maintain compliance with the Securities Act, and such Restricted Definitive
Note is being exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.


(iii)                  A Holder of Unrestricted
Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. 
Upon receipt of a request for such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.  Unrestricted Definitive Notes
cannot be exchanged for or transferred to Persons who take delivery thereof in
the form of a Restricted Definitive Note.


(d)           Exchange Offer.  Upon the occurrence of an Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that are not (1) broker-dealers, (2) Persons participating in the
distribution of the Exchange Notes or (3) Persons who are affiliates (as
defined in Rule 144) of the Company and accepted for exchange in such Exchange
Offer and (ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in
such Exchange Offer without the Private Placement Legend in the appropriate
principal amount.  Concurrent with the
issuance of such Unrestricted Global Notes, and the Company shall execute and
the Trustee shall authenticate and make available for delivery to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.


(e)           Legends. 
The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.


(i)                    Private Placement Legend.


(A)          Except
as permitted by subparagraph (B) below, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS
A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND
(2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH BRITANNIA BULK OR ANY AFFILIATE OF BRITANNIA BULK WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
BRITANNIA BULK OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE



 34
 








SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT
OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO BRITANNIA BULK’S AND THE TRUSTEE’S,
OR TRANSFER AGENT’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E), OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE OR TRANSFER AGENT.


BY
ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH
HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE
BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF
PLANS, INDIVIDUAL RETIREMENT ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR
PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE
(COLLECTIVELY, “SIMILAR LAWS”), OR OF AN ENTITY
WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY
WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE
SIMILAR LAWS.


(B)           Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph
(b)(iv), (c)(ii), (c)(iii) or (d) of this Section 2.06 (and all
Notes issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.


(ii)                   Global Note Legend. 
Each Global Note shall bear a legend in substantially the following
form:


“THIS
NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREIN REFERRED TO
AND IS REGISTERED IN THE NAME OF, AND IS HELD BY, THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY



 35
 








MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO ARTICLE II OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF BRITANNIA BULK PLC OR ANY SUCCESSOR THERETO.”


Additionally,
for so long as DTC is the Depositary with respect to any Global Note, each such
Global Note shall also bear a legend in substantially the following form:


“UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE), TO BRITANNIA BULK PLC OR ANY
SUCCESSOR THERETO OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.”


(f)            Cancellation and/or Adjustment of Global Notes.  At such time as all beneficial interests in a
particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note shall be returned to or retained and canceled by
the Trustee in accordance with Section 2.11 hereof.  At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee, the Note Custodian or the
Depositary at the direction of the Trustee, to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note, by the Trustee, the Note
Custodian or by the Depositary at the direction of the Trustee, to reflect such
increase.


(g)           General Provisions Relating to Transfers and
Exchanges.


(i)                    To permit registrations of transfers
and exchanges, subject to the other provisions of this Section 2.06,
the Company shall execute and, upon the Company’s written order, signed by one
or more officers of the Company, the Trustee shall authenticate Global Notes
and Definitive Notes at the Registrar’s request.


(ii)                   No service charge shall be
made to a holder of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company
or the Registrar may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 3.06, 4.10, 4.16, 4.17
and 9.05 hereof).


(iii)                  The Registrar shall not be
required to register the transfer or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.



 36
 








(iv)                  All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture and the Subsidiary Guarantees, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.


(v)                   The Company and the Registrar
shall not be required (A) to issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection; (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part; (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding interest payment date; or (D) to register the
transfer of a Note other than in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof.


(vi)                  Prior to due presentment for
the registration of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of
the Trustee, any Agent or the Company shall be affected by notice to the
contrary.


(vii)                 The Trustee shall authenticate
Global Notes and Definitive Notes in accordance with the provisions of Section 2.02
hereof.


(viii)                All certifications, certificates
and Opinions of Counsel required to be submitted to the Registrar pursuant to
this Section 2.06 to effect a transfer or exchange may be submitted
by facsimile.


(ix)                   The Trustee and the Registrar
shall have no obligation or duty to monitor, determine or inquire as (i) to
whether any Person is or is not a U.S. Person as described in the proviso contained
in Section 2.06(b)(i), or a Person described in clauses (1),
(2) and (3) of each of Sections 2.06(b)(iv)(A), 2.06(c)(ii)(A)
and 2.06(d) hereof or (ii) to whether any Person is or is not a Person,
and whether a transfer is made pursuant to the exemptions from the Securities
Act described in Sections 2.06(c)(i)(A), 2.06(c)(i)(B), 2.06(c)(i)(C),
2.06(b)(iii)(A), 2.06(b)(iii)(B) or 2.06(b)(iii)(C) or is
otherwise made in accordance with any applicable securities laws (other than
the TIA) with respect to any transfer of any interest in any Note (including
any transfers between or among Participants or beneficial owners of interests
in any Global Note), other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


SECTION
2.07.              Replacement Notes.


If
any mutilated Note is surrendered to the Trustee or the Company, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, the Company shall issue to the Holder of such Note and the Trustee, upon
the written order of the Company signed by one Officer of the Company, shall
authenticate a replacement Note if the Trustee’s requirements are met.  If required by the Trustee or the Company, an
indemnity bond or other security satisfactory to the Trustee must be supplied
by the Holder that is sufficient in the judgment of the Trustee and the Company
to protect the Company, the Trustee and any Agent from any loss that any of
them may suffer if a Note is replaced. 
The Company and the Trustee may charge for their respective expenses in
replacing a Note.  If, after the delivery
of such replacement Note, a bona fide purchaser of the original Note in lieu of
which such replacement Note was



 37
 








issued presents for payment or registration such
original Note, the Trustee shall be entitled to recover such replacement Note
from the Person to whom it was delivered or any Person taking therefrom, except
a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided in connection with the issuance and authentication of such
replacement Note to the extent of any loss, damage, cost or expense incurred by
the Company, the Trustee and any Agent in connection therewith.


Subject
to the provisions of the final sentence of the preceding paragraph of this Section 2.07,
every replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


SECTION
2.08.              Outstanding Notes.


The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this
Section as not outstanding.  Except
as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.


If
a Note is replaced pursuant to Section 2.07 hereof, the replaced
Note ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Note is held by a bona fide purchaser.


If
the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest and Additional Interest, if
any, on it ceases to accrue.


If
the Paying Agent (other than the Company, a Subsidiary of the Company or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest and Additional Interest, if any.


SECTION
2.09.              Treasury Notes.


In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.  Notwithstanding
the foregoing, Notes that the Company, a Subsidiary of the Company or an
Affiliate of the Company offers to purchase or acquires pursuant to an offer,
exchange offer, tender offer or otherwise shall not be deemed to be owned by
the Company, such Subsidiary or such Affiliate until legal title to such Notes
passes to the Company, such Subsidiary or such Affiliate, as the case may be.


SECTION
2.10.              Temporary Notes.


Until
Definitive Notes are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Notes upon a written order of the Company
signed by one Officer of the Company. 
Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee.  Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes.


Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture.



 38














SECTION 2.11.            Cancellation.


The Company at any time may deliver Notes to the Trustee for
cancellation.  The Registrar and Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall return such canceled Notes to the Company.  The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation other than as contemplated by an Exchange Offer.


SECTION 2.12.            Calculation of Interest; Computation of Interest.


Interest on the Notes will accrue from the Issue Date or, if interest
has already been paid, from the date it was most recently paid.  In addition, interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.


SECTION 2.13.            Defaulted Interest.


If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. 
The Company shall promptly notify the Trustee in writing of the amount
of defaulted interest proposed to be paid on each Note and the date of the
proposed payment.  The Company shall fix
or cause to be fixed each such special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest.  At least 15 days before the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or cause
to be mailed to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.


SECTION 2.14.            CUSIP, Common Code and ISIN Numbers.


The Company in issuing the Notes may use “CUSIP”, “Common Code” and “ISIN”
numbers (if then generally in use) in addition to the other identification
numbers printed on the Notes, and, if so, the Trustee shall use “CUSIP”, “Common
Code” and “ISIN” numbers in notices of redemption or repurchase, as the case
may be, 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 Notes or as contained in
any notice of a redemption or repurchase, as the case may be, and that reliance
may be placed only on the other identification numbers printed on the Notes,
and any such redemption or repurchase, as the case may be, shall not be
affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee
of any change in the “CUSIP”, “Common Code” and “ISIN” numbers.


SECTION 2.15.            Book-Entry System.


So long as any
Notes are held in global form, the Depositary will be recognized as the Holder
of such Notes for all purposes.  In the
case of Global Notes, transfers of principal, interest and any premium payments
or notices to Participants and Indirect Participants will be the responsibility
of the Depositary, and transfer of principal, interest and any premium payments
or notices to beneficial owners of Global Notes will be the responsibility of
the Participants and the Indirect Participants. 
No other party will be responsible or liable for such transfers of
payments or notices or for maintaining, supervising or reviewing such records
maintained by the Depositary, the Participants or the Indirect
Participants.  While the Depositary or
its nominee, as the case may be, is the registered owner of any Global Notes,
notwithstanding any other provisions set forth herein, payments of principal
of, redemption premium, if



 39
 








 


any, and interest on the Notes shall be made to the Depositary or its
nominee, as the case may be, by wire transfer in immediately available funds to
the account of said Holder as may be specified in the Register maintained by
the Registrar or by such other method of payment as the Trustee may determine
to be necessary or advisable with the concurrence of the Depositary.


SECTION 2.16.            Additional Notes.


The Company may issue additional Notes under this Indenture from time
to time after the Issue Date (“Additional Notes”),
provided that, (i) the net proceeds (after deducting underwriting discounts or
commissions and reasonable expenses of the offering thereof) from each such issuance
are deposited in the Vessel Acquisition Account, (ii) such offering of
Additional Notes complies with all of the covenants of this Indenture,
including the covenant described under Section 4.07 and (iii) such
Additional Notes are fungible with the Notes issued on the Issue Date for U.S.
Federal income tax purposes.  The Notes
issued on the Issue Date and any Additional Notes subsequently issued under
this Indenture, together with any Exchange Notes issued in respect thereof
pursuant to an Exchange Offer, will be treated as a single class for all
purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase and any benefits of the
Collateral.


ARTICLE III

REDEMPTION AND PREPAYMENT


SECTION 3.01.            Notices to Trustee.


If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to
the Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers’ Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption
price and (v) that the redemption price will be deposited with the Trustee in
immediately available funds no later than 10:00 a.m., New York City time, on
the redemption date.


SECTION 3.02.            Selection of Notes to be Redeemed.


If less than all of the Notes are to be redeemed at any time, selection
of Notes for redemption shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not so listed, on a pro rata basis,
by lot or in accordance with any other method the Trustee considers fair and
appropriate, and which may provide for the selection for redemption of portions
of the principal of the Notes in denominations of $1,000 or integral multiples
thereof, subject to Section 2.01. 
In the event of partial redemption by lot, the particular Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 25
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.


The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.  Notes and portions of Notes selected shall be
in amounts of $1,000 or whole multiples of $1,000, subject to the minimum
denominations set forth in Section 2.01. 
Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.


The provisions of the two preceding paragraphs of this Section 3.02
shall not apply with respect to any redemption affecting only a Global Note,
whether such Global Note is to be redeemed in whole or



 40
 








 


in part. 
In case of any such redemption in part, the unredeemed portion of the
principal amount of the Global Note shall be in an authorized denomination.


SECTION 3.03.            Notice of Redemption.


Subject to the provisions of Section 4.10 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.


The notice shall identify the Notes (including CUSIP numbers) to be
redeemed and shall state:


(a)           the redemption date;


(b)           the redemption price;


(c)           if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;


(d)           the name and address of the Paying Agent;


(e)           that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;


(f)            that, unless the Company defaults in making such
redemption payment, interest and Additional Interest, if any, on Notes called
for redemption cease to accrue on and after the redemption date;


(g)           the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
and


(h)           that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.


If any of the Notes to be redeemed is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord
with the Applicable Procedures of the Depositary applicable to such redemption.


At the Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at its expense; provided, however, that the Company shall have
delivered to the Trustee, at least 45 days prior to the redemption date, an
Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.


SECTION 3.04.            Effect of Notice of Redemption.


Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. 
A notice of redemption may not be conditional.


SECTION 3.05.            Deposit of Redemption Price.


No later than 10:00 a.m. New York City time on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption 


 



 41
 








 


price of (and premium, if any) and accrued
interest and Additional Interest, if any, on all Notes to be redeemed on that
date.  The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee or
the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest and Additional Interest, if any, on,
all Notes to be redeemed.


If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest (including Additional Interest), if
any, shall cease to accrue on the Notes or the portions of Notes called for
redemption.  If a Note is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest (including Additional Interest), if
any, shall be paid to the Person in whose name such Note was registered at the
close of business on such record date. 
If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.


SECTION 3.06.            Notes Redeemed in Part.


Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company’s written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.


SECTION 3.07.            Optional Redemption.


(a)           Except as set forth in clause (b) or
(c) of this Section 3.07, the Notes shall not be redeemable at the
Company’s option prior to December 1, 2009. 
On or after December 1, 2009, the Notes will be subject to redemption at
any time or from time to time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days’ notice, at the redemption
prices (expressed as percentages of Accreted Value) set forth below plus
accrued and unpaid interest (including Additional Interest), if any, thereon,
to the applicable redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period commencing on
December 1 of the years indicated below:




	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2009

  	
   

  	
  106.375

  	
  %

  
	
  2010 and thereafter

  	
   

  	
  100.000

  	
  %

  






 


(b)           Prior to December 1, 2009, the Company may, at it option,
on one or more occasions redeem Notes in an aggregate principal amount not to
exceed 35% of the aggregate principal amount of Notes originally issued under
this Indenture at a redemption price (expressed as a percentage of the Accreted
Value thereof) equal to 112.75%, plus accrued and unpaid interest (including
Additional Interest), if any, thereon, to the redemption date, with the net
cash proceeds of any one or more Equity Offerings; provided that at least 65% of the aggregate principal amount
of Notes remain outstanding immediately after the occurrence of each such
redemption (other than Notes held, directly or indirectly, by the Company or
its Affiliates); and provided, further, that each such redemption occurs
within 90 days after the date of such Equity Offering.


(c)           In addition, at any time prior to December 1, 2009,
the Notes may be redeemed, in whole or in part, at the option of the Company
upon not less than 30 nor more than 60 days’ prior notice at a redemption price
equal to 100% of the Accreted Value thereof plus the Applicable Premium as of,
and accrued unpaid interest, if any, to, the date of redemption (the “Redemption Date”) (subject to the right of 


 



 42
 








 


Holders of record on the relevant record date
to receive interest due on the relevant interest payment date).


(d)           The Company shall have the option to redeem the Notes, in
whole but not in part, upon not less than 30 nor more than 60 days’ notice, at
any time, at a redemption price equal to the outstanding principal amount
thereof plus accrued and unpaid interest, premium, if any, and Liquidated
Damages, if any, thereon to the date fixed for redemption, and Additional
Amounts, if any, payable with respect thereto, if the Company determines that,
as a result of any change in or amendment to the laws, regulations or rulings
of any Relevant Tax Jurisdiction or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which such Relevant Tax Jurisdiction is a party (a “Change in Tax Law”), the Company is
or would be required on the next succeeding due date for a payment with respect
to the Notes to pay Additional Amounts with respect to the Notes as described
below under Section 4.05, provided that the Board of Directors
determines in good faith that the aggregate amount of such Additional Amounts
would involve an annual cost to the Company that would exceed an amount equal
to 0.50% of the aggregate principal amount of the Notes then outstanding;
provided further, that the Company must deliver to the Trustee at least 30 days
prior to the redemption date an Opinion of Counsel of recognized standing to
the effect that the Company has or will become obligated to pay Additional
Amounts as a result in such Change in Tax Law.


(e)           Any redemption pursuant to this Section 3.07
shall be made pursuant to the provisions of Sections 3.01 through 3.06
hereof.


SECTION 3.08.            Mandatory Redemption.


The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.  However, pursuant to Sections 4.10, 4.16,
4.17 and 4.18 hereof, under certain circumstances, the Company
may be required to offer to purchase the Notes.


ARTICLE IV

COVENANTS


SECTION 4.01.            Payment of Notes.


The Company shall pay or cause to be paid the principal of, and
premium, if any, interest and Additional Interest, if any, on, the Notes on the
dates and in the manner provided in the Notes. 
Principal, premium, if any, interest and Additional Interest, if any, shall
be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, interest
and Additional Interest, if any, then due. 
The Company shall pay all Additional Interest, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement.


SECTION 4.02.            Maintenance of Office or Agency.


The Company shall maintain in the United States of America, an office
or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be presented or surrendered
for payment, where Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. 
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, 



 43
 








 


such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.


The Company may also from time to time designate one or more other
offices or agencies where the Notes 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 the United States of
America 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 designates the Corporate Trust Office of the
Trustee, as one such office or agency of the Company in accordance with Section 2.03.


SECTION 4.03.            SEC Reports.


(a)           Whether or not required by the SEC’s rules and
regulations, so long as any Notes are outstanding, the Company shall furnish to
the Trustee and make available to each Holder of Notes, (i) within 120 days
from the end of each fiscal year, an annual report containing the information
required to be contained in an Annual Report on Form 20-F (or any successor
form) for such fiscal year, and (ii) within 60 days from the end of each of the
first three quarters in each fiscal year, quarterly reports containing
unaudited financial statements (including a balance sheet and statement of
income, changes in stockholders’ equity and cash flows) and Management’s
Discussion and Analysis of Financial Condition and Results of Operations for
and as of the end of each of such quarters (with comparable financial
statements for such quarter of the immediately preceding fiscal year).  In addition, within 105 days from the end of
each fiscal year, and within 60 days from the end of each of the first three
quarters of each fiscal year, the Company will hold a conference call to
discuss results of operations and allow participants to ask questions at the
end of such call.  Any conference call
must be announced at least three business days prior to such call taking place.


(b)           Each annual report will include a report on the Company’s
consolidated financial statements by the Company’s certified independent
accountants.  In addition, to the extent
the Company is required to file reports with the SEC under Section 13 or 15(d)
of the Exchange Act the Company will file a copy of each of the reports
referred to in clauses (a)(i) and (a)(ii) of this Section 4.03
with the SEC for public availability within the time periods specified above or
otherwise specified in the rules and regulations applicable to such reports, if
any.


(c)           The Company agrees that, for so long as any Notes remain
outstanding, at any time it is  not
required to file the reports required by the preceding paragraphs with the SEC,
it will furnish to the Holders and prospective purchasers of Notes designated
by a Holder, upon their request, the information required to be delivered
pursuant to Rule 144A(d) (4) under the Securities Act.


(d)           Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


SECTION 4.04.             Compliance Certificate.


(a)           The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers’ Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view



 44
 








 


to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, the
Notes and the Security Documents, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge no Default
or Event of Default has occurred during such year (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she has knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or premium or interest (including any
Additional Interest), if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.


(b)           The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within 30 days after the occurrence
thereof, an Officer’s Certificate providing notice that an event or
circumstance that constitutes a Default or an Event of Default has occurred and
is existing and specifying such Default or Event of Default, the status thereof
and what action the Company is taking or proposes to take with respect thereto.


SECTION 4.05.             Taxes.


(a)           The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, charges,
assessments, and governmental levies except such as are contested in good faith
and, if required, by appropriate proceedings or where the failure to effect
such payment is not adverse in any material respect to the Holders of the
Notes.


(b)           If any taxes, assessments or other
governmental charges are imposed by any jurisdiction where the Company, a
Guarantor or a successor of either (a “Payor”)
is organized or otherwise considered by a taxing authority to be a resident for
tax purposes, any jurisdiction from or through which the Payor makes a payment
on the Notes, or, in each case, any political organization or governmental
authority thereof or therein having the power to tax (the “Relevant
Tax Jurisdiction”) in respect of any payments under the Notes,
the Payor will pay to each Holder of a note, to the extent it may lawfully do
so, such additional amounts (“Additional Amounts”)
as may be necessary in order that the net amounts paid to such Holder will be
not less than the amount specified in such note to which such Holder is
entitled; provided, however, the
Payor will not be required to make any payment of Additional Amounts for or on
account of:


(i)                    any
tax, assessment or other governmental charge which would not have been imposed
but for (1) the existence of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of,
or possessor of a power over, such Holder, if such Holder is an estate, trust,
partnership, limited liability company or corporation) and the Relevant Tax
Jurisdiction including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having been a
citizen or resident thereof or being or having been present or engaged in trade
or business therein or having or having had a permanent establishment therein
or (2) the presentation of a note (where presentation is required) for
payment on a date more than 30 days after (x) the date on which such
payment became due and payable or (y) the date on which payment thereof is
duly provided for, whichever occurs later (in either case (x) or (y),
except to the extent that the Holder would have been entitled to Additional
Amounts had the note been presented for such 30-day period);


(ii)                   any estate, inheritance, gift, sales, transfer, personal property or
similar tax, assessment or other governmental charge;


(iii)                  any tax, assessment or other
governmental charge that is imposed or withheld by reason of the failure by the
Holder or the beneficial owner
of the note to comply with a reasonable and timely request of the Payor
addressed to the Holder to provide information, documents 



 45
 








 


or other evidence concerning the nationality,
residence or identity of the Holder or such beneficial owner which is required
by a statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge; or


(iv)                  any combination of the above;


nor will Additional Amounts be paid with respect
to any payment of the principal of, or any premium or interest on, any note to
any Holder who is a fiduciary or partnership or limited liability company or
other than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the Relevant Tax Jurisdiction to be included
in the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership, limited liability company or
beneficial owner who would not have been entitled to such Additional Amounts
had it been the Holder of such note.


(c)           The Payor will provide the Trustee
with the official acknowledgment of the Relevant Tax Authority (or, if such
acknowledgment is not available, a certified copy thereof) evidencing the
payment of the withholding taxes by the Payor. Copies of such documentation
will be made available to the Holders of the Notes or the Paying Agent, as
applicable, upon request therefore.


(d)           The Company and the Guarantors will
pay any present or future stamp, court or documentary taxes, or any other
excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of the Notes or any
other document or instrument referred to in the Indenture (other than a transfer
of the Notes), or the receipt of any payments with respect to the Notes,
excluding any such taxes, charges or similar levies imposed by any jurisdiction
outside the United Kingdom, Denmark, Panama or any jurisdiction in which a
Paying Agent is located, other than those resulting from, or required to be
paid in connection with, the enforcement of the Indenture or any other such
document or instrument following the occurrence of any Event of Default.


SECTION 4.06.            Waiver of Stay, Extension and Usury Laws.


Each of the Company and the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture, the Notes
or the Security Documents; and each of the Company and the Guarantors (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.


SECTION 4.07.            Limitation on Indebtedness.


(a)           The Company will not, and will not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided that the Company and any
Guarantor may Incur Indebtedness if, on the date of such Incurrence and after
giving effect thereto on a pro forma basis, no Default has occurred and is
continuing, or would occur as a consequence of such Incurrence, and the
Consolidated Coverage Ratio is at least 2.25 to 1.0.


(b)           Notwithstanding the foregoing paragraph (a), the Company,
any Guarantor or the Restricted Subsidiaries, as applicable, may Incur, to the
extent provided below, the following Indebtedness:



 46
 








 


(1)           Indebtedness
Incurred by the Company or any Guarantor pursuant to a Revolving Credit
Facility; provided, that, after
giving effect to any such Incurrence, the aggregate principal amount of all
Indebtedness Incurred under this clause (1) and then outstanding does not
exceed $20,000,000;


(2)           intercompany
Indebtedness owed by the Company to a Restricted Subsidiary or owed by a
Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that (A) any subsequent issuance
or transfer of any Capital Stock which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or a Restricted Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness by the
obligor thereon and (B) (i) if the Company is the obligor on such Indebtedness,
such Indebtedness is expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Notes or (ii) if a Guarantor is the
obligor on such Indebtedness, such Indebtedness is expressly subordinated to
the prior payment in full in cash of all obligations with respect to its
Subsidiary Guarantee;


(3)           Indebtedness
of the Company under the $185,000,000 aggregate principal amount of Notes
issued on the Issue Date and of any Guarantor pursuant to its Subsidiary
Guarantee;


(4)           Indebtedness
of the Company and its Restricted Subsidiaries outstanding on the Issue Date
(but excluding Indebtedness described in clause (1), (2) or (3) of this
paragraph (b)) and excluding Indebtedness to be repaid with the proceeds of the
Initial Notes issued on the Issue Date;


(5)           Indebtedness
of a Restricted Subsidiary Incurred and outstanding on the date on which such
Subsidiary was acquired by the Company (other than Indebtedness Incurred in
connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was
acquired by the Company) and excluding therefrom any of such Indebtedness that
is extinguished, retired or repaid in connection with such acquisition; provided that on the date of such
acquisition and after giving pro forma effect thereto, the Company would have
been able to Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) of this covenant;


(6)           Refinancing
Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a) or
described in or Incurred pursuant to clause (3), (4), (5) or (6) of this
paragraph;


(7)           Hedging
Obligations;


(8)           Indebtedness
of the Company or any Restricted Subsidiary arising from agreements entered
into in the ordinary course of business providing for indemnification,
adjustment of purchase price or similar obligations, in each case, Incurred or
assumed in connection with the disposition of any Restricted Subsidiary or any
business or fixed or capital assets of the Company or a Restricted Subsidiary; provided, however,
(A) such Indebtedness is not reflected as a liability on the balance sheet of the
Company or any Restricted Subsidiary and (B) the maximum liability therefor
shall not exceed the gross cash proceeds actually received by the Company or a
Restricted Subsidiary in connection with such disposition;


(9)           any
Guarantee by the Company or a Guarantor of any Indebtedness permitted to be
Incurred pursuant to this Indenture; provided
that a Guarantee of any Indebtedness of a Restricted Subsidiary that ceases to
be a Restricted Subsidiary shall be deemed 


 



 47
 








 


to be an Investment other than a Permitted Investment, and subject to
compliance with related provisions of this Indenture, at the time its
Restricted Subsidiary status terminates in an amount equal to the maximum
principal amount as guaranteed for so long as such Guarantee remains outstanding;


(10)         Indebtedness
of the Company or any Restricted Subsidiary in respect of bid, performance,
surety or appeal bonds or similar instruments issued for the account and
benefit of the Company or a Restricted Subsidiary and provided in the ordinary
course of business of the Company and the Restricted Subsidiaries; and


(11)         in
addition to the items referred to in the preceding clauses (1) through
(10) above, Indebtedness of the Company and the Guarantors in an aggregate
principal amount which, when taken together with all other Indebtedness
Incurred pursuant to this clause (11) and then outstanding will not exceed
$5,000,000 at any time outstanding.


(c)           Notwithstanding the foregoing, the Company will not, and
will not permit any Guarantor or Restricted Subsidiary to, Incur any
Indebtedness pursuant to the foregoing paragraph (b) if the proceeds thereof
(or in the case of any Guarantee pursuant to the foregoing paragraph (b), if
the proceeds of direct Indebtedness so Guaranteed) are used, directly or
indirectly, to Incur or Refinance any Subordinated Obligations of the Company
or any Guarantor or Restricted Subsidiary unless such Indebtedness shall be
subordinated to the Notes or relevant Subsidiary Guarantee, as applicable, to
at least the same extent as such Subordinated Obligations.


(d)           For purposes of determining compliance with this covenant,
(i) in the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness described above in paragraph (b) or is
entitled to be incurred pursuant to paragraph (a) of this covenant, the
Company, in its sole discretion, will be permitted to classify such item of
Indebtedness on the date of its Incurrence, or later classify or reclassify all
or a portion of such item of Indebtedness, in any manner that complies with
this covenant and (ii) at each such time, the Company will be entitled to
divide, classify and reclassify an item of Indebtedness in more than one of the
types of Indebtedness described above.


(e)           The Company will not, and will not permit any Guarantor
to, directly or indirectly, Incur any Indebtedness that is or purports to be by
its terms (or by the terms of any agreement governing such Indebtedness)
subordinated in right of payment to any other Indebtedness of the Company or of
such Guarantor, as the case may be, unless such Indebtedness is also by its
terms (or by the terms of any agreement governing such Indebtedness) made
expressly subordinate in right of payment to the Notes and the relevant
Subsidiary Guarantee, as the case may be, to the same extent and in the same
manner as such Indebtedness is subordinated to such other Indebtedness of the
Company or such Guarantor or Restricted Subsidiary, as the case may be.


SECTION 4.08.             Limitation on Restricted Payments.


(a)           The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment and
after giving effect thereto:


(1)           a
Default shall have occurred and be continuing (or would result therefrom);


(2)           the
Company would not be permitted to Incur at least an additional $1.00 of
Indebtedness pursuant to paragraph (a) of Section 4.07; or



 48
 








 


(3)           the
aggregate amount of such Restricted Payment and all other Restricted Payments
since the Issue Date would exceed, after giving effect to adjustments in the
following paragraph (b), the sum of (without duplication):


(A)          50%
of the Consolidated Net Income accrued during the period (treated as one
accounting period) from the beginning of the fiscal quarter in which the
Company’s EBITDA has equaled or exceeded $48,500,000, on an annualized basis,
for two consecutive fiscal quarters to the end of the most recent fiscal
quarter for which financial statements are available on or prior to the date of
such Restricted Payment (or, in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit); plus


(B)           100%
of the aggregate Net Cash Proceeds received by the Company from the issuance or
sale of its Capital Stock (other than Disqualified Stock) subsequent to the
Issue Date (other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or to a
trust established by the Company or any of its Subsidiaries for the benefit of
their employees); plus


(C)           the
amount by which Indebtedness of the Company issued after the Issue Date is
reduced on the Company’s balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Company) subsequent to the Issue Date of any
Indebtedness of the Company convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the amount of any cash, or
the fair value of any other property, distributed by the Company upon such
conversion or exchange) provided, however, that the foregoing amount shall not
exceed the Net Cash Proceeds received by the Company or any Restricted
Subsidiary from the sale of such Indebtedness (excluding Net Cash Proceeds from
sales to a Subsidiary of the Company or, in the case of a sale financed
directly or indirectly with Indebtedness, to an employee stock ownership plan
or to a trust established by the Company or any of its Subsidiaries for the
benefit of their employees); plus


(D)          an
amount equal to the sum of (y) the net reduction in the Investments (other than
Permitted Investments) made by the Company or any Restricted Subsidiary in any
Person after the Issue Date resulting from repurchases, repayments or
redemptions of such Investments by such Person, proceeds realized on the sale
of such Investment and proceeds representing the return of capital (excluding
dividends and distributions), in each case received by the Company or any
Restricted Subsidiary, and (z) to the extent such Person is an Unrestricted
Subsidiary, the portion (proportionate to the Company’s equity interest in such
Subsidiary) of the fair market value of the net assets of such Unrestricted
Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not exceed, in the case of any
such Person or Unrestricted Subsidiary, the amount of Investments (excluding
Permitted Investments) previously made and treated as a Restricted Payment by
the Company or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary.


(b)           The preceding provisions of this covenant will not
prohibit any of the following:


(1)           any
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations of the Company or a Guarantor made by
exchange for, or out of the Net Cash Proceeds of the substantially concurrent
sale of, Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an employee
stock ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees); provided that (A) such Restricted Payment shall be excluded
in the calculation of the amount of Restricted Payments in clause (3) of
paragraph (a) above and (B) the Net Cash Proceeds from such sale or such cash 



 49
 








 


capital contribution (to the extent so used for such Restricted
Payment) shall be excluded from the calculation of amounts under
clause (3)(B) of paragraph (a) above;


(2)           any
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of Subordinated Obligations of the Company or a Guarantor made by
exchange for, or out of the net cash proceeds of the substantially concurrent
Incurrence of Refinancing Indebtedness; provided
that such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount of
Restricted Payments in clause (3) of paragraph (a) above;


(3)           the
repurchase or other acquisition of shares of Capital Stock of the Company or
any of its Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted transferees
of such employees, former employees, directors or former directors), pursuant
to the terms of the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors of the Company under
which such individuals purchase or sell or are granted the option to purchase
or sell, shares of such Capital Stock; provided
that the aggregate amount of such repurchases and other acquisitions shall not
exceed $500,000 in any calendar year (other than deemed repurchases in
connection with the cashless exercise of stock options); and provided, further,
that such repurchases and other acquisitions (other than deemed repurchases in
connection with the cashless exercise of stock options) shall be included in
the calculation of the amount of Restricted Payments in clause (3) of
paragraph (a) above;


(4)           the
payment of a dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted by the provisions of
paragraph (a) of this covenant on the date of its declaration; provided that any such dividend made in
reliance on this paragraph shall be included in the calculation of the amount
of Restricted Payments in clause (3) of paragraph (a) above;


(5)           dividends
on Disqualified Stock to the extent included in the definition of Consolidated
Interest Expense; provided that
such Restricted Payments shall be excluded from the calculation of the amount
of Restricted Payments in clause (3) of paragraph (a) above; or


(6)           the
purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company held by any shareholder of the Company provided
that all such purchases, redemptions, acquisitions or retirements do not exceed
$7,500,000 in the aggregate since the Issue Date; provided that such Restricted
Payments shall be excluded from the calculation of the amount of Restricted
Payments in clause (3) of paragraph (a) above.


The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the transfer, incurrence or issuance of such
non-cash Restricted Payment pursuant to paragraph (a) or (b)(6) of this
covenant.  The Company shall deliver to
the Trustee an Officers’ Certificate stating that such Restricted Payments were
permitted and setting forth the basis upon which the calculations required by
this covenant were computed, which calculations may be based upon the Company’s
latest available financial statements.


SECTION 4.09.            Limitation on Restrictions on Distributions from
Restricted Subsidiaries.


The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed to
the



 50
 








 


Company, (b) make any loans or advances to
the Company or (c) transfer any of its property or assets to the Company,
except:


(A)          any encumbrance or
restriction with respect to a Restricted Subsidiary pursuant to an agreement
relating to any Indebtedness Incurred by such Restricted Subsidiary on or prior
to the date on which such Restricted Subsidiary was acquired by the Company
(other than Indebtedness Incurred as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the transaction
or series of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company) and outstanding
on such date which encumbrance or restriction does not relate to any Person
other than such Restricted Subsidiary;


(B)           any encumbrance or
restriction pursuant to an agreement effecting a Refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (A) or (E) of this
covenant or this clause (B) or contained in any amendment to an agreement
referred to in clause (A) or (E) of this covenant or this clause (B);
provided that the encumbrances
and restrictions with respect to such Restricted Subsidiary contained in any
such refinancing agreement or amendment taken as a whole are no more
restrictive than the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such predecessor agreements;


(C)           any such encumbrance
or restriction (i) consisting of customary non-assignment provisions in
leases governing leasehold interests to the extent such provisions restrict the
transfer of the lease or the property leased thereunder or (ii) that restricts
in a customary manner the subletting, assignment or transfer of any property or
asset that is subject to a lease, license or similar contract;


(D)          any restriction with
respect to a Restricted Subsidiary imposed pursuant to an agreement entered
into for the sale or disposition of Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;


(E)           any encumbrance or
restriction pursuant to an agreement in effect at or entered into on the Issue
Date;


(F)           this Indenture, the
Notes, the Subsidiary Guarantees and the Security Documents and the Revolving
Credit Facility as in effect on the Issue Date, or any restriction applicable
to a Restricted Subsidiary contained in agreements evidencing or relating to
Indebtedness of such Restricted Subsidiary permitted by the covenant contained
in Section 4.07, provided such
restrictions are not materially more restrictive, taken as a whole than
restrictions under the Indenture; and


(G)           restrictions on
transfers of property subject to any Liens permitted to be granted under, or
incurred not in breach or violation of, any other provision of the Indenture.


SECTION 4.10.            Limitation on Sales of Assets.


(a)           The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Disposition
(including a Collateral Disposition) unless:


(1)           the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to the
value of all non-cash consideration), as determined in good faith by the Board
of Directors of the Company, of the shares or other assets subject to such
Asset Disposition; provided, the
foregoing requirement shall not apply to any Asset Disposition pursuant to any
loss, constructive loss, destruction or damage to an asset, a condemnation,
appropriation or other similar taking, 


 



 51
 








 


including requisition for title by deed in lieu of condemnation, or
pursuant to the foreclosure or other enforcement of a Lien incurred not in
violation of the covenant contained in Section 4.12;


(2)           at
least 75% of the consideration received therefrom by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents provided, the foregoing requirement shall not apply to any
Asset Disposition pursuant to any loss, constructive loss, destruction or
damage to an asset, a condemnation, appropriation or other similar taking,
including requisition for title, by deed in lieu of condemnation, or pursuant
to the foreclosure or other enforcement of a Lien incurred not in violation of
the covenant contained in Section 4.12; and


(3)           in
the case of a Collateral Disposition, the Trustee is promptly granted a
perfected first priority security interest (subject only to Permitted
Collateral Liens) in all assets or property received by the Company or any
Restricted Subsidiary as consideration therefor (or, with respect to cash or
cash equivalents, the portion of such cash and cash equivalents that
constitutes Net Available Cash) as additional Collateral under the Security
Documents to secure the Note Obligations, and, in the case of cash or cash
equivalents constituting Net Available Cash, such cash or cash equivalents must
be deposited into a segregated account under the sole control of the Trustee
that includes only proceeds from the Collateral Disposition and interest earned
thereon (an “Asset Sale Proceeds Account”)
which proceeds shall be subject to release from the Asset Sale Proceeds Account
for the uses described in paragraph (b) or (c) of this covenant as
provided in this Indenture and the Security Documents.


For the purposes of this covenant, the following are deemed to be cash
or cash equivalents: (i) the assumption of all Indebtedness of the Company or
any Restricted Subsidiary (other than liabilities that are Subordinated
Obligations), and the release of the Company or such Restricted Subsidiary from
all liability on such Indebtedness, in connection with such Asset Disposition;
and (ii) securities received by the Company or any Restricted Subsidiary from
the transferee which are promptly converted by the Company or such Restricted
Subsidiary into cash.


(b)           Within 365 days after the receipt of any Net Available
Cash from an Asset Disposition, the Company or such Restricted Subsidiary, as
the case may be, may apply such Net Available Cash:


(1)           with
respect to Net Available Cash from a Collateral Disposition, to repurchase or
redeem Notes in accordance with this Indenture;


(2)           with
respect to Net Available Cash other than from a Collateral Disposition, to
prepay, repay, redeem or purchase Senior Indebtedness (other than any
Disqualified Stock) of the Company or a Restricted Subsidiary (in each case
other than Indebtedness owed to the Company or an Affiliate of the Company); provided, however,
that in connection with any such prepayment or repayment, the Company or such
Restricted Subsidiary shall permanently retire such Indebtedness and shall cause
the related loan commitment, if any, to be permanently reduced in an amount
equal to the principal amount so prepaid or repaid; or


(3)           to
acquire one or more Vessels (and pay any Ready for Sea Cost in relation
thereto) or other Additional Assets; provided
that, with respect to Additional Assets acquired with Net Available Cash from a
Collateral Disposition, (i) the Additional Assets are of a type similar to the
Collateral and (ii) the Trustee is promptly granted a perfected first priority
security interest (subject only to Permitted Collateral Liens) in such Vessels
or Additional Assets.


Pending application of such Net Available Cash, other than from a
Collateral Disposition, such Net Available Cash may temporarily be invested in
Temporary Cash Investments or applied temporarily 


 



 52
 








 


to reduce revolving credit Indebtedness.  Any Net Available Cash that is not applied or
invested as provided in clauses (1), (2) or (3) above within 365 days (or
upon the earlier determination of the Company’s Board of Directors not to so
apply such Net Available Cash) shall be deemed to constitute “Excess Proceeds.”


(c)           When the aggregate amount of Excess Proceeds exceeds
$12,500,000, the Company will be required to make an offer to all Holders of
the Notes (an “Asset Sale Offer”) to
purchase on a pro rata basis the
maximum principal amount of the Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the Accreted
Value thereof plus accrued and unpaid interest thereon, to the date of
purchase, in accordance with the procedures set forth in the Indenture.  To the extent that the aggregate amount of
Notes electing to be purchased pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company and such Restricted Subsidiary may use any
remaining Excess Proceeds for any purpose not prohibited by the Indenture (and
any such remaining Excess Proceeds held in the Asset Sale Proceeds Account
shall be released therefrom as provided in this Indenture and the Security Documents). If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
the Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis, by lot or such other basis as the Trustee
determines is appropriate.  Upon
completion of each such offer to purchase, the amount of Excess Proceeds shall
be reset at zero.


(d)           In the event that, pursuant to this Section 4.10,
the Company shall commence an Asset Sale Offer, it shall follow the procedures
specified herein.  The Asset Sales Offer
shall remain open for a period of 20 Business Days following its commencement
and no longer, except to the extent that a longer period is required by
applicable law (the “Offer Period”).  No later than five Business Days after the
termination of the Offer Period (the “Purchase
Date”), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has
been tendered, all Notes validly tendered in response to the Asset Sale
Offer.  If the Purchase Date is on or
after an interest record date and on or before the related interest payment
date, any accrued and unpaid interest and Additional Interest, if any, shall be
paid to the Person in whose name a Note is registered at the close of business
on such record date, and no additional interest or Additional Interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the
commencement of an Asset Sale Offer, the Company shall send, by first class
mail, a notice to each of the Holders, with a copy to the Trustee.  The notice shall contain all instructions and
materials reasonably necessary to enable such Holders to tender Notes pursuant
to the Asset Sale Offer.  The Asset Sale
Offer shall be made to all Holders.  The
notice, which shall govern the terms of the Asset Sale Offer, shall state:


(i)                    that
the Asset Sale Offer is being made pursuant to this Section 4.10
and the length of time the Asset Sale Offer shall remain open;


(ii)                   the
Offer Amount, the purchase price and the Purchase Date;


(iii)                  that
any Note not tendered or accepted for payment shall continue to accrete or
accrue interest and Additional Interest, if any;


(iv)                  that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrete or accrue
interest and Additional Interest, if any, on the Purchase Date;


(v)                   that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
only elect to have all of such Note purchased and may not elect to have only a
portion of such Note purchased;


 



 53
 








 


(vi)                  that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed to the Company,
the Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;


(vii)                 that
Holders shall be entitled to withdraw their election if the Company, such
depositary or the Paying Agent, as the case may be, receives, not later than
the expiration of the Offer Period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;


(viii)                that,
if the aggregate principal amount of Notes surrendered by Holders exceeds the
Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations contemplated by Section
2.01, or integral multiples thereof, shall be purchased or remain
outstanding thereafter); and


(ix)                   that
Holders whose Notes were purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer, subject to Section 2.01).


If any of the Notes subject to an Asset Sale
Offer is in the form of a Global Note, then the Company shall modify such
notice to the extent necessary to accord with the Applicable Procedures of the
Depositary applicable to such repurchases. 
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers’ Certificate stating that such Notes
or portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 4.10. 
The Company, the Depositary (if any, and as referred to in clause (vi)
above) or the Paying Agent, as the case may be, shall promptly (but in any case
not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company, shall authenticate and make available for delivery such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder
thereof.  The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.


The Company will comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and
any other securities laws or regulations in connection with the repurchase of
Notes pursuant to this covenant.  To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this covenant, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the covenant described above by virtue of its compliance with
such securities laws or regulations.


SECTION 4.11.            Limitation on Affiliate Transactions.


(a)           The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into any transaction (including
the purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an “Affiliate Transaction”)
unless:



 54
 








 


(1)           the
terms of the Affiliate Transaction are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of the
Affiliate Transaction in arm’s length dealings with a Person who is not an
Affiliate;


(2)           if
such Affiliate Transaction or series of related Affiliate Transactions involves
an amount in excess of $1,000,000, the terms of the Affiliate Transaction are
set forth in writing and a majority of the disinterested members of the Board
of Directors of the Company has determined in good faith that the criteria set
forth in clause (1) are satisfied and has approved the relevant Affiliate
Transaction as evidenced by a resolution; and


(3)           if
such Affiliate Transaction or series of related Affiliate Transactions involves
an amount in excess of $3,000,000, the Board of Directors of the Company shall
also have received a written opinion from an Independent Qualified Party to the
effect that such Affiliate Transaction is fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.


(b)           The provisions of the preceding paragraph (a) will not
prohibit:


(1)           any
Investment (other than a Permitted Investment) or other Restricted Payment, in
each case permitted to be made pursuant to Section 4.08;


(2)           reasonable
payments, awards or grants in cash, securities or otherwise to any employee or
director of the Company or any Restricted Subsidiary pursuant to, or the
funding of, employment arrangements, stock options and stock ownership and
other employee benefit plans or otherwise in the ordinary course of business
approved by the Board of Directors of the Company;


(3)           customary
indemnities made in the ordinary course of business to employees or directors
of the Company and the Restricted Subsidiaries;


(4)           the
payment of reasonable fees to directors of the Company and the Restricted
Subsidiaries who are not employees of the Company or the Restricted
Subsidiaries;


(5)           loans
or advances to employees and directors of the Company and the Restricted
Subsidiaries in the ordinary course of business and consistent with past
practices thereof, but in any event not exceeding $500,000 in the aggregate
outstanding at any one time;


(6)           any
transaction between or among the Company and any Restricted Subsidiaries; and


(7)           the
issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company.


SECTION 4.12.            Limitation on Liens.


The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, Incur or permit to exist any Lien of any nature
whatsoever on (i) any Collateral, except pursuant to a Security Document and
except for Permitted Collateral Liens or (ii) any of its assets or properties
that are not Collateral, except for Permitted Liens.



 55















SECTION 4.13.            Limitation on Sale/Leaseback Transactions.


The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into any Sale/Leaseback Transaction with respect to any
property unless:


(1)           the Company or such Restricted
Subsidiary would be entitled to (A) Incur Indebtedness in an amount equal to
the Attributable Debt with respect to such Sale/Leaseback Transaction pursuant
to paragraph (a) of Section 4.07 and (B) create a Lien on such
property securing such Attributable Debt pursuant to Section 4.12;


(2)           the gross proceeds received by the
Company or any Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the fair market value (as determined by the
Board of Directors of the Company) of such property; and


(3)           the transfer of such property is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.10.


SECTION 4.14.            Future Guarantors.


If
the Company or any of its Restricted Subsidiaries acquires or creates a
Restricted Subsidiary after the Issue Date, then that newly acquired or created
Restricted Subsidiary must, within 10 Business Days of the date on which it was
acquired or created, (i) become a Guarantor by executing a supplemental
indenture satisfactory to the Trustee in accordance with this Indenture and
(ii) if it owns any Collateral, become party to the applicable Security
Documents as provided therein and in this Indenture.


SECTION 4.15.            Limitation on Business Activities.


The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into in any material respect any line of business other than
a Related Business.


SECTION 4.16.            Offer to Repurchase upon Change of Control.


(a)           Upon
the occurrence of a Change of Control, the Company will offer to purchase each
Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at a purchase price in cash
equal to 101% of the Accreted Value thereof on the date of purchase plus
accrued and unpaid interest (including Additional Interest), if any, thereon,
to the date of purchase (the “Change of Control Payment”)
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date):


Within
30 days following any Change of Control, the Company will mail a notice to each
Holder, with a copy to the Trustee, stating: (i) that a Change of Control has
occurred and that the Company is making an offer, and such holder has the right
to require the Company, to purchase such holder’s notes at a purchase price in
cash equal to 101% of the Accreted Value thereof on the date of purchase, plus
accrued and unpaid interest, if any, to the date of purchase (subject to the
right of holders of record on the relevant record date to receive interest on
the relevant interest payment date); (ii) the description of the transaction or
transactions that constitute the Change of Control, and the circumstances and
relevant facts regarding such Change of Control (including information with
respect to pro forma historical income, cash flow
and capitalization, in each case after giving effect to such Change of Control,
if available); (iii) that the Change of Control Offer is being made pursuant to
this Section 4.16, and that all Notes validly tendered and not
withdrawn will be accepted for payment; (iv) the purchase price and the
purchase date, which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”); (v) that any Note not tendered will
continue to accrue interest and 



 56
 









Additional Interest, if any; (vi) that, unless the Company defaults in
the payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest and
Additional Interest, if any, after the Change of Control Payment Date; (vii)
that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender the Notes properly endorsed, with
the form entitled “Option of Holder to Elect Purchase” on the reverse of the
Notes properly completed, together with other customary documents as the
Company may reasonably request, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (viii) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (ix) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof subject to Section 2.01.  If any of the Notes subject to a Change of
Control Offer are in the form of a Global Note, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures of
the Depositary applicable to repurchases.


In
addition, the Company shall comply, to the extent applicable, with the
requirements of Rule 14(e) under the Exchange Act and any other securities laws
and regulations to the extent such laws and regulations are applicable in
connection with the repurchase of Notes as a result of a Change of
Control.  To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of the covenant described hereunder, the Company will comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.16 by virtue of its
compliance with such securities laws or regulations.


(b)           On
the Change of Control Payment Date, the Company will, to the extent lawful, (i)
accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (ii) by no later than 10:00 a.m., New York time,
deposit with the Paying Agent in immediately available funds an amount equal to
the Change of Control Payment in respect of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers’ Certificate stating the aggregate principal
amount of Notes or portions thereof being purchased by the Company.  The Paying Agent will promptly mail to each
Holder of Notes so tendered the Change of Control Payment for such Notes, and
the Company shall execute and the Trustee will promptly authenticate and
deliver in accordance with an authentication order from the Company to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; provided
that each such new Note will be in a denomination permitted by Section 2.01.  The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.


(c)           The
Change of Control provisions described above will be applicable whether or not
any other provisions of this Indenture are applicable, except as set forth in Article
VIII hereof.


(d)           The
Company will not be required to make a Change of Control Offer following a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth herein applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.



 57
 









 


SECTION 4.17.            Offer to Repurchase upon Unused Proceeds in the Vessel
Acquisition Account.


(a)           On the Issue
Date, the Company will deposit $140,000,000 (the “Initial
Deposit”) in the Vessel Acquisition Account, to be held and
released in accordance with the Vessel Acquisition Account Agreement.


(b)           In
addition to the Initial Deposit, any Excess Cash Flow Offer Amounts that are
not applied to repurchase Notes after making a required Excess Cash Flow Offer
pursuant to Section 4.18 shall be deposited in the Vessel Acquisition
Account promptly after completion of such offer.


(c)           If,
as of December 1, 2008, at least $125,000,000 of the funds comprising the
Initial Deposit have not been used by the Company or a Restricted Subsidiary to
purchase Vessels in accordance with Section 6.2(b) of the Vessel Acquisition
Account Agreement, then the portion of such Initial Deposit that has not been
so applied shall be deemed to be “Unused Proceeds”.  If there are Unused Proceeds as of December
1, 2008, then no later than 60 days following December 1, 2008, the Company
shall be required to make an offer to purchase, on a pro rata basis, the
maximum principal amount of the Notes that may be purchased out of the Unused
Proceeds, at an offer price in cash in an amount equal to 101% of the Accreted
Value thereof plus accrued and unpaid interest thereon to date of purchase, all
in accordance with the procedures set forth in Section 4.17(c) below
(the “Unused Initial Deposit Offer”).


(d)           In
the event that, pursuant to this Section 4.17, the Company shall
commence an Unused Initial Deposit Offer, it shall follow the procedures
specified herein.  No later than the
purchase date, which date shall be no earlier than 60 days or later than 90
days following the date notice is first given to Holders of the Unused Initial
Deposit Offer (the “Unused Initial Deposit Purchase Date”)
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to this Section 4.17 (the “Unused
Initial Deposit Offer Amount”)
or, if less than the Unused Initial Deposit Offer Amount has been tendered, all
Notes validly tendered in response to the Unused Initial Deposit Offer.  If the Unused Initial Deposit Purchase Date
is on or after an interest record date and on or before the related interest
payment date, any accrued and unpaid interest and Additional Interest, if any,
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest or Additional Interest
shall be payable to Holders who tender Notes pursuant to the Unused Initial
Deposit Offer.  Upon the commencement of
an Unused Initial Deposit Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee.  The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Unused Initial Deposit Offer.  The Unused
Initial Deposit Offer shall be made to all Holders.  The notice, which shall govern the terms of
the Unused Initial Deposit Offer, shall state:


(i)                that the Unused Initial Deposit
Offer is being made pursuant to this Section 4.17 and the length of
time the Unused Initial Deposit Offer shall remain open;


(ii)               the Unused Initial Deposit Offer
Amount, the purchase price and the Purchase Date;


(iii)              that any Note not tendered or
accepted for payment shall continue to accrete or accrue interest and
Additional Interest, if any;


(iv)              that, unless the Company defaults
in making such payment, any Note accepted for payment pursuant to the Unused
Initial Deposit Offer shall cease to accrete or accrue interest and Additional
Interest, if any, on the Purchase Date;



 58
 









(v)               that Holders electing to have a
Note purchased pursuant to an Unused Initial Deposit Offer may only elect to
have all of such Note purchased and may not elect to have only a portion of
such Note purchased;


(vi)              that Holders electing to have a
Note purchased pursuant to any Unused Initial Deposit Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed to the Company, the Depositary,
if appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;


(vii)             that Holders shall be entitled to
withdraw their election if the Company, such depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Unused Initial
Deposit Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;


(viii)            that, if the aggregate principal
amount of Notes surrendered by Holders exceeds the Unused Initial Deposit Offer
Amount, the Trustee shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased, provided that no Note having a principal amount of less than
$100,000 shall remain outstanding after giving effect to such purchase); and


(ix)               that Holders whose Notes were
purchased only in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer subject to the limitations in clause (viii) above).


If
any of the Notes subject to an Unused Initial Deposit Offer is in the form of a
Global Note, then the Company shall modify such notice to the extent necessary
to accord with the Applicable Procedures of the Depositary applicable to such
repurchases.  On or before the Unused
Initial Deposit Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Unused Initial
Deposit Offer Amount of Notes or portions thereof tendered pursuant to the
Unused Initial Deposit Offer, or if less than the Unused Initial Deposit Offer
Amount has been tendered, all Notes tendered, and shall deliver to the Trustee
an Officers’ Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section 4.17.  The Trustee shall procure the release of the
Unused Initial Deposit Offer Amount from the Vessel Acquisition Account to the
extent necessary to complete the purchase of Notes tendered pursuant to the
offer.  The Depositary (if any, and as
referred to in clause (vi) above) or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company, shall authenticate and make available
for delivery such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered, provided that no Note having a
principal amount of less than $100,000 shall remain outstanding after giving
effect to such purchase.  Any Note not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof.  The Company shall publicly
announce the results of the Unused Initial Deposit Offer on the Unused Initial
Deposit Purchase Date.


The
Company will comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection
with the repurchase of Notes pursuant to this covenant.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this covenant, the
Company will comply with the applicable securities laws and 



 59
 









regulations and will not be deemed to have breached its obligations
under the covenant described above by virtue of its compliance with such
securities laws or regulations.


SECTION 4.18.            Offer to Repurchase upon Excess Cash Flow.


(a)           If
the Company has Excess Cash Flow (i) for the period from Issue Date to December
31, 2007 (the “Initial Period”) and (ii)
subsequent to the Initial Period, for any succeeding fiscal year (either such period,
a “Relevant Period”), then the Company
shall apply an amount (the “Excess Cash Flow Offer
Amount”) equal to (A) 100% of such Excess Cash Flow with respect
to the Initial Period and the Relevant Period ending December 31, 2008 and (B)
50% of such Excess Cash Flow for each subsequent Relevant Period, in each case
to make an offer to purchase (the “Excess Cash Flow Offer”),
on a pro rata basis, the maximum Accreted Value of the Notes that may be
purchased out of the Excess Cash Flow Offer Amount, at an offer price in cash
in an amount equal to 101% of the Accreted Value thereof plus accrued and
unpaid interest thereon, if any, to the date of purchase, all in accordance
with the procedures set forth in this Section 4.18; provided that the Company
shall not be required to make an Excess Cash Flow Offer for any Relevant Period
if the Excess Cash Flow for such Relevant Period is less than $5,000,000.


(b)           The
Company shall make such an offer no later than 60 days after the end of such
Relevant Period.


(c)           In the event that, pursuant to this Section 4.18,
the Company shall commence an Excess Cash Flow Offer, it shall follow the
procedures specified herein.  No later
than the purchase date, which date shall be no earlier than 60 days or later
than 90 days following the date notice is first given to Holders of the Excess
Cash Flow Offer (the “Excess Cash Flow Purchase Date”), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
this Section 4.18 or, if less than the Excess Cash Flow Offer
Amount has been tendered, all Notes validly tendered in response to the Excess
Cash Flow Offer.  Payment for any Notes
so purchased shall be made in the same manner as interest payments are made. If
the Excess Cash Flow Purchase Date is on or after an interest record date and
on or before the related interest payment date, any accrued and unpaid interest
and Additional Interest, if any, shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no
additional interest or Additional Interest shall be payable to Holders who
tender Notes pursuant to the Excess Cash Flow Offer. Upon the commencement of
an Excess Cash Flow Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee.  The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Excess Cash Flow Offer.  The Excess Cash
Flow Offer shall be made to all Holders. 
The notice, which shall govern the terms of the Excess Cash Flow Offer,
shall state:


(i)            that the Excess Cash Flow Offer is
being made pursuant to this Section 4.18 and the length of time the
Excess Cash Flow Offer shall remain open;


(ii)           the Excess Cash Flow Offer Amount,
the purchase price and the Excess Cash Flow Purchase Date;


(iii)          that any Note not tendered or accepted
for payment shall continue to accrete or accrue interest and Additional
Interest, if any;


(iv)          that, unless the Company defaults in
making such payment, any Note accepted for payment pursuant to the Excess Cash
Flow Offer shall cease to accrete or accrue interest and Additional Interest,
if any, on the Excess Cash Flow Purchase Date;



 60
 









(v)           that Holders electing to have a Note
purchased pursuant to an Excess Cash Flow Offer may only elect to have all of
such Note purchased and may not elect to have only a portion of such Note
purchased;


(vi)          that Holders electing to have a Note
purchased pursuant to any Excess Cash Flow Offer shall be required to surrender
the Note, with the form entitled “Option of Holder to Elect Purchase” on the
reverse of the Note completed to the Company, the Depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;


(vii)         that Holders shall be entitled to
withdraw their election if the Company, such depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Excess Cash
Flow Offer Period, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased;


(viii)        that, if the aggregate principal amount
of Notes surrendered by Holders exceeds the Excess Cash Flow Offer Amount, the
Trustee shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased,
provided that no Note having a principal amount of less than $100,000 shall
remain outstanding after giving effect to such purchase); and


(ix)           that Holders whose Notes were
purchased only in part shall be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered (or transferred by book-entry
transfer subject to the limitations in clause (viii) above).


If any of the Notes
subject to an Excess Cash Flow Offer is in the form of a Global Note, then the
Company shall modify such notice to the extent necessary to accord with the
Applicable Procedures of the Depositary applicable to such repurchases.  On or before the Excess Cash Flow Purchase
Date, the Company shall, to the extent lawful, accept for payment, on a pro
rata basis to the extent necessary, the Excess Cash Flow Offer Amount of Notes
or portions thereof tendered pursuant to the Excess Cash Flow Offer, or if less
than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers’ Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.18.  The Company, the Depositary (if any, and as
referred to in clause (vi) above) or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the Excess Cash
Flow Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company, shall authenticate and make
available for delivery such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered, provided that no Note
having a principal amount of less than $100,000 shall remain outstanding after
giving effect to such Excess Cash Flow Offer. 
Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof.  The
Company shall publicly announce the results of the Excess Cash Flow Offer on
the Excess Cash Flow Purchase Date.


The Company will comply,
to the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection with
the repurchase of Notes pursuant to this covenant.  To the extent that the provisions of any
securities laws or regulations conflict with provisions of this covenant, the
Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the covenant
described above by virtue of its compliance with such securities laws or
regulations.



 61
 









(d)           Any Excess Cash Flow Offer Amounts
that are not applied to repurchase Notes after making a required Excess Cash
Flow Offer pursuant to this Section 4.18 shall be deposited in the
Vessel Acquisition Account promptly after completion of such offer.


SECTION 4.19.            Corporate Existence.


Subject to Article V
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, and the
corporate, partnership or other existence of each of its Restricted
Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such
Restricted Subsidiary; provided, however, that the Company shall not be
required to preserve the existence of any Restricted Subsidiary, if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole.


SECTION 4.20.            Calculation of Original Issue Discount.


The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on the Notes as of the end
of such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.


ARTICLE V

SUCCESSORS


SECTION 5.01.            Merger, Consolidation, or Sale of Assets.


The
Company will not, directly or indirectly, consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a series of
transactions, directly or indirectly, all or substantially all of its assets
to, any Person, unless: (i) the resulting, surviving or transferee Person (the “Successor Company”) shall be the Company or a
corporation organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia or the laws of any
member state of the European Union; (ii) the Successor Company (if not the
Company) shall expressly assume by supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the obligations
of the Company under the Notes, this Indenture, all Security Documents and, if
then in effect, the Registration Rights Agreement, pursuant to a supplemental
indenture and other appropriate documentation in form and substance reasonably
satisfactory to the Trustee; (iii) immediately before and after giving pro forma effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any
Subsidiary as a result of such transaction as having been Incurred by such
Successor Company or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing; (iv) except in the case of a
merger or consolidation of the Company with or into a Restricted Subsidiary, or
the Company transferring all or substantially all of its properties and assets
to a Restricted Subsidiary, the Successor Company will, (A) immediately after
giving pro forma effect to such transaction as
if such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to Incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Coverage Ratio test set forth in Section 4.07(a)
hereof and (B) the Consolidated Net Worth of the Company, calculated on a pro
forma basis immediately after the transaction, will be equal to or greater than
its Consolidated Net Worth determined immediately prior to the transaction; and
(v) the Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture and other appropriate documentation
(if any) comply with this Indenture and all Security Documents and that all
necessary actions have been taken to preserve the priority and perfection of
the Liens of all Security Documents.



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SECTION 5.02.            Successor Corporation Substituted.


Upon
any consolidation or merger, or any sale, assignment, transfer, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the Successor Company (if
other than the Company) shall succeed to, and be substituted for (so that from
and after the date of such consolidation, merger, sale, assignment, lease,
transfer, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to such Successor Company and
not to the Person previously defined as Company), and may exercise every right
and power of, the Company under this Indenture and the Notes with the same
effect as if such Successor Company originally had been named as the Company
herein; and when such Successor Company duly assumes all of the obligations and
covenants of the Company pursuant to the Notes and hereto, the predecessor Person
shall be relieved of all such obligations; provided, however, in the case of a lease of all or
substantially all of its assets, the predecessor Company will not be released
from the obligation to pay the principal of, and premium, if any, and interest
on, the Notes.  The Successor Company
thereupon may cause to be signed, and may issue either in its own name or in
the name of the predecessor Person, any or all the Notes issuable hereunder
which theretofore shall not have been signed by the predecessor Person and
delivered to the Trustee; and, upon the order of the Successor Company, instead
of the predecessor Person, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Notes which previously shall have been signed and delivered
by the officers of the predecessor Person to the Trustee for authentication,
and any Notes which the Successor Company thereafter shall cause to be signed
and delivered to the Trustee for that purpose. 
All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all such Notes had
been issued at the date of the execution hereof.


In
case of such consolidation, merger, sale, assignment, lease, transfer,
conveyance or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Notes thereafter to be issued as may be appropriate.


ARTICLE VI

DEFAULTS AND REMEDIES


SECTION 6.01.            Events of Default.


An
“Event of Default” occurs if:


(a)           the
Company defaults in the payment when due of interest on, Additional Interest,
if any, on, with respect to, the Notes, and such default continues for a period
of 30 days;


(b)           the
Company defaults in the payment when due (whether at the Stated Maturity, upon
optional redemption, upon required purchases, upon declaration of acceleration
or otherwise) of principal of or premium, if any, on any Note;


(c)           the
Company or any Restricted Subsidiary fails to comply with its obligations under
Section 4.10, 4.16, 4.17, 4.18 or 5.01
hereof;


(d)           the
failure by the Company or any Restricted Subsidiary, as the case may be, to
comply with any of the provisions of Section 4.03, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13 or 4.14
for 30 days after written notice of such failure to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding;



 63
 









(e)           the
Company or any Restricted Subsidiary fails to observe or perform any covenant
or other agreement in this Indenture, the Notes or the Security Documents
(other than the provisions expressly set forth in clauses (a), (b), (c) or
(d) above) for 60 days after written notice of such failure to the Company by
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding;


(f)            a
default occurs under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness by
the Company or any of the Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of the Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of this
Indenture, if that default is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a “Payment Default”) or results in the acceleration of such
Indebtedness prior to its Stated Maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5,000,000 or more; provided, further,
that if any such default is cured or waived or any such acceleration rescinded,
or such Indebtedness is repaid, within a period of ten days from the
continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default and
any consequential acceleration of the Notes shall be automatically rescinded,
so long as such rescission does not conflict with any judgment or decree;


(g)           the
Company, any Guarantor, any of the Company’s Significant Subsidiaries or any
group of Restricted Subsidiaries which, when taken together, would constitute a
Significant Subsidiary of the Company, pursuant to or within the meaning of the
Bankruptcy Law:


(i)            commences a voluntary case,


(ii)           consents to the entry of an order for relief against it in
an involuntary case,


(iii)          consents to the appointment of a Custodian of it or for all
or substantially all of its property,


(iv)          makes a general assignment for the benefit of its
creditors, or


(v)           generally is not paying its debts as they become due;


(h)           a
court of competent jurisdiction enters an order or decree under the Bankruptcy
Law that:


(i)            is for relief against the Company, any Guarantor, any of
the Company’s Significant Subsidiaries or any group of Restricted Subsidiaries
which, when taken together, would constitute a Significant Subsidiary of the
Company, in an involuntary case;


(ii)           appoints a Custodian of the Company, any Guarantor, any of
the Company’s Significant Subsidiaries or any group of Restricted Subsidiaries
which, when taken together, would constitute a Significant Subsidiary of the
Company, or for all or substantially all of the property of the Company, any
Guarantor, any of the Company’s Significant Subsidiaries or any group of
Subsidiaries which, when taken together, would constitute a Significant
Subsidiary of the Company; or



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(iii)          orders the liquidation of the Company, any Guarantor, any
of the Company’s Significant Subsidiaries or any group of Restricted
Subsidiaries which, when taken together, would constitute a Significant
Subsidiary of the Company;


and
the order or decree remains unstayed and in effect for 60 consecutive days;


(i)            failure
of the Company, any Guarantor, any Significant Subsidiaries or any group of the
Restricted Subsidiaries which, when taken together, would constitute a
Significant Subsidiary, to pay any judgment, or judgments aggregating, in
excess of $5,000,000, which judgment or judgments, as the case may be, are not
discharged, waived or stayed for a period of 60 consecutive days following such
judgment;


(j)            any
Subsidiary Guarantee ceases to be in full force and effect (other than in
accordance with the terms of such Subsidiary Guarantee and the Indenture) or
any Guarantor denies or disaffirms its obligations under its Subsidiary
Guarantee; or


(k)           any
Security Document or any Lien purported to be granted thereby on any one or
more items of Collateral is held in any judicial proceeding to be unenforceable
or invalid, in whole or in part, or ceases for any reason (other than pursuant
to a release that is delivered or becomes effective as set forth in this
Indenture or any Security Document) to be fully enforceable and perfected.


SECTION 6.02.            Acceleration.


If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare the
Accreted Value of, and premium, if any, and accrued but unpaid interest (and
Additional Interest, if any) on, all the Notes to be due and payable
immediately.  Upon any such declaration,
the Accreted Value of the Notes shall become so due and payable immediately
without further action or notice, and the Trustee shall immediately become
unconditionally entitled to foreclose upon any or all of the Collateral,
exercise and enforce its other rights and remedies in respect of the
Collateral, subject to the provisions of this Indenture and the Security Documents,
as applicable.  Notwithstanding the
foregoing, if an Event of Default specified in clause (g) or (h) of Section 6.01
hereof occurs with respect to the Company, any Significant Subsidiary of the
Company or any group of Restricted Subsidiaries which, taken together, would
constitute a Significant Subsidiary, the Accreted Value of, and premium, if
any, and accrued but unpaid interest (and Additional Interest, if any) on, all
outstanding Notes shall be due and payable immediately without further action or
notice, and the Trustee shall immediately become unconditionally entitled to
foreclose upon any or all of the Collateral, exercise and enforce its other
rights and remedies in respect of the Collateral, subject to the provisions of
this Indenture and the Security Documents, as applicable.  The Holders of at least a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
premium, interest (including Additional Interest) that has become due solely
because of the acceleration) have been cured or waived.


SECTION 6.03.            Other Remedies.


If
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, interest and
Additional Interest, if any, on the Notes or to enforce the performance of any
provision of the Notes, this Indenture or the Security Documents.


The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder of a Note in 



 65
 









exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default.  All remedies are
cumulative to the extent permitted by law.


SECTION 6.04.            Waiver of Past Defaults.


Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of interest (including Additional Interest), if any, on, or the
principal of, or premium on, the Notes including in connection with an offer to
purchase.  Upon any such waiver, such
Default or Event of 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 Event of Default or impair any right consequent thereon.


SECTION 6.05.            Control by Majority.


Holders
of a majority in principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.


SECTION 6.06.            Limitation on Suits.


A
Holder of a Note may pursue a remedy with respect to this Indenture or the
Notes only if:


(a)           the
Holder of a Note has previously given to the Trustee written notice of a
continuing Event of Default;


(b)           the
Holders of at least 25% in principal amount of the then outstanding Notes make
a written request to the Trustee to pursue the remedy;


(c)           such
Holder of a Note or Holders of Notes have offered to the Trustee reasonable
security or indemnity against any loss, liability or expense to be incurred in
compliance with such request;


(d)           the
Trustee has not complied with the request within 60 days after receipt of the
request and the offer of security or indemnity; and


(e)           during
such 60-day period, the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.


A
Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note 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 6.07.            Rights of Holders of Notes to Receive Payment.


Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Additional Interest, if any,
and interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase 



 66
 









or redemption), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.


SECTION 6.08.            Collection Suit by Trustee.


If
an Event of Default specified in Section 6.01(a) or (b)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.


SECTION 6.09.            Trustee May File Proofs of Claim.


The
Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the Holders
of the Notes allowed in any judicial proceedings relative to the Company (or
any other Obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 prior to
making such payments directly to the Holders any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding, unless the Trustee is instructed to do so in accordance with Section
6.05.


SECTION 6.10.            Priorities.


If
the Trustee collects any money pursuant to this Article, it shall pay out the
money in the following order:


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all compensation,
expense, and liabilities incurred, and all advances made, by the Trustee and
the costs and expenses of collection;


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Additional Interest, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and Additional
Interest, if any and interest, respectively; and


Third:  to the Company or to such party as a court of
competent jurisdiction shall direct.


 



 67















The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.


SECTION 6.11.            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 or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the cost of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party
litigant.  This Section does not
apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.


ARTICLE VII

TRUSTEE


SECTION 7.01.            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 its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person’s own affairs.


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


(i)                The Trustee need perform only
those duties that are specifically set forth in this Indenture and the TIA and
no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.  To the
extent of any conflict between the duties of the Trustee hereunder and under
the TIA, the TIA shall control.


(ii)               In the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture.  However, as to any
certificate or opinions which are required by any provision of this Indenture,
the Trustee shall examine the certificates and opinions to determine whether or
not they 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 liabilities for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful
misconduct, except that:


(i)                this paragraph does not limit
the effect of paragraph (b) of this Section;


(ii)               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 negligent in ascertaining the pertinent
facts; and


(iii)              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 6.02,
6.04, 6.05 6.09, or 10.06 or pursuant to the
authorized request of the Company hereunder hereof.



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(d)           Whether
or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), (c), (e) and
(f) of this Section and the provisions of Section 7.02.


(e)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability.  The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture at the request of any Holders, unless such Holder shall
have offered to the Trustee security and indemnity satisfactory to the Trustee
against any loss, liability or expense.


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


SECTION 7.02.            Rights of Trustee.


(a)           The
Trustee may conclusively rely upon 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 the document.


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both which shall conform to Sections 12.04
and 12.05.  The Trustee shall not
be liable for, and shall be fully protected in respect of, any action it takes
or omits to take in good faith in reliance on such Officers’ Certificate or
Opinion of Counsel.  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 from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.


(c)           The
Trustee may act through its attorneys, agents or independent contractors and
shall not be responsible for the misconduct or negligence of any agent or
independent contractor appointed in good faith.


(d)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture.


(e)           Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company.


(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 or direction of any of the
Holders unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities (including fees and expenses of its agents and counsel) that might
be incurred by it in compliance with such request or direction.


(g)           The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness 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, 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 inquiry or investigation.



 69
 









(h)           The
Trustee shall not be deemed to have notice or knowledge of any Default or 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 Notes and this Indenture.  As used herein, the term “actual knowledge”
means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.


(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
(including as Paying Agent and Registrar), and under the Security Documents and
any documents, instruments, or agreements executed and delivered by the Trustee
relating to or in connection with the Collateral or the Security Documents (“Ancillary Security Instruments”) and
each agent, custodian and other Person employed to act hereunder.


(j)            The
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


(k)           The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty.


(l)            The Trustee shall have no
responsibility or obligation to Participants, to Indirect Participants, or to
the Persons for whom they act as nominees with respect to the Notes, or to any
beneficial owner of Global Notes in respect of the accuracy of any records
maintained by the Depositary or its nominee, or any Participant or Indirect
Participant, the payment by the Depositary or its nominee, or any Participant
or Indirect Participant of any amount in respect of the principal or purchase
price of or interest on the Notes, any notice which is permitted or required to
given under this Indenture, the selection by the Depositary or its nominee, or
any Participant or Indirect Participant of any Person to receive payment in the
event of a partial redemption of the Notes, or any consent given or other
action taken by the Depositary or its nominee as Holder.  The Trustee shall treat the Depositary as the
Holder of all Global Notes for all purposes and shall have no duty to provide
notice to, account to or otherwise deal with any beneficial owner of any Global
Note other than as is specifically set forth in this Indenture.


SECTION 7.03.            Individual Rights of Trustee.


The
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee.  However, in the event that the Trustee
acquires any conflicting interest (as defined in the TIA) after an Event of
Default has occurred and is continuing, it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign.  Any Agent may do the same with like rights and
duties.  The Trustee is also subject to Sections 7.10
and 7.11 hereof.


SECTION 7.04.            Trustee’s Disclaimer.


The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Notes or the Security Documents, it
shall not be accountable for the Company’s use of the proceeds from the Notes
or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes, the Security Documents or 



 70
 









any other document in connection with the sale of the Notes or pursuant
to this Indenture other than its certificate of authentication.


SECTION 7.05.            Notice of Defaults.


If
a Default or Event of Default occurs and is continuing and a Responsible
Officer of the Trustee has received notice thereof, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within the later
of (i) 90 days after the date such Default or Event of Default shall have
occurred and (ii) 10 days after the date such Responsible Officer first had
such actual knowledge.  Except in the
case of a Default or Event of Default in payment of principal of, or premium,
if any, or interest on, any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is not opposed to the interest of the Holders of the
Notes.


SECTION 7.06.            Reports by Trustee to Holders of the Notes.


Within
60 days after each November 15 beginning with the November 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA §313(a) (but if no event described in TIA
§313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted).  The Trustee
also shall comply with TIA §§313(b)(1) and (b)(2).  The Trustee shall also transmit by mail all
reports as required by TIA §313(c).


A
copy of each report at the time of its mailing to the Holders of Notes shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA §313(d).  The Company shall promptly notify the Trustee
when the Notes are listed on any stock exchange or delisted therefrom.


SECTION 7.07.            Compensation and Indemnity.


The
Company shall pay to the Trustee from time to time such compensation for its
acceptance of this Indenture and services hereunder as such parties shall agree
in writing from time to time.  The
Trustee’s compensation shall not be limited by any law on compensation of a
trustee of an express trust.  The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services.  Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee’s agents and counsel.


The
Company and the Guarantors, jointly and severally, shall indemnify each of the
Trustee and each predecessor Trustee, and their respective agents, employees,
officers, stockholders and directors, for and hold them harmless against any
and all losses, liabilities, claims, taxes (other than those based on the income
of the Trustee), damages or expenses incurred by them arising out of or in
connection with the acceptance or administration of its duties under this
Indenture and the Security Documents and any Ancillary Security Instrument,
including the costs and expenses of enforcing this Indenture and the Note
Obligations against the Company and/or the Guarantors (including this Section 7.07)
and defending itself against or investigating any claim (whether asserted by
the Company or any Holder or any other person) or liability, loss, damage or
expense in connection with the exercise or performance of any of its powers or
duties hereunder or under the Security Documents or any Ancillary Security
Instrument, except to the extent any such loss, liability, claim, damage or
expense may be attributable to its gross negligence, bad faith or willful
misconduct.  The Trustee shall notify the
Company promptly of any claim for which it or any of its agents, employees,
officers or shareholders or directors may seek indemnity.  Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.  The 



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Company and the Guarantors shall defend any such claim against the
Trustee for which the Trustee is seeking indemnification, and the Trustee shall
cooperate in the defense, provided, however, the Trustee and its agents,
employees, officers, stockholders and directors may have separate counsel, and
the Company and the Guarantors shall pay the reasonable fees and expenses of
such counsel.  The Company and the
Guarantors need not pay for any settlement made without their consent, which
consent shall not be unreasonably withheld, conditioned or delayed.


The
obligations of the Company and the Guarantors under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.


To
secure the Company’s and the Guarantors’ payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes.  Such Lien
shall survive the satisfaction and discharge of this Indenture.


When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(g) or (h) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
the Bankruptcy Law.


The
Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent
applicable.


SECTION 7.08.            Replacement of Trustee.


A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.


The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. 
The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing.  The Company may
remove the Trustee if:


(a)           the
Trustee fails to comply with Section 7.10 hereof;


(b)           the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under the Bankruptcy Law;


(c)           a
Custodian takes charge of the Trustee or its property; or


(d)           the
Trustee becomes incapable of acting.


If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor
Trustee.  Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
of the then outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee (at the expense of the
Company), the Company, or the Holders of Notes of at least 10% in principal
amount of the then outstanding Notes may petition any court of competent
jurisdiction (in the case of the Trustee, at the expense of the Company) for
the appointment of a successor Trustee.



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If
the Trustee, after written request by any Holder of a Note who has been a
Holder of a Note for at least six months, fails to comply with Section 7.10
hereof within 30 days of the Trustee’s receipt of such notice, such Holder of a
Note may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon, 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. 
The successor Trustee shall mail a notice of its succession to Holders
of the Notes.  The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof.  Notwithstanding replacement or resignation of
the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.


SECTION 7.09.            Successor Trustee by Merger, Etc.


If
the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor
Trustee.  As soon as practicable, the
successor Trustee shall mail a notice of its succession to the Company and the
Holders of the Notes.


SECTION 7.10.            Eligibility; Disqualification.


There
shall at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100,000,000 as set
forth in its most recent published annual report of condition.


This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§310(a)(1), (2) and (5).  The Trustee is
subject to TIA §310(b); provided, however, that there shall be excluded from
the operation of TIA §310(b)(1) any indenture or indentures under which other
notes, certificates of interest or participation in other notes of the Company
are outstanding if the requirements for such exclusion set forth in TIA
§310(b)(1) are met.


SECTION 7.11.            Preferential Collection of Claims Against Company.


The
Trustee is subject to TIA §311(a), excluding any creditor relationship listed
in TIA §311(b).  A Trustee who has
resigned or been removed shall be subject to TIA §311(a) to the extent
indicated therein.


ARTICLE VIII

SATISFACTION AND DISCHARGE; DEFEASANCE


SECTION 8.01.            Satisfaction and Discharge of Indenture.


This
Indenture shall upon delivery of a written request of an Officer of the Company
to the Trustee cease to be of further effect with respect to the Notes (except
as to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for and the payment, indemnity and contribution obligations
of the Company in favor of the Trustee), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this 



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Indenture with respect to the Notes, when the Company has paid all sums
payable by it under the Indenture and either:


(a)           all
such Notes theretofore authenticated and delivered (other than (i) such Notes
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.07 hereof and (ii) such Notes 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, as provided in Section 8.08 hereof) have been delivered
to the Trustee for cancellation; or


(b)           all
such Notes not theretofore delivered to the Trustee for cancellation or
otherwise have become due and payable or will become due and payable within one
year, including pursuant to a notice of redemption given in accordance with Section
3.07, and (i) the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds, in trust solely for the purpose and
the benefit of the Holders of such Notes, cash in U.S. dollars in an amount as
will be sufficient, without consideration of any reinvestment of interest, to
pay and discharge the entire Indebtedness (including all principal, premium, if
any, and accrued interest) on such Notes not theretofore delivered to the
Trustee for cancellation, and (ii) the Company has delivered to the Trustee
irrevocable instructions under this Indenture to apply the deposited funds
toward the payment of such Notes at their Stated Maturity or the redemption
date, as the case may be.


In
addition, the Company must deliver an Officers’ 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 with respect to the Notes, the
obligations of the Company and the Guarantors to the Trustee under Section 7.07
hereof, and, if U.S. dollars shall have been deposited with the Trustee
pursuant to clause (b) of this Section, the obligations of the Company or
Trustee under Section 8.02 hereof and Section 8.08
hereof shall survive.


SECTION 8.02.            Application of Trust Money.


Subject
to the provisions of Section 8.08 hereof, all money deposited with
the Trustee pursuant to Section 8.01 hereof shall be held in trust
and applied by it, in accordance with the provisions of the Notes 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, any Additional
Interest, and any premium and interest for whose payment such money has been
deposited with the Trustee.


SECTION 8.03.            Option to Effect Legal Defeasance or Covenant
Defeasance.


The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, exercise its right under
either Section 8.04 or 8.05 hereof with respect to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.


SECTION 8.04.            Legal Defeasance.


Upon
the Company’s exercise under Section 8.03 hereof of the option
applicable to this Section 8.04, each of the Company and the Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.06
hereof, be deemed to have discharged its obligations with respect to all
outstanding Notes and, as applicable, its Subsidiary Guarantee on the date the
conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). 
For this purpose, Legal Defeasance means that each of the Company and
the Guarantors shall be deemed to have paid and discharged the entire
Indebtedness 



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represented by the outstanding Notes, and to the extent applicable,
represented by the Subsidiary Guarantees, which in each case shall thereafter
be deemed to be “outstanding” only for the purposes of Section 8.07
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes or
Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.07
hereof, and as more fully set forth in such Section, payments in respect of the
principal of, and premium, if any, and interest (including Additional
Interest), if any, on, such Notes when such payments are due, (b) the Company’s
obligations with respect to such Notes under Sections 2.03, 2.04,
2.07, 2.10 and 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company’s
obligations to the Trustee under Section 7.07 and (d) this Article
VIII.  Subject to compliance with this
Article VIII, the Company may exercise its option under this Section 8.04
notwithstanding the prior exercise of its option under Section 8.05
hereof.


SECTION 8.05.            Covenant Defeasance.


Upon
the Company’s exercise under Section 8.03 hereof of the option
applicable to this Section 8.05, each of the Company and the
Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.06
hereof, be released from its obligations under the covenants contained in
Article IV hereof (other than those in Sections 4.01, 4.02, 4.05,
4.06, and 4.19) and clauses (iii) and (iv) of Section 5.01
hereof on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”), and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder.  For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, 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 covenants, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document, and such omission to comply shall not constitute a Default or
an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.  In addition, upon
the Company’s exercise under Section 8.03 hereof of the option
applicable to this Section 8.05 hereof, subject to the satisfaction
of the conditions set forth in Section 8.06 hereof, neither Sections 6.01(f),
6.01(i), 6.01(j) and 6.01(k) hereof nor, with respect to
any Person other than the Company, Sections 6.01(g) and 6.01(h)
hereof shall constitute Events of Default.


SECTION 8.06.            Conditions to Legal or Covenant Defeasance.


The
following shall be the conditions to the application of either Section 8.04
or 8.05 hereof in order to exercise either Legal Defeasance or Covenant
Defeasance with respect to the outstanding Notes:


(a)           the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the Accreted Value
of, and premium, if any, and interest (including Additional Interest), if any,
on, the outstanding Notes on the Stated Maturity or on the applicable
repurchase or redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular repurchase
or redemption date;


(b)           in
the case of an election under Section 8.04 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee 



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confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


(c)           in
the case of an election under Section 8.05 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;


(d)           no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default arising from a breach
of covenants due to the incurrence of Indebtedness the proceeds of which are
used to make such deposit) or insofar as Section 6.01(g) or 6.01(h)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;


(e)           the
Company shall have delivered to the Trustee an Officers’ Certificate certifying
that such deposit will not result in a breach or violation of, or constitute a
default under, any material agreement or instrument to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound, or if such breach, violation or default would
occur, which is not waived as of, and for all purposes, on and after, the date
of such deposit (other than a Default or an Event of Default arising from a
breach of covenants due to the Incurrence of Indebtedness the proceeds of which
are used to make such deposit);


(f)            the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally;


(g)           the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders of Notes over the other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and


(h)           the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.  The Collateral will be released
upon a Legal Defeasance in compliance with this Section 8.06.  The Subsidiary Guarantees will be released
upon a Legal Defeasance in compliance with this Section 8.06.


SECTION 8.07.            Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions.


Subject
to Section 8.08 hereof, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.07,
pursuant to Section 8.06 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as 



 76
 









the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest and Additional Interest, if any, but such money need not be segregated
from other funds except to the extent required by law.


The
Company shall pay, and the Company and the Guarantors shall jointly and
severally indemnify, the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or Government Securities deposited pursuant to Section 8.06
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes.


Anything
in this Article VIII to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the written request of the Company
any money or Government Securities held by it as provided in Section 8.06
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee and reasonably acceptable to the Trustee (which may be the opinion
delivered under Section 8.06(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


SECTION 8.08.            Repayment to Company.


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 premium, if any, or
interest and Additional Interest, if any, on, any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest and
Additional Interest, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter 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 The New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.


SECTION 8.09.            Reinstatement.


If
the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with this Article VIII by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, or if at any time any amounts or
securities deposited in accordance with this Article VIII, or amounts or
securities paid or otherwise disbursed therefrom, are revoked, terminated,
rescinded or reduced or must otherwise be restored or returned upon any event,
including the insolvency, bankruptcy or reorganization of the Company or any
Restricted Subsidiary, then the Company’s and each Guarantor’s obligations
under this Indenture, the Notes and the Security Documents, as the case may be,
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with this Article VIII, or as if such
deposit or payment or disbursement had not been made, as the case may be; provided, however,
that, if the Company makes any payment of principal of, or premium, if any, or
interest and Additional Interest, if any, on, any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.


 



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ARTICLE IX

AMENDMENT, SUPPLEMENT AND WAIVER


SECTION 9.01.            Without Consent of Holders of Notes.


Notwithstanding
Sections 9.02 hereof, the Company and the Trustee, as the case may
be, may amend or supplement this Indenture, the Notes, the Subsidiary Guarantees
or the Security Documents without the consent of any Holder of a Note:


(a)           to
cure any ambiguity, omission, defect or inconsistency;


(b)           to
provide for the assumption of the Company’s or any Guarantor’s obligations to
the Holders of the Notes by a Successor Company in accordance with Article V
hereof;


(c)           to
provide for uncertificated Notes in addition to or in place of certificated
Notes (provided that the uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code);


(d)           to
add additional Guarantors under the Indenture or add Collateral with respect
to, or to further secure, the Notes, or to release a Guarantor or Collateral
(or a portion thereof) to the extent permitted by, and pursuant to the
provisions of the Indenture or the Security Documents;


(e)           to
add to the covenants of the Company or any Restricted Subsidiary for the
benefit of the Holders of the Notes or to surrender any right or power
confirmed upon the Company or any Restricted Subsidiary;


(f)            to
make any change that does not adversely affect the rights of any Holder of the
Notes (and for purposes of the foregoing, any change in the Indenture, the
Notes, the Subsidiary Guarantees or the Security Documents made to conform such
documents to the description thereof in the Offering Circular shall be deemed
not to adversely affect the rights of any Holder of Notes);


(g)           to
comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


(h)           to
preserve or perfect the Liens of the Indenture on the Collateral as
contemplated by this Indenture or the Security Documents, including in
connection with any offering of Additional Notes in accordance with Section
2.16; or


(i)            as
otherwise provided in the Indenture or Security Documents, as the case may be.


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by a Responsible Officer of the Trustee of an
Officers’ Certificate and an Opinion of Counsel, the Trustee shall join with
the Company in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties, liabilities or immunities under this
Indenture or otherwise.



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SECTION 9.02.            With Consent of Holders of Notes.


Except
as provided below in this Section 9.02 hereof, the Company and the
Trustee may amend or supplement this Indenture, the Notes, the Subsidiary
Guarantees or any Security Documents with the consent of the Holders of a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with the purchase of, or a tender offer or exchange
offer for, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default or compliance with any
provision of this Indenture, the Notes, the Subsidiary Guarantees or any
Security Documents may be waived with the consent of the Holders of a majority
in principal amount of the then outstanding Notes (including consents obtained
in connection with a tender offer or exchange offer for the Notes).


However,
without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):


(a)           reduce
the amount of Notes whose Holders must consent to an amendment;


(b)           reduce
the rate of or extend the time for payment of interest on any Note;


(c)           reduce
the principal of or extend the Stated Maturity of any Note;


(d)           alter
the provisions with respect to the redemption or repurchase of the Notes or
change the time at which any Note may be redeemed or repurchased as described
under Section 4.10, 4.16 or 4.17 (whether through
amendment or waiver of provisions in the covenants, definitions, or otherwise);


(e)           make
any Note payable in money other than that stated in the Note;


(f)            impair
the right of any Holder of the Notes to receive payment of principal of and
premium, if any, and interest on such Holder’s Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with
respect to such Holder’s Notes;


(g)           make
any change in the amendment provisions which require each Holder’s consent or
in the waiver provisions;


(h)           make
any change in the ranking or priority of any Note or any Subsidiary Guarantee,
or release any Guarantor from its Subsidiary Guarantee except as provided in
this Indenture; or


(i)            except
as specifically permitted by this Indenture or any Security Documents, release
all or substantially all of the Liens on the Collateral.


Upon
the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by a Responsible Officer of the Trustee of an Officers’ Certificate and an
Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee, the Trustee shall join with the Company in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
affects the Trustee’s own rights, duties, liabilities or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.



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It
shall not be necessary for the consent of the Holders of Notes under this Section 9.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.


After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver.  Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or waiver.


SECTION 9.03.            Compliance with Trust Indenture Act.


Every
amendment or supplement to this Indenture, the Notes or the Subsidiary
Guarantees shall be set forth in an amended or supplemental indenture that
complies with the TIA as then in effect.


SECTION 9.04.            Revocation and Effect of Consents.


Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder’s Note, even if notation of the consent is not made on
any Note.  However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as to its Note if
the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. 
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


SECTION 9.05.            Notation on or Exchange of Notes.


The
Trustee may but shall not be obligated to place an appropriate notation about
an amendment, supplement or waiver on any Note thereafter authenticated.  The Company, in exchange for all Notes, may
issue and the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.


Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.


SECTION 9.06.            Trustee to Sign Amendments, Etc.


The
Trustee shall sign any amended or supplemental indenture (or other amendment of
the Security Documents) authorized pursuant to this Article IX if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties,
liabilities or immunities under this Indenture or otherwise.  Furthermore, no amendment or supplement to
the provisions of the Security Documents will impose any obligation on the
Trustee or adversely affect the rights of the Trustee in its individual
capacity.  The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves
it.  In executing any amended or
supplemental indenture or amendment, the Trustee shall be entitled to receive
and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture or amendment is
authorized or permitted by this Indenture.



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ARTICLE X

COLLATERAL AND SECURITY


SECTION 10.01.         Security Documents.


In
order to secure the due and punctual payment of the principal, premium, if any,
and interest on the Notes, when the same shall be due and payable, whether on
an interest payment date, at the maturity date, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes and performance of all other Note Obligations under this
Indenture, the Notes and the Subsidiary Guarantees, the Company has, on the
Issue Date simultaneously with the execution and delivery of this Indenture,
entered into Security Documents granting the Trustee a Lien on and security
interest in the Collateral.


Any
Person which, after the Issue Date, becomes a Guarantor under this Indenture,
shall, upon becoming a Guarantor under this Indenture, become a party to each
applicable Security Document with respect to the assets or property of such
Person that are Collateral.  Each Holder,
by accepting a Note, consents and agrees to all of the terms and provisions of
the Security Documents, as the same may be amended from time to time pursuant
to the terms of the Security Documents and this Indenture, and authorizes and
directs the Trustee to enter into the Security Documents and any related
Ancillary Security Instruments on its behalf and on behalf of such Holder and
to perform its obligations and exercise its rights thereunder and in accordance
therewith.


SECTION 10.02.         Recordings and Opinions.


(a)           The
Company and the Guarantors shall take or cause to be taker all action necessary
or required under the Security Documents or reasonably requested by the Trustee
to create, maintain, perfect, preserve and protect the Liens on and security
interests in the Collateral granted by the Security Documents, to the extent
necessary or required thereby or so reasonably requested by the Trustee,
including, but not limited to, causing all financing statements, mortgages, the
Security Documents (or a short form version thereof) and other instruments of
further assurance, including, without limitation, continuation statements
covering security interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded, and shall execute
and file such financing statements and cause to be issued and filed such
continuation statements, all in such manner and in such places as may be
necessary or required by law or so requested by the Trustee to preserve and
protect the rights of the Holders of Notes under this Indenture and the
Security Documents to all property comprising the Collateral.  The Company shall from time to time promptly
pay and discharge all mortgage and financing and continuation statement
recording and/or filing fees, charges and taxes relating to this Indenture and
the Security Documents, any amendments thereto and any other instruments of
further assurance required hereto or pursuant to the Security Documents.


(b)           The
Company shall furnish or cause to be addressed and furnished to the Trustee at
the time of execution and delivery of this Indenture, Opinions of Counsel
substantially in the form of the opinions of counsel delivered on the Issue
Date to the Initial Purchasers relating to any of the Collateral and/or the
Security Documents.


(c)           The
Company and the Guarantors shall at all times comply with the provisions of TIA
§ 314(b) as then in effect (whether or not this Indenture is then required to
be qualified under the TIA).


(d)           Neither
the Company nor any Guarantor shall convey or otherwise transfer any Collateral
to any Person other than the Company or a Guarantor unless the Liens on the
Collateral created under the Security Documents are released in accordance with
this Indenture.



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SECTION 10.03.         Possession, Use and Release of Collateral.


(a)           Each
Holder, by accepting a Note, consents and agrees to the provisions of the
Security Documents and this Indenture governing the possession, use and release
of Collateral.  Each Holder, by accepting
a Note, consents and agrees that Collateral may, and, as applicable, shall, be
released or substituted in accordance with the terms of this Indenture and the Security
Documents.


(b)           Without
limiting the provisions of Section 10.03(a) and subject to the
provisions of the Security Document applicable to such Collateral:


(i)            unless an Event of Default has occurred and is
continuing, the Trustee shall release the Liens and security interests created
by this Indenture and the Security Documents on any portion of Collateral
subject to an Asset Disposition (Collateral so released, the “Released Interest”)
upon compliance with the condition that the Company deliver to the Trustee the
following:


(A)          a notice from the Company requesting the release of the
Released Interest:


(1)           describing the proposed Released Interest;


(2)           stating that the consideration received is at least equal
to the fair market value of the Released Interest (if required pursuant to Section
4.10(a)(1));


(3)           stating that the release of such Released Interest will
not interfere with the Trustee’s ability to realize the value of the remaining
Collateral and will not impair the maintenance and operation of the remaining
Collateral; and


(4)           in the event that any assets other than cash, cash
equivalents comprise a portion of the consideration received in such Asset
Disposition, specifically describing such assets;


(B)           an Officers’ Certificate stating that:


(1)           such Asset Disposition (i) does not include the
disposition of assets other than the Released Interest and (ii) complies with
the terms and conditions of this Indenture with respect to Asset Dispositions
(including Section 4.10);


(2)           all Net Available Cash from the Asset Disposition will be
deposited with the Trustee in an Asset Sale Proceeds Account pursuant to the
provisions of Section 4.10 (or will otherwise be applied for a use permitted by
Section 4.10 substantially concurrently with such Asset Disposition);


(3)           there is no Default in effect or continuing on the date
thereof or the date of such Asset Disposition;


(4)           the release of the Collateral will not result in a Default
or an Event of Default; and



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(5)           all conditions precedent in this Indenture and the
Security Documents relating to the release in question have been complied with;


(C)           the Net Available Cash and other consideration from the
Asset Disposition required to be delivered to the Trustee pursuant to this
Indenture;


(D)          all documentation necessary or reasonably requested by the
Trustee to grant to the Trustee a perfected first priority security interest
(subject only to Permitted Collateral Liens) in and Lien on all assets (other
than Net Available Cash) comprising a portion of the consideration received in
such Asset Disposition, if any; and


(E)           all documentation required by the TIA (including without
limitation TIA § 314(d) if applicable) prior to the release of Collateral by
the Trustee;


(ii)                   the Trustee shall release the
Liens and security interests created by this Indenture and the Security
Documents on all Collateral:


(A)          upon satisfaction and discharge of the Indenture as
provided in Section 8.01;


(B)           upon Legal Defeasance as set forth in Sections 8.04,
and 8.06, as applicable; or


(C)           with the consent of the Holders of all of the Notes then
outstanding;


in
each case following delivery to the Trustee of an Officers’ Certificate of the
Company to the effect that any of the foregoing has occurred;


(iii)                  unless a Default has occurred
and is continuing, the Trustee shall release the Liens and security interests
created by this Indenture and the Security Documents on any Collateral held in
the Asset Sale Proceeds Account upon delivery by the Company to the Trustee of
a notice from the Company requesting the release and:


(A)          an Officers’ Certificate stating that:


(1)           there is no Default or Event of Default in effect or
continuing on the date thereof;


(2)           the release of such Collateral will not result in a
Default or an Event of Default; and


(3)           either:


a.             such Collateral
will be applied be applied for a use permitted by Section 4.10
substantially concurrently with such release; or


b.             such Collateral
constitutes Excess Proceeds that have been offered to but not accepted by
Holders of Notes pursuant to a completed Asset Sale Offer in accordance with Section
4.10;



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(4)           all conditions precedent in this Indenture and the
Security Documents relating to the release in question have been complied with;


(B)           all documentation necessary or reasonably requested by the
Trustee to grant to the Trustee a perfected first priority security interest
(subject only to Permitted Collateral Liens) in and Lien on all Additional
Assets acquired with such Collateral; and


(C)           all documentation required by the TIA (including without
limitation TIA § 314(d) if applicable);


(iv)              unless a Default has occurred and is continuing, the
Trustee shall release the Liens and security interests created by this
Indenture and the Security Documents on Collateral held in the Vessel
Acquisition Account in accordance with the terms of the Vessel Acquisition
Account Agreement and:


(v)               unless a Default has occurred and is continuing, the
Company or the applicable Guarantor will have the right to remain in possession
and retain exclusive control of the Collateral (other than any cash,
securities, obligations and cash equivalents constituting part of the
Collateral and deposited with the Trustee, including in an Asset Sale Proceeds
Account or in the Vessel Acquisition Account), to freely operate the Collateral
and to collect, invest and dispose of any income thereon;


(vi)              so long as no Default has occurred and is continuing or
would result therefrom, the Company and the Guarantors may, among other things,
without any release or consent by the Trustee, conduct ordinary course
activities with respect to the Collateral (other than any cash, securities,
obligations and cash equivalents constituting part of the Collateral and
deposited with the Trustee, including in an Asset Sale Proceeds Account or in
the Vessel Acquisition Account) in accordance with the provisions of this
Indenture and the applicable Security Documents, including, without limitation,


(A)          transferring any asset subject to the Lien of the Security
Documents which has become damaged, worn out or obsolete, and which either has an
aggregate fair market value, taken together with all other assets transferred
pursuant to this clause (A) since the Issue date of less than $100,000 or is
replaced by an asset of substantially equivalent or greater value which becomes
subject to the Lien of the Security Documents as Collateral;


(B)           altering, repairing, replacing, changing the location or
position of and adding to its structures, machinery, systems, equipment,
fixtures and appurtenances; and


(C)           demolishing, dismantling, tearing down, scrapping or
abandoning any Collateral if, in the good faith opinion of the Board of the
Company, as evidenced by a Board Resolution such demolition, dismantling,
tearing down, scrapping or abandonment is in the best interest of the Company
or such Guarantor and would not adversely affect in any material respect the
rights of the Holders of the Notes under this Indenture and the Security
Documents,


The
Trustee will execute all documents reasonably requested by the Company to
confirm the release from the Lien of this Indenture and the Security Documents
of any Collateral disposed of or otherwise transferred in accordance with Section
10.03(b).



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Neither
the Company nor any Guarantor shall transfer any Collateral to any person other
than to the Company, a Guarantor or a Person which will become a Guarantor
simultaneously with such transfer, unless the Liens on such Collateral created
under the Security Documents are released in accordance with the provisions of
this Section 10.03 or such transfer has otherwise been conducted in
accordance the provisions of this Section 10.03.


(c)           The
fair value of Collateral released from the Liens and security interest created
by this Indenture and the Security Documents pursuant to the terms of this Section
10.03 or the Security Documents shall not be considered in determining
whether the aggregate fair value of the Collateral released from the Liens and
security interest created by this Indenture and the Security Documents in any
calendar year exceeds the 10% threshold specified in TIA § 314(d)(1).


SECTION 10.04.         Suits To Protect Collateral.


Subject
to Sections 7.01 and 7.02, the Trustee may, but shall not be
obligated to, subject to the provisions of the Security Documents, in its sole
discretion and without the consent of the Holders of Notes, on behalf of the
Holders of Notes, take all actions it deems necessary or appropriate in order
to enforce any of the terms of the Security Documents and collect and receive
any and all amounts payable in respect of the obligations of the Company and
the Guarantors under this Indenture, the Notes and the Subsidiary
Guarantees.  Subject to the provisions of
the Security Documents, the Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of any of the Security Documents or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Trustee and the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Lien and security interest created by this Indenture and the
Security Documents or be prejudicial to the interests of the Holders or the Trustee).


SECTION 10.05.         Powers Exercisable by Receiver or Trustee.


In
case Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article X and the Security
Documents upon the Company and the Guarantors with respect to the release, sale
or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed
the equivalent of any similar instrument of the Company or a Guarantor or of
any Officer or Officers of the Company or a Guarantor required by the
provisions of this Article X.


SECTION 10.06.         Determinations Relating to Collateral.


In
the event (i) the Trustee shall receive any written request from the Company or
any Guarantor under any Security Document for consent or approval with respect
to any matter or thing relating to any Collateral or the Company’s or any
Guarantor’s obligations with respect thereto, (ii) there shall be required from
the Trustee under the provisions of any Security Document any performance or
the delivery of any instrument or (iii) a Responsible Officer of the Trustee
shall become aware of any nonperformance by the Company or any Guarantor of any
covenant or any breach of any representation or warranty of the Company or any
Guarantor set forth in any Security Document, and, in the case of clause (i),
(ii) or (iii) above, the Trustee’s response or action is not otherwise
specifically contemplated hereunder or under the applicable Security Documents,
then, in each such event, the Trustee shall, within ten Business Days, advise
the Holders, in writing and at the Company’s expense, of the matter or thing as
to which consent has been requested or the performance or instrument required
to be delivered or the nonperformance or 



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breach of which the Trustee has become aware.  The Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes pursuant to Section
6.05 shall have the exclusive authority to direct the Trustee’s response to
any of the circumstances contemplated in clauses (i), (ii) and (iii)
above.  In the event the Trustee shall be
required to respond to any of the circumstances contemplated in this Section
10.06, the Trustee shall not be required so to respond unless it shall have
received written authority by not less than a majority in aggregate principal
amount of the then outstanding Notes; provided further that the Trustee may
refuse to follow any direction that conflicts with law or this Indenture that
the Trustee determines may be unduly prejudicial to the rights of other Holders
of Notes or that may involve the Trustee in personal liability.


SECTION 10.07.         Certificates of the Trustee.


In
the event that the Company or any Guarantor wishes to release Collateral in
accordance with this Indenture and the Security Documents and has delivered the
certificates and documents required by this Indenture and the Security
Documents, the Trustee shall determine whether it has received all
documentation required by TIA § 314(d) if applicable in connection with such
release based on the Opinion of Counsel delivered pursuant to Section 12.04.  The Trustee, however, shall have no duty to
confirm the legality or validity of such documents, its sole duty being to
certify that it has received such documentation which on their face conform to
TIA § 314(d).


SECTION 10.08.         Recording, Registration and Opinions; Trustee’s
Disclaimer regarding Collateral.


(a)           As
required by the provisions of Section 314(b) of the TIA, the Company and, if applicable,
the Subsidiary Guarantors shall take or cause to be taken all action required
to perfect, maintain, preserve and protect the Lien on and security interest in
the Collateral granted by the Security Documents (subject only to Permitted
Liens), including without limitation, arranging for the notation of liens on
certificates of title, the filing of financing statements, continuation
statements, mortgages and any instruments of further assurance, in such manner
and in such places as may be required by law fully to preserve and protect the
rights of the Holders and the Trustee under this Indenture and the Security
Documents to all property now or hereafter at any time comprising the
Collateral. The Company shall from time to time promptly pay all financing,
continuation statements and mortgage recording, registration and/or filing
fees, charges and taxes relating to this Indenture and the Security Documents,
any amendments thereto and any other instruments of further assurance required
hereunder or pursuant to the Security Documents.  The Trustee shall have no obligation to, nor
shall it be responsible for any failure to, so register, file or record.


(b)           The
Company shall furnish to the Trustee on each anniversary of the Issue Date an
Opinion of Counsel, dated as of such date, which complies with TIA § 314(b)(2),
either (i)(x) stating that, in the opinion of such counsel, such action has
been taken with respect to the delivery of Collateral, recording of appropriate
notations on certificates of title evidencing the Liens arising under the
Security Documents, recordings, registrations, filings, re-recordings,
re-registrations and refilings of this Indenture, the Security Documents and
all supplemental indentures, financing statements, continuation statements and
other instruments of further assurance as are necessary to maintain the
perfected Liens of the Security Documents under applicable law in those items
of Collateral that can be perfected by such notations or the filing,
recordings, registrations or delivery and reciting with respect to such Liens
on and security interests in the Collateral the details of such action or
referring to prior Opinions of Counsel in which such details are given, and (y)
stating that, based on relevant laws as in effect on the date of such Opinion
of Counsel, all financing statements, continuation statements, and other
documents have been executed and filed and all such other steps taken that are
necessary, as of such date and during the succeeding 12 months, fully to create
(with respect to any substitute or additional Collateral following the Issuer
Date) and maintain the perfection of the security interests of the Trustee
hereunder and under the Security 



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Documents with respect to the Collateral; provided that if there is a
required filing of a continuation statement or other instrument within such 12
month period and such continuation statement or other instrument is not
effective if filed at the time of the opinion, such opinion may so state and in
that case the Company shall cause a continuation statement or other instrument
to be timely filed so as to maintain such Liens and security interests and
shall provide a further Opinion of Counsel to the effect of this clause (i)
upon the filing of the relevant continuation statement or other instrument; or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to maintain such Liens or security interests.


(c)           Notwithstanding
anything to the contrary set forth in this Indenture or in any other Security
Document, the Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise creating, perfecting or maintaining
the perfection of any security interest in the Collateral.  The Trustee shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property, and shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral, by reason of the act or
omission of any carrier, forwarding agency or other agent, independent
contractor or bailee selected by the Trustee in good faith.


Notwithstanding
anything to the contrary set forth in this Indenture or in any other Security
Document, the Trustee shall not be responsible for the existence, genuineness
or value of any of the Collateral, or for the creation, validity, perfection,
priority or enforceability of the Liens in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act on
its part hereunder, for the validity or sufficiency of the Collateral or any
agreement or assignment contained therein, for the validity of the title of the
Company to the Collateral, for insuring the Collateral or for the payment of
taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral.


SECTION 10.09.         Reflagging Vessels.


Notwithstanding
anything to the contrary in this Indenture, a Restricted Subsidiary may:


(a)           Reflag
any of its Vessels under the laws of a Permitted Flag Jurisdiction; or


(b)           Reconstitute
itself in another jurisdiction or merge with or into another Restricted
Subsidiary for the purpose of reflagging a Vessel that it owns or operates
pursuant to a bareboat charter so long as at all times each Restricted
Subsidiary remains a Person organized and existing under the laws of a
Permitted Flag Jurisdiction;


provided, that the
Trustee may release the mortgage and related Security Documents to which any
Mortgaged Vessel is subject in connection with the reflagging of such Mortgaged
Vessel in another Permitted Flag Jurisdiction only if (i) the owner of the Mortgaged
Vessel has executed (A) a mortgage (granting the Trustee a first priority Lien
on such Mortgaged Vessel subject only to Permitted Collateral Liens) and (B)
the related Security Documents with respect to such Mortgaged Vessel, dated the
date such Mortgaged Vessel shall be released from the existing mortgage and
related Security Documents to which it is subject, which Mortgage and related
Security Documents shall be in appropriate form for recording a registration in
the appropriate governmental offices of the Permitted Flag Jurisdiction under
which it is being reflagged if required by applicable law in order to perfect
the security interest therein created, as to which the Trustee shall be
entitled to rely on an Opinion of Counsel to the Company with respect thereto;
and (ii) the Restricted Subsidiary has made arrangements reasonably
satisfactory to the Trustee for recording the mortgage referred to in clause
(i) above in the appropriate registry office of the Permitted Flag Jurisdiction
under which the Mortgaged Vessel is being reflagged as soon as reasonably
practicable.



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ARTICLE XI

GUARANTEES


SECTION 11.01.         Subsidiary Guarantees.


Subject
to Section 11.04 hereof, each Guarantor hereby jointly and severally,
unconditionally guarantees, on a senior basis to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that:


(a)           the
principal of, and premium, if any, and interest (including Additional
Interest), if any, on, the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, and premium,
if any, and (to the extent permitted by law) interest (including Additional
Interest), if any, on the Notes, and all other Note Obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full and performed, all in accordance with the terms hereof and thereof; and


(b)           in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise.


Failing
payment when so due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately.  An
Event of Default under this Indenture or the Notes shall constitute an event of
default under the Subsidiary Guarantees, and shall entitle the Holders to
accelerate the Note Obligations of the Guarantors hereunder and under the Notes
in the same manner and to the same extent as the Note Obligations of the
Company hereunder and under the Notes. 
This is a guarantee of payment and not of collection, and, to the
maximum extent permitted by applicable law, each Guarantor hereby waives and
agrees not to assert or take advantage of, and each Guarantor’s liability under
its Subsidiary Guarantee shall be absolute and unconditional irrespective of:


(i)                    any right to require the
Trustee to proceed against the Company or any other Person or to resort to,
proceed against or exhaust any security held by it at any time or to pursue any
other remedy in its power before proceeding against such Guarantor;


(ii)                   the defense of the statute of
limitations in any action hereunder or for the collection or performance of any
of the obligations guaranteed hereunder;


(iii)                  any defense that may arise by
reason of the incapacity, lack of authority, death or disability of, or
revocation hereof by such Guarantor or the revocation or repudiation of any of
the Notes, this Indenture or the Security Documents by the Company, any other
Guarantor or any other Person or the failure of any Guarantor to file or
enforce a claim against the estate (either in administration, bankruptcy, or
any other proceeding) of the Company or any other Person;


(iv)                  the unenforceability in whole
or in part of the Notes, this Indenture or the Security Documents or any other
instrument, document or agreement;


(v)                   any election, in any
proceeding by or against the Company or any other Person under the Bankruptcy
Law, of the application of Section 1111(b)(2) of such Code;



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(vi)                  any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Law;


(vii)                 demand, presentment, protest
and notice of any kind, and notice of the existence, creation or incurring of
any new or additional indebtedness or obligation or of any action or non-action
on the part of the Company, a Guarantor or any other Person under this or any
other instrument, in connection with any of the obligations guaranteed
hereunder or any collateral now or hereafter given for any of such obligations;


(viii)                any defense based upon an
election of remedies by the Trustee, including, without limitation, an election
to proceed by non-judicial rather than judicial foreclosure, which destroys or
otherwise impairs the subrogation rights of such Guarantor or any other
Guarantor, or the right of such Guarantor, any other Guarantor or any other
Person to proceed against the Company for reimbursement, or both;


(ix)                   any suretyship defense or
right of any nature otherwise available to such Guarantor under the laws of any
state; and


(x)                    any rights to direct the
manner in which, or the order in which, the Trustee must proceed to recover
against any collateral given by such Guarantor, any other Guarantor or any other
Person to secure the obligations secured hereunder, including, without
limitation, any prohibition against obtaining a deficiency judgment and any
requirement that any deficiency judgment be obtained only through judicial
proceedings.


The
Company and the Guarantors are obligated and fully liable for all amounts due
under the Note Obligations.  The Trustee
has the right to sue on the Note Obligations and obtain a judgment against the
undersigned Obligors for satisfaction of all amounts due under the Note Obligations
either before, after or without a judicial foreclosure of any Lien on any
Collateral.  Each Guarantor hereby
acknowledges that none of the Trustee, any Holder and any other Person have a
duty to disclose to such Guarantor any facts such Person may now or hereafter
know about the Company, regardless of whether such Person has reason to believe
that any such facts materially increase the risk beyond that which such
Guarantor intends to assume or has reason to believe that such facts are
unknown to such Guarantor or has a reasonable opportunity to communicate such
facts to such Guarantor, it being understood and agreed that each Guarantor is
fully responsible for being and keeping informed of the financial condition of
the Company and of all circumstances bearing on the risk of nonpayment or
nonperformance of any obligations hereby guaranteed.  Each Guarantor further acknowledges that the
suretyship defenses and rights waived hereunder may provide partial or complete
defenses to the recovery by the Trustee from such Guarantor and/or grant such
Guarantor certain rights, the enforcement or realization of which could reduce
or eliminate such Guarantor’s liability hereunder to the Company.


If
any Holder or the Trustee is required by any court or otherwise to return to
the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. 
Each Guarantor agrees that it shall not be entitled to, and hereby
waives, any right to exercise any right of subrogation in relation to the
Holders in respect of any Note Obligations guaranteed hereby, until all Note
Obligations are paid in full.  Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the Note
Obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Note Obligations guaranteed thereby, and (y) in the event of any declaration of
acceleration of such Note Obligations as provided in Article VI hereof,
such Note Obligations (whether 



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or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of its Subsidiary Guarantee.  The Guarantors shall have the right to seek
contribution from any non-paying Guarantor pursuant to Section 11.04
hereof after the Notes and the Note Obligations hereunder shall have been paid
in full to the Holders under the Subsidiary Guarantees.


SECTION 11.02.         Execution and Delivery of Subsidiary Guarantee or
Supplemental Indenture; Notation of Subsidiary Guarantee.


The
Subsidiary Guarantee of any Guarantor who is party to the Indenture on the
Issue date shall be evidenced by its execution and delivery of the
Indenture.  To effect any additional
Subsidiary Guarantee, any future Guarantor shall execute and deliver a
supplemental indenture substantially in the form of Exhibit E
hereto, which supplemental indenture shall be executed on behalf of such
Guarantor by an Officer of such Guarantor.


Each
Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
11.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each or any Note a notation of such Subsidiary Guarantee.


The
delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Guarantors.


SECTION 11.03.         Termination, Release and Discharge.


(a)           Upon
the sale or disposition of a Guarantor (by merger, consolidation, the sale of
its Capital Stock or the sale of all or substantially all of its assets), and
whether or not the Guarantor is the surviving corporation in such transaction,
to a Person which, after giving effect to such transaction, is not the Company
or a Restricted Subsidiary, and which sale or disposition is otherwise in
compliance with this Indenture (and for the avoidance of doubt, without regard
to the application of Section 11.03(b)), then (i) such Guarantor will be
automatically released from all its obligations under this Indenture and its
Subsidiary Guarantee, the Registration Rights Agreement and subject to
compliance with Section 10.03 the Security Documents to which it is a
party, (ii) such Subsidiary Guarantee will terminate and (iii) the Liens, if
any, on the Collateral encumbered by such Guarantor pursuant to the Security
Documents shall be released with respect to the Notes subject to compliance
with Section 10.03.  For the
avoidance of doubt, the provisions of Section 11.03(b) will have no
application to any sale or disposition of a Guarantor (by merger,
consolidation, the sale of its Capital Stock or the sale of all or substantially
all of its assets) described in this Section 11.03(a).


(b)           Except
as provided in a transaction covered by Section 11.03(a), the Company
will not permit any Guarantor to, directly or indirectly, consolidate with or
merge with or into any Person (other than the Company or another Guarantor),
unless:


(1)           (i) the resulting, surviving or
transferee Person will expressly assume, by supplemental indenture
substantially in the form of Exhibit E hereto, executed and
delivered to the Trustee, all the obligations of such Guarantor under its
Subsidiary Guarantee, this Indenture, the Registration Rights Agreement and the
Security Documents to which it is a party and shall cause such amendments,
supplements or other instruments to be executed, filed, and recorded in such
jurisdictions as may be required by applicable law to preserve and protect the
Liens on the Collateral owned by or transferred to the surviving entity,
together with such financing statements or other filings as may be required to
perfect any Liens in such Collateral which may be perfected by the filing of a
financing statement under the Uniform Commercial Code of the relevant states or
such other filing under similar statutes; and (ii) the Company will have
delivered to the Trustee 



 90
 









an Officers’ Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with this Indenture; or


(2)           the transaction is made in compliance
with Section 4.10.


(c)           Each
Guarantor will be deemed released from all its obligations under this
Indenture, its Security Documents, its Subsidiary Guarantee and the
Registration Rights Agreement, and such Subsidiary Guarantee will terminate,
upon (i) the Legal Defeasance of the Notes pursuant to the provisions of
Article VIII hereof or (ii) the liquidation or dissolution of such Guarantor.


(d)           Each
Guarantor will be released from its obligations under this Indenture, its
Security Documents, its Subsidiary Guarantee and the Registration Rights
Agreement if the Company designates such Guarantor as an Unrestricted
Subsidiary, and such designation complies with the other applicable provisions
of this Indenture.


(e)           Upon
delivery by the Company to the Trustee of an Officer’s Certificate and an
Opinion of Counsel to the effect that any of the foregoing has occurred, the
Trustee shall execute any documents reasonably required in order to evidence
the applicable release and termination.


SECTION 11.04.         Limitation on Guarantor Liability; Contribution.


For
purposes hereof, and notwithstanding any term or provision of this Indenture to
the contrary, the obligations of each Guarantor hereunder will be limited to
the lesser of (i) the aggregate amount of the Note Obligations of the Company
and (ii) the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the Note Obligations of such other Guarantor, result in the Note
Obligations of such Guarantor not constituting a fraudulent conveyance or
fraudulent transfer under federal, state or foreign law and not otherwise being
void or voidable under any similar laws affecting the rights of creditors
generally; provided that, it will
be a presumption in any lawsuit or other proceeding in which a Guarantor is a
party that the amount guaranteed pursuant to its Subsidiary Guarantee is the
amount set forth in clause (i) above unless any creditor, representative
of creditors of such Guarantor, or debtor in possession or trustee in
bankruptcy of such Guarantor, otherwise proves in such a lawsuit that the
aggregate liability of such Guarantor is the amount set forth in
clause (ii) above.  In making any
determination as to solvency or sufficiency of capital of a Guarantor in
accordance with the previous sentence, the right of such Guarantor to
contribution from other Guarantors as set forth below, and any other rights
such Guarantor may have, contractual or otherwise, shall be taken into account.


In
order to provide for just and equitable contribution among the Guarantors, the
Guarantors shall agree, inter se, that
in the event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) under its Subsidiary Guarantee, such
Funding Guarantor shall be entitled to a contribution from all other Guarantors
in a pro rata amount based on the net assets (determined in accordance with
GAAP) of each Guarantor (including the Funding Guarantor) for all payments,
damages and expenses incurred by that Funding Guarantor in discharging the
Company’s obligations with respect to the Notes or any other Guarantor’s
obligations with respect to its Subsidiary Guarantee.


 



 91















ARTICLE XII

MISCELLANEOUS


SECTION 12.01.         Trust Indenture Act Controls.


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), the duties imposed by TIA §318(c) shall control.


SECTION 12.02.         Notices.


Any notice or
communication by the Company, any Guarantor or the Trustee to the others is
duly given if in writing and delivered to the others’ address as follows:


If to the Company, any
Guarantor, any other Obligor or any Subsidiary of the Company:


c/o Britannia Bulk Plc.

Dukes House

32-38 Dukes Place

London EC3A 7LP

United Kingdom

Fax No.:  +44 (0) 20 7623 3233

Attention: Arvid Tage


If to the Trustee:


Wilmington Trust Company

Rodney Square North

1100 N. Market Street

Wilmington, Delaware 19890


Fax No.:  +1 302 636 4145

Attention: Corporate Trust Administration/Britannia Bulk


The Company, any
Guarantor, or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.


All notices and
communications (other than those sent to Holders) shall be deemed to have been
duly given:  (i) at the time delivered by
hand, if personally delivered; (ii) five Business Days after being deposited in
the mail, postage prepaid, if mailed; (iii) when answered back, if telexed;
(iv) when receipt acknowledged, if faxed; and (v) the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.


Any notice or
communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the
Registrar.  Any notice or communication
shall also be so mailed to any Person described in TIA § 313(c), to the extent
required by the TIA.  Failure to mail a
notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.


If a notice or
communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



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If the Company mails a
notice or communication to Holders, it shall mail a copy to the Trustee and
each Agent at the same time.


SECTION 12.03.         Communication by Holders of Notes with Other Holders
of Notes.


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under
this Indenture or the Notes.  The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA § 312(c).


SECTION 12.04.         Certificate and Opinion as to Conditions Precedent.


Upon any request or
application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:


(a)           an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been
satisfied; and


(b)           an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been
satisfied.


SECTION 12.05.         Statements Required in Certificate or Opinion.


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4))
shall comply with the provisions of TIA § 314(e) and shall include:


(a)           a statement that the Person making
such certificate or opinion has read such covenant or condition;


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


(c)           a statement that, in the opinion of
such Person, he or she 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 satisfied; and


(d)           a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been satisfied.


SECTION 12.06.         Rules by Trustee and Agents.


The Trustee may make
reasonable rules for action by or at a meeting of Holders.  The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.


SECTION 12.07.         No Personal Liability of Directors, Officers,
Employees and Stockholders.


No past, present or
future director, officer, employee, manager, incorporator, partner, member or
stockholder or other owner of Capital Stock of the Company or any of its
Subsidiaries, or of any member, partner or stockholder of any such entity, as
such, shall have any liability for any obligations of the Company or any
Guarantor under the Notes, this Indenture or the Security Documents or for any
claim 



 93
  
 









based on, in
respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.


SECTION 12.08.         Governing Law.


THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE
NOTES AND THE SUBSIDIARY GUARANTEES.


SECTION 12.09.         Submission to Jurisdiction; Service of Process.


The Company and
each Subsidiary Guarantor hereby irrevocably submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State Court sitting in the Borough of Manhattan in
New York City for purposes of all legal proceedings arising out of or relating
to this Indenture, the Notes, the Subsidiary Guarantees or the Security
Documents, or the transactions contemplated hereby or thereby.  The Company and each Subsidiary Guarantor
irrevocably waive, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.  The Company and each Subsidiary Guarantor
hereby irrevocably designates and appoints the CT Corporation System (“CT”) as such Person’s authorized
agent to receive and forward on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such court and
agrees that service of process in accordance with applicable law upon CT (or
any successor) at its office at 1633 Broadway, New York, New York 10019 (or
such other address in the Borough of Manhattan, the City of New York, as the
Company may designate by written notice to the other parties hereto) and
written notice of such service to the Company, mailed or delivered to the CT
Corporation System, 1633 Broadway, New York, New York 10019, shall be deemed in
every respect effective service of process upon the Company and, if applicable,
such Subsidiary Guarantor in any such suit, action or proceeding and shall be
taken and held to be valid personal service upon the Company.  Such designation and appointment shall be
irrevocable.  Nothing in this Section
12.09 shall affect the right of any party hereto to service process in any
manner permitted by law or limit the right of any party hereto to bring
proceeding against the Company or any Subsidiary Guarantor in the courts of any
jurisdiction or jurisdictions.  The
Company and each Subsidiary Guarantor further agree to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
of CT in full force and effect so long as this Indenture or any of the Notes
shall be outstanding; provided that the Company may and shall (to the extent CT
ceases to be able to be served on the basis contemplated herein), by written
notice to the Trustee, designate such additional or alternative agent for
service of process under this Section 12.09 that (a) maintains an office
located in the Borough of Manhattan, The City of New York in the State of New
York, (b) is either (i) counsel for the Company or (ii) a corporate service
company which acts as agent for service of process for other Persons in the
ordinary course of its business and (c) agrees to act as agent for service of
process in accordance with this Section 12.09.  Such notice shall identify the name of such
agent for process and the address of such agent for process in the Borough of
Manhattan, The City of New York, State of New York.  Upon the request of any Holder, the Trustee
shall deliver such information to such Holder. 
To the extent that the Company or any Subsidiary Guarantor has or
hereafter may acquire any immunity from jurisdiction or any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Company and each Subsidiary Guarantor hereby irrevocably
waive such immunity in respect of its obligations under this Indenture, the
Notes and the Subsidiary Guarantees, as applicable, to the extent permitted by
law.



 94
  
 









SECTION 12.10.         Indemnification for Foreign Currency Judgments.


(a)           The obligations of the Company or any
Subsidiary Guarantor to any Holder of Notes or the Trustee shall,
notwithstanding any judgment in a currency (the “Judgment
Currency”) other than United States dollars (the “Agreement Currency”), be discharged
only to the extent that on the first Business Day following receipt by such
Holder of Notes or the Trustee, as the case may be, of any amount in the
Judgment Currency, such Holder of Notes or the Trustee may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency in New York, New York.  If the
amount of the Agreement Currency that could be so purchased is less than the
amount originally to be paid to such Holder of Notes or the Trustee, as the
case may be, in the Agreement Currency, the Company and each Subsidiary
Guarantor agrees, as a separate obligation and notwithstanding such judgment,
to pay to such Holder of Notes or the Trustee, as the case may be, the
difference, and if the amount of the Agreement Currency that could be so
purchased exceeds the amount originally to be paid to such Holder of Notes or
the Trustee, as the case may be, such Holder of Notes or the Trustee, as the
case may be, agrees to pay to or for the account of the Company such excess,
provided that such Holder of Notes or the Trustee, as the case may be, shall
not have any obligation to pay any such excess as long as a default by the
Company or any Subsidiary Guarantor in its obligations in respect of its
obligations to pay when due any principal of, or interest, premium, if any,
Liquidated Damages, if any, or Additional Amounts, if any, on the Notes, or any
other amounts due under this Indenture or the Guarantees has occurred and is
continuing, in which case such excess may be applied by such Holder of Notes or
the Trustee, as the case may be, to such payment obligations.


(b)           The provisions of this Section
12.10 shall apply irrespective of any indulgence granted to the Company or
any Subsidiary Guarantor from time to time and shall continue in full force and
effect notwithstanding any payment by or on behalf of the Company or any
Subsidiary Guarantor, and any amount due from the Company under this Section
12.10 will be due as a separate payment and shall not be affected by any
judgment obtained or claims made for any other sums due under or in respect of
this Indenture.


SECTION 12.11.         No Adverse Interpretation of Other Agreements.


This Indenture may not be
used to interpret any other Indenture, loan or debt agreement of the Company or
its Subsidiaries or of any other Person. 
Any such Indenture, loan or debt agreement may not be used to interpret
this Indenture.


SECTION 12.12.         Successors.


Except as expressly
provided in this Indenture, all agreements of the Company in this Indenture and
the Notes shall bind its successors. 
Except as expressly provided in this Indenture, all agreements of each
Guarantor in this Indenture and the Subsidiary Guarantees shall bind its
successors.  All agreements of the
Trustee in this Indenture shall bind its successors.


SECTION 12.13.         Severability.


In case any provision in
this Indenture or in the Notes 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.



 95
  
 









SECTION 12.14.         Counterpart Originals.


The parties may sign any
number of copies of this Indenture, and each party hereto may sign any number
of separate copies of this Indenture. 
Each signed copy shall be an original, but all of them together represent
the same agreement.


SECTION 12.15.         Table of Contents, Headings, Etc.


The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.


SECTION 12.16.         Language of Notices, Etc.


Any request, demand,
authorization, direction, notice, consent, waiver or Act required or permitted
under this Indenture, the Notes or the Security Documents shall be in the
English language.



 96
  














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


SIGNATURES


Dated
as of November 16, 2006


	
   

  	
  BRITANNIA BULK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Chairman, Chief Executive Officer and Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary St Amand

  
	
   

  	
  Name:

  	
  Mary St Amand

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The Guarantors:

  
	
   

  	
   

  
	
   

  	
  GREAT BELT SHIPPING COMPANY, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FLAGSHIP MARITIME, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BALTIC NAVIGATION CO., S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page











 


	
  

  	
  NORTHERN STAR NAVIGATION, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRITANNIA BULK, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BBL DENMARK HOLDING A/S

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DANMAR SHIPPING, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRITANNIA BULKERS PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page











 


	
  

  	
  SVENDBORG SHIP MANAGEMENT A/S

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRITANNIA BULKER A/S

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SVENDBORG MARINE SURVEYORS A/S

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRITANNIA BULK DK A/S

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INSPECCIONES MARITIMAS S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arvid Tage

  
	
   

  	
  Name:

  	
  Arvid Tage

  
	
   

  	
  Title:

  	
  Director

  



 


Signature Page















SCHEDULE
A


SECURITY DOCUMENTS


1.                                       Vessel
Acquisition Account Agreement and Security Agreement dated as of November 16,
2006, by and between the Company and Wilmington Trust Company, in its capacity
as the Trustee.


2.                                       Securities
Account Control Agreement dated as of November 16, 2006, by and among the
Company, Wilmington Trust Company, in its capacity as the Trustee and
Wilmington Trust Company, in its capacity as the and the Securities
Intermediary.


3.                                       Deposit
Account Control Agreement dated as of November 16, 2006, by and among Britannia
Bulk plc, Wilmington Trust Company, in its capacity as the Trustee, and
Wilmington Trust Company, in its capacity as the Depositary.


4.                                       Owner’s
Mortgage Deed (“ejerpantebrev”), dated as of November 16, 2006, in each of
Bregninge II, Troense II, Vindeby II, Drejø II, Hjortø II, Siø II, Skarø II and
Iholm II (collectively, the “Danish Vessels”).


5.                                       Pledge
of Owner’s Mortgage Deed in Danish Vessels (“håndpantsætningserklæring”) in
favor of Wilmington Trust Company (the “Trustee”).


8.                                       Negative
pledge with regard to Vessels to be registered in the Danish Ship
Register/Danish International Ship Register dated as of November 16, 2006 (“Addendum
2”).


9.                                       Assignment
of Contract Rights and Receivables dated as of November 16, 2006, by and
between the Britannia Bulk DK A/S and the Trustee on behalf of the Finance
Parties.


10.                                 Assignment
of Insurances dated as of November 16, 2006, by and between the Britannia Bulk
DK A/S and the Trustee.


11.                                 Negative
pledges preventing mortgages according to the Danish Act on Public Registration
(Tinglysningsloven) dated as of November 16, 2006, concerning each of BBL
Denmark Holding A/S, Britannia Bulk DK A/S, Britannia Bulkers A/S, Svendborg
Ship Management A/S and Svendborg Marine Surveyors A/S.


12.                                 First
Preferred Ship Mortgages dated as of November 16, 2006, as to each of M.V.
Discovery II, M.V. Challenger II, M.V. Explorer II, M.V. Adventure II and M.V.
Voyager II (collectively the “Panamanian Vessels”) to be executed by the
respective owner of such Panamanian Vessel.


13.                                 Assignment
of Earnings dated as of November 16, 2006, as to each Panamanian Vessel to be
executed by the respective owner of such Panamanian Vessel.


14.                                 Assignment
of Insurance dated as of November 16, 2006, as to each Panamanian Vessel to be
executed by the respective owner of such Panamanian Vessel.


15.                                 Power
of Attorney dated as of November 16, 2006, from Wilmington Trust Company to
Philips & Partners law firm.











EXHIBITS


Exhibit A                                               FORM OF NOTE


Exhibit B                                                 FORM OF
CERTIFICATE OF TRANSFER


Exhibit C                                                 FORM OF
CERTIFICATE OF EXCHANGE


Exhibit D                                                FORM OF
CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


Exhibit E                                                  FORM OF
SUPPLEMENTAL INDENTURE — ADDITIONAL SUBSIDIARY GUARANTEES


 















EXHIBIT
A


(Face
of Note)


THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF
SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE.  THE ISSUE DATE OF THIS SECURITY IS NOVEMBER
16, 2006 AND THE YIELD IS 12.75%, COMPOUNDED SEMI-ANNUALLY UP TO DECEMBER 1,
2011.  FOR EACH $1,000 PRINCIPAL AMOUNT
AT MATURITY OF THIS NOTE, THE ISSUE PRICE IS $936.22 AND THE TOTAL ORIGINAL
ISSUE DISCOUNT OVER THE TERM OF THIS NOTE IS $63.78.


[Insert the Global Note Legend, if applicable, pursuant to the provisions
of the Indenture]


[Insert the
Private Placement Legend, if applicable, pursuant to the provisions of the
Indenture]



 A-1
 








CUSIP/ISIN                     


11%
Senior Secured Notes due 2011


No. [    ]                                                                                                                                                                                $                


BRITANNIA
BULK PLC


For
value received, Britannia Bulk Plc, a public limited company incorporated under
the laws of England and Wales, promises to pay to                                                         


or
registered assigns,


the
principal sum of                                                             


U.S.
dollars [in Global Note -, as revised by the
Schedule of Exchanges of Interests in the Global Note attached hereto] on December 1, 2011.


Interest
Payment Dates: December 1 and June 1, commencing June 1, 2007.


Record
Dates:  May 15 and November 15.


Additional
provisions of this Note are set forth in the other side of this Note.


IN
WITNESS WHEREOF, Britannia Bulk Plc has caused this Note to be duly signed and
delivered by its duly authorized office.


	
   

  	
  BRITANNIA BULK PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  




 A-2
 








TRUSTEE’S CERTIFICATE

OF AUTHENTICATION


This
is one of the 11% Senior Secured Notes due 2011 referred to in the
within-mentioned Indenture:


	
  WILMINGTON TRUST COMPANY

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  Dated:

  
	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  




 A-3
 








(Back of Note)


11%
Senior Secured Notes due 2011


Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.


1.             Interest.  Britannia Bulk Plc, a public limited company
incorporated under the laws of England and Wales, (the “Company”), promises to pay interest on the principal
amount of this Note at a rate of 11% per annum. 
The Company will pay interest and Additional Interest, if any,
semi-annually in arrears on June 1 and December 1 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”), and at maturity, provided that the first Interest Payment
Date shall be June 1, 2007.  Interest on
the Notes will accrue from the most recent date to which interest has been paid
on the Notes or, if no interest has been paid on the Notes, from November 16,
2006.  The Company shall pay interest
(including post-petition interest in any proceeding under the Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at
1% over the rate borne on the Notes; it shall pay interest (including
post-petition interest in any proceeding under the Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to
any applicable grace periods) from time to time on demand at 1% over the same
rate, in each case, to the extent lawful. 
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


2.             Method
of Payment.  The Company will
pay interest on the Notes (except defaulted interest) and Additional Interest
to the Persons who are registered Holders of Notes at the close of business on
the May 15 and November 15 next preceding the Interest Payment Date,
even if such Notes are canceled on registration of transfer or exchange after
such record date and on or before such Interest Payment Date, except as
provided in Section 2.13 of the Indenture with respect to defaulted
interest.  The Notes will be payable as
to principal, premium and Additional Interest, if any, and interest at the
office or agency of the Company maintained for such purpose within the United
States of America, or, at the option of the Company, payment of interest and Additional
Interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of, and
interest, premium and Additional Interest on, all Global Notes.  Such payment shall be 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.


3.             Paying
Agent and Registrar. 
Initially, Wilmington Trust Company, the Trustee under the Indenture,
will act as Paying Agent and Registrar. 
The Company may change any Paying Agent or Registrar without notice to
any Holder.  The Company or any of its
Subsidiaries may act in any such capacity.


4.             Indenture.  The Company issued the Notes under an
Indenture dated as of November 16, 2006 (“Indenture”) between the Company, the
Guarantors and the Trustee, as the same may be amended, modified or
supplemented from time to time.  The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code §§ 77aaa-77bbbb).  The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. 
To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling to the extent not prohibited by applicable law.


5.             Optional
Redemption.  The Notes may be
redeemed at the Company’s option to the extent and at the prices set forth in
Article III of the Indenture.



 A-4
 








6.             Notice
of Redemption.  Notice of
redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address.  Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed.  On and after the redemption date, interest and
Additional Interest, if any, cease to accrue on Notes or portions thereof
called for redemption.


7.             Mandatory
Redemption.  The Company shall
not be required to make mandatory redemption payments with respect to the
Notes, but may be required to offer to purchase Notes as described in the
Indenture.


8.             Collateral
and Security.  The Notes and
the Subsidiary Guarantees will be secured by first priority Liens on Collateral
(subject to Permitted Collateral Liens), granted to the Trustee for the benefit
of the Holders of the Notes, as provided in the Indenture and the Security
Documents.


9.             Repurchase
at Option of Holder.


(a)           The Indenture
provides that upon the occurrence of a Change of Control or an Asset Disposition
and in certain other circumstances specified in the Indenture, and subject to
further limitations contained therein, the Company shall make an offer to
purchase outstanding Notes in accordance with the procedures set forth in the
Indenture.


(b)           Holders of Notes
that are the subject of such an offer to purchase will receive a notice from
the Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase”
on the reverse of the Notes.


10.           Denominations,
Transfer, Exchange.  The Notes
are in registered form without coupons in minimum denominations of $100,000 and
integral multiples of $1,000.  The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture.  The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.  The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part.  Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.


11.           Persons
Deemed Owners.  The registered
Holder of a Note may be treated as its owner for all purposes.


12.           Amendment,
Supplement and Waiver. 
Without the consent of any Holder of a Note, the Indenture, the Notes
and the Security Documents may be amended or supplemented by the Company,
Guarantors and the Trustee for certain specified purposes, including among
other things, to cure any ambiguity, omission, defect or inconsistency, to
maintain the qualification of the Indenture under the TIA, and to make changes
that do not adversely affect the rights of any Holder.  Subject to certain exceptions requiring the
consent of all Holders of the particular Notes to be affected, the Indenture,
the Notes and the Security Documents may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes.


13.           Restrictive
Covenants.  The Indenture
imposes certain limitations on the ability of the Company, the Guarantors and
the Restrictive Subsidiaries to, among other things, Incur additional
Indebtedness, make payments in respect to their Capital Stock or certain
Indebtedness, make certain



 A-5
 








Investments, create or incur Liens, engage in certain activities, enter
into transactions with Affiliates, enter into agreements restricting the
ability of Restricted Subsidiaries to pay dividends or make distributions,
merge or consolidate with other Persons or transfer assets.  Such limitations are subject to a number of
important qualifications and exceptions. 
Pursuant to Section 4.04 of the Indenture, the Company must
annually report to the Trustee on compliance with such limitations.


14.           Defaults
and Remedies.  Events of Default
are set forth in the Indenture.  Subject
to certain limitations, if an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare the Accreted Value of all the Notes to be due and
payable immediately.  Notwithstanding the
foregoing, if an Event of Default arises from certain events of bankruptcy or
insolvency, the Accreted Value of all outstanding Notes will become due and
payable without further action or notice. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  Under certain
circumstances, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event
of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest on, or the principal of, the
Notes.  The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.


15.           Trustee
Dealings with Company.  The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for, the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not the
Trustee.


16.           No
Recourse Against Others.  A
director, officer, employee, manager, incorporator, partner, member or stockholder
of the Company or any Subsidiary of the Company or any Guarantor, as such,
shall not have any liability for any obligations of the Company or Guarantors
under the Notes, the Subsidiary Guarantees, the Indenture or the Security
Documents or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder by accepting a Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of the Notes.


17.           Subsidiary
Guarantees.  The Notes will be
entitled to the benefits of certain Subsidiary Guarantees that may be made for
the benefit of the Holders.  Reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors, the
Trustee and the Holders.


18.           Security Documents.  The Note will be entitled to the benefits of
the Security Documents described in the Indenture, subject to the limitations
therein.


19.           Authentication.  This Note shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.


20.           Abbreviations.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT
TEN (=joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).



 A-6
 








21.           Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.  In addition to the rights provided to Holders
of Initial Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of November 16, 2006, among the Company and the parties
named on the signature pages.


22.           CUSIP
Numbers.  Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and
the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders.  No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture, the Registration Rights Agreement and/or the Security
Documents.  Requests may be made to:


Britannia Bulk Plc


Dukes House


32-38 Dukes Place


London  EC3A 7LP


United Kingdom


Attention:  Chief Executive Officer


23.           Governing
Law.  THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS NOTE.



 A-7
 








Assignment Form


To assign this Note, fill in
the form below:  (I) or (we) assign and
transfer this Note to


 


(Insert
assignee’s soc. sec. or tax I.D. no.)


(Print
or type assignee’s name, address and zip code)


and
irrevocably appoint                                                                                                                      
to transfer this Note on the books of the Company.  The agent may substitute another to act for
him.


	
  Date:

  	
   

  
	
  Your Signature:

  	
   

  	
   

  
			



(Sign
exactly as your name appears on the face of this Note)


SIGNATURE GUARANTEE


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.



 A-8
 








Option
of Holder to Elect Purchase


If
you want to elect to have this Note purchased by the Company pursuant to 4.10
or 4.17 of the Indenture, check the box below:


oSection 4.10       oSection 4.16       oSection 4.17       oSection 4.18


If
you want to elect to have only part of the Note purchased by the Company
pursuant to  Section 4.10 or
Section 4.16, 4.17 or 4.18 of the Indenture, state the amount you elect to
have purchased:


$                                                                


	
  Date:

  	
   

  
	
  Your Signature:

  	
   

  	
   

  
			



(Sign
exactly as your name appears on the face of the Note)


Tax
Identification No.:                                                                                                                                             


SIGNATURE
GUARANTEE


Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.



 A-9
 








SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE***


The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:


	
  Date of

  Exchange

  	
   

  	
  Amount of

  decrease in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Amount of

  increase in

  Principal

  Amount of this

  Global Note

  	
   

  	
  Principal

  Amount of this

  Global Note

  following such

  decrease (or

  increase)

  	
   

  	
  Signature of

  authorized

  signatory of

  Trustee or Note

  Custodian

  



 



 A-10














EXHIBIT
B


FORM
OF CERTIFICATE OF TRANSFER


Britannia Bulk Plc


Dukes House


32-38 Dukes Place


London  EC3A 7LP


United Kingdom


Attention:  Chief Financial
Officer


 


Wilmington
Trust Company


Rodney
Square North


1100
N. Market Street


Wilmington,
Delaware 19890


Fax
No.: +1 302 636 4145


Attention:
Corporate Trust Administration/Britannia Bulk


Re: Britannia
Bulk Plc 11% Senior Secured Notes due 2011


Reference
is hereby made to the Indenture, dated as of November 16, 2006 (the “Indenture”), between Britannia Bulk Plc, as issuer (the “Company”), and Wilmington Trust Company, as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


                         
(the “Transferor”), owns and proposes to
transfer the Note[s]
or interest in such in such Note[s] specified in Annex A hereto, in the principal amount of $              
in such Note[s]
or interests (the “Transfer”), to                     
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


[CHECK
ALL THAT APPLY]


1.             o  Check if
Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Restricted Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the Transferor
hereby further certifies that the beneficial interest or Definitive Note is
being transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United
States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.


2.             o  Check
if Transferee will take delivery of a beneficial interest in the
Regulation S Global Note or a Restricted Definitive Note pursuant to
Regulation S.  The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was 



 B-1
 








outside the United States or (y) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act and (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser).  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.


3.             o  Check
and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


(a)           o  such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;


or


(b)           o  such
Transfer is being effected to the Company or a subsidiary thereof;


or


(c)           o  such
Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act; or


(d)           o  such
Transfer is being effected to an accredited investor within the meaning of Rule
(501)(a)(1), (2), (3) or (7) under the Securities Act (“Institutional
Accredited Investor”) or pursuant to another exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by, if the Transfer is to an Institutional
Accredited Investor, a certificate executed by the Transferee in the form of
Exhibit D to the Indenture.  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.


4.             o  Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.


(a)           o  Check
if Transfer is pursuant to Rule 144.  (i)
The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or 



 B-2
 








Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.


(b)           o  Check
if Transfer is Pursuant to Regulation S. 
(i) The transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.


(c)           o  Check
if Transfer is Pursuant to Other Exemption. 
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. 
Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.


	
   

  	
   

  
	
  [Insert Name of Transferor]

  	
   

  



 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 



 B-3
 








ANNEX
A TO CERTIFICATE OF TRANSFER


1.             The Transferor owns and proposes to
transfer the following:


[CHECK
ONE OF (a) OR (b)]


(a)           o  a
beneficial interest in the:


(i)            o  144A Global Note
(CUSIP                         ),
or


(ii)           o  Regulation S
Global Note (CUSIP                         );
or


(iii)          o  IAI Global Note
(CUSIP                           );
or


(b)           o  a
Restricted Definitive Note.


2.             After the Transfer the Transferee
will hold:


[CHECK
ONE]


(a)           o  a
beneficial interest in the:


(i)            o  144A Global Note
(CUSIP                        ),
or


(ii)           o  Regulation S
Global Note (CUSIP                        ),
or


(iii)          o  IAI Global Note
(CUSIP                          );
or


(iv)          o  Unrestricted
Global Note (CUSIP                         );
or


(b)           o  a
Restricted Definitive Note.


(c)           o  an
Unrestricted Definitive Note,


in
accordance with the terms of the Indenture.


 



 B-4














EXHIBIT
C


FORM
OF CERTIFICATE OF EXCHANGE


Britannia
Bulk Plc


Dukes House


32-38 Dukes Place


London  EC3A
7LP


United Kingdom


Attention:  Chief Financial Officer


Wilmington
Trust Company


Rodney
Square North


1100
N. Market Street


Wilmington, Delaware 19890


Fax
No.:  +1 302 636 4145


Attention: Corporate Trust Administration/Britannia
Bulk


Re:  Britannia
Bulk Plc 11% Senior Secured Notes due 2011


(CUSIP/ISIN)


Reference is hereby made to the Indenture, dated as of
November 16, 2006 (the “Indenture”),
between Britannia Bulk Plc, as issuer (the “Company”)
and Wilmington Trust Company, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


                      (the
“Owner”) owns and proposes to exchange
the Note[s] or interest
in such Note[s]
specified herein, in the principal amount of                     
in such Note[s]
or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


Exchange of
Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note
for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted
Global Note


(a)           o   Check
if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as amended
(the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being acquired
in compliance with any applicable blue sky securities laws of any state of the
United States.


(b)           o   Check if
Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note.  In connection with the Owner’s
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note,
the Owner hereby certifies (i) the Unrestricted Definitive Note is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted 



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Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


	
  

  	
   

  
	
  [Insert Name of
  Owner]

  	
   

  



 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 



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EXHIBIT
D


FORM
OF CERTIFICATE FROM ACQUIRING 

INSTITUTIONAL ACCREDITED INVESTOR


[Note:  As of the Issue Date, no CUSIP or ISIN number
has been obtained 

for an IAI Note, and, among other conditions, the Note contemplated in this
Form 

will require the issuance of a separate CUSIP/ISIN number]


Britannia Bulk Plc


Dukes House


32-38 Dukes Place


London  EC3A 7LP


United Kingdom


Attention:  Chief Financial Officer


Wilmington
Trust Company


Rodney
Square North


1100
N. Market Street


Wilmington,
Delaware 19890


Fax
No.:  +1 302 636 4145


Attention:
Corporate Trust Administration/Britannia Bulk


Re:
Britannia Bulk Plc 11% Senior Secured Notes due 2011


Reference
is hereby made to the Indenture, dated as of November 16, 2006 (the “Indenture”), between Britannia Bulk Plc, as issuer (the “Company”), and Wilmington Trust Company, as trustee.  Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


In
connection with our proposed purchase of $            
aggregate principal amount of:


(a)           o            a beneficial interest in a Global
Note, or


(b)           o            a Definitive Note,


we
confirm that:


1.                                       we are an “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the “Securities Act”),
or an entity in which all of the equity owners are accredited investors within
the meaning of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act (an “institutional accredited investor”);


2.                                       (A) any
purchase of the Notes by us will be for our own account or for the account of
one or more other institutional accredited investors or as fiduciary for the
account of one or more trusts, each of which is an “accredited investor” within
the meaning of Rule 501(a)(7) under the Securities Act and for each of which we
exercise sole investment discretion or (B) we are a “bank,” within the meaning
of Section 3(a)(2) of the Securities Act, or a “savings and loan
association” or other institution described in Section 3(a)(5)(A) of the
Securities Act that is acquiring Notes as fiduciary for the account of one or
more institutions for which we exercise sole investment discretion;



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3.                                       we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of purchasing Notes;


4.                                       we are not
acquiring the Notes with a view to any distribution thereof in a transaction
that would violate the Securities Act or the securities laws of any State of
the United States or any other applicable jurisdictions, provided that the
disposition of our property and the property of any accounts for which we are
acting as fiduciary shall remain at all times within our control;


5.                                       we have
received a copy of the Offering Circular relating to the offering of the Notes
and acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase the Notes; and


6.                                       (A) we are not
an employee benefit plan or other arrangement that is subject to the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, or an entity whose underlying assets
include assets of such a plan or arrangement (pursuant to 29 C.F.R.
Section 2510.3-101 or otherwise), and we are not purchasing (and will not
hold) the Notes on behalf of, or with the assets of, any such plan, arrangement
or entity; or (B) our purchase and holding of the Notes are completely covered
by the full exemptive relief provided by U.S. Department of Labor Prohibited
Transaction Class Exemption 96-23, 95-60, 91-38, 90-1 or 84-14.


We
understand that the Notes were offered in a transaction not involving any
public offering in the United States within the meaning of the Securities Act
and that the Notes have not been registered under the Securities Act or any
state securities laws, and they were offered for resale in transactions not
requiring registration under the Securities Act.  We agree, on our own behalf, and on behalf of
each account for which we acquire any Notes, that if in the future we decide to
offer, resell, pledge or otherwise transfer such Notes, such Notes may be
offered, resold, pledged or otherwise transferred only (a) to the Company or a
subsidiary thereof, (b) pursuant to an effective registration statement under
the Securities Act, (c) inside the United States to a person who is a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A, (d) inside the United
States, to an institutional accredited investor that, prior to such transfer,
furnishes to the trustee, a signed letter similar to this letter containing
certain representations relating to restrictions on transfer of the note
evidenced hereby, (e) pursuant to offers and sales to Non-U.S. Persons that
occur outside the United States within the meaning of Regulation S under
the Securities Act, or (f) pursuant to another available exemption from the
registration requirements of the Securities Act, and, in each case, in
accordance with any applicable securities laws of any State or any other
applicable jurisdiction and in accordance with the legends set forth on the
Notes.  We further agree to provide any
person purchasing any of the Notes other than pursuant to clause (b) above
from us a notice advising such purchaser that resales of such securities are
restricted as stated herein.  We
understand that the registrar and transfer agent for the Notes will not be
required to accept for registration of transfer any Notes, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with.  We further understand that any Notes we
receive will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph.


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


We acknowledge that you and the Company will rely upon the truth and
accuracy of our acknowledgments, confirmations and agreements in this
letter.  Further, we acknowledge and
agree that you and the Company are irrevocably authorized to produce this
letter or a copy hereof to any interested



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party in any administrative
or legal proceedings or, official inquiry with respect to the matters covered
hereby.


	
  

  	
   

  	
   

  
	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Dated:

  	
   

  



 


 



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EXHIBIT
E


FORM
OF SUPPLEMENTAL INDENTURE


ADDITIONAL SUBSIDIARY
GUARANTEES


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as
of             , 20   
among Britannia Bulk Plc, a public limited company incorporated under the laws
of England and Wales (the “Company”), [name of Guarantor] (the “Guarantor”), and Wilmington Trust Company, as trustee under
the Indenture referred to below (the “Trustee”).  Capitalized terms used herein and not defined
herein shall have the meaning ascribed to them in the Indenture (as defined
below).


W
I T N E S S E T H


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an Indenture
(as amended, supplemented and in effect, the “Indenture”), dated as of
November 16, 2006, providing for the issuance of its 11% Senior Secured
Notes due 2011;


WHEREAS,
Article XI of the Indenture provides that under certain circumstances the
Company may or must cause certain of its Subsidiaries to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Subsidiaries shall
unconditionally guarantee all of the Company’s Obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth
herein; and


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
New Guarantor and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:


1.             Capitalized Terms.  Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.


2.             Agreement to Guarantee.  The Guarantor hereby agrees, jointly and
severally with all other Guarantors, to unconditionally guarantee the Company’s
obligations under the Notes and the Indenture on the terms and subject to the
conditions set forth in Article XI of the Indenture and to be bound by all of
the provisions of the Indenture applicable to a Guarantor thereunder and to
perform all of the obligations and agreements of a Guarantor under the
Indenture.


3.             No Recourse Against Others.  No past, present or future director, officer,
employee, manager, incorporator, partner, member, agent, shareholder or other
owner of Capital Stock of any Guarantor, as such, shall have any liability for
any obligations of the Company or any Guarantor under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation.  Each Holder by accepting a Note waives and
releases all such liability.  The waiver
and release are part of the consideration for issuance of the Notes.



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4.             NEW YORK LAW TO GOVERN.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.


5.             Severability Clause.  In case any provision of this Supplemental
Indenture 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 and such provision shall be ineffective only to the extent
of such invalidity, illegality or unenforceability.


6.             Ratification of Indenture;
Supplemental Indentures Part of Indenture. 
Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall
remain in full force and effect.  This
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of the Notes heretofore or hereafter authenticated and delivered
shall be bound hereby.


7.             Counterparts.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.


8.             Effect of Headings.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


9.             The Trustee.  The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the correctness of the recitals
of fact contained herein, all of which recitals are made solely by the New
Guarantor.


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and delivered, all as of the date first above written.


	
   

  	
  BRITANNIA BULK PLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [EXISTING
  GUARANTORS]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [NEW
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				




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  WILMINGTON TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 



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